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Purushottam Vijay Vs. the State - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 56 of 1959
Reported inAIR1961MP205; 1961CriLJ114
ActsIndian Penal Cod, 1860 - Sections 499
AppellantPurushottam Vijay
RespondentThe State
Appellant AdvocateG.L. Oza, Adv.
Respondent AdvocateR.G. Bhawe, Adv.
DispositionAppeal allowed
Cases ReferredMuhammad Gul v. HajiFazley Karim
media and communication - defamation - section 500 of indian penal code - appeal against order of conviction passed under section 500 - defence of fair comment and criticism in good faith taken - held, the criticism in daily about appointment of ig, p was fair - comment made in public interest and without private spite - hence, conviction liable to be set aside - appeal allowed. - - as well as of others, in public service'.the article ends with a request in particular to the chief minister whom it describes as the 'sutradhar' of the administration, to rid himself of regionalism 'and make no more political sport of official appointments. 6. before examining the different aspects of the case, it is necessary briefly to set out the political and administrative context as well as the.....krishnan, j. 1. this is an appeal by purushottam vijay, editor of the daily called 'indore samachar' from a conviction under section 500 i. p. c. with a sentence of fine of rs. 500/- with imprisonment in default for one month. the offending article was a longish editorial on the 3rd august 1955, entitled, 'this delay in the appointment of the i. g. police,' charging the government of madhya bharat and one of the ministers, shri narsingh rao dikshit, of regionalism (pradeshikata). the case, probably the first in the state of madhya bharat, lias been tried under the new section 198-b of the criminal procedure code, by the sessions judge, indore.2. actually two complaints were filed and were tried jointly; one in regard to the leading article of 3-8-1955; and the other in regard to a.....

Krishnan, J.

1. This is an appeal by Purushottam Vijay, Editor of the daily called 'Indore Samachar' from a conviction under Section 500 I. P. C. with a sentence of fine of Rs. 500/- with imprisonment in default for one month. The offending article was a longish editorial on the 3rd August 1955, entitled, 'This delay in the appointment of the I. G. Police,' charging the Government of Madhya Bharat and one of the Ministers, Shri Narsingh Rao Dikshit, of regionalism (Pradeshikata). The case, probably the first in the State of Madhya Bharat, lias been tried under the new Section 198-B of the Criminal Procedure Code, by the Sessions Judge, Indore.

2. Actually two complaints were filed and were tried jointly; one in regard to the leading article of 3-8-1955; and the other in regard to a news-item published in the same pacer on the 30th July. However, the appellant has been acquitted of the charge relating to this latter item. In addition to this appeal, there is an application by the State for enhancement of sentence, and another, an appeal under Section 417 of the Criminal Procedure Code from the acquittal in respect of the other charge; the iormer has been heard along with, and the latter has been kept pending disposal of, the present appeal.

3. The authorship of the article having been admitted, the question is whether the defence ot Exceptions II and III to Section 499, Indian Penal Code has been established by satisfaction of the tests of the substantial correctness of the facts, the fairness and restraint of the comments, the absence of private malice, and finally, the criticism being in public interest, -- on a matter of public importance. The law on the subject has been set out at some length by the parties; but really, there is no controversy in regard to the principles applicable, the controversy being on their relevance to the facts of the present case.

The events described are now of very little consequence, having become, as it were, ancient history by lapse of time and in view of the States Reorganisation Act of 1956. Still, the case itself has been fought by both parties with extreme keenness and with very considerable public interest. This is only natural as the allegation made and repudiated, is that the Home Minister of the Madhya Bharat at that time, Shri Narsinghrao Dixit, had succumbed to, -- what might truly be described as the original sin of Indian Public life, one's obsession with bias in favour of persons belonging to his own locality.

4. It would be convenient to set out a gist of the article in question which has been read out and commented upon by both the parties at considerable length. The editor begins by lamenting the delay and slackness in the appointment of the I. G. P., and suggests that this might be due to the desire of administration (ShasanJ and the minister (mantri) which means the Home Minister N. R. Dixit, to provide an opportunity to Shri Gopal Sahay (of whom, more will be said presently) to take over that Office.

'Shri Gopa] Sahay had been given extensions and now he is going to be appeased by an appointment to hold the charge of the I. G. P. though he is untrained, incompetent, and 'an old war horse' (budha bail))'. This is being done as he belongs to the same region (Gwalior) as the Minister, and is an old acquaintance' (purana mulakati). 'Earlier, the same Minister had refused to give extension to the Principal of the Holkar College, Shri Ghosh by name' (who incidentally happened to be an officer from the Indore region) 'the minister stuck to his guns in spite of demonstrations that led to shooting down of 12 people, the wounding of scores, and the harassment of many more'.

'Officers from outside are unwilling to come and if it does become necessary to appoint local officers there are persons other than Sri Gopal Sahay, whose merit and competency has been recognised.' Even though the last extension of Shri Sahay had terminated on the 26th July 1955, it appears, 'steps are now being taken towards giving him further extensions, and promotion'.

' 'The administration has lied a black band or regionalism (Pradeshikta) over its eyes which prevents it from ever seeing officers of merit and competence'. 'It is the duty of the Minister and the Administration to remove this dark band and make selection for the post of I. G. P. as well as of others, in public service'. The article ends with a request in particular to the Chief Minister whom it describes as the 'sutradhar' of the administration, to rid himself of regionalism 'and make no more political sport of official appointments.'

5. This itself follows the news item published four days before but, it is unnecessary to quote it as the charge based on it has ended in acquittal.

6. Before examining the different aspects of the case, it is necessary briefly to set out the political and administrative context as well as the antecedents and standing of the persons mentioned. The United State of Madhya Bharat which later on went into Part B of the original constitution, had come into existence in 1948 by a Covenant bringing together a number of States of Central India, the most important of which were Gwalior and Indore, whose traditional rivalry in this part of the country had been in abeyance for a century and a half.

Upto 1950 or 1951, the old administrative set up remained undisturbed and the officers of the erstwhile riyasats continued most often at their old posts pending the examination of their record, and the rating of their abilities; which, above the district level, was done by the Government of India in consultation with the Union Public Service Commission.

7. Just before integration, sometime in 1947 itself, Shri Gopal Sahay had been appointed to a high office in the Police in the erstwhile State of Gwalior, and continued as D. I. G. pending the assessment of his record and merits along with that of other officers and placing of him in the new cadre. The learned Sessions Judge has tried to form his own opinion on his abilities and has, in fact, based his conviction on the finding that the editor's description of Shri Sahay as 'an incompetent untrained old war-horse', was factually untrue.

The facts are that he started 'Shirastedar' that as, a purely clerical post, normally unconnected with the functions of a police officer. Soon he found himself in the Police force; but was not sent, to any Police Training School or College though there was an arrangement between the Gwalior riyasat and the Uttar Pradesh by which the former got its police officers trained at Moradabad.

Still, he continued to rise and had earned some commendations and money prizes. As against it, he was also once punished (apparently with disproportionate leniency) for pretending to be a 'B. Sc.' while he had really failed. Anyway, this clerk on --the starting pay of 30/- had by 1947, on the eve of the integration, become a high police functionery on about 500/- a month which in a Central Indian State was quite a high post indeed.

8. At the time of the re-examination of the Service, the Madhya Bharat Government put his name at the very top of the police list But the Union Government, on the advice of the UPSC, pushed him down far below. In Police service as in the ther reorganized services, there were four categories the fourth being those who were to be sent out forthwith on the ground of unsuitability. Out of those who were to be retained, there were three categories classified with reference to the All India norm, namely,--of the All India Service--the IPS and the IAS as the case may be.

Category I includes the best officers who were straightway detailed into the All India Service after an examination of the record or a personal interview by a special committee of the UPSC. Shri Sahay was not in that category. Some other officers whom the Madhya Bharat Government had rated lower and, in particular, two, whose names have come out in evidence -- Shri Sharma and Shri Nagu, were in that category, Sharma being at the top.

The II category was of those who were not good enough to be forthwith detailed into the All India Service, but who could be so' detailed after satisfactorily serving a period of probation which might extend upto five years. Shri Sahay was not included even in this category. The third category included the rest, that is, officers who were too good to be forthwith turned out of the service, but at the same time, too incompetent to be given a chance of getting into the Ail India Service even after probation.

Shri Sahay was included in that category. In regard to them, two concessions were recommended. Firstly, most of them including Shri Sahay, were allowed to remain in the posts they were occupying at that time, essentially because they were to retire in the near future, and it would have caused a disproportionate upset and probably depression if they were pushed down near the very end of their official career. Secondly, another concession too, at least,--of a theoretical, nature was given. After all, they were members of the service below the All India level.

A certain proportion, usually 25 per cent, of the posts normally occupied by members of the All India services, had been reserved for promotion from the lower cadres; these category III officers could take their chance along with others for such promotion. If they got this promotion, they could on their rights occupy a post reserved for members of the All India Service. This much is non-controversial and emerges out of the official correspondence exhibited in the Court.

9. The basis of the conviction is the finding by the learned Sessions Judge that the editor's estimation of Shri Sahay's ability is factually incorrect. This has to be examined in time, but the following facts stand out from -- the record and the evidence. This Hindi words 'buda bail' is equivalent to 'an old war-horse' in English, and is an allegation' of fact. Shri Sahay attained the age of superannuation in April 1954; but was given an extension for one year in his old job as D. I. G. and did not invoke any violent criticism.

He was given another extension (now of three months) and a third, for three weeks, from the last week of July 1955, till the middle of August. So he was certainly an old war horse. Whether he was a good officer or not, he had been found by the U. P. S. C. unfit on merits to occupy, as of right, any post usually occupied fay members of the Ali India Police Service. He could, if he deserved, have earned his promotion to that; but had not yet done so and was allowed to continue in his old post only for the historical reasons already mentioned. Whether he was trairted or not is a question of tact. Admittedly he had not received the training appropriate and usual for Police service on the higher level.

10. While Gopal Sahay was continuing in service, political changes were happening. In the Madhya Bharat State, as elsewhere, a ministry was formed. In view of historical background the two century old rivalry between the subjects of the Holkat and those of the Scindia was now revived. Every act or appointment by a minister from one regio' was scrutinised critically by the people of the other.

The Chief Minister in the end of 1954 was a person from Indore, but he made over charge to Shri Takhatmal Jain who is mentioned in the article, and who came from Gwalior. But 'the Minister' elsewhere in the article, charged with the responsibility for the appointment of the I. G. P. and for the steps to appease Gopal Sahay by an opportunity to exercise the powers of I. G. P. is the Home Minister of that time, Shri Narsinghrao Dixit, also from Gwalior.

Gopal Sahay is, of course, a Gwalior-nian. Both had worked for sometime at Bhind, Shri Sahay in the District Police, and Shri Dixit as the Public Prosecutor. Whether this amounted to friendship or was only a bare acquaintance, it is impossible to assert; nor is it necessary for the decision of the case, the allegation being primarily that Shri Dixit was doing things for Sahay because he came from the Gwalior side and also happened to be an acquaintance (mulakati).

11. When Gopal Sahay got superannuated in April 1954, he was still D. I. G. on 'sufferance' in accordance with the direction of the Government ot India. One year extension was given to him as D. I. G. but whatever the propriety or otherwise of this extension, there was not much public criticism as it did not involve any promotion. It seems almost 'to have been a routine matter and Shri Narsinghrae Dixit at any rate, had nothing to do with it, the then Home Minister being Shri Mehta, a person from Indore.

By the time his extension was ending in April 1955, there were some happenings that, in the best of circumstances, would have left the public guessing, unless the Government (as it did not) issued a communique and took them into confidence. The head of the Police Department at that time was an officer on deputation from Uttar Pradesh--Shri Kohli, who, for private reasons, was anxious to return. The State Government of Madhya Bharat seemed to have been on the look out for a suitable officer for this post; it also turned down some officers, and asked for alternative which, with the best of intentions on their part, the Government of India and the lending States, could not meet at once.

Meanwhile the Uttar Pradesh Officer on deputation -- Shri Kohli was persuaded to stay on for some time; but he made the middle of May the zero date. At that time, the State itself had several D. I. Gs.. Gopal Sahay, no doubt, having held that post for long partly on account of the extension, while others like Shanna. and Nagu had held it for shorter terms. But the latter had been rated as much higher in quality than Shri Sahay whose continuance was a matter of 'sufferance' and not a reward for merit. As the middle of May was approaching and Government was not getting officers from outside, one of the local officers had to take over. Public attention was keenly fixed whom the Government was going to select, in other words, whom Shri Narsinghrao Dixit, the Home Minister was going to send up for the approval of the Cabinet, which, in a well run Government, would normally accept the recommendations of the minister of the department.

12. When in the last week of April 1955, Shri Gopal Sahay's first extension ended, Government gave Mm a three months extension. This was, of course, a gift of the Home Minister, but in itself, did not have any sinister significance; But when Sahay (and not Sharma or NaguJ was called upon to take over the duties of I. G. P. from Kohli, it was felt that something unusual had happened. It was presumably envisaged that this was a stop-gap; any way there was no lull-fledged appoinment, but only a charge appointment; in other words, Shri Sahay was to take over the duties of the I, G. P., in addition to his normal duties.

Even so, it was a promotion being an addition to his prestige, power and influence; whenever such charge appointment is for more than a specified duration (usually one month) a special addition is made to the pay as well. When this three months extension ended in the last week of July, a third extension was given for twenty days. Shri Dikshit (P. W. 4) asserts that this had been done by order of the Chief Minister to the Chief Secretary 'without asking me'.

It is extremely unusual, as he was tile Minister in charge of the particular department. The point is that the editor (or any person for that matter) was perfectly entitled to assume that this too was done in due course on the advice to the Cabinet given by the minister concerned, and as such he was responsible. It was arranged, and Shri Sahai was actually directed, that on the 16th August he should make over charge to Shri Sharma and retire. Here was something which should have satisfied, or at least pacified the critics of the Gwalior-walas, as after all, Shri Gopal Sahay, whatever he might have been, was going out for good, and Shri Sharma whom the UPSC had rated higher, was to take over. Whatever the others might have thought of this, the editor of the 'Indore Samachar' was unconvinced and asserted that Government was merely bluffing, and 'all these were steps to keep Shri Sahay into the seat of I. G. P. for yet another term'.

13. Things shaped precisely in the manner he had foreseen. When the 16th August came, and it was expected that Government would see that its own decision not older than twenty days, would be impleamented and Shri Sahay would obey the orders issued to him, the Home Minister asked him not to hand over charge but to continue. He wrote a letter to the Chief Minister saying that for 'secret (Gopaniya) reasons' connected with the anti-dacoity operation in the Gwalior side he was asking Sahay to continue and not to make over charge to Sharma.

The Cabinet approved. But Sahay was not being continued as the D. I. G. as he had been all the time before May, but I. G. P. in-charge as well. Soon Shri Sahay got yet another extension, now as 1. G. P. for six months, that is, till the middle of February, 1956. It is said, however, that even before the end of that term, a new officer on deputaton--Shri Kripalsingh--came and relieved Shri Sahay who presumably went home.

The official career of Shri Sahay was over; but the controversy continued to rage. No communique, however, was issued at any stage, taking the public into confidence on the events that were at best obscure, nor was this editor given [he Government's own version of the happening, and invited to publish it in his own paper, and to explain or apologise for this article. It directed prosecution for the defamation of the Home Minister.

14. The editor's defence is one of fair comment and criticism in good faith about the conduct of the Minister as a public servant in discharge of his public functions and respecting his outlook in so far as it appeared from this conduct. This is primarily under the second exception in Section 499 I. P. C. and would also come under the third exception, because the appointment of a high- public functionary like the I. G. P. and the principles by which Government should be guided in that regard, can truly be described as 'public questions'. Whether or not (this defence can also come under the ninth exception, has been discussed in the lower Court's judgment. It is sufficient to say that the entire trend of the defence itself as well as the argument in this Court on behalf of the appellant is under exceptions 2 and 3 and not exception 9.

15. The law regarding the defence of fair comment is well established and the parties have referred to English and Indian decisions. The fact that the accused is a journalist gives him no more, and, certainly, no less freedon of opinion, that is available to any other citizen. Actually, a newspaper writer should be more cautious than a private individual as his utterances are very widely publicised. The first and the foremost requirement is that the facts should be substantially true. If there is any material element of falsehood in the account given, the accused can no more claim the defence of fair comment or criticism, as really, the criticism or comment is based upon mis-statement of facts and cannot be fair. This principle is universally accepted. The English case law has been summarised thus:

'The defence of fair comment requires that the material fact or facts on which the comment or criticism is based should be truly stated and he a matter of public interest, the comment on fact or facts should be fair within the wide limits which the law allows;..... A statement of fact though reflecting on another may be justified ..... the comment must not mis-state facts; because a comment cannot be fair which is built upon facts not truly stated and if a defendant cannot show that his criticism contains no, or no material mis-statement of facts, he will fail in his defence of fair comment. A material mis-statement of any of the facts on which comment is made, negatives the possibility of the comment being fair'. (Halsbury, III Edition, Vol. 24 pages 70 to 74).

16. In principle, our law on the subject is the same. On the other hand, the statement of iacts need only be substantially correct and net-d not be microscopically or photographically true: nor can the plaintiff in a civil suit or the prosecutor in a criminal case, fasten himself on to an inaccuracy in the detail, unless that detail itself is such as to make substantial difference to the case. As stated in Surajmal B. Mehta v. B. G. Horniman, 47 Ind Gas 449: (AIR 1917 Bom 62) (SB);

'While a journalist is bound to comment on public questions with care, reason and judgment, he is not necessarily deprived of his privilege merely because there are slight unimportant deviations from absolute accuracy of statement, where those deviations do not affect the general fairness of the comment. The articles must be considered rather in their entirety than by separate insistence on isolated passages, and the Court must decide what impression would be produced on the mind of an unprejudiced reader, who, knowing nothing of the matter beforehand, read the article straight through'.

Courts, in fact, have gone to the extent of saying that even an exaggeration will not by itself disentitle the accused or the defendant from this defence. In Murlidhar v. Narayandas, 27 Ind Cas 205: (AIB 1914 Sind 85) it was observed:

'Mere exaggeration, or even gross exaggeration does not make a comment unfair. Where in a newspaper report the main aspersion of the accused against the complainant is true, the fact that there is some exaggeration or departure from strict truth does not deprive the accused of the protection provided in Exception 3 to Section 499 Indian Penal Code'.

It is necessary, however, in the present case to go far. In Dr. Khare v. M. R. Masani, AIR 1942 Nag ,117 quoted by the learned Sessions Judge in para 23 of his judgment, we have the basic elements of this defence set out under three headings,

17. Reserving for the moment out of consideration the opinions and comments by the editor, we note that the factual allegations against the minister (and the government) are all true. He, as well as Gopal Sahay belonged to the Gwalior State. They were previous acquaintances. Gopal Sahay had been given two extensions and effective promotions during this Minister's time. No doubt, orders are passed on his advice to the Cabinet, but the proposal always originates from the Minister-in-Charge and is usually accepted as a matter of course. It is also true that the same Minister while being in charge of the Education Department, refused to give an extension to Mr. Ghosh, Principal of the Holkar College with the results that have been truly described in the article.

18. In regard to Gopal Sahay, the factual allegations have already been summarised. They have been examined at some length by the learned Sessions Judge who finds that there are inaccurate assertions; this in fact has led to the conviction. The editor calls Shri Sahay, 'the local elderly man' or 'budha bail' in popular Hindi. Whether or not the first extension of one year was proper or otherwise, this gentleman was one year over the age of statutory superannuation. It may be a popular way of describing, but the phrase itself is neither inaccurate, nor defamatory. The question here is not whether it was open to Government to extend the period of service of a superannuated officer, but whether the description is factually correct or otherwise. Correct it certainly is.

19. The next allegation is 'unfit' or 'incompetent' and 'cannot work on the post according to rules'. The first part may be opinion; but the applicability of the rules is factual. Now, it was a well known fact that normally, an officer who had been considered unfit to be taken in the All India Service, should not, and normally would not, be put in charge of a post reserved for members of that service. It can be done in very exceptional circumstances with the approval of the UPSC, if the term exceeded a prescribed minimum.

A government which makes such appointment is bound to explain this and if there is no state or military secret publish its special reasons. Again, even as an expression of opinion or one of mixed opinion and fact, the description of any public servant as incompetent is necessarily relative except at the extremity where it can be absolute. Certainly, Sahay was not absolutely incompetent as otherwise he would not have been retained at all. He was just above that level; but compared to other local officers like Sharma and Nagu, he was incompetent--let us say, less competent for the post concerned.

It is unnecessary for the purpose of this case to consider whether the entire police force in Madhya Bharat was incompetent (because officers had to be brought from outside. We are really considering a context in which a local officer had to be put in charge in any event, the choice being of this or that local officer. Both, in view of recognised practice which the editor calls 'the rules', and in view of the rating made by the UPSC, Sahay can be described correctly as being 'unfit' or 'incompetent' for the post of I. G. P.'

20. In this connection, I note that the learned Sessions Judge has tried to form his own opinion about the abilities of this officer; in fact, certain portions of his judgment show that the learned Sessions Judge was terribly impressed. The trouble, however, is that the last word for the guidance of the State Government had already been given by the UPSC as early as 1951; nor is it anybody's case that since then, the UPSC had reconsidered the question, and rated the officer higher or even recommended a promotion to the I. P. S. cadre which was theoretically open to him as to every other police officer of the lower Cadre.

Again, the fact of his having started as a clerk on Rs. 30/- and having risen on the eve of the integration to the post of D. I. G. may not necessarily be an indication of his real merit Conditions of service, and the criteria for promotion, were not codified in many of the Riyasats. That was exactly, why the Government of India considered it proper that all these persons should be re-calibrated by an independent consideration of their record by the UPSC. Thus, by stating that he was unfit or incompetent for the post, the editor was saying nothing more than what the UPSC had said. Nor was it a case where there was nobody else available with superior merit recognised by the UPSC.

21. The third factual allegation about Shri Sahay is that he was untrained. Of: course, he was not trained in the manner usual and necessary for the higher cadres of the police service, that is to say, trained in a recognised police training college. Whether it was possible for him to have been trained at all is beside the point. Even if it was not possible for him to have been trained, still, the fact would remain that he was untrained.

As a matter of fact, police training college at Moradabad by arrangement with the Government of Uttar Pradesh (sic). Nor is it of any avail to say that he had been trained in some other manner. He may well have been; but when the editor says that Sahay was untrained he means that he had not been trained in the manner in which police officers are usually trained, which is a bare statement of fact. Thus, the first' criterion for fair comment set out in all authorities and quoted by the lower Court from AIR 1942 Nag 117, has been fulfilled.

22. This takes us to the next test as to the comments. The comments should be fair in the sense that they are inspired by genuine desire on the part of the writer to serve the public interest, and not by any intention of wrecking private spite. The gravamen, of the charge made by the editor is that these extensions and appointments of Shri Sahay were being made not in public interest, but to reward him because he came from the same region, namely, Gwalior, as the minister came from.

Even after the order of 26th July giving a bare 20 days' extension with a direction that he should retire after making over charge to Sharma, the editor asserts 'that steps were being taken with a view to giving Sahay promotion and yet another lease of office as I. G. P.' He imputes dishonourable motives to the Minister. The question is whether in the context it is just and fair and calculated to serve public interest. The editor further asserts that in making this appointment, 'the government had bandaged its eyes with regionalism which prevents them from seeing merits in others', -- that is, those coining from other regions.

Therefore, it is for the editor to prove that he was justified in attributing motives and, that with the best intentions in the world, he could not find any other reason why an incompetent and untrained old warhorse was being appointed to the high post. If no other reason is ascertainable it was natural and proper to infer that the motive was regionalism. If the motive is regionalism, the editor was only doing his duty to his readers by publishing his opinion in this regard on the Government and the minister of the department.

23. As already noted, Shri Sahay was allowed to continue in the post of D. I. G. on sufferance. It is said by the Minister that he was an experienced officer with special technical knowledge useful in operations against dacoits in the Gwalior region. It was not for the editor or for the Courts to question this. Assuming this and considering that these operations were in charge of the D. I. G., the most that could be said was that, in spite of its being an apparent evasion of the policy of the Union Government in regard to such officers, he might have continued for some time longer as a D. I. G. in the dacoity zone.

One extension had bsen given in that capacity with no serious criticism by the public. Even the second extension would not have been criticised by the editor, had it not been coupled with the direction to take over the duties of the I. G. P., on the 15th of May which certainly have nothing to do with the so-called special knowledge of the dacoity operations. Obviously, the minister was making use of the so called knowledge about the dacoity operations, as a screen to promote Sahay to a post to which he was unfit and which had nothing directly to do with them..

When Kohli was I. G. P. Sahay was in charge of these operations and presumably conducted them, as the Minister says, to the satisfaction of his superiors. Nor is there any point in the assertion that there was difficulty in getting an officer from outside. The correspondence in this regard has been placed, and it shows that on the one hand, the Government of India was doing its best, and on the other, suggestions about this or that officer were being rejected by the State Government.

This might have been with the best of intentions but. that is not the real point. If no officer was coming from outside, obviously a local officer had to be put in charge. The question is, why this 'old warhorse', instead of other officers whose merits had been recognized and rated higher. The minister's evidence is lengthy and covers various points, relevant and irrelevant to the issue; but has no answer to this, except possibly that Shri Sahay was an experienced man and knew something about the dacoity operations in the Gwalior region.

24. The last extension before the publication of the article was for a period of 20 days with a direction that Sahay should make over charge to Sharma. It as difficult to understand why this extension was given at all. The suggestion is that Shri Mathur, an otticer from Uttar Pradesh was to come and was expected by the middle of August; a stopgap arrangement was made. But here again there is no reason why it should not have been Sharma himself who was in any event to take over.

Even supposing that Shri Sahay's services were indispensable in the dacoity zone, he could have been continued as D. I. G. while Sharma could have taken over the duties of the I. G. P. There is really no explanation of this and this justifies the editor's comment that the steps that were being taken though ostensibly for the retirement of Shri Sahay were really a device to continue him promotion and give him yet another term.

25. But the real anti-climax was yet to come. The editorial was printed on the 3rd August and in due course, it should have been with the Minister on the 4th or 5th. There is a department in charge of publicity and, in any case, the Minister himself was aware of public criticism. Nothing would have been easier for him than to disprove this allegation by being as good as his word and retiring Sahay as mentioned in this order. But surprisingly enough, before the 16th, he asked Sahay not to make over charge but to continue, meanwhile writing to the Chief Minister that he was detaining him for secret reasons connected with the dacoity operations.

This 'dacoity operations' seems to be the 'open sesame' for everything the Minister does, though, they could at best justify an extension in the office of D. I. G. and not in that of I. G. P. Moreover, the dacoity operations had been in progress for a long time and nothing had happened between the 26th July and the 16th August as would justify this sudden change. It indeed, the dacoity operations required the continuation of Sahay in office, a longer term could have been given even on the 26th July. Thus, the latter events fully justified the editor's comment that all that was going on was only a device.

26. The foregoing discussion shows that there was no ascertainable reason why all this was happening. If there was something extremely important that justified them, Government did not publish it, even though this is not a case of any State or military secret. The editor, like any other fairminded citizen, was just unable to find any reason except, of course, the bare fact that both the Minister and Sahay came from the Gwalior side and had known each other.

He viewed side by side the affair of Ghosh, and the stiff refusal on the part of Government on the advice of this very Minister, to give him an extension, and the generous extensions to Sahay even though he was not good enough and the extensions were coupled with a promotion, and at all events, the job of a police officer was physically more exacting than that of a college principal.

Certainly, the refusal to give extension to the Holkar College Principal could be justified; but there was even more justification for refusing extensions, at all events -- promotions to Sahay. Still the same minister was firm on the one hand and soft on the other. In context like this, the only inference possible was that this happened because of the Minister's regional bias.

27. If anything of an unusual nature happens that is likely to be misunderstood or even likely to bewilder the public. It is the duty of the Government to place the facts before the public and then justify it. This could at least forestall criticism. Even after criticism if the Government did have a case, it would have been proper to send the facts to the editor, and call upon him to publish the Government's version and further apologise for or explain his previous communications. If, after this the editor still continues in his categorical attitude, we can at least see how far the Government's account of facts invited criticism and whether after it, the editor's criticism would be fair. But, in this case, Government did not give itself and the editor any such chance. It lifted the club straightway.

28. It is argued on behalf of the State that the comment made on the 3rd August should be considered independently of what the minister did on the 16th August. Else, the editor should show -- as after all the burden is on him, -- how he knew that the minister was only bluffing and did not really mean it, when the Government ordered that Sahay should make over charge to Sharma, retire and go home on the 16th August. I do not agree.

Certainly, the! burden is on the accused to show that a statement that is prima facie defamatory is justified under Exception 2 or 3. But he could discharge the burden by pointing out the circumstances. He certainly knew what the Minister had already done. Anybody with some shrewdness would certainly have felt something extraordinary in the 20 days extension with the benefit of the promotion to the charge of I. G. P.'s office. The editor was bold enough to assert that it was a device.

If the minister had taken steps to disprove the editor's prophecy, and shown that in spite of the unusual appearances, it was honestly meant that Shri Sahay should retire and go home, then there would at least be occasion for calling upon the editor to apologise and if he persisted, for prosecuting him. But in this battle, the honours are all with the editor, as his prophecy proved only too correct.

29. With the further extension of six months, including of course, the promotion, given to Shri Sahay, we are not directly concerned, nor is it of any significance that Shri Sahay did not have the benefit of the entire period, as the new I. G. P. Kripalsingh came sometime earlier than was expected. But this extension was of a piece with the minister's conduct and is yet another circumstance fully justifying the editor's comment, that the whole thing was a device to do a good turn to Shri Sahay.

It is pointed out on behalf of the Government that Sahay earned his promotion by the fact that sometime in the end of August one of the well known dacoits -- Mansingh -- was killed or to be more precise, the d. Whether Mansingh's death was really brought about by police activities, and whether this was due to the skill and ability of Gopal Sahay, we are not concerned here. They were part of Sahay's duties as D. I. G., and it is difficult to understand how a comment made on the 3rd August can become unfair criticism on account of something which happened on the 26th August. In this, unlike the orders relating to Sahay, there is no continuity and no operation of a single mind.

30. Thus, a full examination of the facts of the case shows that there was no ascertainable reason why Sahay should have been given the last two extensions and why, even more than extensions, he should have been given the promotion to the post of I. G, P. Every fairminded person would have inferred that (his happened only because he camel from the region from which the Minister himself came, and happened to be an old acquaintance.

The passage about the 'dark bandage of regionalism' is poor rhetoric; but it is fair, because the minister refused to see the merits of the officers rated higher than Sahay, and continued to give him extension in a manner that can be only described as devious. Thus the article stands the second test laid down in the Nagpur ruling; the motive imputed is certainly dishonourable, and, at all events, would bo considered shockingly dishonourable wherever public-men have really got a sense of duty and honour; but the facts fully warrant the imputation.

31. The third criterion is that the criticism even if called for by the facts, should be in public interest, and should not be malicious; in other words, should not be actuated by what can be described as private spite. Private spite as such has not been suggested in the present case. It is conceivable that being an lndore man the editor himself started with a bias against the minister from Gwalior. Any latent bias of this nature will not by itself make the comment mala fide unless that bias had itself led to the comment. After all, as stated in Muhammad Gul v. HajiFazley Karim, ILR 56 Cal 1013: (AIR 1929 Cal 346):

'In determining the question of gocd faith, the Court should have taken into account the intellectual capacity of the accused and the surrounding tacts'.

Had the editor said that the minister did not appoint Shri Sharma but appointed Shri Sahay because tho latter came from Gwalior, without there being any independent material showing that, in due course of events, Shri Sharma and not Shri Sahay should have been appointed we could hold he was being actuated by his own regional bias. Here, there is ample material showing that independent authorities like the Government of India and the UPSC had rated Sharma much higher than Sahay. Thus, there is no private spite.

32. It is certainly in public interest that anything shaky or unjust or improper in the conduct of a minister in making appointments should be brought to the notice of the country at large. It is, in fact, criticism without which any democratic system is doomed to failure, and ministers inevitably suffer absolute corruption by their unscrutinised exercise of power. Whether the conduct of any particular individual should be publicly criticised and such criticism would be in public interest, would naturally vary with the circumstances of each case.

If the person is any private individual and the incident does not in any real manner touch the public at large, then, oE course, [he criticism even, if otherwise, based on facts, and justified, would not be in a public interest. But the Minister in charge of a department getting appointments made to such a high office as that of an I. G. P., is doing something on which public attention should be limelighted. When the public does not show active interest in such appointments, it does not deserve to have a democratic Government and, will not, in fact be having it for any length of time.

Every citizen (and the editor of a newspaper is a citizen and nothing more, nor less) is entitled to know at any rate, whether the appointment is being made really in the best interest of the public, or whether there is something ulterior. Certainly, he should not be hasty or unfair and should not mislead himself by false stories. But once, the facts show that there is no ascertainable reason justifying the particular appointment except regionalism, he would be failing in his duty to himself and his fellow-citizens if he does not come out with his criticism.

33. The minister for his own part should within his sphere act in a manner that his conduct is not open to criticism. Certainly, it does not mean that he should punish or overlook the merits and the deserts of any officer, simply because he happens to come from his own region; but he should act in a manner that would convince a reasonable and fair-minded citizen that he is making the appointment according to merits and not for regionalism. It may happen from time to time that an appointment may be apparently unjustified, but is really based on sound reasons in public interest.

Then the proper course for the minister or the government is, --. unless secrecy is essential for State purposes -- to take the public into confidence and iorestall or disarm criticism. If without doing any such thing, he takes a selfrighteous attitude and prosecutes the citizen or the editor for saying nothing more than what is called for by the facts, he should take the consequences of the prosecution failing, and his obscure doing getting more and more inconvenient publicity. This is exactly what has happened in the present case.

34. The appellant's conviction cannot be supported. The appeal is allowed and the conviction and sentence are set aside. The fine, if paid, should be refunded. The application for enhancement of punishment automatically fails.

Razzaque, J.

35. I agree that the conviction of the appellant cannot be sustained. Undoubtedly, the offending editorial imputing regional bias in the matter of granting successive extensions to Shri Gopal Sahai and his contemplated appointment as I. G. P. was per se defamatory of Shri Narsinghrao Dixit, but, in my opinion, the act of the appellant falls within tho ambit of 'fair comments' and is thus saved by tho Second and Third Exception to Section 499 of the Indian Penal Code. The statement of facts and expression of opinion relating to Shri Sahai by the appellant were substantially true, as pointed out by my learned brother Krishna J.

The inferences drawn and opinion expressed by the appellant respecting the conduct of Shri Dixit in the discharge of his public function on the basis of the proved facts and in the circumstances as detailed by my learned brother, coupled with the absence of any statement or communique from the then Home Department which the circumstances of the case demanded, to acquaint the public why Shri Sahai's continuance was considered necessary, and want of any malice on the part of the appellant, must, be held to be well founded and the criticism should be construed to have been made honestly and with due care and attention. In other words, the appellant's expression of opinion was in good faith which is further re-inforced by the fact that the appellant's prophecy hinted at in the said editorial proved correct only after a few days.

36. The conviction and sentence of the appellant are set aside and he is acquitted. Fine, if paidby him, shall be refunded to him. The connectedrevision petition for enhancement of punishmentautomatically fails.

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