1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 37 OF 2009 Adv. Aires Rodrigues, Major of age, married, Advocate by profession Son of Louis Rodrigues, R/o. T-1-B-30, Ribandar Retreat, Ribandar, Ilhas, Goa. .. Petitioner V/s. 1. Shri Subodh Kantak, Major, married, Advocate by profession, R/o. H. No. 500/19/1, Filomena Housing Colony, Bambolim, Goa. 2. State of Goa, through the Public Prosecutor, Panaji, Goa. .. Respondents. Petitioner present in person. Mr. S. G. Bhobe with Mr. A. V. Lawande, Advocate for respondent no.1. Ms. W. Coutinho, Public Prosecutor for respondent no.2. CORAM: N. A. BRITTO, J. DATE: 28TH AUGUST, 2009. 2 JUDGMENT Rule. By consent heard forthwith. 1. This petition has been filed by the accused who is facing trial under section 499/500 I.P.C and is directed against the orders of the Learned J.M.F.C disallowing three questions as irrelevant. When grammatically corrected, they are as follows:- 1. Is it not true that amongst the constitutional functionaries of State of Goa as well as the Executives of the State Government you are the highest paid Officer of the Government, per month? 2. Can you name any officer of the Government of Goa by designation who draws a sum equivalent to the average monthly remuneration paid to you? 3. Is it true that the Bombay High Court at Goa on various occasions expressed concern as to your conduct and performance as the Advocate General? 2. The complainant is the Advocate General of the State of Goa and the accused is practicing Advocate, and though both ought to have 3 been at the Bar and appearing for their clients, they have chosen, either by choice or compulsion to be in the witness box and the dock, respectively. 3. The complainant claims that he s in legal practice from August, 1987 and became Advocate General from 11.02.05 to 5.3.05 and again from 15.6.05 and continues till date. The complaint is based on certain statements allegedly made by the accused at a press conference held on 29.3.08 and which were reported on Marathi Daily “Gomantak” dated 30.3.08 and when translated read as follows:- “The Governor S.C. Jamir in public interest should immediately dismiss Subodh Kantak who has shamed the Constitutional post of the Advocate General. Inquiry should be conducted into the bills submitted by Mr. Kantak and extra money paid to him should be recovered. Shri Kantak is paid Rs. 8000/-per day per case even if the case is adjourned at 4 his request”. 4. It is not necessary for the purpose of this petition to see how the statements were reported on the other dailies namely “Tarun Bharat” and “Goa Dhoot”, as mentioned in paragraphs 25 and 26 of the complaint. The case of the complainant is that the said statements were made by the accused as spokesperson of an organisation called “Utt Goenkara” which has no legal status and no legal entity and the said statements are defamatory, false and made deliberately in bad faith and with intention to malign the reputation of the complainant and have been made recklessly without exercising any responsibility or care which the accused as an advocate was bound to do. According to the complainant, the gist of the defamatory statements made by the accused is that the complainant as Advocate General has done double or excessive billing to the State Government in cases in which he appeared before the Hon'ble High Court and has disgraced the office of Advocate General. 5. The first question came to be rejected by the Learned trial Court observing that the complaint was filed alleging that the accused had defamed the complainant for cheating the State by double and 5 excessive billing and thereby degrading the office of the Advocate General and had looted and raped the Goa exchequer and as such the fees in general of the Advocate General of Goa are not required to be inquired into. 6. The second question was disallowed with similar observation to the effect that the fees paid in general to the Advocate General of Goa were not in issue in this case. Further, the Learned Magistrate directed the accused not to ask any questions pertaining to the fees otherwise paid to the Advocate General of Goa; liberty was given to the accused to ask questions to the complainant as regards excessive and double billing. 7. The third question was objected because according to the complainant it was meant to annoy and scandalise the complainant. It was disposed off by detailed Order dated 15.6.2009. The Learned Magistrate after referring to various Judgments and particularly to the case of Govardhansing Raghuvanshi V/s. Chandanmal {1982 (1) Bom C.R. 519} came to the conclusion that the general character or reputation of the complainant was not a matter in issue in an action for defamation 6 under section 499 I.P.C., and, considering the specific nature of the allegations which did not in any manner pertain to the competency or reputation in general of the complainant, the Learned Magistrate held that the question regarding competency of the complainant or his reputation in general is not a fact in issue and therefore the third question asked was not relevant and proceeded to uphold the said objection. 8. The petitioner submits that the case of Govardhansing has been revisited by the same Learned Judge in Baburao S. Chavan {1984 (1) BCR 194} wherein it was observed that “ truth of the allegation is not necessarily a complete defence available to the accused in the case of defamation. While it may be true that in certain cases truth of the allegation may itself be a basis for the plea of good faith, it was not necessary in every case that truth of the allegation was a relevant defence for the accused”. 9. The petitioner submits with reference to para 25 of the complaint, that the gravamen is also the accusation of quantum of fees paid to the Advocate General of Goa and therefore the first order passed by the Learned J.M.F.C on 1.4.2009 that the fees in general of the 7 Advocate General of Goa are not required to be inquired into, is an order which reveals lack of application of mind as it proceeds without considering the factual matrix of the case of the complainant and as such the said order needs to be set aside. The petitioner then submits that the complainant has basically claimed that he has been defamed by the petitioner/accused as to his character and as well as his competence as Advocate General. The petitioner has referred to para 52 of the complaint and has further submitted that the complainant has pleaded not only that his character has been attacked but also his competence has been called in question by the petitioner and these facts are relevant as to his character, conduct and competence as Advocate General of Goa which was the thrust of the questioning of the complainant in his cross examination focused by the petitioner. The petitioner further submits that the Learned Magistrate has arrived at a finding that the complainant as Advocate General is/was a public servant is not required to be decided at this stage and this reveals lack of application of judicial mind since the finding on this aspect would be relevant to examine whether the petitioner will be entitled to take the defences available to the petitioner under the exceptions to Section 499 I.P.C. The petitioner has further 8 submitted that while on one hand the Learned Magistrate has shut down the petitioner's right to cross examination by taking recourse to the exception of Section 499 I.P.C and in case the cross examination is shut, it would prevent the petitioner from raising the said exception which at the end of trial can cause great prejudice to the petitioner. The petitioner submits that the Learned Magistrate ought to have given a finding whether the complainant was a public servant in terms of Section 21 I.P.C and on that count alone the second order requires to be set aside. As per the petitioner, Section 499 I.P.C itself provides that the words used should be “intending to harm or anything or having reason to believe that such imputation will harm the reputation of such person” and in order to claim that reputation is harmed, it is axiomatic that such person who makes such a plea, shall establish that he has a reputation which he has a right to defend and which the accused is of course entitled to rebut or disprove and in case there is no reputation, there can be no harm to reputation. The petitioner submits that in the aforesaid background it was necessary for the petitioner to prove that the allegations were not made by him recklessly or falsely but were factually correct statements and consequently in good faith and for public good. It 9 is submitted that whether the statements were made to injure or harm the complainant and/or in good faith or for public good is statutorily laid down to be a question of fact which will be a relevant fact in issue. The petitioner submits that the question of proving the fact being true and that it is in good faith and for public good are intertwined and cannot be separated unless of course the the complainant withdraws the averments that the statements are false and admits that the allegations made by the petitioner are true in which case what would remain would be only the defences available to the petitioner. 10. On the other hand, Shri Bhobe, Learned Counsel, on behalf of the complainant, has submitted that truth is not a defence in case of defamation in a criminal case and in support thereof has placed reliance on the case of Devbrata Shastri V/s. Krishna Ballabh (AIR 1954 Patna 84). Shri Bhobe further submits that the complainant might have been paid the highest fees in the State of Goa but that was not in issue nor relevant to decide the complaint. Learned Counsel further submits that the orders passed by the Learned Magistrate show that the Magistrate is in control of the proceedings and whenever irrelevant questions have been asked, the same have been disallowed. Learned Counsel further 10 submits that the complainant is entitled to show that the statements made are per se defamatory and therefore the complainant is not required to prove anything more and it is for the accused to prove the exception 1 and 2 of section 499 I.P.C. Learned Counsel further submits that as regards the second order, that in case the complainant had answered the questions in the negative the petitioner would not have been able to ask any further questions in terms of Section 153 of the Evidence Act (Illustration (d). On behalf of both parties, reliance has been placed on various decided cases. 11. The complainant has sought to restrict the accused in his cross examination. Whether the accused wishes to be covered by the first or the second exception to Section 499 is entirely his lookout. The complainant's Counsel seems to be under a wrong impression that in a case of this nature it is the accused who is required to prove the exception and the complainant is required to prove nothing. The accused is certainly entitled to obtain from the complainant such facts and admissions which will enable the accused to prove any of the exceptions. The first exception to Section 499 IPC provides that it is no defamation 11 to impute anything which is true and if made for public good. So truth and good faith are defences available to an accused. In a criminal trial or for that matter even in civil proceedings, every party must be given a fair chance to cross examine his adversary as long as the cross examination remains relevant under one of the other provision of the Act, and as long as the cross examination does not turn out to be a rumbling cross examination, as it is often called, or cross examination intended to annoy or insult the party or a witness. The essence of cross examination is that it is interrogation by the advocate of one party of the other party or his or her witness called by his adversary with the object either to obtain from such party/witness admissions favourably to his cause or to discredit him. Nobody likes to be cross examined and I suppose it is human tendency and yet cross examination is considered to be the most effective of all means of extracting truth and exposing falsehood. It is stated in para 801 of the Halsbury's Laws of England, Third Edition, Volume 15 that the purpose of cross examination is that it is directed to (1) credibility of the witness; (2) the facts to which he has deposed in chief, including cross examiner's version thereof; and (3) the facts to which the witness has not deposed but to which the cross examiner thinks he is 12 able to depose. It is also stated therein that failure to cross examine a witness on some material part of his evidence, or at all, may be treated as acceptance of the truth of that part or the whole of his evidence. The object of cross examination is two fold and that is to weaken, qualify or destroy the case of the opponent; and to establish the party's own case by means of his opponent's witnesses (Phipson, 11th Ed p. 648). As per Powell, (9th Ed, p 532), the objects are to impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross- examining party. The exercise of this right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he had used those means, his powers of discernment, memory and description are all fully investigated and ascertained and submitted to the consideration of the jury, (or the Court) who have an 13 opportunity of observing his demeanor, and of determining the just value of his testimony. Considerable latitude is allowed in cross examination. It need not be confined to the facts elicited in examination in chief or to strictly relevant facts. The accused is entitled to cross examination to elicit facts in support of his defence from the prosecution witnesses wholly unconnected with the examination in chief. The cross examining advocate can even undertake to show at some subsequent stage that questions apparently irrelevant are really relevant. “Relevant facts” in cross examination must necessarily have a wider meaning then the term when applied to examination in chief. For instance the facts though otherwise irrelevant may involve questions affecting the credit of the witness and such questions are permissible in cross examination. Cross examination is not limited to the matters upon which the witness has already been examined in chief but extends to the whole case (See Sarkar on Evidence, 15th Edition page 2172). It must also not be forgotten that many a times the privilege of cross examination to credit is abused and this happens when the cross examiner allows himself to be a tool in the hands of unscrupulous litigant disrespecting his profession. 14 12. Section 499 I.P.C deals with defamation. It is nothing but an assault on the reputation of a person intending to harm or knowing or having reason to believe that the imputation made will harm such reputation. Section 499 has ten exceptions and the first three may be taken note of as being relevant to the case at hand. As per the first exception, it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. The second exception is that it is not defamation to express in a good faith any opinion whatever, respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. The third exception is that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct, and no further. That a man has certain reputation is question of fact as set out by illustration (e) to Section 3 of the Indian Evidence Act, 1872. 15 13. The essence of the offence of defamation is the harm caused to the reputation of a person. There are still persons who cherish their reputation more than their life itself. Reputation, character and disposition are words which are not free from difficulty, in their meanings. Reputation, as generally understood, is what the neighbours and others say a person is. It is a composite hearsay and is the opinion of the community of a person. It is a form of hearsay and is admitted on the ground of necessity. In the words of Apex Court ( in Bhagwan Swarup, AIR 1965 SC 682) it is general credit of the person amongst the public. Character is what a person actually is. Strictly speaking character means actual disposition i.e. inherent qualities of a person or the sum total of his traits. Disposition, in the words of the Apex Court ( in Bhagwan Swarup, supra) is inherent qualities of a person. In other words, character and disposition can mean one and the same thing. Explanation to Section 55 of the Act says that the word character in sections 52 to 55 includes both reputation and disposition. Section 3(e) of the Act says that “that a man has certain reputation, is a fact. It must be borne in mind that “ no one is entirely virtuous or entirely vicious and that is why the Apex Court (in Bhagwan Swarup, supra) says that evidence of general reputation and 16 general disposition is relevant in criminal proceedings. At page 986, Sarkar on Evidence, 15th Ed., it is stated that “what law admits as character evidence is not real character i.e. particular traits but reputed character, i.e. the opinion formed by others of a person, which is known as reputation. Reputation, therefore, is only one of several modes of proving character....”. Way back in Stirland V. Director of Public Prosecutions (1944) 2 ALLER 13) Viscount Simon, L.C had noted that there was some vagueness in the use of the term “good character” (similar to Section 54 of the Act) and that he was disposed to think that the word character included both concepts of good reputation which a man may have in his own circle and man's real disposition as distinct from his friends and neighbours may think of him (See 1966 3 ALLER 285). The preponderance of judicial opinion is in favour of the proposition that questions in relation to complainant's reputation cannot be excluded, as long as the imputations are not per se defamatory. This Court in Prakash Rajaram (infra) has held that section 146(3) of the Act permits a cross examiner to put question which will not only shake the credit of a witness but also expose his ethical and moral behaviour which may ultimately weigh with the Court while evaluating or appreciating 17 testimonial evidence. 14. The Learned Magistrate held that the complainant's reputation in general was not a fact in issue. What was in issue then? In terms of section 3 of the Act “facts in issue” mean and includes any fact from which, either by itself or in connection with other facts the existence, non existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. It is now fairly well settled that the facts in issue in a criminal case are those which are included in the charge or substance of accusation. In this context reference would be made to Devbratta Shastri V/s. Krishna Ballabh (AIR 1954 Patna 84): “Facts in issue on a charge under that section are the necessary ingredients to be established in order to bring the charge home to the accused person, and those ingredients relate only to the publication of a libellous statement intending to harm or knowing or having reason to believe that such imputation would harm the reputation of the person”. 18 It is also stated at page 43, Sarkar on Evidence (supra) that as regards criminal cases, the charge constitutes and includes the facts in issue. The Learned Magistrate has held that the third question was not relevant. The Act does not define what is relevant. It simply describes when one fact becomes relevant to another, and Section 3 of the Act says that one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to relevancy of facts. Relevant also means admissible. All facts are relevant which are capable of affording any reasonable presumptions to the facts in issue, or the principle matters in dispute. Section 9 of the Act says that facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. A Judge is expected to admit as relevant the evidence of all those matters which shed a real, though perhaps an indirect and feeble light on the question in issue and refuse to admit facts 19 which merely furnishes a fanciful analogy or conjectural inference. 15. The Division Bench Judgment of this Court in Baburao Patel V/s. Bal Thackeray and another ( 1979 Mh. L.J. 11) was in fact followed in the case of Shri Govardhansing Raghuvanshi V/s. Chandanmal Ramprasad Rati and others {1982(1) Bom. C.R. 519}. In the case of Baburao Patel, the Division Bench of this Court has held that the extent and manner of cross examination would depend on the circumstances and the issues involved, and that is rightly so. because the relevancy of any question has to be determined with reference to the facts in issue and other relevant facts and only because one question was allowed in one case of defamation it need not necessarily follow that a similar question would be allowed in another case of defamation. The Division Bench further held that unless a piece of evidence is admissible under the Evidence Act no question eliciting that evidence can be put to a witness. As regards Section 146 of the Act the Division Bench held that clauses (1) and (2) are self explanatory and as regards clause (3) it was observed that it permits questions in the cross- examination to shake the credit of a witness and for this purpose his 20 character may be injured. In other words, injuring the character of a witness for the purpose of shaking the credit of that witness can be the subject matter of the assault. In fact, it is pointed out on behalf of the petitioner that the Learned trial Court, on previous occasion, had allowed a