Munnalal Thakore Vs. The State of Gujarat
IN THE HIGH COURT OF GUJARAT
Criminal Appeal Nos. 1407 and 1408 of 1984
Decided On: 15.02.1995
Appellants: Munnalal Tarachand Thakore
Vs.
Respondent: The State of Gujarat
Hon'ble Judges/Coram:
J.N. Bhatt, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Akshay H. Mehta, Advocate
For Respondents/Defendant: S.P. Dave, APP, Nitin M. Amin, Naina Panchal and B.N. Raval, Advocates
JUDGMENT
J.N. Bhatt, J.
1. Since common questions have arisen between the common parties in these two appeals filed by the appellant-complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 ('the Code' for short), they are being disposed of by this common judgment, upon a joint request.
2. With a view to appreciating the merits of both the acquittal appeals, the factual metrix giving rise to these appeals may be narrated first. The appellant is the original complainant. The respondents, other than the State of Gujarat, in both the appeals are the original accused persons. For the sake of convenience, they are referred to as the complainant and the accused persons.
3. The original complainant filed two criminal complaints before the learned J.M.F.C., Godhra contending that the accused persons are guilty of offences punishable under Sections 500, 501, 502 read with Section 114 of the IPC. Criminal Complaint No. 2425 of 1981 came to be filed against four accused persons who are respondents in Criminal Appeal No. 1497 of 1984. Original Accused No. 1 Chimanbhai Somabhai Patel is the editor of daily newspaper Sandesh; original accused No. 2 Falgunbhai Chimanbhai Patel is the printer and publisher of Sandesh newspaper; original accused No. 3 Mansukhlal Mohanlal Narkar is the reporter and correspondent of Sandesh newspaper and original accused No. 4 Ram Sajiwan Tiwari is the constable of railway protection force. Original accused No. 5 Chhaganji Mohanji Sainik is also a constable of the railway protection force. Thus, the first complaint was filed against five accused persons.
4. In the second complaint being Criminal Case No. 2426 of 1981, there are five accused persons. Original accused No. 1 Mr. Shreyans Shantilal Shah is the Managing Director and accused No. 2 Mr. Shantilal Amrutlal Shah is the editor and accused No. 3, Mr. Mansukhbhai Mohanlal Narkar is the reporter and correspondent of daily newspaper Gujarat Samachar. Accused Nos. 4 and 5 are common in the second complaint. Thus, two criminal cases came to be filed under the provisions of Sections 500, 501 and 502 read with Section 114 of the IPC against the accused persons on the ground that they are guilty in view of publication of a defamatory report in Sandesh and Gujarat Samachar daily newspapers. The impugned report published in Sandesh is produced at Ex. 47. It is dated 22-10-1981 and the same report was published in Gujarat Samachar earlier on 16-10-1981 which is produced at Ex. 17. The exact version of the impugned report in the aforesaid two newspapers is as follows:
"On one hand, trains are discontinued often because of shortage of coal, while ton the other hand, the railway staff is found selling coal openly. Some time back, the train going from Khambhat Railway station to Anand had started six hours late over a dispute of coal. The same driver selling coal to the person outside was arrested when he was driving 60 up passenger train from Khambhat to Anand, after taking it at Petlad station after disconnecting the engine while going to fill the water, and the police officer on duty had arrested the person a going with coal and made a case and had sent him to jail. Railway has made a case against driver Shri Munnabhai and the fireman Mustafa in this connection and investigation is going on."
5. The complainant filed the aforesaid two complaints inter alia contending that the aforesaid news item and report published in the two daily newspapers is totally false and highly defamatory . That the impugned news item is alleged to have been published at the instance of original common accused No. 4-Ram Sajiwan Tiwari and accused No. 5-Chhaganlal Mohanji Sainik, who were serving in the railway protection force at Petlad at the relevant time and out of malice which came to be published without proper verification. The complainant relied on his evidence and on the evidence of three other witnesses to prove the charges against the accused. On appreciation of the facts and circumstances and the evidence on record, the Trial Court found the accused not guilty in each case and, therefore, passed the impugned orders of acquittal on 24-4-1984. Being aggrieved by the said judgments and orders of acquittal granted to the accused persons, the original complainant has now come up before this Court challenging their legality and validity by filing these two appeals by invoking the aids of provisions of Section 378 of the Code.
6. During the course of hearing of these appeals, the learned Advocate for the appellant did not appear and remain present though called out repeatedly. These two appeals are very old and they were called out many times during the course of this sitting which commenced from 9-1-1995. Considering the fact that the matters are very old, they are, therefore, being also disposed of on merits after hearing the learned APP for the State, learned Advocates for original No. 4, learned Advocate Mr. Nitin Amin for original accused Nos. 1 and 2 and considering the original record of the case.
7. The main grievance of the original complainant in both the criminal cases has been that incriminating views report is got published by original accused Nos. 4 and 5 out of malice and the editors and publishers published the same without verifying the truth and, therefore, they are all guilty. It is also his case in the complaints that the aforesaid incriminating news report published in the two daily newspapers is per se defamatory and, therefore, the accused persons are liable to be punished for the offences punishable under Sections 500, 501 and 502 read with Section 114 of the IPC. At the stage of admission, leave was refused for appeal under Section 378 of the Code against original accused No. 5-Chhaganji Mohanji Sainik. The Trial Court, on assessment and appraisal of the evidence led by the prosecution, has observed that the accused persons are entitled to the provisions of Exceptions incorporated in First and Ninth Exceptions of Section 499 of the IPC. Giving benefit of First and Ninth Exceptions of Section 499, the accused persons are acquitted from the said charges against them. Therefore, it would be necessary to refer to the relevant provisions of Section 499. Section 499 in Chapter XXI of the IPC defines the a expression 'defamation'. There are four Explanations and ten Exceptions. It could very well be seen from the provisions of Section 499 that the main thrust and the essence of definition of 'defamation' consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creature, and these inconveniences to which a person who is the object of such unfavourable sentiments is exposed. Section 499 requires the following three ingredients:
1. Making or publishing any imputation concerning any person. (2) Such imputation must have been made by-(a) words, either spoken or intended to be read; (b) signs, or (c) visible representations. 3. Such imputation must have been made with the intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerning whom it is made.
8. It is true that in the matter of defamation, the position of newspaper is not in any way different from that of member of the public in general. The responsibility in either case is the same. The publisher of a newspaper is responsible for defamatory matter published in such paper whether he knows the contents of such paper or not. The person who publishes the imputation need not necessarily be the author of the imputation. The person who publishes and the person who makes an imputation are alike guilty. It may be mentioned that in Sevakram v. R.K. Karanjiva, MANU/SC/0219/1981 : AIR 1981 SC 1514, the Apex Court has held that:
"Journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under First Exception unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant facts in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith."
9. The Trial Court has acquitted the accused persons finding that incriminatory news item is covered by First and Ninth Exceptions of Section 499 of the IPC. Obviously, it is for the accused to plead all Exceptions in defence and discharge the burden to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for public good. It is also a settled proposition of law that for claiming benefit or protection arising out of the Ninth Exception, the accused to establish either by leading evidence or by showing material from the record that publication of the impugned defamatory item or writing was for public good. In this context, the following questions would obviously emerge in the light of settled proposition of law:
(1) "Was the article published after exercising due care and circumspection? (2) Did the author of the articles satisfy himself that there were reasonable grounds to believe that the imputations made by him were true? (3) What was the object of publishing such a report or news? (4) Was it aimed at to surface the truth for the information of general public? (5) What steps did the author take to satisfy himself about the authenticity of the report and its contents? (6) Was the imputation the result of any personal ill-will or malice which the author bore towards the complainant? (7) Was it the result of any ill-will or malice which the author bore towards the political group to which the complainant belonged? (8) Was the article merely intended to malign and scandalise the complainant or the party to which he belonged? (9) Was the article to expose the malpractice of railway administration which, permitted loss of coal, money and long delay in schedule of trains? (10) Was the article intended to expose the despicable character of persons who were public servants? (11) Was the article merely intended to provide salacious reading material for readers who had a peculiar taste for scandals? (12) Was it tainted with personal bias or grudge? (13) Was the article based entirely on the report of the Reporter or was there any other material before the author? (14) Was it an outcome of any group or political rivalry or was only for public good pure and simple? (15) Did he act with reasonable car; and with a scene or responsibility and property? (16) These and several other questions may arise for consideration, depending on the stand taken by the accused at the trial and how the complainant desires to counter the defence. Thus, it is clear from the plain perusal of Section 499 that for the benefit of First Exception imputation should be true. The remaining exceptions do not require it to be so. They only require that it should be made in a good faith. When truth is set up as defence, it must extend to the entire libel and it is not sufficient that only a part of the libel is proved to be true. The truth of the imputation complained of shall amount to a defence, if it was for the public benefit that the imputation should be published, but not otherwise. A court may find that an imputation is true, and made for the public good but on considering the manner of the publication, it may hold that the particular publication is not for the public good, and is, therefore, not privileged. A privilege does not justify publication in excess of the purpose or object which gives rise to it. If, in addition to statements, which would be protected, a person goes further and makes false and uncalled for statements, he cannot then be regarded as acting in good faith. To get the benefit of this exception the accused must prove that the statement made by him is true in its substance and effect and not in part. Whether or not the statement was made for public good, an enquiry must be directed to ascertain that the publication has rendered or sought to render to the public or to a section of the public and benefit and whether the matter did concern the public as such.
10. Having examined the facts and the circumstances and the evidence on record, the provisions of First Exception to Section 499 of IPC would not be attracted. The material ingredients attracting benefit of the provisions of First Exception to Section 499 are not shown to have existed or are not spelt out from the record of the case. This Court, therefore, has no hesitation in finding that the facts on record in both the criminal cases do not, as such, warrant or attract the benefit of First Exception to the accused persons, with the result, the view of the Trial Court that the accused persons are entitled to benefit of First Exception is not supportable.
11. The Trial Court has also observed that the accused persons are entitled to Ninth Exception which reads as under:
"It is not defamation to move an imputation of the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good."
12. It can very well be seen from the aforesaid provision incorporated in Ninth Exception that the accused is obliged to show that the person to whom the imputation is made has interest in protecting the person making accusation. Besides, the bona fide of the person making the imputation, the person to whom the imputation is conveyed must have a common interest with the person making it which is served by the communication. The interest of the person referred to in this Exception has to be real and legitimate when communication is made in protection of the interest of the person making it. The privilege extends only to a communication upon the subject with respect to which the privilege extends and the privilege can be claimed in exercise of the right or safeguard of the interest which creates the privilege. The Ninth Exception, therefore, protects, under certain circumstances, imputations concerning the character of another. It relates to communication which a person makes, in good faith, for the protection of his own interests or of any other person or for the public good. This Exception refers to any imputation made in good faith, whereas the First Exception applies only to true imputation made for the public good. It must be shown by the accused that he acted in good faith. No doubt, the question of good faith is a question of fact and has to be determined and adjudicated upon in the light of attending circumstances and the facts emerging from the record of a given case. It may be appreciated that the standard of care and caution required by the expression 'good faith' also varies from the circumstances of each case. In order to establish good faith and bona fides, the court is required to consider first the circumstances under which the defamatory matter or incriminating article was written or published; secondly, whether there was any malice; thirdly, whether the accused made any inquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution, and finally, whether there is preponderance of probability that the accused acted in good faith.
13. It is a settled proposition of law that whether or not good faith has been established by the accused, person is a question of fact.
14. The court has taken the view that the accused persons are entitled to the benefit of Ninth Exception which does not seem to be unreasonable, unjust or erroneous. The view is based on appreciation of oral and documentary evidence. Ninth Exception to Section 499 provides that it is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. Incriminatory news item published in daily newspapers Gujarat Samachar and Sandesh is found to have been made for public good and in the interest of public without any malice. It should again be appreciated that truth of such imputation is not the essence of the Ninth Exception unlike First Exception to Section 499. It cannot be contended that it must be shown that the impugned statement or incriminatory or defamatory writing or items not shown to be true. There is distinction between requirement of First Exception and Ninth Exception to Section 499. It is, therefore, not necessary to consider whether the accused had strictly proved the allegations made by them. In Sandesh, clarification of the impugned statement is also made and published, on 26th October 1981.
15. "Good faith" is defined by Section 52 of the IPC according to which nothing is said to be done or believed in good faith which is done or believed without due care and attention. The definition of good faith given here is merely a negative one. It does not define 'good faith'. It says that an act is only done in good faith if it is done with due care and attention. The phrase 'due care and attention' implies genuine effort to reach the truth and not the ready acceptance of an ill natured belief. When a question arises as to whether a person acted in good faith, then, it devolves upon to show not merely that he had a good intention but that he exercised such care and skill as the duty reasonably demanded for its due discharge. Under the General Clauses Act, expression 'good faith' is also defined. It means, a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. Thus, it can very well be seen that the element of honesty which is introduced by the, definition prescribed by the General Clauses Act is not introduced by the definition given in the IPC.
16. The conclusion of the Trial Court that the material ingredients of Ninth Exception are established and therefore, the accused are entitled to the benefit thereof appears to be justified and, therefore, is required to be confirmed.
17. After having given anxious thoughts to the facts and circumstances emerging from the record of the present case, this Court has no hesitation in holding that the Trial Court was right in finding that the accused persons are entitled to the benefit of Ninth Exception as the publication of the impugned statement or incriminatory news item was in 'good faith' and without any malice. Therefore, this conclusion is required to be approved.
18. Since this Court is of the opinion that the view of the Trial Court that the accused are entitled to the benefit of Ninth Exception to Section 499 of the IPC and the ultimate conclusion acquitting the accused from the said charge against them under Sections 500, 501, 502 read with Section 114, IPC are weighty and sustainable, these appeals are required to be dismissed. Accordingly, they are dismissed.
Appeals dismissed.