N Criminal Appeal Nos
543 545 of 1979
Appeals by special leave from the judgment and order dated the 15th April 1978 of the Madhya Pradesh High Court in Criminal Revision No 70177 10578  10378 respectively
HK Puri for the Appellant
RK Garg Sunil Kumar Jain and VJ Era for Respondents Nos 1 2 5  6
SK Gambhir and Vijay Mansaria for the State
The following Judgments were delivered CHINNAPPA REDDY J I agree with my brother AP Sen that the order passed by the High Court should be set aside and that the Magistrate should be directed to record the plea of the accused under Sec
251 Criminal Procedure Code and thereafter to proceed with the trial according to law
The facts leading to these appeals have been stated in the judgments of both my brethren AP Sen and Baharul Islam and it is unnecessary for me to state them over again
The prayer in the application before the High Court was merely to quash the order dated November 30 1977 of the learned Chief Judicial Magistrate Bhopal and not to quash the complaint itself as the High Court has done
But that was only a technical defect and we do not take serious notice of it in an appeal under article 136 of the Constitution where we are very naturally concerned with substantial justice and not with shadow puppetry
The position now is this The news item in the Blitz under the caption MISA Rape in Bhopal Jail  undoubtedly contained serious imputations against the character and conduct of the complainant
In order to attract the 9th Exception to Sec
499 of the Indian Penal Code the imputations must be shown to have been made 1 in good 631 faith and 2 for the protection of the person making it or of any other person or for the public good Good Faith  is defined in a negative fashion by Sec
52 Indian Penal Code as follows Nothing is said to be done or believed in Good faith  which is done or believed without due care and attention
The insistence is upon the exercise of due care and attention
Recklessness and negligence are ruled out by the very nature of the definition
The standard of care and attention must depend on the circumstances of the individual case the nature of the imputation the need and the opportunity for verification the situation and context in which the imputation was made the position of the person making the imputation and a variety of other factors
Good faith therefore is a matter for evidence
It is a question of fact to be decided on the particular facts and circumstances of each case
So too the question whether an imputation was made for the public good
In fact the 1st Exception of Sec
499 Indian Penal Code expressly states Whether or not it is for the public good is a question of fact Public Good  like Good faith  is a matter for evidence and not conjecture
In Harbhajan Singh vs State of Punjab this Court observed at p 244 Thus it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception it is not possible to lay down any rigid rule or test
It would be a question to be considered on the facts and circumstances of each case what is the nature of the imputation made under what circumstances did it come to be made what is the status of the person who makes the imputation was there any malice in his mind when he made the said imputation did he make any enquiry before he made it are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true These and other considerations would be relevant in deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception
Again in Chaman Lal vs The State of Punjab this Court said at p 916 632 In order to establish good faith and bona fide it has to be seen first the circumstance under which the letter was written or words were uttered secondly whether there was any malice thirdly whether the appellant made any enquiry 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 appellant acted in good faith
Later the Court said at p 918 Good faith requires care and caution and prudence in the background of context and circumstances
The position of the person making the imputation will regulate the standard of the person making the imputation will regulate the standard of care and caution
Several questions arise for consideration if the Ninth Exception is to be applied to the facts of the present case
Was the Article published after exercising due care and attention Did the author of the article satisfy himself that there were reasonable grounds to believe that the imputations made by him were true Did he act with reasonable care and a sense of responsibility and propriety Was the article based entirely on the report of the Deputy Secretary or was there any other material before the author What steps did the author take to satisfy himself about the authenticity of the report and its contents Were the imputations made rashly without any attempt at verification Was the imputation the result of any personal ill will or malice which the author bore towards the complainant Was it the result of any ill will or malice which the author bore towards the political group to which the complainant belonged Was the article merely intended to malign and scandalise the complainant or the party to which he belonged Was the article intended to expose the rottenness of a jail administration which permitted free sexual approaches between male and female detenus Was the article intended to expose the despicable character of persons who were passing off as saintly leaders Was the article merely intended to provide salacious reading material for readers who had a peculiar taste for scandals These and several other questions may arise for consideration depending on the stand taken by the accused at the trial and how the complainant proposes to demolish the defence
Surely the stage for deciding these questions has not arrived yet
Answers to these questions at this stage even before the plea of the 633 accused is recorded can only be a priori conclusions Good faith  public good  are as we said questions of fact and matters for evidence
So the trial must go on
SEN J
This appeal by special leave is directed against an order of the Madhya Pradesh High Court dated April 15 1978 quashing the prosecution of the respondent RK Karanjiya Chief Editor Blitz for an offence under section 500 of the Indian Penal Code for publication of a news item in that paper which was per se defamatory on the ground that he was protected under Ninth Exception to section 499 of the Code
During the period of Emergency the appellant who is a senior lawyer practising at Bhopal was placed under detention under s3 1 a ii of the and was lodged in the Central Jail Bhopal
There were several other detenus belonging to the opposition parties lodged along with him in the same jail including three lady detenus viz Smt
Uma Shukla Smt
Ramkali Misra Advocate and Smt
Savitha Bajpai later State Minister Public Works Department
The husband of Smt
Uma Shukla a practising advocate at Bhopal was not detained
Shukla was released on parole for a week between June 10 and 18 1976
On her return to the jail it was found that she had conceived
She was examined on July 30 1976 by a lady doctor Dr Mrs NC Srivstava Woman Asst
Surgeon and the pregnancy was reported to be six weeks old
Shukla was again released on parole in the month of August 1976 and on August 24 1976 she got the pregnancy terminated by Dr Mrs Upadhayay at the Zanana Hamidia Hospital Bhopal with the written consent of her husband under s3 of the Medical Termination of Pregnancy Act 1976
While the order of detention of the appellant was still in operation there was an ex parte confidential enquiry held by Shri SR Sharma IAS Deputy Secretary Home Government of Madhya Pradesh into the circumstances leading to the pregnancy of Smt
Shukla
The Enquiry Officer by his report dated November 3 1976 apparently held that the pregnancy was due to illicit relations between the appellant and Smt
Shukla during their detention in the Central Jail
On December 25 1976 the Blitz in its three editions in English Hindi and Urdu simultaneously flashed a summary of the report and the story as given out was that i there was a mixing of male and female detenus in the Central Jail Bhopal ii the appellant had the opportunity and access to mix with Smt
Shukla freely and iii Smt
Shukla became pregnant through the 634 appellant
The news item was per se defamatory
It is somewhat surprising that the Enquiry Report which was a document of highly confidential nature should have found its way to the Press
With the revocation of Emergency the appellant along with the other political detenus was released from detention
On his release the appellant lodged a criminal complaint for defamation against the respondent RK Karanjia
The respondent on appearing before the Magistrate moved an application under section 91 of the Code of the Criminal Procedure 1973 praying that the report of the Enquiry Officer be sent for as it was likely to be lost or destroyed
On August 23 1976 the learned Magistrate allowed the application and directed that the report with the concerned file be produced
The State Government however did not comply with the direction and by an application dated December 31 1977 claimed privilege in respect of the Enquiry Report which still awaited consideration
On October 29 1977 when the case was fixed for recording the plea of the accused under section 251 of the Code the respondent moved an application stating that the plea should be recorded only after the Enquiry Report was produced
The learned Magistrate by his order dated November 30 1977 rejected the said application of the respondent as to the summoning of the records and directed the accused persons to appear in person or through counsel for explaining to them the substance of the accusation and also for recording their pleas
Thereafter the respondent filed a revision before the High Court under section 397 of the Code for setting aside the order of the learned Magistrate and alternatively under section 482 of the Code if it were held to be an interlocutory order
The revision was heard by a learned Single Judge and it appears that the Government Advocate made available a copy of the Enquiry Report for the perusal of the learned Judge
The learned Judge by his order dated April 15 1978 quashed the proceedings on the ground that the respondent s case clearly falls within the ambit of exception 9 of section 499 of the Indian Penal Code
In reaching that conclusion he observed that it would be abuse of the process of the court if the trial is allowed to proceed which ultimately would turn out to be a vexatious proceeding
The reasoning advanced by him was as follows The real question to ask is did the applicants publish the report for public good in public interest and in good faith My answer is in the affirmative
It was a publication 635 of a report for the welfare of the society
A public institution like prison had to be maintained in rigid discipline the rules did not permit mixing of male prisoners with female prisoners and yet the report said the prison authorities connived at such a thing a matter which was bound to arouse resentment and condemnation
The balance of public benefit lay in its publicity rather than in hushing up the whole episode
Further there was good faith in the publication
The source on which the publishers acted was the proper source on which they were entitled to act and they did so with care and circumspection
The report further shows that the publication had been honestly made in the belief of its truth and also upon reasonable ground for such a belief after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances
emphasis added It is somewhat strange that the learned Judge should have made public the contents of a document in respect of which the State Government claimed privilege
The order recorded by the High Court quashing the prosecution under section 482 of the Code is wholly perverse and has resulted in manifest miscarriage of justice
The High Court has pre judged the whole issue without a trial of the accused persons
The matter was at the stage of recording the plea of the accused persons under section 251 of the Code
The requirements of section 251 are still to be complied with
The learned Magistrate had to ascertain whether the respondent pleads guilty to the charge or demands to be tried
The circumstances brought out clearly show that the respondent was prima facie guilty of defamation punishable under section 500 of the Code unless he pleads one of the exceptions to section 499 of the Code
The offending article which is per se defamatory is as follows MISA RAPE IN BHOPAL JAIL By Blitz Correspondent
Blitz A shocking sex scandal involving a top RSS leader of MP was discussed at a secret meeting of Jan Sangh MLAs and MPs here recently
The alleged escapades of 55 years old Sewakram Sobhani a close confidant of RSS Chief Bhausaheb Devras with the young wife of another RSS man in the Bhopal Central Jail where both were detained under MISA have rocked RSS Jan Sangh circles of the State
636 According to a report submitted to the State Government by a Deputy Secretary in the Home Deptt
who inquired into the grisly affair Sobhani was reportedly responsible for making Mrs Uma Shukla 22 year old wife of a lawyer Yogesh Shukla pregnant
Abortion When this was discovered she was quietly released on parole and at her own request taken for abortion to the Sultania Zanana Hospital
After discharge she refused to rejoin her husband but stayed during the remaining period of her parole in the hide out of the total revolutionaries  in the Professor s Colony
She returned to jail later and was transferred to the Hoshangabad Jail while Sobhani was sent to the Raipur Central Jail
The Official report throws light on how Sobhani allegedly enticed Mrs Shukla with the help of a high official of the Bhopal Central Jail despite a ban on contacts between male and female detenus
The jail official himself a close sympathiser of the RSS allowed Sobhani to meet her frequently in his office and their love sessions were in his anteroom
Yogesh Shukla has made a representation to the State Government alleging that Sobhani had committed adultery with his wife and demanded action against the jail authorities for permitting a rape of his wife
It is for the respondent to plead that he was protected under Ninth Exception to section 499 of the Code
The burden such as it is to prove that his case would come within that exception is on him
The ingredients of the Ninth Exception are that 1 the imputation must be made in good faith and 2 the imputation must be for the protection of the interests of the person making it or any other person or for the public good
We are completely at a loss to understand the reasons which impelled the High Court to quash the proceedings
The respondent in his revision directed against the order of the learned Magistrate dated November 30 1977 asserted in paragraph 5 that the case pre eminently a fit case for quashing the impugned order either in the revisional jurisdiction of the High Court or in the exercise of its inherent powers under section 482 of the Code to prevent the abuse of 637 the process of law and to secure the ends of justice
The prayer made in the revision was in these terms The applicants pray that the impugned order be quashed and the learned Magistrate be directed to persue the report which he has sent for under section 91 Criminal Pro
Code and pass suitable orders according to law
All that the respondent wanted is that learned Magistrate should not proceed to record the plea of the accused persons under section 251 of the Code without perusing the Enquiry Report under section 91 of the Code
There was no application made before the High Court under section 482 of the Code for quashing the prosecution itself
The averment contained in paragraph 4 that the Blitz only published a concise summary from the findings reached by the Deputy Secretary Home who was the Enquiry Officer appointed by the Government and therefore it was the duty of the learned Magistrate to go through the report for himself and hold that no accusation had been made and the question of explaining it to the accused did not arise and the proceedings were liable to be dropped because no ingredients constituting an offence under section 500 of the Code had been made out must be read in conjunction with paragraph 5 and in support of the limited prayer made in revision
This cannot be construed as invoking the High Court s powers under section 482 of the Code for quashing the whole proceedings
We have considerable doubt about the propriety of the High Court making use of the Enquiry Report which has no evidentiary value and in respect of which the Government claimed privilege
The application made by the Government claiming privilege still awaited consideration
While the Government claimed privilege at one stage it appears to have waived the claim and produced the Enquiry Report and made the contents public
There was no factual basis for the observations made by the High Court underlined by me except the Enquiry Report
The contents of the Enquiry Report cannot be made use of unless the facts are proved by evidence aliunde
There is also nothing on record to show that the accused persons made any enquiry of their own into the truth or other wise of the allegations or exercised due care and caution for bringing the case under the Ninth Exception
The Enquiry Report cannot by itself fill in the lacunae
A bare perusal of the offending article in Blitz shows that it is per se defamatory
There can be no doubt that the imputation 638 made would lower the appellant in the estimation of others
It suggested that he was a man devoid of character and gave vent to his unbridled passion
It is equally defamatory of Smt
Shukla in that she was alleged to be a lady of easy virtue
We need not dilate on the matter any further
It is for the accused to plead Ninth Exception 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 the public good
In Sukro Mahto vs Basdeo Kumar Mahto  Anr this Court observed The ingredients of the Ninth Exception are first that the imputation must be made in good faith secondly the imputation must be for protection of the interest of the person making it or of any other person or for the public good
Good faith is a question of fact
So is protection of the interest of the person making it
Public good is also a question of fact
After referring to the two earlier decisions in Harbhajan Singh vs State of Punjab and Chaman Lal vs State of Punjab the Court held that there must be evidence showing that the accused acted with due care and caution He has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was correct
The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to section 499
In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true
 The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege and have greater freedom than others to make any imputations or allegations sufficient to ruin the reputation of a citizen
We hasten to add 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 639 whether or not it was for public good is a question of fact like any other relevant fact 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 per Vivian Bose J in Dr NB Khare vs MR Masani and Ors
As the matter is of great public importance it would perhaps be better to quote the well known passage of Lord Shaw in Arnold vs King Emperor 2 The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may go so also may the journalist but apart from statute law his privilege is no other and no higher
The responsibilities which attach to this power in the dissemination of printed matter may and in the case of a conscientious journalist do make him more careful but the range of his assertions his criticisms or his comments is as wide as and no wider than that of any other subject
No privilege attaches to his position
For these reasons we must set aside the order passed by the High Court and direct the Magistrate to record the plea of the accused persons under section 251 of the Criminal Procedure Code 1973 and thereafter to proceed with the trial according to law
BAHARUL ISLAM J Had there been no subsequent development after the impugned judgment of the High Court I could have persuaded myself to agree to the order proposed by my Brother Sen J but after the Inquiry Report has been released by the Government and placed before us I regret my inability to agree to the order of sending back the case to the Magistrate as proposed by my Brother and proceed to give my own judgment
The facts material for the purpose of disposal of these appeals may be stated thus During the period of Emergency between June 1975 and March 1976 the appellant Shri Sewakram Sobhani an advocate was one of the detenus under the Main 640 tenance of Internal Security Act 1976 hereinafter MISA  and lodged in the Bhopal Central Jail
There were also three women detenus including Smt
Uma Shukla and Smt
Ramkali Mishra Advocate
The husband of Smt
Uma Shukla was a practising advocate at Bhopal
He was not a detenu
Uma Shukla became pregnant while in detention in the aforesaid Central Jail and abortion was carried out in the month of August 1976 in the Zanana Hamidi Hospital to relieve her of the pregnancy
This circumstance created an uproar and an inquiry into the affairs had to be held by Shri SR Sharma Dy
Secretary Home Government of Madhya Pradesh hereinafter Sharma  who submitted his report dated 7101976 to the Government
Respondent No 1 is the Chief Editor of the Blitz and respondent No 5 was at the relevant time Bhopal Correspondent of the Blitz
Respondents 2 3 and 4 are persons connected with the Blitz Weekly publication
The Blitz weekly is published in three languages viz English Hindi and Urdu
The Blitz weekly dated 251276 published a news item purported to be a summary of the report submitted by Sharma in its Urdu and Hindi editions
The appellant took exception to the publication and filed a criminal case for defamation against the respondents under Sections 500 and 501 of the Penal Code
The Magistrate issued processes to the respondents
The respondents appeared before the Magistrate and made an application on 23877 under Section 91 of the Code of Criminal Procedure 1973 hereafter the Code  requesting the court before arriving at a conclusion whether it should proceed further with the case or not to call for a the original Enquiry Report submitted by Sharma on 71076 b the statement of witnesses recorded by Sharma c the original complaint and d documents of the jail Department including letters from the Government to the Department Vide para 4 of Annexure D to the Special Leave Petition
The Magistrate called for the original Inquiry Report dated 71076 submitted by Sharma to the Government and then posted the case for production of the said records by the Government and recording the plea of the respondents
The Government failed to produce the inquiry report before the Magistrate whereupon the Magistrate issued a notice to the Government to show cause as to why contempt proceedings should not be initiated against them
The Magistrate however did not wait for the receipt of the report and wanted to record the plea of respondents
641 The respondents then filed an application before the High Court of Madhya Pradesh under Section 397401 read with Section 482 of the Code
It was alleged by the respondents that the Deputy Home Secretary in his report came to the following conclusions  1 There was free mixing of male and female prisoners in the Bhopal Central Jail  2 Shri Sewakram Sobhani had opportunity and also availed of the opportunity and mixed very freely with Smt
Uma Shukla and 3 Smt
Uma Shukla became pregnant through Shri Sewak Ram Sobhani
It may be mentioned that the Government later on produced the inquiry report before the High Court but claimed privilege
The learned High Court presumably perused the report before passing the impugned order
It may also be mentioned that although the Government claimed privilege in respect of the report at that time it appears they subsequently after the impugned order of the High Court waived the claim of privilege and released the inquiry report for in fact a copy of the report has been annexed and is available in the paper book of these appeals before us as Annexure A  5
The submission of the appellants is that the impugned order of the High Court is beyond its revisional jurisdiction
The submission is that the respondents prayed for quashing the order of the Magistrate proceeding to record their plea before the inquiry report was produced by the Government but the High Court has wrongly quashed the complaint itself
On the other hand the reply of the respondent is that although there was no specific prayer in the petition the petition was also made for quashing the criminal case under Section 500501 of the Penal Code pending before the Magistrate
The respondents  submission is that they are not guilty for the impugned publication in view of Exception 9 to Section 499 of the Penal Code
A perusal of the respondents  petition before the High Court and its impugned judgment justifies the factual submission of the respondents namely that their application before the High 642 Court Copy Annexure C was under Section 482 as well as Sections 397 and 401 of the Code and that the respondents claimed and canvassed the protection under the Ninth Exception of Section 499 of the Penal Code
For para 6 of the Judgment of the High Court reads  The applicants feeling aggrieved have come to this Court for quashing the complaint since they contend that the publication would squarely fall within exception 9 of Section 499 of the Indian Penal Code
The applicants further contend that the report of the Deputy Secretary Home is the document on the basis of which the reporting was done and unless that is got produced and inspected the defence of exception 9 cannot be made out Emphasis added 7
The omission in the prayer portion of a petition of a part of the claim particularly in a criminal case is not fatal
The High Court in its revisional jurisdiction can always grant suitable relief justified by law as well as facts and circumstances of a particular case
That a part Article 136 of the Constitution of India gives wide powers to the Supreme Court to grant special leave to appeal from any judgment decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India
The power is discretionary and therefore to be sparingly exercised
This power is to be exercised to meet ends of justice to enhance justice and remove miscarriage of justice in a particular case
It does not exercise such powers for academic reasons but for practical purposes
The High Court in the impugned order has held that it would be abuse of the process of the court if the trial is allowed to proceed or alternatively to turn out to be vexatious proceeding and therefore quashed the complaint
Such an order would be warranted under Section 482 of the Code of Criminal Procedure if the merit of the case before the High Court justified it
We have therefore to examine whether the respondents  case falls within the ambit of the Ninth Exception to Section 499 of the Penal Code as held by the High Court
643 9
The appellant has not submitted before us that the summary of the report published in the Blitz is not a correct summary of the Inquiry Report
The copy of the Report Annexure A shows that a complaint was received from one Shri Krishsan Gopal Maheshari advocate alleging certain objectionable activities and misconduct on the part of the appellant and Shrimati Uma Shukla
Annexure A also shows that the Inquiry Officer Sharma examined several witnesses including Shri Yogesh Shukla husband of Smt
Uma Shukla
Para 4 of the report reads  The following points are in dispute  a whether as alleged by the complainant there was free mixing of female members with male members detained under MISA b in case a is in the affirmative whether Shri Sewakram Sobhani had an opportunity to mix freely with Smt
Uma Shukla c in case a and b are in the affirmative when how and through whom Smt
Uma Shukla a MISA detenu conceived
His findings are a There was a free mixing of male and female prisoners in the Bhopal Central Jail b Shri Sewakram Sobhani had opportunity and also availed of opportunity and mixed very freely with Smt
Uma Shukla c Smt
Uma Shukla became pregnant through Shri Sewakram Sobhani
It therefore appears that the impugned publication is a correct summary of the report and no submission has been made to the contrary by the appellant before us
The only question is whether the publication falls within the Ninth Exception to Section 499 of the Penal Code as claimed by the respondents
644 Before we do that we must not be oblivious of the fact that the Inquiry Report in question was a privileged document it is now an unprivileged open document as indicated above
The High Court proceeded on the footing that if the document is not produced to be utilized by the accused the benefit would go to him
Section 499 defines defamation 
It is as follows section 499
Whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said except in the cases hereinafter defame that person
The Ninth Exception reads It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person or for the public good
The Ninth Exception requires inter alia that the imputation made must be in good faith for the public good
Good faith  has been defined in Section 52 of the Penal Code as 52
Nothing is said to be done or believed in good faith which is done or believed without due care and attention The definition is expressed in negative terms
Normally proof of an exception lies on the person who claims it but the definition of the expression good faith indicates that lack of good faith has been made a part of the offence which the prosecution has to establish beyond reasonable doubt
On the other hand the mere proof by the accused of the report to be an authentic document is enough it will create a doubt in the mind of the Court as to the lack of good faith on the part of the accused
The inquiry was made and the report prepared by a highly responsible officer and submitted to the Government
It was in pursuance of a complaint made by one of the citizens pointing 645 out laxity in observance of jail rules and highly objectionable practices of some of the prisoners and seeking improvement in jail administration
The object was to see improved conditions and maintenance of certain standard of moral conduct by prisoners in jail
If the complaint and the consequent inquiry report be for public good and the respondents had reasons to believe its contents to be true they will be protected under the Ninth Exception
Even if the burden of proof of good faith  be on the accused good faith  need not be proved beyond reasonable doubt
Once this is done whether the publication was for public good would be a matter of inference
The Dy
Secretary Home examined Shri Bhandari Editor of Prach who was a MISA detenu as witness No 1 complainant Maheshwari as witness No 2 Smt
Ramkali Mishra an advocate and a member of Jana Sangha another MISA detenu as witness No 4 Dr Hamid Quireshi another MISA detenu as witness No 6 Shri Ramesh Chand Shrivastava an independent  witness as witness No 7 and Shri Yogesh Shukla husband of Smt
Uma Shukla as witness No 3
Most of the said witnesses it appears were the party colleagues of the appellant and his co MISA detenus
I must not be understood to suggest the contents of the inquiry report are true it is an exparte inquiry report it might be the result of political rivalry as alleged by the appellant but it appears that political rivalry if any was between the members of the appellant s party and not between the party in power and party in opposition
The comment of Mr Sharma on the evidence of witness No 3 is as follows Shri Yogesh Shukla witness No 3 has categorically stated that he had no connection with his wife and that she became pregnant through Shri Sobhani Advocate and got the child aborted
It is worth consideration as to why the husband will come up with such an open allegation against his own wife unless there be no very strong reasons for such a conviction
Normally no husband even though his wife may have conceived through somebody else will like to see his name being scandalised
Shri Yogesh Shukla witness No 3 is an advocate quite an educated person and we can safely presume that he knows the consequences of his statement and also their legal and moral implications on his profession
Such an open scandalous statement against 646 his own wife could not but be a result of very strong abhoration or an outcome of utter desperation
It could also be an expression of a naked truth
 The entire report is exhaustive reasoned and based on evidence
A perusal of the report will normally lead one to believe the imputations
If that be so it cannot be said that the respondents published the report or its summary without due care and attention
This establishes good faith  as required by the Ninth Exception to Section 499 of the Penal Code
From what has been stated above the publication obviously appears to be for public good
The appellant submitted that he wanted an opportunity to clear himself of the imputations made against him by adducing evidence before the Magistrate to establish the falsity of the imputations made in the publication
We are not concerned with the truth or falsity of the imputations published
Even if the findings in the report be proved to be false the respondents will be protected
Sending back the case to the Magistrate to record the respondents  plea after the perusal of the Inquiry Report will in my opinion be an exercise in futility and abuse of the process of the criminal court
The appellant may seek his remedy if any in the Civil Court
The learned High Court therefore in my opinion committed no error in quashing the complaint
The appeal is dismissed
ORDER In view of majority judgments the appeals are allowed
PBR Appeals allowed


Summary:
A news item published in the Blitz weekly of which the respondent was the Editor stated that the appellant enticed a female detenu who alongwith him was detained in the Central Jail under the Maintenance of Internal Security Act and that she had conceived through him and that on getting released on parole she had the pregnancy terminated
It was further stated that a confidential enquiry conducted by a senior officer of the Home Department revealed that it was the appellant who was responsible for the detenu s pregnancy
On release from jail the appellant lodged a criminal complaint against the respondent
Before the Magistrate the respondent prayed that the report of the Enquiry Officer be sent for
But the report could not be obtained because the State Government claimed privilege in respect of that report
When the Magistrate proceeded to record the plea of the accused under section 251 of the Code of Criminal Procedure the respondent requested that his plea be recorded only after the enquiry report was produced but the Magistrate rejected the request
The respondent thereupon filed a revision before the High Court for setting aside the order of the Magistrate
Waiving privilege the State Government produced a copy of the enquiry report before the High Court
A single Judge of the High Court quashed the proceedings on the view that the respondent s case clearly fell within the ambit of the ninth exception to section 499 IPC because according to him the publication had been made honestly in the belief of its truth and also upon reasonable ground for such belief after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances
On the question whether the High Court was right in quashing the order of the Magistrate remanding the case to the Magistrate
628 Per majority Chinnappa Reddy and AP Sen JJ Baharul Islam J dissenting  HELD The order passed by the High Court should be set aside
The Magistrate should record the plea of the accused under section 251 Cr
PC and thereafter proceed with the trial according to law
Per Chinnappa Reddy J To attract the ninth exception to section 499 IPC the imputations must be shown to have been made 1 in good faith and 2 for the protection of the person making it or of any other person or for the public good
The insistence of the section is upon the exercise of due care and attention
The standard of care and attention must depend on the circumstances of an individual case the nature of imputation the need and the opportunity for verification and so on
In every case it is a question of fact to be decided on its particular facts and circumstances
631 A B Harbhajan Singh vs State of Punjab  244 Chaman Lal vs The State of Punjab   916 and 918
Several questions may arise for consideration depending on the stand taken by the accused at the trial and how the complainant proposed to demolish the defence
In the instant case the stage for deciding these questions had not arrived yet
Answers to such questions even before the plea of the accused was recorded could only be a priori conclusions
632 H The respondent s prayer before the High Court was to quash the Magistrate s order and not to quash the complaint itself as the High Court has done
But that was only a technical defect which need not be taken seriously in an appeal under Article 136 of the Constitution where the Court is concerned with substantial justice and not with shadow puppetry
630 G Per AP Sen J The order of the High Court quashing the prosecution under section 482 of the Code of Criminal Procedure is wholly perverse and had resulted in manifest miscarriage of justice
The High Court has pre judged the whole issue without a trial of the accused persons
The matter was at the state of recording the pleas of the accused under section 251 Cr
PC The circumstances brought out clearly showed that the respondent was prima facie guilty of defamation punishable under section 500 of the Indian Penal Code unless covered by one of the exceptions of section 499 Indian Penal Code
635 E F The burden to prove that his case would come within the ninth exception to section 499 namely that the imputation was in good faith and was for the protection of the interests of the person making it or of any other person or for the public good was on the respondent
All that the respondent prayed for was that the Magistrate should not proceed to record his plea under section 251 Cr
PC without perusing the enquiry report
There was no application for quashing the prosecution itself
C 629 The enquiry report in respect of which the Government claimed privilege had by itself no evidentiary value
The contents of that report could not be made use of unless the facts were proved by evidence aliunde
The report being per se defamatory it was for the accused to plead the ninth exception in defence and discharge the burden of proving 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 the public good
637 E G H Sukro Mahto vs Basdeo Kumar Mahto and Anr
1971 Supp
SCR 329 at 332 Harbhajan Singh vs State of Punjab   Chaman Lal vs State of Punjab   referred to
The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege
Journalists are in no better position than any other person
Even the truth of an allegation does not permit a justification under the 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 fact 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
638 G H Dr NB Khare vs MR Masani and Ors ILR 1943 Nag
347 Arnold vs King Emperor at 169 referred to
Per Baharul Islam J The Court did not commit any error in quashing the appellant s complaint
646 E The High Court s judgment justifies the factual submission of the respondents that their application was under section 482 as well as under sections 397 and 401 of Cr
PC and that they claimed and canvassed the protection under the ninth exception to section 499 IPC The omission in the prayer portion of a petition particularly in a criminal case is not fatal
The High Court in its revisional jurisdiction can always grant suitable relief justified by law as well as facts and circumstances of a particular case
641 H 642 D The definition of good faith which is couched in negative terms indicates that lack of good faith has been made a part of the offence which the prosecution has to establish beyond reasonable doubt
On the other hand proof by the accused of the report to be an authentic document is enough
It would create a doubt in the mind of the Court as to the lack of good faith on the part of the accused
644 F G If on a complaint made by a citizen alleging laxity in the observance of jail rules if the report submitted by a high Government official on the basis of an enquiry conducted by him was for public good and if the respondents had reasons to believe its contents to the true they will be protected under the ninth exception even if the burden of proof of good faith is on the accused
Good faith need not be proved beyond reasonable doubt
645 B The report of the enquiry officer was exhaustive reasoned and was based on evidence
The report leads one to believe the imputations
If that be so it 630 cannot be said that the respondents published the report or its summary without due care and attention
This establishes good faith under the ninth exception to section 499
Therefore the publication obviously was for public good
646 B C In the instant case even if the findings of the report be proved to be false the respondents would be protected
Sending back the case to the Magistrate would be an exercise in futility and abuse of the process of the criminal court as the High Court has pointed out
646 D E