CHAMAN LAL

THE STATE OF PUNJAB

March 6, 1970

[A. N. RAY AND I. D. DUA, JJ.J

Indian Penal Code, 1860, ss. 499 and 500-Plea of justification under exception.\· 1, 8 and 9 of s. 499-Scope of-When docu111ents privileged,

The appellant, who was the President of the local Municipal Com mittee. was convicted under Section 500 of the Indian Penal Code on a complaint that he had made defamatory remarks in respect of the character of the complainant, a Nurse attached to the Civil Dispensary, at a public meeting; that he wrote a letter to the Civil Su'rgeon which contained defamatory statements against he•r character and also repeated the defamatory allegations before the Civil Surgeon.

The appellant's plea of justification under excptions 1, 8 and 9 of s. 499_ I.P.C. was rejected by the trial court and his appeal to the High Court was also dis missed.

On appeal to this Court

HELD : On the facts, the appeal must be dismissed.

In order to come within the First Exception to s. 499 it has to be established that what has been imputed concerning the respondent is true and the publication of the imputation is for the public good.

The onus of plroving these two ingredients was on the appellant but he tota1ly

ailed to establish these pleas.

On the contrary, the evidence showed that the imputation concerning the respondent was not true but was motivated by animus of the appell'111t against the r<Spondent. [917 HI

The Eighth Exception to s. 499 indicates that an accusation in good faith against the person to any of those who have lawful authority over that person with respect to the subject matter of the accusation is not defamation, but in the present case there was utter lack of gl?od faith in the accusation.

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 care and caution.

1918 C]

The Ninth Exception provides that if the in1putation is made in good faith for the protection of the person making it or for another person or for the public good it is not defamation. Apart from the Jack of good faith there was no evidence to support the plea that the imputation was for the public good.

Furthermore the interest has to be real and legitimate when communication is made in protection of the interest of the person makin2 it. [918 DJ

The plea that the Jetter to the Civil Surgeon was privileged because as the President of the local Municipal Committee the appellant had to Mite to, the Civil Sµrgeon about the work of the .cur.1plaint ws not taken at the trial and there was no, evidence to support it. Purthirinorc,

the privilege extends only to a communication upon the subject with resM pect to which the privilege extends and the privilege can be claimed in exer .. cise of the right or safeguard of the interest which creates the privilege.

In the present case the concurrent findings of fact repel any suggestion

of pirotection of the interest of the appellant in making the insinuations A against the respondent contained in the letter fom1ing the subject matter of the complaint. [918 G]

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 138 of 1967.

Appeal by special leave from the judgment and order dated B May 26, 1967 of the Punjab and Haryana High Court in Criminal Revision No. 675 of 1965.

R. L. Kohli, for the appellant.

Harbans Singh and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Ray, J. This appeal is by special leave from the judgment of the High Court of Punjab and Haryana dated 26 May, 1967.

The High Court upheld the conviction of the appellant under section 500 of the Indian Penal Code and sentenced him to three months simple imprisonment and imposed a fine of Rs. 1000

and in default thereof a further simple imprisonment for three months.

The case started on a complaint filed by Bishan Kaur on 23 October, 1963.

The complaint was that the appellant Chaman Lal who was at that time Pre.sident of Municipal Committee, Sujanpur in the District of Gurdaspur had made defamatory remarks against her character at a public meeting held at Sujanp_ur on 29 July, 1962 aild that he further wrote a letter on 2 August, 1962 to the Civil Surgeon, Gurdaspur which contained defamatory statements against her character and further that on 27 August, 1962 the appellant repeated those defamatory allegations before the Civil Surgeon.

The appellant pleaded justification under Exceptions l, 8 and 9 to section 499 of the Indian Penal Code.

The First Exception states that 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 h is for the public good is a question of fact.

The Eighth Exception states that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

The Ninth Exception states that it is not defamation to make an imputation on the character of 1lnother provided that the imputation be made in good faith for the protection of the interest i;>f the person making it, or of !lny other person, or for the pubhc good.

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The letter written by the appellant dated 2 August, 1962 which was marked as Exhibit P.W. 4/ A, inter alia, states, "It

is a matter of grave concern and consideration that Smt. Bishan Kaur, Nurse Dai attached with Civil Dispensary is earning very bad reputation having illegal relations with one Shri Prakash Chand. a cycle repairer of Sujanpur.

A meeting of the Co-ordinate Civic-body of Sujanpur was convened, to create civic sense .... on 29 July at 8 A.M. in the Town Hall wherein leading men bf all communities were present.

The issue about the character of Smt. Bishan Kaur was discussed in open house and the public felt this point seriously.

The matter has been brought to the notice of the worthy Deputy Commissioner, Gurdaspur personally by me on 1 August, 1962 and he assured to take immediate action against her.

I feel my assumption to bring to your notice and request for immediate transfer of her in the public interest"

The appellant claimed that the residents of Ward-5 of Sujanpur had submitted a complaint in writing dated 25 July, 1962 against the serious misbehaviour of the respondem Bishan Kaur and that allegations were made against the character of Bishan Kaur in that application.

The appellant further claimed that the said application marked Exhibit D.W. 1/ A was read by the Secretary of the Municipal Committee, Sujanpur at the meeting on 29 July, 1962.

The further defence of the appellant was that a resolution was passed at that meeting requesting the appellant to approach the higher authorities regarding the said application and it was pursuant to that resolution that the appellant wrote the letter dated 2 August; 1962 forming the subject matter of the complaint. The resolution on which the appellant relied was marked as Exhibit D.C.

Counsel for the appellant contended that good faith of the appellant was established by two features; first that as President he had to act in public interest, and, secondly, large number of people who signed the application and passed the resolution were present at the meeting on 29 July, 1962 and there were allegations against the respondent.

It was, therefore, said by counsel for the appellant that the appellant acted not only in good faith but also for public good.

Public good is a question of fact.

Good faith has also to be established as a fact.

The concurrent findings of fact by the Sessions Court and the High Court with. regard to meeting on 29 July 1962 are three fold; first that there was no record of the proceedings of the meeting c alleged to have been held on 29 July, 1962 at the Town Hall of Sujanpur.

It was not therefore dependable to rely only on the oral evidence of the complainant that the appellant had defamed the complainant at the meeting, and, therefore, benefit of doubt

was given to the appellant on that charge.

The sceond finding is that the application dated 29 July, l "62 alleged to have been made by the residents of Sujanpur and further alleged to have been 'ead ovrr by the Secretary of the Municipal Committee at the meet- . ·ng on 29 July, 1962 was a manufactured document.

Thirdly, the resolution alleged by the appellant to have been passed by the residents of Sujanpur at the meeting on 29 July, 1962 was also a forged document.

One of the reasons given by both the Courts for rejecting both the application and the resolution from consideration was that none of these alleged documents was put to any of the prosecution witnesses some of whom admittedly attended the meeting on 29 July, 1962.

The genuineness of the.documents was rightly disbelieved.

In the background of these findings of fact the plea of good faith of the appellant that he wrote the letter dated 2 August, 1962 pursuant to the application and the resolution of the residents of Sujanpur loses all force and has no foundation.

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.

The appellant said that he verified the allegations and then wrote the letter forming the subject matter of the complaint.

The appellant has not given any evidence as to what steps he took for verifying the allegations.

On the contrary, it appears to be established on evidence that during five years preceding the letter written by the appellant to the Civil Surgeon there was not a single instance or occasion of any complaint against the respondent Bishan Kaur.

The further finding is that the appellant in defence sought to produce witnesses who tried to establish that the respondent was a woman of doubtful virtues.

Three of the witnesses on behalf of the appellant were a potato chop seller, a tongawala and a petty shop-keeper and they went to the extent of sayh1g that they had illicit connections with her.

These defence witnesses were disbelieved.

That also proved that the appellant did not act in good faith.

The appellant was the President o! the Municipal Committee and it would not be an act of good faith or prudence and caution to rely on such persons as a tongawala or a petty shop-keeper in making allegatio.ns against the character o.f the respondent.

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Counsel for the appeilant relied on Exhibits D.A. and DB. and submitted that the High Court c:1d not talce these two letters into consideration in finding out tl1e good faith of the appellant Exhibit D.A. is dated 18 September, 1962 and is a letter addrs

sed by the Civil Surgeon to the appcllam. Exhibit D.B. is ir memorandum by the residents of Sujanpur to the Civil Surge •n

and bears the date 27 August, 196'.:. In Exhibit D.B. !he alleged signatories wrote to the Civil SurgeOJ, rhat they had to attend the enquiry by the Civil urgeon in.co rhe conduct of Bishan Kaur and that the enquiry was at thtdemand of the general public and further that there were complaints against the respondent and 'it was not desirable to retain such a person on the noble job of a nurse.

The letter of the Civil Surgeon dated 1 September, 1962 was that a large number of people were present and bulk of them expressed their views against Biishan Kaur and some of the persons met the Civil Surgeon subsequent to the enquiry at his office.

The High Court found that some of the persons who submitted the alleged representation against the respondent to the Civil Surgeon later on Ct'ntroverted the allegations against the respondent awl th is evidence established that the complainant was an ordinary nurse awl that is ho"' the appellant had manoeuvred discussion f die. ;,,_,1; ilainant's -:haracter at the enquiry before the Civil Surge.:m on 27 Augu; t, 1962.

The appellant cannot rely on Exhibit D.B. dated 27 August, 1962 to estao1i.; h good faith in writing the letter dated 1 August,

1962. Furthermore, Exh'bi: D.B. which is alleged to have been written by tht rc, idents of S"rrnpur was not proved by calling persons who are alleged to have signed.

Documents do not prove rhemselves.

Exhibit D.B. wa> not proved by the persons who are alleged' to have signed the rnme nor was the truth of statements contained in Exhibit D.B. prc; ved.

The enquiry made by the Civil S1rgeon on 27 August, l %2 was found by the High Court to have been engineered by the private animus of the appellant against the respondent by sending some residents to-the place of enquiry.

This finding not only disproves good faith but establishes total lack of care and prudence on the part of the appellant.

The letter written by the appellant indicates that the appellant wac. setting his seal of approval to matters contained in that letter.

There is no proof that the appellant made any enquiry about the matters before he \vrote the letter.

There is no evidence that the appellant acted with reasonable care.

On the contrary, circumstances suggest that the appellant acted without any sense of responsibility and propriety. The. appellant was a President of the Municipal Committee and there he was. required to act .with utmost orudence and caution.

In order to come within the First Exception to section 499 of the Indian Penal Code it has to be established that what has

en impud con?ern!ng the respo':1dent is true and the publication of the imputation 1s for the pubhc good.

The onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good is on the appellant.

The apJJP, llant totally failed to establish these pleas.

On the contrary, the evidence is that the imputation concerning the respondent is not true but is motivated by animus of the appellant against the respondent. ·

The Eighth Exception to section 499 of the Indian Penal Code indicates that accusation in good faith against the person to any of those who have lawful authority over that person with respect to the subject matter or the accusation is not defamation.

We have already expressed the view that there is utter lack of good faith in accusation.

The Ninth Exception states that if the imputation is made in good faith for the protection of the person making it or for another person or for the public good it is not defamation.

There is no evidence whatever to support the plea that the imputation was for the public good.

The accusation was not also made in good faith.

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 care and caution. Under the Eighth ExceptiQD statement is madeby a person to another who has authority to deal with the subject matter of the complaint whereas the Ninth Exception deals with the statement for the protection of the interest of the person making it.

Interest of the person has to be real and legitimate when communication is made in protection of the interest of the person making it.

Counsel for the appellant contended that the communication to the Civil Surgeon was privileged, because as the President of the Municipal Committee be had to write to the Civil Surgeon

about the work of the complainant.

It will be a question of . fact as to what the duty of the appellant was in relation to the work of the respondent in making a statement to the Civil Surgeon.

This plea was not taken and there is no evidence to support it.

Furthermore, the privilege extends only to a communication upon the subject with respect to which the privilege xtends and the privilege can be claimed in exercise of the right or safeguard of the interest which creates the privilege. In the present case, the concurrent findings of fact repel any suggestion of protection of the interest of the appellant in making the insinuations contained in the letter forming the subject matter of the com- . plaint. There is also no matrial to sow as t? ow the letter was written by the appellant m protection of his mterest.

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The letter writttn by the appellant contains imputations and insinuations against the character of the respondent.

One of the allegations was that a cycle repairer was on intimate terms with the respondent.

This was a serious allegation against the character of the respondent. The appellant made baseless and reckless allegations.

They are baseless because they have not been proved.

They are reckless because the appellant claimed to qe the President of the Municipal Committee but he acted in a totally irresponsible manner by havillg gone out of his way to make the allegations against the character of a poor and helpless

widow.· The appellant was a man.of power and wealth.

That is all the more why he should have acted with restraint and decorum. He failed in both. There was po good faith.

The appellant .cannot be said to have acted in public good.

Counsel for the appellant submitted that if there was a reduction of sentence from three months to two , months that would save him from disqualification.

There is no merit in that submission.

This is not a case where th~ should be a reduction of sentence

particularly when the Courts have found facts which dispel any , semblance of good faith and indicate on the contrary lack of prudence and dignity with which a person occupying the office of tlie President should act.

The appeal, therefore, fails and is dismissed. The appellant is directed to surrender to the bail bond to undergo the unexpired term of his imprisonment

R.K.P.S.

Appeal dismissed.