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Shivage Gowda Vs. T. Narayana and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1968CriLJ836
AppellantShivage Gowda
RespondentT. Narayana and anr.
Excerpt:
.....m. he (leaded that the impugned publication contained true facts and that he published the same in good faith with due care and attention for public good. 10. after considering the oral and documentary evidence produced before him, the learned trial judge came to the conclusion that there was no truth in the plea of the accused that he was absent from mysore at the relevant time and that the publication by the accused in his paper was defamatory par se and he held that the accused had failed to make out a case either under the first exception or under the 9th exception to section 499, penal code. he also came to the conclusion that there was substantial truth in the impugned publication on both the dates and that the accused published the same after due care and caution for the public..........he (leaded that the impugned publication contained true facts and that he published the same in good faith with due care and attention for public good.10. after considering the oral and documentary evidence produced before him, the learned trial judge came to the conclusion that there was no truth in the plea of the accused that he was absent from mysore at the relevant time and that the publication by the accused in his paper was defamatory par se and he held that the accused had failed to make out a case either under the first exception or under the 9th exception to section 499, penal code. in the result, he convicted the accused and sentenced him to pay a fine of rs. 75/- on each of two counts and in default of payment of fine to undergo section i. for 15 days on each count.on.....
Judgment:

C. Honniah, J.

1. By this appeal, the appellant Sivaga Gowda challenges the correctness of the order of acquittal of the respondent T. Narayana, the Editor, Printer and Publisher of 'Mysore Patrika' of the offence under Section 500, Penal Code. Criminal proceeding against the respondent were Started on a complaint by Sivage Gowda, who was at the relevant time a student of the Maharaja'a College, Mysore, studying in the senior M.A. class, in the complaint Sivage Gowda alleged that the respondent had published in his news paper 'Mysore Patrika', D/- 5.9.63 and 21.9.63 a (statement against him, which was highly defamatory of him. According to the complainant, the defamatory statement was absolutely untrue and by publishing it, the accused had rendered himself liable to be punished under Section 500, Penal Code.

2. The acts which are necessary for the decision of this appeal are these: The complainant was a student at the material time studying of the senior M.A. class in Maharaja's College as Mysore and Dr. C. Parvathamma (D.W. 4) was the Reader teaching Sociology for senior M.A. class students. On 2.8.63 a seminar class was held by Dr. Parvathamma, in which one Pushpa. Rutna a student of the senior M.A. class read out an essay, the subject being ' Status of woman in Contemporary Society.' It appeals, while reading the essay Puspa, Ratna made some aspersions against the male students. The complainant became annoyed at the aspersions and therefore he requested Dr. Prvathamma that the matter be discussed. Dr. Parvathamma did not allow the discussion. It could be gathered from the evidence that there was some exchange of word between the complainant and Dr. Prvathamma and the situation became tense. Dr. Parvathamma, apprehending some danger, managed to send Puehpa Ratna from out of the class room on some pretext. Even thereafter, as the situation became tense. Dr. Parvathamma appears to have sought the help of others to bring the complainant; under control, but without success. Thereafter the complainant left the class room by going through the window in anger.

3. Again on 9.8.1963 there was a seminar class and as usual Dr. Parvathamma took the class. The male students headed by the complainant demanded that: there should be a discussion on the essay read out by Pushpa Ratna on the previous occasion, but Dr. Parvathamma refused permission. Again there was exchange of words between the two and as Dr. Parvathamma did not accede to the request of the complainant, the complainant again walked out of the class room.

4. According to the complainant he learnt from his friend Siddaramiah, who has not been examined in this case that Dr. Parvathamma had stated that the complainant had written love letters to Pushpa Ratna and therefore Pushpa Ratna made those remarks in her essay. Except the complainant's version, there is no other evidence to show that Dr. Parvathamma did make such a statement to Siddaramiah. Dr. Parvathamma, who has been examined in this case, has not been questioned on this point. On the same evening the complainant went to the house of Dr. Parvathamma. The complainant has stated that he went there in order to question her in regard to the all aged statement made by her to Siddaramiah.

Whatever may be the reason, it is not disputed in this case that the complainant went to the private house of Dr. Parvathamma at about 7 p. m. At that time Mir Ahmed Ali (D.W. 2) Sub-Inspector of Police, Lakabmipur Police station, was recording the statement o Dr. Parvathamma in connection with the complaint given by her against one Puttanna, The complainant entered the compound, went near the door and stated to Dr. Parvathamma that he wanted to talk to her, for which she refused. The complainant behaved in a rude manner and according to the evidence he threatened her and was in a mood to assault her. As Dr. Parvathamma did not allow him to talk to her, the complainant left the place saying something, presumably abusing her.

5. The following day, De. Parvathamma addressed the letter Ex. D-4 to the Vice Chancellor University of Mysore, bringing to his notice the misbehaviour of the complainant. the ex. pressed apprehension that the complainant might harm her. The same day, she gave the complaint Ex. D. 16 to the Sub-Inspector of Police, V.V. Puram seeking police protection against possible danger at the handa of the complainant. As no action was taken, she presented another petition Ex. D-17 on 28.8.1968 to the Vice Chancellor, requesting him to take some action. She sent a copy of Ex. D-17 to the Police Inspector, Devaraja Moholla, for necessary action. The Vice Chancellor asked Dr. Parvathamma to withdraw her complaint to the Police stating that he would appoint a Senior Officer to go into the matter and after the enquiry he would take a decision. In this behalf he appointed Sri Jayakumar Anagol (P.W. 1) Controller of Examinations, to enquire into the complaint.

6. The accused is the Editor, Pointer and Publisher of the paper called 'Mysore Pafcrika', which has got circulation in and around Mysore city. In its issues dated 5.9.63 and 21.9.63, the defamatory matter concerning the complainant was published. The defamatory matter was under the heading : Improper behaviour of a student of the Maharaja's College.' The substance of the matter was that one of the students in the Maharaja's College misbehaved with Dr. Parvathamma in the class room and when she sought the help of others, protesting at the behaviour of the student the said student escaped by jumping through the window of the class room. It further mentioned that he went to her house and abused in vulgar language after ridiculing her and then beat her and ran away. It also stated that he was writing letters to her using vulgar language, The impugned statement was again published on 21.9.68, clarifying that the defamatory matter published earlier referred to the complainant at the instance of the complainant.

7. After this statement was published, the complainant issued a lawyer's notice to the accused on 6.10.68, which was served on horn on 14.10.68. The accused did not reply. The shortly stated, is the background of the criminal proceedings, out of which this appeal arises.

8. The complainant, therefore, filed his complaint in the Court of the Second City Magistrate, Mysore. In support of his complaint, the complainant examined himself and one witness. The purport of the oral evidence led by the complainant was to show that he was a person of statue and good reputation, who was studying in senior M.A. class and he had suffered in his reputation and character by the defamatory statement published by the accused.

9. The accused examined himself and six witnesses and produce! several documents. His defence, in substance, is that at the date of the publication of the defamatory matter, he was absent from Mysore and that during that period his son Venkataram (D.W. 7) had been entrusted with the work of running the paper. He (leaded that the impugned publication contained true facts and that he published the same in good faith with due care and attention for public good.

10. After considering the oral and documentary evidence produced before him, the learned Trial Judge came to the conclusion that there was no truth in the plea of the accused that he was absent from Mysore at the relevant time and that the publication by the accused in his paper was defamatory par se and he held that the accused had failed to make out a case either under the first exception or under the 9th exception to Section 499, Penal Code. In the result, he convicted the accused and sentenced him to pay a fine of Rs. 75/- on each of two counts and in default of payment of fine to undergo Section I. for 15 days on each count.

On appeal, the learned Sessions Judge came to the conclusion that the accused was absent from Mysore from 4.9.68 to 24.9.63, during which period the two publications were made and that during that period the accused had entrusted the management of the Newspaper temporarily to his son. He also came to the conclusion that there was substantial truth in the impugned publication on both the dates and that the accused published the same after due care and caution for the public good. In the result, there, fore, he set aside the conviction and sentence and acquitted the accused.

11. Mr. B.T. Parthasarathi, the learned counsel for the complainant (appellant), contended that the learned Sessions Judge was wrong in his conclusion that the accused was absent during the relevant period and during that period he had entrusted the management of the paper temporarily to his son.

12. Venkataram (D. W. 7) is the son of the accused. He has stated that between 4.9.63 and 24.9.63; the accused had gone to Bangalore on some work and during that period, he was running the paper. Ha has further deposed that he got the news item published in Exs.P-2 And P-5 from Lakshmipuram Police station and from the University. Nagaraja Pandit (D.W. 6) is the Head Master of Dalavai Educational Institution in Mysore. His evidence is that the accused was a member of the Managing Committee of the said Educational Institution and the accused had been deputed by the institution to meet the Education Minister at Bangalore and in that connection the accused was away from Mysore during the period in question.

There is documentary evidence also in this case to show that the accused was absent from Mysore during that period. We therefore, agree 'with the learned Sessions Judge in the conclusion that' the accused was absent at the time the impugned publication were male. Bat there in no evidence that D.W. 7 is a competent person to run the paper; nor is there any evidence to indicate that temporary management of the News Paper had been entrusted by the accused to D.W. 7. If the Editor of a piper establishes that he entrusted in good faith the temporary management of the paper to a competent person during his absence! it would be sufficient answer to the charge. There being no material in this sage that the aroused entrusted in good faith the temporary management of the newspaper to his son during his absence, he cannot escape the liability of answering the charge under Section 500, Penal Code when it is proved that he was the Editor, Printer and Publisher of the newspaper in question and the defamatory matter concerning the complainant was published of two dates. Therefore, the learned Sessions Judge was wrong in holding that the accused had entrusted the management of the newspaper to D.W. 7 during his absence and for that reason the a sensed was not guilty under Section 500, Penal Code.

13. Mr. Parthasarathi urged that the impugned statement published by the accused is per se defamatory. According to him, the statement was untrue and was not intended to be made far the public good. He also contended that the statement was not published in good faith for the protection of the interest of the person making it or of any other person or for the public good. Therefore, he contended that the accused having not proved that he comes within the Exception 1 or Exception 9 to Section 499, Penal Code, he is liable to be punished under Section 500, Penal Code.

14. Section 499 of the Code defines defamation. It is common ground that the impugned statement published by the accused is per se defamatory and so we have to proceed to deal with the matter on the basis that the said statement would harm the reputation of the complainant. Exception 1 to 3. 499, provides 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 it is for the public good is a question of fact. In the present case, there is satisfactory evidence that the defamatory matter is substantially true. Dr. Parvathimina, has stated in her evidence that she read the defamatory matter and her reaction to it was that that was fairly correct, She was the person who was attacked by the complainant on both the occasions and therefore aha is the beat parson who could throw light on whit happened on the two occasions. The finding of the learned Sessions Judge on this point is based on propane appreciation of evidence and we are no reason to differ from it.

15. The accused in this case has shown that the defamatory matter is substantially true in regard to the material portion of the allegation or insinuation. It is no doubt true that there is some exaggeration in the impugned publication. That does not deprive the accused of the protection provided in the Exception to Section 499, Penal Code. In Murlidhar Jeramdass v. Narayana Das AIR 1914 Sind 85, it was pointed oat that where in a newspaper report the main aspersion of the accused against the compliment is true, the fact that there is soma exaggeration or departure from strict truth does not deprive the amuse of the protection provided in Exception 3, Section 499, Penal Code. Mare exaggeration, or even gro3a exaggeration, doe3 not mike a comment unfair. Where the matter is of public interest, the Court ought nab to weigh any comment on it in a fine scale and some allowance must be made for even intemperate language, provided however that the writer keeps himself within the bounds of substantial truth and does not misrepresent or suppress any facts. In this case the account given in the publication is what occurred in the Glass room and also in the house of Dr. Parvathamma and is shown to be substantially true.

16. No amount of truth will justify a libel unless its publication was for the public good. The question whether the publication was or was not for the public good is declared to be a question act and it is dependent upon the matter published, the nature, occasion and extent of the publicity and the actual good thereby accomplished. We have no doubt in our minds that the publication in this case about the conduct of the complainant on both the occasion was for public good.

17. The only other question which arises for consideration is whether the imputation can be said to have been made in good faith. The ingredient of the ninth exception to Section 499 are that the imputation on the character of another should be made in good faith and for the protection of the interests of the person making it or of any other person or for the public good. So the accused has to prove that the publication was both in good faith and for the public good.

Mr. Parthasarathi contended that the accused has not published the defamatory matter with due care and attention and when that is be, it cannot be said to be done in good faith. According to him, good faith contemplates an honest effort to ascertain the truth of the facts. There is sufficient evidence in this case to hold that the publication in this case was made with due care and attention. D.W. 7, the son of the Accused has stated in his evidence that he had ascertained the facts of this case from the University and also from the Police. Dr. Parvathamma had complained against the complainant not only to the Vice Chancellor of the University but also to the Police. In these circumstances, the publication of this matter has been done after due care and attention. The accused has shown that he had taken all reasonable precautions and bad a reasonable belief in the truth of the statement before publishing the same.

18. Mr. Parthasarathi relied upon the decision in G. Chaudadsekhara Pillai v. K. Karthaikeyan : AIR1964Ker277 , in which it was pointed out that a publisher of a defamatory statement can only be protected if he shows hat he had taken all reasonable precautions and then had a reasonable and well grounded belief in the truth of the statement. The plea of 'good faith' implies the making of a genuine effort to reach the truth, and a mere belief in the truth, without there being reasonable grounds for such a plea, is not synonymous with good faith; Exception 9, therefore, covers two matters, proof of good intention and the exercise of reasonable care and skill, having regard to the occasion and the circumstances. Here subjective belief without any objective basis is not a depend, able criterion for substantiating the ninth exception; an unnecessary aspersion is indicative of want of good faith. The facts in Chandrasekhara Pillai's case are different from the facts in this case.

19. Mr. Parthasarathi contended that the accused in this ease without any objective basis, has published the defamatory matter and that is indicative of want of good faith. He further contended that the burden of proving the existing circumstances bringing the accused within the exceptions to Section 499 Indian Penal Code is upon him and the Court shall presume the absence of such circumstances. It is true that under Section 105 of the Evidence Act if an accused person claims the benefit of exception, the burden of proving his plea that his case falls under the exceptions is on the accused. Where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonably doubt. It is sufficient if the accused who pleads an exception satisfies the Court of the probability of what he bag been called upon to establish and if on the evidence it appears probable that the defence set up is true, he is entitled to a decision in his favour even though he may not have succeeded in proving the truth of his version beyond reasonable doubt. On considering the material placed before us, we are satisfied that the accused had published the defamatory matter in good faith. Not only from the probabilities in this case, but also from the positive evidence, the accused has proved in this case that the publication in this case was in good faith.

20. The question whether an accused person acted in good faith under the 9th Exception came to be considered in Harbhajan Singh v. State of Punjab : 1966CriLJ82 . In the course of the judgment in that case it was observed-

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 acts 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.

We have carefully considered the evidence to which our attention was drawn by both the sides and we have come to the conclusion that the accused has satisfactorily proved that he acts in good faith when he published the impugned statement.

21. The learned Session Judge has acquitted the accused mainly on the ground that at the; relevant time the accused was not in town, in our opinion the learned Sessions Judge was not correct. But as the material in this case, as stated earlier, establishes that the accused's case comes within Exceptions 1 and 9 to Section 499 Indian Penal Code, the order of acquittal cannot be interfered with.

In an appeal against an acquittal, the accused stands with a double presumption in his favour. Firstly, there is a rule that it is for the prosecution to make out their case and until they do so beyond all reasonable doubt, the accused must be presumed to be innocent and secondly, that the accused having been acquitted by a Court, the High Court will not interfere until the appellant shows conclusively that the inference of guilt is irresistible The complainant has not shown to us conclusively that from the material placed by him, the only inference that could be drawn is that the accused is guilty. On the other hand, the accused has shown that nut only the complainant has not proved his case, but also he camas within Exceptions 1 and 9 to Section 499 Indian Penal Code.

22. For these reasons, we decline to interfere with the order of acquittal and therefore the appeal fails and is accordingly dismissed.


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