1. This is an appeal by one Bhagwan Das the editor of a paper known as the Awas in Meerut. The case was tried by a Jury. The charge against him was one of libel under Section 500 of the Penal Code and the allegation was that he had published in his newspaper continuously a series of defamatory statements and personal criticisms upon Mr. Grant, Collector of Saharanpur. Mr. Nehal Chand, a Barrister of great experience in this Court, has represented the appellant here, and he has been unable to find fault with the heads of the charge, and in the ordinary way that would dispose of this case, but it happens to be that the Collector of Saharanpur is a European and the appellant an Indian, and, therefore, the new provision in the current Criminal P.C. compels this Court to entertain an appeal upon the facts as well as upon law.
2. From first to last throughout the proceedings there is not to be found a trace even of an attempt by the appellant to justify the statements which he made about the Collector upon which the criticizms were based. As a matter of fact the conduct of newspaper engaged in criticizing public affairs demands from the editor a high decree of intelligence, a high degree of education and a high degree of tact and taste. The appellant appears to be lacking in all these qualifications. He, on the question of fact, suggested through his counsel that the relevant exception to the definition of 'defamation' in the Code was the section which runs as follows:
It is not defamation to express in 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.
3. The two relevant features of that definition which apply to this appellant in his attack upon Mr. Grant are the words 'good faith' and 'conduct'. The appellant has yet to learn, it seems, that the protection there given to fair comment upon the conduct and character of public servants, is the protection given by the law in the public interest to the free expression of opinion, so that a man may without fear of the consequences express an honest opinion on facts. But the words 'conduct of a public servant' mean what he has done, not what he has not done, and it is no comment upon the conduct of a public servant to make defamatory and injurious charges based upon imaginary statements of fact.
4. The fundamental principle underlying that definition is better expressed in the English form of pleadings than it happens to be in this exception to the definition. Following the principles laid down for generations by the Common Law in England an English pleader always pleads, so far as the allegations complained of consist of statements of fact, that they are true in substance and in fact; so far as they are expressions of opinion that they are fair comments and by English Law it is impossible to justify allegations on the ground of fair comment the moment it is shown that the criticizm is based upon a mis-statement of facts. The same result is obviously arrived at by this section in the implication of the words 'good faith.' There is nothing more wicked and nothing which may be so injurious to a man who is unable to protect himself, than for an editor of a public newspaper, the contents of which may be spread broadcast through every section of the community, to make reckless and imaginary criticizms on a man, with charges of misconduct without any foundation or authority to justify the same. The exception to the definition entirely breaks down.
5. There is a further complaint, for which there is not the slightest evidence, that the Judge at the trial unlawfully prevented the appellant, who conducted his own case, from cross-examining the complainant, Mr. Grant, as much as he, the appellant, wished. All we can say is that we have had nothing laid before us which would justify that allegation. The learned Judge himself has made a note on the record complaining that he was compelled to disallow a great number of not only irrelevant, but also improper questions. We understand the distinction drawn by these two words to mean that the improper questions were really offensive questions because, to be strict, an irrelevant question is an improper one, but having regard to the obvious lack of education and ordinary sense of the appellant, it would be unfair to attribute to him knowledge of what was relevant and what was irrelevant, but he must know quite well what is offensive and what is inoffensive.
6. The result is that the appeal fails; but we are unable to leave the matter there. It is a foul libel without a shadow of justification. Unfortunately the appellant has acquired a reputation for this class of literature. One is compelled to recognize and take into account that to a gentleman in the position of a Collector in his private capacity alone, which probably Mr. Grant is too high-minded to make a matter of public complaint, persistent persecution of this kind is bound to be a source of anxiety and pain; but a man who is confident that he is doing his duty, as a rule, prefers to ignore it, and to try and forget the personal side of the question. But a stage is reached, if the criticizm is sufficiently malicious, when the highest official is compelled in justice to his own health and peace of mind to take steps to stop it, and it is hard upon Mr. Grant, or anybody else trying to do his duty, that he should be dragged into a Court of law and go through the inconvenience and waste of time over a controversy with an irresponsible wind-bag like the appellant. The whole thing is a contemptible and childish waste of time, and it is impossible to believe that the appellant does not know and appreciate the pain and personal inconvenience which he is certain to cause to anybody whom he attacks with sufficient persistency.
7. A zealous public champion writing from the highest motives may honestly feel himself called upon to criticize a public man even to the extent of exceeding the limits of fair comment and bring himself within the reach of the law; but when a decent minded person finds against his own belief and against his own original intentions, when he gets into a Court of law, that he has exceeded what the law permits, he has one locus paenitentiae, which no man with any claim to decency would fail to seize at the earliest opportunity, to make amends and to give proof of the necessity of his original mistake. The appellant in this case, even if he had not felt so disposed before, had an opportunity after five of his fellow countrymen had unanimously condemned his conduct, even although according to him the Judge had tried him unfairly, to show that he was sorry. Finding that he had done wrong, given unnecessary pain, and broken the law, if he had a shred of decency, the first thing he would have done would have been to express to the Court and to the complainant his regret that he had exceeded the limits of the law and tendered an apology to the injured person, an act which can do nobody any harm, but on the contrary may frequently put an end to painful situations. Instead of that he has chosen to come to this Court persisting in his malicious designs, want only making the allegations which the Court below has rejected, and adding to them a most malicious, defamatory and irrelevant notice of appeal filed in this Court. It is impossible to pass over such conduct without taking judicial notice of it as it deserves.
8. We have dwelt upon the aspects of the private attack upon Mr. Grant as an individual, but there is the public interest involved. There are few things more dangerous than what is sometimes called a 'gutter press' amongst a half educated population, or a population which contains a large illiterate element. The reason is that the less educated you are the less you are able to distinguish the wheat from the chaff and the more you are disposed to attribute weight to everything which appears in print. With a large number of people the mere fact that allegations of this kind against a Collector appear in print and are repeated from time to time in print, and the Collector says nothing and the Government do nothing, is a sufficient justification for them to form the opinion that the allegations and the charges which are being made must be well founded. The result is to excite the minds of ignorant people and to lead them into trouble. It is liable, if carried to extremes, to make ignorant people commit crimes of violence and breaches of the public peace. We think, not merely because the appellant has aggravated his offence by repetition and even during this appeal, but because, in our opinion, he is a real public danger to himself and to the community, that he ought to be detained in custody for as long a period as possible. Having regard to his general attitude, his reckless, statements, his uncontrollable malice, and the obvious importance which he attaches to himself and to what he says, we have grave doubts as to whether his mind is well balanced. If this is the case, it is more his misfortune than his fault, but a long imprisonment will have two effects. It will remove temporarily from the surroundings a public danger, and it will enable the prison authorities to make, what we consider necessary in the circumstances, a careful enquiry into the state of his mind. We think this is as bad a case as it is possible to be.
9. We think that the maximum punishment is the only appropriate one under the circumstances. We, therefore, enhance the punishment to two years' simple imprisonment on each count. We retain the fine, but we follow the example set by the learned Judge and direct that the three terms of imprisonment ran concurrently.