V.R. Nevaskar, J.
1. The appellant who is a private complainant, was granted permission by this Court under Section 417 (3) of the Criminal Procedure Code to prefer appeal against the order acquitting the respondents who are respectively the Editor anti Printer and publisher of the daily newspaper 'Nai Duniya' Indore in respect of an offence under Section 500, I. P. C. He has accordingly filed this appeal.
2. Facts material for the purpose of this appeal which are no longer in controversy areas follows:
One Jagannath, a cultivator of Makdawan 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 Makda-van 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's death. There was some commotion in the City. The Police got alert. They caused the dead body of Jagannath to be brought from the cremation-ground for post mortem examination. A telephonic message was received by the Editor of .Nai Duniya from Ujjain which he believed to be of Shivshankar Raol. On the basis of the information received first news item regarding this matter was published in the issue of 'Nai Duniya' with head-lines 'Murder of a cultivator through the Thakur of Makdavan'.
The matter below the head-line also was defamatory and it is no longer in dispute that it related to the complainant. A suggestion in, this publication was that Makdavan Thakur had shot Jagannath while the latter was returning from Kothi (where the Courts arc 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.
In the issue of 28th there appeared an editorial note Ex. P/2 placing reliance upon the earlier news item and expressing concern for the fact that such instances of firing should have taken place in broad-day light and warning the Government that the rule of feudalism would not come to an end merely by preparing laws but the implementation of the same would be necessary. On the same day a news item on the same topic was published wherein similar imputation was again made.
It was reported that the post-mortem examination had already taken place but the report of the examination had not been disclosed as, yet. It was further reported that the Thakur of Makdavan had fired at the agriculturist (Jagannath) even once before but that he had escaped then. Under what circumstances Jagannath was killed was stated to be not clear, but it was suggested that there are various kinds of rumours afloat in the City of Ujjain Finallyit was stated that a general opinion prevailed everywhere that in this murder of Jagannath the Thakur of Makdavan has a hand and that the Police were in search of the said Thakur.
On 29-7-1950 however contradiction appeared in the same daily news-paper 'Nai Duniya' stating that a local Police Officer had stated that the Thakur of Makdavan 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 spite of the report of the post-mortem examination his bones had been sent for examination.
It was explained in the final paragraph that previous disputes between Jagannath and tho Thakur and the suddenness of the death of the former were responsible for the kind of belief entertained by the general public about the Thakur being responsible for the death of the former.
These are all the facts.
3. It is not disputed before us by the learned counsel for the respondents that the publications of 27th and 28th of July 1950 are per se highly defamatory and injurious to the complainant. The defence taken by the respondents at the trial and before us is that this case properly falls under Exception IX to Section 499 I. P. C., and that for that reason they are innocent.
4. The learned trial Magistrate was not pleased to accept this defence. On the other hand the learned Sessions Judge was of contrary opinion. According to him the respondents acted on the basis of telephonic messages received from Shrivshankar Roal of Ujjain. Shivshankar Roal who according to his view, was considered to be an influential public worker in the City of Ujjain and that in relying upon the information given by him it could not be said that they acted without due care and attention even assuming that Shivshankar on his part might have been mis-informed. The learned Sessions Judge does not seem to have considered in what manner the publication was for public good.
5. Mr. Oza, for the complainant-appellant, has contended before us that in giving to the respondents the benefit of Exception is to Section 499 I. P. C, the Court below has committed a grave error 01 law and fact, and that in spite of the fact that the present is en appeal against acquittal, comparing reasons do exist in this case to revere that decision and to restore the order of conviction of the respondents.
6. Mr. Chitale for the respondents on the ether hand sought to support the conclusion to which the learned Sessions Judge had arrived primarily on the ground that the respondents as Editor and Printer and publisher of a respectable daily newspaper had acted with due care and attention. It was pointed out by the learned counsel that the Editor Krishna Kant received a telephonic message from Shivshankar Raol about the murder of Jagannath.
Information regarding circumstances attending the death of Jagannath was also received. There was the information that although Jagannath's dead body had been taken to the cremation-ground it was brought back to the hospital by the Police for examination. There was also information regarding commotion in Ujjain and rumour was afloat holding the complainant responsible for his death. There wasfurther information regarding the strained relations between the complainant and Jagannath.In all this back-ground and in face of all this information, it was contended, it cannot be said that the respondents did not act with due care and attention. No serious argument was advanced by Mr. Chitale on the question as to how the publication was calculated to be for public good.
7. In order to appreciate the aforesaid contention I shall first refer to Exception IX to Section 499 I. P. C. This is as follows :
'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.'
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.
8. 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 respondents or of any other persons. Therefore what needed consideration was whether tho imputation was made in good, faith and for the public good.
9. 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.'
Good-faith therefore requires due care and attention i.e. care and attention expected from a reasonable man.
10. In the case of publication of a defamatory matter actual scurce of information on which the person accused has acted and the justifiability 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 drained he ought not to escape consequences on the ground that he has promptly contradicted the incorrect report.
The culpability in such cases does not depend upon the circumstances whether ho 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 consequences. But even if it indicates absence of malice that is not enough to prove good faith as defined under the Code.
11. It should also be borne in mind that in the matter of defamation the position of newspapers is not any way different 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. King-Emperor, 41 Ind App 149: (AIR 1914 PC 116) (A), 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.'
12. The impugned publication of 27th and 28th made reference to :
(i) murder of a cultivator by the Thakur of Makdavan by shooting,
(ii) suggested absconsion,
(iii) previous attempts on his life.
13. The respondents 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 acted 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 materials are placed in Court to suggest that Shivshankar Raol was an alleged eyewitness of the incident. In relying upon that source the respondents took serious risk. Medical evidence subsequently indicated deatli due to heart-failure as appears from the contradiction published on 29th. There should have been genuine effort to reach the truth and not ready acceptance of ill-natured belief. Possible mischief to the complainant in such a case was obvious.
14. As regards other allegations regarding absconsion of the Thakur and regarding previous attempts on his life there was no substanti 1 material then available. At least none is shown on which the respondents acted.
15. Govindrao, Sub-Inspector of Police, who was examined on behalf of the respondents, does not say that the complainant had absconded. All that the Sub Inspector of Police Govindrao then is said to have asked was whether the complainant had been at Ujjain that time. From such a question put by a Police Officer Inference could not have been drawn that he was after the complainant and that in spite of efforts on his part complainant's whereabouts could not be traced.
16. Materials produced on record, in my opinion, have not enabled the respondents to dis- charge the burden which Section 105 of the Evidence Act cast upon them to establish that the publication in question had been made in 'good- faith' i.e. with due care and attention. Butmore serious obstacle in the way of the respondents in this case is that they have totally failed to establish that the defamatory publication attributing a heinous crime to the complainant and making an imputation on his character was any way for public good.
There could be public good in rushing to tell the world that a man was killed when he died due to a natural cause. Nor could there be any good to the public in telling them that a particular person has caused the death when that person is not any way concerned with it. Possible mischief due to such hurried and careless publication is too obvious.
17. I am therefore of the view that the learned Sessions Judge was clearly in error in upsetting the decision of the trying Magistrate and giving to the respondents the benefit of Exception IX to Section 499 I. P. C.
18. The decision thus given does not deserve to stand and ought to be set aside.
19. I am fully aware of the principles to be borne in mind by a Court of appeal in interfering with orders of acquittal. But to my mind, this is pre-eminently a case where compelling reasons did exist to justify my interference With it.
20. The accused respondents therefore ought to be convicted for an offence under Section 500 I. P. C.
21. As regards sentence it is not without significance that the respondents had not been prompted by any malice or ill-will nor had they acted with wanton carelessness in allowing the mischievous matter to be at large for a considerable time without contradicting the same. They promptly published contradiction the very next day. Sentence of Rs. 50/- as fine to each of the respondents should, in my opinion, be sufficient to meet the ends of justice.
22. The appeal is therefore allowed and the order of acquittal of both the respondents Krishna Kant and Chandulal are set aside and each of them is convicted of an offence under Section 500 I. P. C., and each is sentenced to pay Rs. 50/- as fine or in default to undergo simple imprisonment for one week each,
T.C. Shrivastava, J.
23. I agree.