1. This is a petition under Section 417 (3) of the Criminal Procedure Code for leave to appeal against the order of acquittal passed in favour of opponents Krishankant Vyas and Chandulal Shah by the Sessions Judge Ujjain in Criminal Appeal No. 30 of 1956.
2. The opponents were respectively the Editor and Printer and Publisher of the daily newspaper 'Nai Dunia' at the material time. Theease, our of which the present proceeding arose,was launched on the basis of a complaint filed bythe petitioner Dongarsingh of Makadavan againstthe opponents and 011.3 Shivshankar Raol in respect of certain defamatory matter which waspublished in the issues of 'Nai Dunia' dated 27thand 28th of July 1050. . ' .
Complaint of the petitioner was that the Impugned publication related to him and that the same was highly defamatory and was calculated to harm his reputation and lower his prestige. Warrants were issued against all the three under Section 500, I. P. C., as a result of this complaint.
3. The trying Magistrate found ths opponents guilty of an offence under Section 500, I. P. C., and sentenced them each to pay fine -- opponent Krishnakant Rs. 200/- and Chandulal Rs. 75/-. He acquitted Shivshankar Real.
4. On appeal by the opponents the learned Sessions Judge found that although the opponents were responsible for the publication of the impugned matter in the issue of 'Nai Dunia' dated 27th and 28th of July 1950 they were protectedby Exception nine to Section 499 of the Indian Penal Code. He therefore passed an order of acquittal.
5. The complainant has preferred this petition for leave against their acquittal.
6. The petition is opposed on behalf of the opponents.
7. In order to appreciate the respective contentions put forward on either side as regards the question of leave it is necessary to refer to certain facts which are material for the purpose.
8. One Jagannath, a cultivator of Makdavan, was found dead at Ujjain near the Railway bridge on 26-7-1950. Prior to this some dispute was going on between the cultivators of Makadavan and the complainant who is the Thakur of Makdavan. The dead body of Jagannath was taken to the cremation ground. Several reports got spread in the city of Ujjain regarding the circumstances which led to Jagannath'is death.
There was some commotion in the City. The Police got alert. They caused the dead body of Jagannath to be brought from the creation ground for post-mortem examination. A telephonic message was received by the Editor of 'Nai Dunia' from Ujjain which he believed to be of Shivshankar Raol. On the basis of information received first news item regarding this matter was published in the issue of 'Kai Duma' with head-liner, 'Murder of a cultivator through the Thakur of Makdavan'.
The matter below the head-line also was admittedly defamatory and it is not disputed before me that it related to the complainant. A suggestion in this publication was that Makdavan Thakur had shot Jagannath while the latter v. as returning from Kothi (where Courts are situated) and that the Thakur's whereabouts were being traced by the Police. It was also stated that similar attempts had been made in the past against the life of said Jagannath.
Tn the issue of 23th there appeared an editorial note Ex. P/3 placing reliance on the earlier news and warning the Government and the general public about such incidents. On the same day a news item en the same topic was published wherein similar imputation was again made.
9. On 29-7-1950 however contradiction pertaining to this news was published in the issue of 'Nai Dunia' stating that a local police stated that the Thakur of Makdayan was in no way concerned with the death of Jagannath who had died due to heart-failure and not due to violence. It was however stated that in spits of such report of post-mortem examination his bones had been sent out for examination.
It was explained that previous disputes between Jagannath and Thakur and the sudden death of the former were responsible for this kind of general belief,
10. These are all the facts.
11. It is not disputed on behalf of the opponents that the publication of 27th and 28th were per se defamatory of the complainant. Nor was it disputed the opponents are responsible for their publication. What was however urged before the lower Court and what is urged before me is that they acted with 'good-faith' for the public good, and that Exception nine to Section 499, I. P. C., protected them.
12. What I have to consider is whether this if, a fit case for grant, of leave to appeal under Section 417 (3), Criminal Procedure Code.
13. Before considering the merits of this application it will be necessary to refer to the principles which ought to govern such applications.
14. The provision is new. The power which the High Court, will be called upon to exercise in case the leave is granted will be the power which the High Court exercises in an appeal against an order of acquittal and the principles which govern such appeals will have to be kept in view while considering the petition for leave. If the circumstances of the case are such that with these principles in view the High Court will be unwilling to interfere against an order of acquittal then it will be futile to grant leave in such a case.
15. These principles which govern appeals against an order of acquittal are that although the High Court while considering such appeals has full power to review at large the evidence and to arrive at its own conclusions on questions of fact, as well as law yet, while so doing, it has not to lose sight of the fact that the initial presumption in favour of the accused regarding the innocence is reinforced by his acquittal and that sufficient weight has got to be attached to the decision of the trial Court with regard to the credibility of witnesses due to extra advantage which that Court possesses of seeing the witnesses and noting their demeanour and further that the benefit of any doubt regarding guilt of the accused is not to be lightly taken away.
As a corollary to these principles it may well be stated that the High Court should be somewhat less reluctant to interfere with orders of acquittal which take place in appeals than those in original matters.
16. If therefore the case be such that the possibility of interference by the High Court is meagre then the leave should be refused. But does it follow that while granting leave the High Court should form a definite conclusion that the accused is guilty? I think net. For if this were necessary it would involve undue duplication of proceedings.
The practical effect of such a view will be that the accused will have the benefit of a further and second appeal which it is not the intention of the legislature to confer. The view, therefore, which appears to me to be correct, is that where, on prim a facie consideration, there is reasonable chance for the appeal to succeed or to put it differently where there is an arguable case for the appellant either on a question of law or on a, question of fact the leave should not be refused.
17. In considering the reasonability of chance of success or arguability of the questions involved in such appeals the general principles governing appeals against acquittals ought however to be kept in view,
18. In Jairam v. Manila, (S) AIR 1956 Raj 559 (A), Wanchoo C. J.. has tried to analyse the possible cases which may arise while considering such applications and has stated in which cases leave should be granted. The learned Judge observes thus:
'Where the attack is on the grounds of law, two contingencies may arise, namely (1) the point of law involved may be a new one not previously settled by authority in which case this Court would generally grant special leave. If it appears to it that the point has been wrongly decided, and has affected the result of the case;
(2) The opponents may not be a new one, and may be settled by authority; but the lower courthas decided it wrongly, and this wrong decision has affected the result of the case. In these circumstances also this Court will be prepared to grant leave to appeal.
But where the point of law has been wrongly decided, whether it is new or settled by authority, that alone would not be a ground for grantins leave to appeal, if the result of the case has not been affected thereby.
Where the attack is on facts, and this Court is asked to grant special leave on the ground that the lower Court has wrongly acquitted the accused by taking a wrong view of the facts, the Question for consideration is under what circumstances this Court should grant leave.
We are of opinion that in such a case, the proper criterion is that this Court should be prima facie satisfied that if leave is granted, the judgment of acquittal is likely to be reversed. It may come to this conclusion on perusal of the judgments of the Courts below, or it may before granting special leave send for the record and satisfy itself whether the case is such that this Court will interfere with the order of acquittal.
If it comes to the conclusion, that the case is not one in which this Court will interfere with the order of acquittal, it will net grant leave even if the judgment may be unsatisfactory as a judgment.'
19. The aforesaid observations are quite in accord with what I have stated above.
20. It is these principles which will therefore have to be kept in view while considering the present petition.
21. The order of acquittal, which is assailed before me. is based on the ground that the opponents as Editor and Printer-Publisher of the newspaper are entitled to the benefit of Exception nine to Section 499, I. P.C. This Exception is as follows:
'It is not defamation to make an imputation on the character of another, provided that the imputation is made in good faith for the protection of the interest of the person making it, or of any other person, or fcr the public good.'
22. It therefore follows that a person, making imputation on the character of another (1) in good faith and (2) for protecting his own or other person's interest or (3) for the public good, will be protected by reason of this Exception.
23. In the present case it cannot be said that the making of such imputation, as is involved in this case, was necessary for protecting the interest of the opponents or of any other persons. Therefore what needed consideration was whether the imputation was made in good faith and for the public good.
24. The word 'good faith' is defined in Section 52 of the Indian Penal Code:
'Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.'
25. Good-faith therefore requires due care and attention i. e., care and attention expected from reasonable man.
26. In the case of publication of a defamatory matter actual source of information on which the person accused has acted and the justifiabilty of his so acting ought to be considered. If he has not taken proper care and acted, on a gossip and the complainant is thereby defamed he ought not to escape consequnces on the ground that, he has promptly contradicted the incorrect report.
The culpability in such cases does not depend upon the circumstance whether he has tried to undo the wrong which he has committed or not but upon the fact whether he has acted with care and attention or has done so rashly or negligently. Attempt to undo the mischief may exhibit want of malice or fear of the consequence. But even if it indicates absence of malice that is not enough to prove good faith as defined under the Code.
27. It should also be borne in mind that in the matter of defamation the position of 'newspapers' is not any way diiierent from that of members of the public in general. The responsibility in either case is the same. The degree of care and attention is no way less in the case of newspapers publications than that required, from ordinary men. This is clear from the observations of their Lordships of the Privy Council in Arnold v. Kirg-Emperor, 41 Ind App 149: (AIR. 1914 PO 116). (B), which are as follows:
'Their Lordships regret to find that there appeared on the one side in this case the time worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished, from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go,' so also may the journalist, but, apart from statute law, his privilege is no other and no higher.
The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.'
28. The impugned publication of 27th and 28th made reference to:
(i) murder or a cultivator by the Thakur of Makdavan by shooting,
(ii) suggested abscontion,
(iii) previous attempts on his life.
20. The opponents say that they acted on a telephonic message from one Shivshankar Raol. It is not without doubt or difficulty to hold that that was the proper source on which they were entitled to act. It is no defence in the matter of defamation for the accused to say that he has acted on the information given to him by another. It is for him to establish that the source on which he ccted was the proper source on which he is entitled to act and he did so with care and circumspection.
Had they merely stated facts regarding bringing of Jagannath's corpse for examination due to suddenness of his death and entertainment of suspicion by the Police regarding some foul play they would have been within their bounds. They however considerably exceeded this limit and stated that there was murder and this was by shooting.
Medical evidence or report in such circumstances would have been considered as one such proper source for these two matters. No moterials are placed in Court to suggest that Shiv-shankar Roal was an alleged eye-witness of the incident. In relying upon that source the opponent took serious risk. Medical evidence subsequently indicated death due to heart failure as appears from the contradiction published on 29th. There should have been genuine effort to reach the truth & not ready acceptance of ill-natured belief. Possible mischief to the complainant in such a case was obvious.
30. AS regards other allegations regarding abscontion of the Thakur and regarding previous attempts on his life there was no substantial material then available. At least none is shown on which the opponents acted.
31. The question, whether under the circumstances of the present case the opponents can be said to have acted in good faith, is therefore an arguable one and prima facie consideration leads me to hold, as discussed above, that there was absence of it. Nor can it be said, that the publication of this kind of news under the circumstances was for public good.
The news might have been considered spicy but when suspected murder case was under investigation advanced publication of this kind of news against the complainant with bold headlines can hardly be said to be for public good. It might have gone to prejudice mankind against the complainant and might have under certain circumstances amounted to contempt of Court.
32. The learned appellate Judge was considerably impressed by two main considerations. Firstly Shivshankar Raol on whose alleged phone-message the opponents acted was a respectable citizen at Ujjain and the opponents on coming to know that the report was incorrect promptly published contradiction to it. Both the considerations, in my opinion, ought not to be considered to be enough to bring the case of the opponents under Exception nine to Section 499, I. P. C. The learned Judge has not considered the question whether the publication in question was for public good.
33. I am therefore inclined to hold that theleave sought for ought to be granted in this case.I therefore grant the same.