1. This revision by the Secretary of All India Postal Employees Union, Class III. Kurnool Division is directed against the judgment of the Sessions Judge Kurnool in Criminal Appeal No. 18 of 1966 confirming the conviction of the petitioner for the offence of defamation.
2. The brief and material facts that led to this revision are as follows:-The petitioner in his capacity, as the Secretary of All India Postal Employees Union, Class III, Kurnool Division submitted a memorandum to the Director General of Posts and Telegraphs against the then Superintendent of Post Offices, Kurnool for his alleged acts of omissions and commissions. Under the head 'Favouritism', it was mentioned about the appointment of the complainant in the following terms:
The post of Wireless Inspector, Kurnool has been given temporarily to an official who has Court attachment to his salary, who is heavily indebted, who is declared unfit to work in cash counters and who is used to intemperate habits....
On the complaint preferred by the 1st respondent herein, the petitioner was charged for the offence of defamation. The prosecution examined P. Ws. 2 to 4, postal employees in addition to the complainant P. W. 1 and filed Exs. P.1 to P.3. The petitioner admitted the submission of the memorandum and the allegations made by him in his capacity as the Secretary of the Union but pleaded that he had no malice against P. W.1, that the allegations were true and that in any event the case would fall within the Exception 8 or 9 to Section 499, I. P. C. The accused examined D. Ws. 1 to 5 and filed the documents Exs. D 1 to D-8 in support of his pleas. The trial Court found that the salary of the complainant was attached and that he was indebted, but held that the accused failed to prove the other 8 allegations and convicted the accused under Section 500, I. P. O. and sentenced him to pay a fine of Rs. 300/., On appeal, the Sessions Judge Kurnool confirmed the conviction but reduced the sentence of fine from Rs. 300/- to Rs. 100/-. Hence this revision.
3. Mr. Bhujangarao, the learned Counsel for the accused urged that the Exceptions 8 and 9 to Section 499, I. P. C. are satisfied in the instant case and the petitioner is entitled (or an acquittal. Mr. Padmanabha Reddy, the learned Counsel for the complainant contended contra.
4. The point that arises for determination in this revision is whether the provisions of Exceptions 8 and 9 to Section 499,1. P. C. are satisfied.
5. For a proper appreciation of the question that arises for determination, it is useful and necessary to consider Section 499, I. P. C. and Exceptions 8 and 9 to it, which read thus:
Section 499, I. P. C: Whoever by words either spoken or intended to be read, or by Signs or by visible representations, makes or publishes any imputations 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 excepted to defame that person.
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Eighth Exception: It is not defamation to refer 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.
Ninth Exception: 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 interest of the person making it, or of any other person or for the public good.
6. Whoever by words makes or publishes any imputation concerning any person in tending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said to defame that person. If the person accused of defamation establishes that the imputations are true and they were made for the public good, be is not liable for defamation under Exception 1. Any accusation made in good faith by any one against any person to persons, having lawful authority over that person with regard to the subject-matter of accusation, does not amount to defamation under Exception 8. Any imputation by any one made in good faith on the character of another with a view to protect his interests or that of any other person or in public good, is not defamation under the 9th Exception to Section 499 I.P.C. Under Section 52 of the Indian Penal Code. 'good faith' is defined as anything done with due care and attention. Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention under Section 52 of the Indian Penal Code. Under General Clauses Act, a thing is deemed to be done in 'good faith' if it is in fact done honestly, whether it is done negligently or not. But the definition given under Section 52 of the Indian Penal Code would govern the cases arising under the Indian Penal Code. In the matter of the petition of Shibo Prasad Pandah (1879) I L R 4 Cal 124, it was observed that the proper point to be decided in considering the question of good faith is not
whether the allegations put forward by the accused in support of the defamation are in substance true, but whether he was informed and bad reason after due care and attention to believe that such allegations were true.
In the case of Emperor v. Abdool Wadood Ahmed (1907) I L R 31 Bom 298 a Division Bench of the Bombay High Court observed that
good faith requires not indeed logical infallibility, but due care and attention. But how far erroneous actions or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question.
In Anthoni Udayar v. Velusami Thevar AIR 1948 Mad 469, Rajamannar J. as his Lordship then was, ruled thus:
There cannot be any rule of thumb to determine in particular case whether an imputation is made in good faith or not. Good faith is relative to a great extent and must be determined by the circumstances under which the imputation was made, the social status and level of education of the person making the imputation and his reasoning capacity. That the allegations contained in the statements made by the petitioner are not established to be true is not tanta mount to an absence of good faith. Imputations must be so reckless that good faith must be deemed to be totally absent.
In Harbhajan Singh v. State of Punjab : 1966CriLJ82 , the learned Chief Justice Gajendragadkar laid down the law in clear terms thus at page 103:
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.
7. Under Section 105 of the Indian Evidence Act, the burden of proving that the case of the accused comes within any of the general exceptions in the Indian Penal Code is upon him. It is the fundamental doctrine of criminal law relating to onus of proof that the prosecution must establish all the ingredients of the offence with which the accused was charged, by independent evidence for convicting the accused, irrespective of the fast whether the accused is able to adduce evidence bringing his case within any one of the exceptions, or not. The nature and the extent of the onus of proof that lies on the prosecution to prove the guilt of the accused is absolute and it stands on a different footing from the kind and nature of proof expected of the accused person to bring his case within any one of the exceptions pleaded by him. The prosecution has to establish the guilt of the accused beyond all reasonable doubt, whereas it is enough for the accused to bring his case within any one of the exceptional if he succeeds in proving a preponderance of probability. This fundamental doctrine of criminal law was emphasized by Viscount Sankey in Woolmington v. Director of Public Prosecutions 1985 A O 462, who observed that no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. This view was also emphasized by Duff. J. in R. v. Clark (1921)61SC R608 and Lord Hailsham Sodeman v. R. : 1966CriLJ82 , the Supreme Court observed thus:
The onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the Court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved, if a preponderance of probability is established by the evidence led by him.
In the light of the aforesaid principles of law relating to the onus of proof of good faith, let me examine the question whether the case of the accused is brought within either Exception 8 or Exception 9 to Section 499 I. P. C. The contention of the complainant, relying upon the decisions of the Kerala High Court in Chandrasekhara v. Karthikeyan : AIR1964Ker277 and R. Sankar v. State AIR 1959 Ker 100, that mere creation of doubt, regarding truth of statement is not sufficient to prove Exception 8 or Exception 9 of Section 499 I. P. C., unless the statements are proved beyond reasonable doubt to be true, is untenable as the principle laid down in this regard by the Kerala High Court in the aforesaid decisions, is no longer good law.
7A. To being the case of the accused herein within Exception 8 to Section 499, I. P. C. it should be established that the accusations ware made to the person who is in authority over the person against whom the complaint was made and in good faith. Where the lawful authority) to whom the accusations are made, has some jurisdiction in the matter, they are privileged, whether such jurisdiction be immediate or ultimate, but where the authority possesses no jurisdiction at all over the subject matter of the complaint, it is then no more privileged, than if it had been published to any other man. In the present case, the accused, in his capacity as the Secretary of the All India Postal Employees Union, Class III, Kurnool Division, has sent up the memorandum to the Director General of Post and Telegraphs, admittedly the lawful authority over the person, with respect to the subject-matter of the accusation, bringing to his notice certain acts of omission and commission on the part of one P. Subrahmanyam, the then Superintendent of Post Offices, Kurnool and one of the instances of his commission was to appoint the comuplainant, in preference to many other deserving candidates to the post of the Wireless Inspector.
8. The contention of the complainant that the memorandam has not only been submitted to the Directors General, Posts and Telegraphs, Hyderabad but a wide publicity has been given to a number of other persons, is without substance. The complainant himself has admitted in his evidence that the memorandum has been published in the bulletin and circulated only amongst members of the Union, Kurnool Division and it is clear from the very document that it is intended only for the members and hence it cannot be said that there was any unauthorised publicity given to the accusations in the instant case.
9. With regard to the other ingredient of good faith, it has to be seen from the material on record, how far the accusations are found to be true. The allegations, though appear to be four, all of them, in my view, are only different phases of one aspect relating to character. Admittedly, he was indebted as his salary was attached under a Court decree. The Court below erred in thinking that the accused has not proved the complainant to be heavily indebted and that he was declared to be unfit to hold any position to handle cash. The question of heavy indebtedness is a relative term which differs from person to person. A person having property worth one lakh of rupees may not be considered to be heavily indebted, if he owes to others a sum of ten thousand rupees; whereas a person with a large family of ten members to be maintained, who is drawing a salary of Rs. 200/- or Rs. 250/- per month, if indebted to an extent of Rs. 1,000/- or more, can certainly be considered to be a person heavily indebted. In the instant case, the salary of the complainant at the relevant time was about Rs. 200/- per month and admittedly he has four children by the first wife and five children by the second wife, both the wives living, and he was indebted to a tune of more than Rs. 1,000/-, and his salary was attached. He could not pay the decretal amount of Rs, 600/- till 9 months after attachment of his salary. Prohibition officers visited his house. The evidence discloses that the income was insufficient for the maintenance of his large family. There is no evidence on record to show that P. W. 1 has any substantial properties of his own. In such circumstances, it must be inferred that he is heavily indebted, taking into consideration his official and financial status and the other circumstances in the case.
Under Rule 94 of the Posts and Telegraphs Manual No. II, no official, who is seriously indebted, shall be appointed to any position of trust in which he will have access to or handle cash or valuables. The strict adherence to the aforesaid role by the appointing authority, is not only fair and proper but is in the large interest of good administration of the Welfare State. The accused who is the Secretary of the Union, might have thought that the complainant, being heavily indented and his salary being attached by a Civil Court, has made himself unfit to work in a cash counter where he has to deal with cash and valuables. With regard to the last allegation that he is used to intemperate habits, the evidence on record when real with the report of the Circle Inspector, amply justifies the accusation of the accused. Hence, on a consideration of the entire facts and circumstances, I hold that the accused has established the allegations made against the complainant in the memorandum submitted to the Director-General, Posts and Telegraphs, Hyderabad, the lawful authority, to be true. Even assuming, without admitting, that the accused did not establish the truth of the allegations beyond reasonable doubt, I must say that he has discharged the onus of proof by proving the preponderance of probability of the accuations preferred by him with an honest and bona fide belief on the information available to him, as true, against the complainant to the Director-General, Posts and Telegraphs, Hyderabad, the lawful authority.
There is no malice or ill-will against the complainant, whose name also was not mentioned. The accusations were mainly directed against the Superintendent of Posts Offices about his acts of omission and commission, and the appointment of the complainant as Wireless Inspector by the Superintendent of Post Offices was one such act of commission which was brought to the notice of the higher authority. On the facts and in the circumstances, I hold that the accused has made the accusations under good faith against the complainant to the lawful authority and established the same in bringing his case within Exception 8 to Section 499 I. P. C.
10. There remains to be seen whether on the facts and in the circumstances, the provisions of Exception 9 to Section 499, Penal Code are satisfied in the instant case. To bring the case within Exception 9 to B. 499. Penal Code, it must be established that the imputations made by the accused relate to the character of the complainant with due care and attention and not recklessly, in the interest of himself or any other person or for public good. There is no definition of the expression 'character' in Exception 9. The expression 'character' of a person is of very wide import. The interest which the accused seeks to protect either himself or any other person by making imputations on the character of the complainant may pertain to political, religious, economic, social or personal matters. Proof of some special interest is only required when the imputation is made for the protection of the person who makes the statement or of any other person, but when the matter is one of the public interest, the only ingredient necessary to be proved is good faith. If the allegation is true, irrespective of the fact whether good faith is proved, or not the accused is protected by the exception.
All departments of the Government are matters of public interest. The bona fide, fair and constructive criticism of the members of the public, in a democratic country, made with due care and attention, on the character and conduct of the Government public Officials of the Executive, when they overstep their limits in the discharge of their public duties, is privileged and such criticism or comment would not amount to defamation as it was made with good faith and intended for general public good. In Blake v. Pilford (1882) 1 Mood & Rule 193, even a false statement by a member of the public regarding an official to his officer, was held to be a privileged one in England. Where the matter is one of the public interest, the only thing necessary to be established by the accused is good faith. In case where it is one of any other's interest, the other ingredient also will have to be proved.
11. Mr. Padmanabha Reddy strenuously urged that the imputations 1 to 8 except the 4th relate to expression of facts but they do not relate to the expression of opinion regarding character and the imputations must fully be established to be true and the accused will not be entitled to the benefit of the Exception 9 if the imputations are partly true and partly untrue, and that they were not made for the protection of their rights or others but only to expose the Superintendent of Post Offices.
12. To appreciate this point, it is necessary to consider the meaning of the expression 'character' in Exception 9 to Section 499, Penal Code. ''Character' is not defined either under the Indian Penal Code or under the General Clauses Act. According to Webster's New International Dictionary, 'character' means ''An attribute, quality, esp. a trait or characteristic which serves as an index to the essential or intrinsic nature of a person'; 'reputation, repute; as a man's character for truth and veracity, a description, dilineation, or detailed account of the qualities or peculiarities of a person.'
13. According to Law Lexicon of British India, 'character' means 'estimation of a person by his community; particular qualities impressed by nature or habit on a person Which distinguish him from others.' Character lies in the man, it is the mark of what he is, it shows itself on all occasions, reputation depends upon others; and it is what they think of him. According to Oxford Dictionary, 'character' means 'collective peculiarities, sort, style, reputation, good reputation, description of person's qualities, testimonial, status.' The Model Code of Evidence defines character as the 'aggregate of a person's traits including those relating to care and skill and their opposites.' Just as cause of action means a bundle of facts, character is an expression of very wide import which takes in all the traits, special and particular qualities impressed by nature or habit which serve as an index to the essential intrinsic nature of a person. Character also includes reputation, but character and reputation are not synonymous.
14. In this context, it is necessary to consider whether the imputations in the instant case relate to the character of the complainant or not. In my opinion, all the four allegations are nothing but different phases of an imputation on the character of the complainant. The sum and substance of all the allegations is that, the complainant is not a man of good character and conduct who did not deserve to be appointed in preference to the other deserving candidates as the Wireless Inspector by the then Superintendent of Post Offices, Kurnool. This imputation on the character of the complainant is certainly made by the accused in his capacity as the Secretary of the Union for the protection of the other deserving employees of the Postal Department and at large finally for the public good. The appointment of the complainant by the then Superintendent of Post Offices is a public act purported to have been done by him. for the public good. Every citizen is entitled to have an honest and constructive criticism whenever justified or necessary on the facts' and in the circumstances, with a view to have proper and deserving persons being appointed, which ultimately results in public good. The appointment of deserving persons who bear good character and conduct, for any public office is certainly for the good administration of the conuntry and in the general public interest.
In my opinion, the allegations in the memorandum amount to an imputation on the character of the complainant made by the accused in good faith in the interests of other better qualified employees of the Department and for the general public good. There is absolutely no malice. Good faith has to be inferred in each case from the facts of that case. There is nothing on evidence to show that there is lack of good faith on the part of the accused. In short, on the facts and in the circumatances of the case, I have no hesitation to hold that on the information available to him, as the Secretary of the Union, the petitioner, after taking due care and caution and under an honest and bona fide belief that the allegations were true, keeping in view the interests of the other deserving and better qualified employees of the Postal Department and the general public good at large, has made the impugned imputations on the character of the complainant, in the memorandum submitted by him against Subrahmanyam, the then Superintendent of Post Offices, Kurnool Division to the Director-General, Posts and Telegraphs, Hyderabad. Hence I must hold on the facts and in the circumstances of the case that the accused acted in good faith and satisfied all the ingredients of Exception 9 to Section 499, Penal Code.
15. In the result, the conviction and sentence awarded by the Courts below on the accused-petitioner are set aside and the accused-petitioner is acquitted. The amount of fine, if already paid, is directed to be refunded. Revision allowed.