H.R. Khanna, J.
1. This appeal filed by M. B. Kanwar is directed against the judgment of learned Sessions judge, Ambala, whereby the appellant has been convicted under Section 500, Indian Penal Code, and has been sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 200/- or in default to undergo further simple imprisonment for a period of two months.
2. The accused appellant was prosecuted on a complaint filed by the Public Prosecutor on 7-5-1960 under Section 198-B of the Code of Criminal Procedure. According to the allegations against the accused, he was the Editor, Printer and Publisher of newspaper entitled 'Rana, Partap' having its head office at Yamuna Nagar. In the issue dated 16-11-1959 of that paper, the accused published a defamatory news item under the caption 'Lady Health Centre Ko Sewayai Ishak Laranai Aur Najaiz Hamal Giranai Kay Aur Koi Kam Nahi' (the lady of the health centre has no other work except in carry her love affair and bring about illicit abortions). The aforesaid news item, it was alleged, contained imputations concerning Miss Karuna Rani Khanna (hereinafter referred to as Miss Khanna), lady health visitor, Health Centre Yamuna Nagar, which were harmful to her reputation.
In this news item it was staled that when the relatives of any patient came to call the lady health visitor she was never available and was busy in some factory owner's house to cause abortion of the daughters of rich people. The lady health visitor was also stated to be carrying on her love affair with her superior officer. According to the prosecution, the imputations in respect of the conduct of Miss Khanna in the discharge of her public functions were absolutely false and baseless and were calculated to defame and lower her in the estimation of others. The accused was thus stated to have committed an offence under Section 500, Indian Penal Code, The present complaint was filed after sanction for the prosecution of the accused was given by the Punjab Government.
3. In his statement under Section 342, Code of Criminal Procedure, the accused denied being the Editor, Printer and Publisher of Rana Partap. The accused also denied having published the aforesaid news item. According to the accused, he had nothing to do with the publication of the impugned news item and it did not relate to Miss Khanna. The accused attributed the present case to enmity with the prosecution witnesses.
4. The learned Sessions Judge held that the news item in question related to Miss Karuna Rani Khanna and was highly defamatory. No plea was taken on behalf of the accused about the truth of allegations contained in the news item and it was held that the imputations in question harmed the reputation of Miss Khanna. The accused was held to be the Editor, Printer and Publisher of Rana Partap and as such responsible for the publication of the aforesaid news item. Objection was also taken at the trial about the validity of the sanction for the prosecution of the accused but this objection was not accepted.
5. Exhibit P. B. is the news item in question and a plain reading of it shows that it is clearly defamatory of the lady health visitor, alluded to in it. Among other things, it is stated in the item that the lady health visitor was busy in making love to her officer and was bringing about illicit abortions of the daughters of rich people and factory owners. The lady health visitor was also stated to be not available to the needy patients because of the pursuit of her amorous activities and immoral life. The news item was published under the name of S. R. Bhasin who is the wife of the accused. The news item did not expressly mention the name of Miss Karuna Rani Khanna but the material on record [eaves no doubt that it related to Miss Khanna who has appeared as P.W. 1. Her statement shows that she was the lady health visitor at Health Centre Yamuna Nagar from 20-3-1959 to 7-11-1959 when she was transferred to Kalanaur, district Rohtak.
Miss Khanna's successor at Yamuna Nagar joined in May 1960. As Miss Khanna was the only lady health visitor at Yamuna Nagar during the period of 5 1/2 months immediately before the publication of the news item, Exhibit F.B., it is obvious that the item related to her. We have also on record the evidence of P.W. 2 Dr. Gurdial Singh, District Medical Officer of Health, Ambala, P.W.3 Dr. Naranjan Singh, Municipal Medical Officer of Health Yamuna Naiar, P.W. 5 Dr. Dhani Ram Anand and P.W. 6 Dr. Vidya Rattan, Medical Practitioners of Yamuna Nagar, P.W. 7 Kishan Singh, Manager Lakshmi Theatre Yamuna Nagar, P.W. 8 Diwan Jawala Sahai, P.W. 9 K. D. Sehgal, P.W. 10 Shri Amar Parkash, Executive Officer, Yamuna Nagar, and P.W. 11 Shri Kidar Nath, Superintendent Vaccination, Yamuna Nagar. The evidence of all these witnesses shows that on reading the impugned news item they took it to be that relating to Miss Khanna. The evidence of these witnesses also goes to show that Miss Khanna, who had otherwise an excellent and unblemished record of service, was lowered in their estimation.
I see no particular reason to disbelieve their evidence in this respect. Miss Khanna in her deposition as P.W. 1 has deposed that the different allegations made against her in the impugned news item were absolutely wrong and baseless. No attempt was made to challenge her statement in this respect. There is also no other material on the record to show that any of the allegations made against Miss Khanna were well founded.
6. The name of the accused was mentioned in the issue of Rana Pratap containing the impugned news Item as its Editor, Printer and Publisher. According to Section 7 of the Press and Registration of Books Act 1867 (Act No. 25 of 1867), in any civil or criminal proceeding the production of a copy of a news paper containing the name of a person printed on it as that of the Editor shall be held, unless the contrary be proved, to be sufficient evidence as against that person whose name is printed on such news paper that he is the Editor of every portion of the issue of that news paper of which the copy is produced. There is no material brought on the record to rebut the prima facie evidence furnished by the printing of the name of the accused as the Editor of the news paper containing the impugned news item Exhibit P. B. Exhibit P.W, 12/A Is the certified copy of a declaration which was filed by the accused before the City Magistrate, Saharanpur. The evidence of P.W. Krishan Sarup, General Clerk Collectorate Office, Saharanpur, shows that the accused signed the aforesaid declaration in the presence of the witness. In this declaration which is dated 9-7-1959, the accused declared himself to be the Printer and Publisher of newspaper Rana Pratap. The evidence on the record thus clearly goes to show that the accused was the Editor, Printer and Publisher of Rana Pratap which contained the impugned news item Exhibit P.B.
7. In appeal, Mr. Chawla, the learned counsel for the appellant, has at the outset argued that sanction, Exhibit P.A., which was granted under sub-section (3) of Section 198-0 of the Code of Criminal Procedure by the Punjab Government for the prosecution of the accused, has not been formally proved. In this respect, I find that before the commencement of the complainant's evidence the Public Prosecutor tendered in evidence sanction, Exhibit P.A., for the prosecution of the accused. The sanction purported to be signed by Shri A. N. Kashyap, Home Secretary, Punjab Government, and the statement of the Public Prosecutor mentioned that it had been issued by the Home Secretary, Government of Punjab. No Objection was taken at that time that the signatures of Shri Kashyap on the sanction should be formally proved and that without that it could dot be admitted in evidence.
In my opinion, the proper time to raise objection to the admission in evidence of sanction. Exhibit P.A., on the ground that it had not been formally proved was when the sanction was actually tendered and admitted in evidence. No such objection was raised at that time. Had an objection on that score been taken, the prosecution might have led some evidence to formally prove the signatures of the Home Secretary. No such objection having been raised in my opinion, sanction, Exhibit P.A. cannot now be excluded from consideration on the ground that the signatures of Home Secretary on the sanction have not been formally proved.
8. It is next argued on behalf of the appellant that there was no due compliance with the provisions of Section 342 of the Code of Criminal Procedure in the present case, in this respect, I find that after the statements of 11 witnesses had been recorded, the Public Prosecutor closed the prosecution evidence on 10-8-1960. No statement of the accused under Section 342, Code of Criminal Procedure, was recorded on the close of the prosecution evidence and the case was adjourned for defence evidence. The evidence of five defence witnesses was recorded thereafter on 8-11-1960. An application was thereafter filed on 22-11-1960 under Section 540, Code of Criminal Procedure, on behalf of the Public Prosecutor, praying for the recording oi the statement of some official of the office of District Magistrate, Saharanpur. The Court, after giving notice of this application to the accused, accepted it and thereafter recorded the statement of P.W. 12, Krishan Sarup, General Clerk of Collectorate Office, Saharanpur.
When the case came up for arguments on 15-2-1961, it came to the notice of the Trial Court that the statement of the accused under Section 342, Code of Criminal Procedure, had not been recorded. The Court then passed an order that the provision of law in this respect was imperative and that the statement of the accused be recorded. The statement of the accused was then recorded. At the close of the statement, the accused was asked whether he would like to lead further defence evidence to which he replied in the negative. Sub-section (1) of Section 342 of the Code of Criminal Procedure, reads as under :
'342 (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.'
The object of the examination of the accused under the above provision of law is to give the accused an opportunity of explaining any circumstances which may tend to criminate him. Plain reading of the section goes to show that a duty has been cast upon the Trial Court to examine the accused in regard to the incriminating circumstances brought against him in the prosecution evidence at the close of the prosecution evidence and before he is called on for his defence. In the present case, the statement of the accused was somehow not recorded immediately at the close of the prosecution evidence but was recorded after the close of the defence evidence. There was thus an infraction of the provision of law which required that such examination of the accused should be 'before he is called on for his defence.' The question for consideration is as to what is the effect of that. The learned counsel for the appellant has relied upon observations in cases Tej Ram v. Emperor, AIR 1933 Lah 1002 end Anand Parkash v. Emperor, AIR 1934 Lah 631, wherein it has been laid down that if the Trial Court omits to examine the accused under Section 342 at the close of the prosecution evidence, the trial from that stage is illegal and the case should normally be remanded for further hearing from that stage. It is accordingly urged that the present case should be remanded for retrial from the stage where the lower Court omitted to record the statement under Section 342 of the accused.
In this respect, I find that the Trial Court has already recorded the statement of the accused under Section 342, Code of Criminal Procedure. Before that statement was recorded, the prosecution evidence had already concluded. The statement was, however, recorded at the close and not before the recording of the defence evidence. The effect of remanding the case will merely be to give the accused an opportunity of adducing further defence evidence after his examination under Section 342. The accused in the present case was expressly asked at the close of his statement under Section 342 if he would like to lead further defence evidence and his answer to that was in the negative. I thus find that the opportunity to lead further defence evidence which could be afforded to the accused by the remand of the case has already been afforded to him by the Trial Court and the accused declined to avail of it. In the circumstances, no useful purpose can be served by remanding the case.
9. The learned counsel for the appellant has also cited a case Feroze Kazi v. Emperor, AIR 1940 Pal 295. In this case, the Trial Magistrate made no attempt at the close of the prosecution evidence to examine the accused and never asked them if they wished to give any evidence on their behalf. The case was, on the close of prosecution evidence, adjourned for arguments. After hearing arguments, the case was adjourned for judgment. On the date fixed for judgment the accused were examined in a most perfunctory manner. Harries, C. J., who wrote the judgment of the Court, held that it was too late to examine an accused when arguments had been heard and when the Trial Magistrate had either already written his judgment or was about to write the judgment. In my opinion, the fads of tin aforesaid case are clearly distinguishable and the appellant cannot derive much benefit from them so far as the present case is concerned.
In case Ram Charan v. Emperor, AIR 1941 Oudh 510; the statement of the accused under Section 342, Code of Criminal Procedure, was not recorded immediately after the close of the prosecution evidence. On behalf of the accused, only one witness was examined in defence. The statement of the accused under Section 342 was recorded thereafter. It was held that the procedure of the Magistrate in examining the accused after the close of the prosecution evidence and hearing one defence witness could not be said to be violation of Section 342 unless the accused was shown to be prejudiced thereby, and that even if this was an irregularity it could be cured under Section 537, Code Of Criminal Procedure.
10. The question as to what is the effect of non-compliance with the mandatory provisions of Section 342, Code of Criminal Procedure, has been the subject-matter of a series of cases decided by their Lordships of the Supreme Court and it is now well settled that every case of omission to properly examine an accused person under Section 342 is not necessarily fatal to the prosecution and that before an accused could be allowed to take any advantage of the omission he must show that he has been prejudiced In any manner. The question came up for consideration In case Moseb Kaka v. State of West Bengal, (S) AIR 1956 SC 536, and it was observed as under :
'Learned counsel urges, therefore, that the non-examination or inadequate examination under Section 342, Criminal P. C. in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside and retrial ordered, if there is no adequate examination under Section 342, Criminal P. C. We are not prepared to accept this contention as a matter of law. The question of prejudice is ultimately one of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case. But we see no reason to think that in the present case this would have made any difference.'
In a case Ajmer Singh v. State of Punjab, AIR 1953 SC 76, the relevant head-note reads as under :
'Every error or omission not in compliance with the provisions of Section 342 does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities, and the question whether the trial is vitiated depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused.'
No prejudice in the Instant casa has been shown to have been caused to the accused appellant because of his statement having been recorded not immediately at the close of the prosecution, evidence but at the close of defence evidence. All that the learned counsel for the appellant has been able to urge in this respect is that if the appellant had known of the incriminating circumstances as brought out in the questions put to him when his statement under Section 342 was recorded, he would have led some defence evidence about them. In this respect, I am of the view that the appellant was given an opportunity of leading any further defence evidence in the light of his examination under Section 342, Code of Criminal Procedure, and he declined to avail of it. I, therefore, hold that no prejudice has been caused to the appellant because of the recording of his statement at the close of the defence evidence.
11. The next contention of the learned counsel for the appellant is that the trial Court erred in recording the statement of Krishan Sarup P.W. 12 after the close of the defence evidence. As stated above, the statement of Krishan Sarup was recorded in pursuance of an order dated 28-11-1960 made by the trial Court on an application under Section 540 of the Code of Criminal Procedure filed by the Public Prosecutor. Due notice of this application was given to the accused. The learned Sessions Judge held that the declaration filed by the accused in the Court of City Magistrate, Saharanpur, about his being the Printer and Publisher of Rana Pratap was material for deciding the question involved in the case. It was further observed that the accused would have the right of cross-examining the witness and to lead defence evidence afresh if he liked to do so. In my opinion, the learned Sessions Judge was perfectly justified in passing the aforesaid order.
The provisions of Section 540 of the Code of Criminal Procedure have a wide amplitude and enable the trial Court to examine any person as a witness at any stage. It has further been provided in that section that where It inessential to the just decision of the case to examine a witness, the trial Court is bound to do so. As the statement of Krishan Sarup was deemed essential for the just decision of the case, in my opinion, the trial Court rightly ordered that his statement should be recorded. No prejudice was also caused to the accused because he was afforded opportunity to lead fresh evidence in defence.
12. Lastly, it has been argued that Miss Khanna was lot a public servant employed in connection with the affairs of the State and as such the accused could not ae proceeded against on a complaint filed by the Public Prosecutor under Section 198-B, Code of Criminal Procedure. When the appeal came up for hearing on 28-5-1962, the learned counsel for the appellant stated that there was not enough material on the record on this point. He accordingly requested that Miss Khanna should be called in this Court and he might be permitted to put a couple of questions to her to elucidate this point. The counsel also stated that the counsel for the State would also have a right to out such questions to Miss Khanna as might be necessary for elucidating the point. The learned counsel for the State had no objection to that. I then passed an order that it was a fit case in which the counsel for the parties should be allowed to put questions, to the witness with a view to find out as to whether she was a public servant employed In connection with the affairs of the State. The statement in this respect of Miss Khanna-was recorded on 27-7-1962 and her statement goes to show that the Health Centre at Yamuna Nagar was run by the Municipal Committee Yamuna Nagar and she was Retting her salary as lady health visitor from the Punjab Government. If was the Director of Health Services, Punjab, who used to post her at a station and transfer her to another station.
13. The learned counsel for the appellant has argued that as the Health Centre at Yamuna Nagar was being run by Municipal Committee, Yamuna Nagar, Miss Khanna, who was a lady health visitor at that centre should be deemed to be a municipal employee and not a public servant employed in connection with the affairs of the State. The counsel has in this context relied upon three cases Mangal Sain v. State of Punjab, AIR 1952 Punj 58, State of Punjab v. Prem Parkash, AIR 1957 Punj 219, and Kishori Lal v. Punjab State, AIR 1958 Punj 402. Mangal Sain AIR 1952 Pun) 58 and Kishori Lal Batra's case AIR 1958 Punj 402 related to executive officers of Municipal Committees whose services had been terminated. Prem Parkash's case AIR 1957 Punj 219 related to a person who had been appointed Superintendent of Water Works Department of Municipal Committee, Muktsar. The services of the above mentioned three persons were terminated and the question which arose for determination was whether they could be deemed to be holders of civil posts under a State as mentioned in Article 311 of the Constitution. The question was answered in the negative.
In my opinion, the appellant cannot derive much benefit from the dicta laid down in the above cases. All the persons mentioned in the three cases drew their salary from the Municipal Committees. So far as Miss Khanna is concerned, her statement clearly goes to show that as lady health visitor she has always been paid her salary by the Punjab Government and that it is the Director of Health Services, Punjab, who posts her at a station and transfers her to another station. According to Clause (9) Section 21 of Indian Penal Code, every officer in the service or pay of the Government is deemed to be a public servant. It is not disputed before me that Miss Khanna as lady health visitor used to look after maternity cases. As Miss Khanna was employed by the Punjab Government and it was the Punjab Government which paid her salary on account of her work as lady health visitor, I am of the view that Miss Khanna should be held to be a public servant employed in connection with the affairs of the State. The mere fact that the Health Centre, where Miss Khanna worked, was being run by the Municipal Committee Yamuna Nagar would not, in my opinion, go to show that Miss Khanna was not working as a public servant or was not employed in connection with the affairs of the State.
A welfare State has manifold activities and the preservation of the health of the people of the State falls within the ambit of those activities. Considering all the facts, I have no doubt that Miss Khanna was at the relevant time a public servant employed in connection with the affairs of the State.
14. Speaking generally, every man is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation shall not be disparaged by defamatory statements made about dim to a third person or persons without lawful justification or excuse, vide observations on page 3 of Halsbury's Laws of England, Third Edition, Volume 24. The freedom of the press is part of the larger freedom of the individual as embodied in Article 19 of the Constitution. The freedom of the Press is not higher than the freedom of an ordinary citizen and is subject to the same limitations as are imposed by Article 19(2). The limitations, inter alia, are to the effect that the freedom of speech and expression is not to be exercised in such a way as to constitute an infraction of the law relating to defamation. It has been said that just as every individual possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as property. Hence nobody can so use his freedom of speech or expression as to injure another's reputation or to indulge in what may be called character assassination.
The accused in the present case used the columns of his paper to make a scurrilous attack on the character and conduct of a lady public servant, the inevitable effect of which was to lower her in the estimation of others. The material on the record shows that the different imputations were published by the accused without any basis or justification. In the circumstances, the accused is clearly guilty of the offence of defamation. I accordingly uphold his conviction.
15. The sentence awarded to the appellant, in my opinion, is a little excessive. Considering all the circumstances, I am of the view that it would meet the ends of justice if the appellant is sentenced to undergo simple imprisonment for a period of six months. I order accordingly. I set aside the order with regard to payment of fine.