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Harbhajan Singh Vs. the State of Punjab and anr. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 86-D of 1959
Reported inAIR1961P& H215
ActsIndian Penal Code (IPC), 1860 - Sections 52, 499 and 500; Evidence Act, 1872 - Sections 60, 81, 123, 124 and 162; General Clauses Act, 1897 - Sections 3(22); Code of Criminal Procedure (CrPC) - Sections 342
AppellantHarbhajan Singh
RespondentThe State of Punjab and anr.
Appellant Advocate S.C. Malik and; A.R. Lal, Advs.
Respondent Advocate S.M. Sikri, Adv. General,; A.S. Johar and; Gurdit Singh
Cases Referred and Roviaro v. United States
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....tek chand, j.1. this criminal appeal has been preferred by shri harbhajan singh, accused-appellant, from his conviction under section 500, i. p. c. he was tried by the additional sessions judge, delhi, who found him guilty and sentenced him to one year's simple imprisonment by his order dated 27th of august, 1959. the appellant has been on bail. the accused was prosecuted on the complaint of p. w. 1, surrinder singh kairon, son of sardar pratap singh kairon, the chief minister of punjab state. the statement said to be defamatory of the complainant was given by the accused to the press on 23rd of july, 1957, which was published in extenso in the 'blitz', a weekly magazine of bombay, and the extracts wore published in the 'times of india' and in some other papers. a press-note dated.....

Tek Chand, J.

1. This criminal appeal has been preferred by Shri Harbhajan Singh, accused-appellant, from his conviction under Section 500, I. P. C. He was tried by the Additional Sessions Judge, Delhi, who found him guilty and sentenced him to one year's simple imprisonment by his order dated 27th of August, 1959. The appellant has been on bail. The accused was prosecuted on the complaint of P. W. 1, Surrinder Singh Kairon, son of Sardar Pratap Singh Kairon, the Chief Minister of Punjab State. The statement said to be defamatory of the complainant was given by the accused to the press on 23rd of July, 1957, which was published in extenso in the 'Blitz', a weekly magazine of Bombay, and the extracts wore published in the 'Times of India' and in some other papers. A press-note dated 22nd/23rd of July, 1957, (Ex. P. D.) was issued by the Punjab Government and is reproduced below:

'Certain Urdu dailies from Jullundur are indulging in a deliberately mischievous and false propaganda alleging complicity of a Minister's son in smuggling on the border. This is evidently done with a view to malign Government and cause suspicion in the mind of the public. The Punjab Government categorically deny the allegation. These papers should have the courage to come out openly with the name of the son of the Minister instead of repeatedly publishing things in a vague and indirect manner. They should not take shelter behind anonymity and should not be afraid of the consequences of the publication of these allegations.

The Punjab Government have already taken steps to curb smuggling and they are determined to put it down with a firm hand.'

2. In response to the above press-note the accused issued a statement (Ex. P. A.) which runs as under:

'Sardar Harbhajan Singh, State Secretary, Punjab Praja Socialist Party, has issued the following statement to the Press: 'My attention has been drawn to a Punjab Government Press Note categorically denying the complicity of a Minister's son in smuggling. That press-note also throws a challenge to some Urdu Dailies 'to come out openly with the name of the son of the Minister' and then face the consequences. I don't know whether the newspapers concerned will take up this challenge of the Punjab Government or not, but as one of those who have been naming that son of the Minister as one of the leaders of the smugglers from Public Platform, I hereby name that son as S. Surrinder Singh Kairon son of Section Pratap Singh Kairon, Chief Minister. And I do so determined to face the consequences of the charge being openly levied by me. I further allege that the son of our Chief Minister is not only a leader of smugglers but is responsible for a large number of crimes being committed in the Punjab. Bat because the culprit happens to be Chief Minister's son the cases are always shelved up.

If the Punjab Government accepts this challenge, it should do so by appointing an independent committee of impartial Judges from outside the Punjab and then let us see who has to face the consequences. If the Punjab Government dare not do so, I would not mind serving a term in Jail for having had the Courage to come out with the truth. May I brine it to the notice of Punjab Government that Chief Minister's son is being discussed in almost every Punjabi house, but people are afraid of talking about him in public lest they be punished for that.'

3. The above statement issued to the press by the accused was published in the 'Tribune' dated 25th of July, 1957, vide Ex. D. P.

4. Shri Ajaib Singh, Senior Superintendent or Police, Amritsar, issued a statement on 25th of July, 1957, which appeared in the 'Tribune' on 26th of July, 1957, (Ex. P. C.), to the effect that by now all people involved in smuggling cases had been interrogated and he could say that rumour about some Minister's son being involved in smuggling was false and incorrect, A rejoinder was published by the accused Sardar Harbhajan Singh in the 'Hind Samachar', art Urdu daily from Jullundur, dated the 27th July, 1957.

In that he had stated that he had accepted the challenge of the Government of Punjab to face the consequences of disclosing the name of the Minister's son who is said to be engaged in smuggling and that he had named Sardar Surrinder Singh Kairon, the son of the Chief Minister of the Punjab after having carefully thought over the matter and after having realised his responsibility. He had stated that Sardar Surrinder Singh Kairon was not only the leader of smugglers but there were also other grave allegations against him.

5. On 17th of August, 1957, the complainant filed his complaint in the Court of Magistrate First Class, Tarn Taran, stating that he is the son of Sardar Pratap Singh Kairon, Chief Minister, Punjab, and that he passed the Master of Arts examination in Political Science from the Punjab University in the year 1953 and was a lecturer in the Government College, Ludhiana, for about eight months when he resigned. Later on he became the Managing Director of the Amritsar Co-operative Cold Storage and was drawing Rs. 500/- per mensem. He stated that he enjoyed good reputation amongst his friends and relatives and also amongst those who came into contact with him.

On 24th of July, 1957, when he was at his village Kairon, he was shown the news item, in question, published in the 'Times of India' on reading which, he found it defamatory of his character and reputation. He then issued a statement to the press which was published in the 'Tribune' dated the 25th of July, 1957, which challenged the veracity of the imputations. It was mentioned in the complaint that baseless and false charges had been levelled by the accused against him with a view to harm or knowing or having reason to believe that such imputation would harm his reputation and his moral and intellectual character. He also said that false charges had been levelled by the accused intentionally and with the purpose of defaming the complainant and his father and thereby the complainant's reputation had been considerably lowered and he had fallen in the estimation of his friends, relations and public in general, as a result of the publication of the baseless charges against him. He, therefore, prayed, that the accused be prosecuted for having committed an offence under Section 500, I. P. C.

6. The complaint was filed in the Court of the Magistrate 1st Class, Tarn Taran, and the accused made a petition to the Supreme Court under Section 527, Cr. P. C. The Supreme Court, by its order dated the 4th of October, 1957, remitted the case to the High Court with the direction that the case should be transferred from the Court of the Magistrate 1st Class, Tarn Taran, to a Court of Session in Delhi. This case was thus transferred to the Court of the Additional Sessions Judge, Shri P. D. Sharma.

7. (After referring to the evidence of the four prosecution witnesses, his Lordship proceeded:) The statement of the accused under Section 342 was recorded on 16th of August, 1958, and the answer to eight, out of nine questions, was 'I will file a written statement'. These questions were as to whether he had handed over the impugned statement, Ex. P. N., to Mohan Lal; whether Ex. P. N./l bore his signatures; whether the statement, Ex. P. B./l, in the 'Blitz' dated 3rd of August, 1957 was published at his instance; and whether he had delivered speeches at Jullundur and Phagwara defaming the complainant and whether he had intended to harm the reputation of the complainant by making the imputations.

On 29th of June, 1959, more than ten months after his statement under Section 342 had been recorded, the accused filed a lengthy written statement which has been reproduced in extenso in the judgments of the trial Court at pages 3 to 12. In this written statement the accused admitted having issued the press statement in question. He said that he never had any occasion to deal with members of the family of Sardar Pratap Singh Kairon, most of whom were not even known to him and that he had no animus against the person of the Chief Minister or his son. He said that he had no hesitation in admitting that he had issued the impugned statement.

In the statement he further alleged that Sardar Pratap Singh Kairon had contested the second general election from Sinhali constituency adjoining the Indo-Pakistan border and that during the course of that election all kinds of vehicles were moving freely, ostensibly for Congress electioneering but in fact laden with smuggled gold; that smuggling in this area and elsewhere on the border was rampant and was carried on openly with the active connivance and assistance of high police officers and political high-ups and that it became a veritable scandal in the State. In the press, and elsewhere, in private talks, one of the persons freely mentioned, and broadly hinted, for complicity in smuggling, was Shri Surrinder Singh Kairon sou of Sardar Pratap Singh Kairon, the Chief Minister.

While the Punjab Government maintained a studied silence, the Vidhan Sabha was deeply perturbed and in the budget session of 1957, a number of members of the Legislative Assembly vehemently expressed their anxiety and that of their constituents at the complicity of the Minister's son in gold Smuggling with the connivance of his father. He said that the atmosphere in the Pun-jab became surcharged with the knowledge that the gang of smugglers was under the leadership of Shri Surrinder Singh Kairon. The following passage may be quoted in the words of Sardar Harbhajan Singh:

'I was, then, the Provincial Secretary of the Punjab Branch of the Praja Socialist Party. As a public man I was gravely perturbed over what was appearing in the press and what came to my knowledge otherwise. Police and other Government officials, both high and low, when I happened to meet during those fateful days told me categorically that Shri Surrinder Singh Kairon is a leader of smugglers, responsible for a large number of other crimes, and is escaping criminal liability for being under the protective wings of his father, the Chief Minister. I was informed by them and otherwise how Shri Surrinder Singh Kairon even during his student days at Hoshiarpur had brought from outside notorious Criminals to threaten to shoot fellow students with revolvers; how that led to widespread agitation and a day's strike in the College; how he cheated the Punjab University by managing to appear in M. A. examination when he was in actual fact greatly shore of the minimum number of lectures, which he did by illegally obtaining a manifestly false certificate of having attended the course of lectures which he never did; how he employed his father's willing but illegal authority to force the Subordinate Services Selection Board, Punjab, into giving him the lecturership of the Government College, Ludhiana which according to rules belonged to other applicants who were better qualified for the post; how he fraudulently obtained service with the Dunlops by promising them his father's illegal influence for bettering the Dunlop's business prospects with the Punjab Government; how he set up a co-operative cold storage, and by violating rules and laws reduced it to the level of a family concern, built a huge fortune for himself by obtaining timber, cement, iron and machinery etc., illegally, fraudulently and with the illegal influence and authority of his father; how he defrauded the municipalities by committing thefts of tolls and other taxes; how he concocted, fabricated and forged palpably false accounts o[ the cold storage; how he was associated with his real first cousin, Shri Jagjit Singh Kairon, in the Mukerian dacoity case; how he managed the postings and transfers of police officials with the help of Shri Naurang Singh, the Senior Superintendent of Police during the hey days of smuggling in Amritsar in order to facilitate the Smuggling of gold by his gang-men; how he prevailed Upon Shri Naurang Singh and another associate Shri Sadhu Singh to appear as defence witnesses to save another smuggling associate, Hazara Singh. Gill, from the gallows for being involved in a murder case; how he prevailed upon Shri Naurang Singh to help Hazara Singh Gill to obtain a border defence scheme rifle which the said Hazara Singh Gill would never have otherwise got because of police record; how he interceded with a magistrate to let go Kalwant Rai who was being prosecuted in a smuggling case and when the Magistrate did not oblige got the case withdrawn by his father, the Chief Minister; how he helped his smuggling associate, Sohan Singh, escape punishment for smuggling when 480 tolas of Smuggled gold was recovered by the customs authorities from the said Sohan Singh; how he obtained an Indo-Pak passport and an entry visa to Pakistan that exempted from arrival and departure report; and how he was an associate and protector of notorious smugglers like G. Section Purewal (since escaped to Pakistan) Balraj Kapur and Dewan Chand Kapur of M/s. Shambhu Nath and Sons, Maddi, Jarnail Singh of Majha Transport Company, Dev Raj and a host of other outlaws.'

He also said:

'During the brief time that I had at my disposal I made all such inquiries that could be made under the circumstances in reference to the material that had earlier come to my notice and having satisfied myself that the Press note was a fraud, I accepted the challenge and in good faith and for public good, named Shri Surrinder Singh son of Shri Pratap Singh Kairon, Chief Minister as the Minister's son involved in gold smuggling'.

8. In the concluding portion of his statement, he said that he had chosen to produce defence in order to vindicate the truth of his charges and that he was not afraid to tell the truth even at the gallows.

9. The accused had summoned 328 witnesses and a large number of record. The trial Court allowed him to summon 35 witnesses in all but he examined only 20 defence witnesses.

10. After considering the oral and documentary evidence on the record the trial Court came to the conclusion that the impugned words were defamatory per se and the accused had failed to make out a case under exceptions 1 and 9. He was, therefore, found guilty and convicted.

11. The relevant portion of Section 499 runs as under:

'Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said. except in the cases hereinafter excepted, to defame that person.

Explanation 1.

Explanation 2.

Explanation 3.

Explanation 4. No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.' The first and ninth exceptions to Section 499 arc in these terms:

'First Exception: It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Ninth Exception: 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.'

12. Section 52 of the Indian-Penal Code defines 'good faith' in the following terms:

'Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.'

13. In the trial Court the accused had advanced two pleas covered by the first and ninth exceptions to Section 499 but in this Court arguments have been confined to the plea of 'good faith' contained in exception nine. It has been conceded in this Court that truth of the defamatory imputations was not being urged in defence and the contention was that although the defamatory allegations have not been justified under the first exception the imputations, though not true, had been made in good faith and for the public good. The counsel for the accused, during the course of the arguments, however, said that the plea of truth was being given up as fair opportunity had not been afforded to his client for establishing the plea of justification.

14. The arguments came under two main heads: firstly, that the case of the appellant is covered by the ninth exception; and secondly, that the accused had been materially prejudiced, as fair and proper opportunity had not been given to him for establishing his case.

15. The defamatory statement which has given rise to this criminal prosecution contains two imputations:

1. that the complainant is in leader of smugglers', and

2. that he is 'responsible for a large number of crimes being committed in the Punjab', and as he happens to be the Chief Minister's son, the cases are always 'shelved up'.

16. It is incontrovertible that the language employed by the accused that Sardar Surrinder Singh son of Sardar Pratap Singh Kairon, Chief Minister, is not only a leader of smugglers but is responsible for a largo number of crimes being committed in the Punjab, is defamatory per sc. It has been admitted in this Court that the statement, (Ex. P. A.), which had been issued to the Press by him contained the impugned words, which form the basis of this criminal prosecution under Section 500. I. P. C.

17. Under our law, criminal liability is incurred by publication of a statement, which tends-to expose a person to hatred, contempt, disgrace and obloquy, or otherwise blackens his reputation or injures him in his business, Occupation or profession; to impute a crime or the commission of an act involving moral turpitude, is defamatory. The criminality lies in the fact that defamation is an invasion on the reputation of another being an assault on his character and an injury to his good name. In the words of Sir R. Malins, V. C., a person's reputation, is his property, and, if possible, more valuable than other property, vidr Dixon v. Holden, (1869) 7 Eq 488 at p. 492. It is not denied that the impugned words are defamatory per se as they are not susceptible of any innocent interpretation and even unaided by any extrinsic facts, they are obviously defamatory.

18. AT common law the acrused in n criminal prosecution was not permitted to prove the truth of the statement and this gave rise to the celebrated dictum of Lord Mansfield; 'The greater the truth, the greater the libel'; the supposition being the greater the appearance of truth in a criminal libel, the more likely would it tend to a stir up the victim to revenge himself end lend to a breach of the peace.

19. Criminal libel formerly used to be prosecuted in England not for the purpose of redressing an injury done to an individual but for the reason that it intended to provoke animosity and violence and disturb the public tranquility and repose.

20. After the passing of Lord Campbell's Act, 1843, the accused was permitted to prove the truth of his assertions provided they were to be for the public benefit. This provision corresponds to the first exception to Section 499 of our Penal Code.

21. At this stage reference may also be made to Section 105 of the Indian Evidence Act, which runs as under:

'When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Courtshall presume the absence of such circumstances.'

22. In this case it is, therefore, for the accused-appellant to show that his defence falls within one or the statutory exceptions. Once an imputation is shown to be prima facie defamatory, it is for the accused to show that any of the exceptions protect him.

23. The defences available to the accused under the exceptions to Section 499 have to be proved us strictly as if the complainant were being tried for the offences imputed to him. The accused pleading justification virtually becomes the accuser and that is why the burden had been placed ! by the law upon him, both in England and in India. Where the publication is libellous per se the proof of the publication makes a prima facie case, and it is then for the accused to offer proof to show, that what was said, was true, or, was published with good motives and for justifiable ends.

In cases of criminal defamation the accused has not only to justify the whole of his libel but the plea taken has to be proved as strictly as if the complainant was being prosecuted for the offence. The accused seeking the protection of the ninth exception has to show what enquiries had been made before the publication and what material there was at his disposal or within his knowledge at the time of the making of the imputations.

24. In Superintendent and Remembrancer of Legal Affairs, Bengal v. Puma Chandra Ghose, AIR 1924 Cal 611 (614), the Bench observed:

'Nor do we think that the accused is protected by the 9th Exception to the section as the publication was clearly not made in good faith having regard to the flimsy materials upon which it was based and to the absence of any evidence that the accused made any enquiries before publication or had at his disposal or within his knowledge at that time any of the evidence which is now upon the record.'

25. In support of the plea of good faith reliance has been placed upon certain items in the newspapers. Some evidence has been placed on the record with a view to show that the complainant was hand in glove with known smugglers and bad characters with whom he associated, and the accused also relied upon certain circumstantial evidence. This is with respect to the imputation of smuggling. Certain material has also been placed in support of the second imputation relating to other crimes committed in the State in which the complainant has been held responsible by the accused.

26. (After referring to certain speeches made in the Punjab Vidhan Sabha and certain news items his Lordship proceeded:) Section 81 of the Indian Evidence Act lays down that the Court shall presume genuineness as to gazettes, newspapers etc., if such a document is produced from proper custody. The presumption of genuineness attached under this section to a newspaper cannot be treated as proof of the facts reported therein as a statement of a fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence., in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported.

A reference to the Newspapers and to the proceedings in the Vidhan Sabha has been made, according to the appellant's counsel to show that both in the press and on the floor of the Vidhan Sabha it was widely talked that a son of a Minister was engaged in smuggling of gold. It is said that when this matter was receiving wide publicity, it raised the curiosity of the accused who, both as a citizen and also as the Secretary of the Praja Socialist Party, was interested in knowing AS to who the culprits, engaged in anti-social activities, were.

27. Before considering the legal effect of the evidence relating to the speeches made on the floor of the Vidhan Sabha and of the editorials and news items, I may also examine the other evidence, both direct and circumstantial, on which reliance was placed by the learned counsel for the appellant.

28. (After discussion of evidence of certain defence witnesses his Lordship proceeded:) There is no other defence witness on whose testimony the accused could rely in support of his allegations. The statements of these witnesses, even if they are assumed to be true, do not even remotely support the libel,

29. The counsel for the accused then referred to other evidence in order to show that the complainant way closely associated with known bad characters and smugglers and because of these associations his client, the appellant, was led to believe that what he stated against the complainant in the press statement was well founded.

30. (After discussion of evidence the judgment proceeded:) The above is the gist of all the material placed on the record in support of the allegation against the complainant, as to smuggling. The evidence taken separately and as a whole does not implicate the complainant with the operation of gold smuggling on the border. On the assumption that the entire evidence to which reference has been made is credible it is totally insufficient for founding) the charge of smuggling. The only answer to the arguments based on the above evidence, is non scquitur, The inference sought does not follow from these premises. In the circumstances it is not necessary to criticise the evidence on the ground of unreliability or partiality.

31. The next imputation to be examined is, that the complainant was 'responsible for a large number of crimes being committed in the Punjab and as he happens to be the Chief Minister's son the cases are always 'shelved up'. The natural meaning of these words is that a large number of crimes are being committed in the Punjab for which Surrinder Singh Kairon is responsible and these cases are shelved in view of his being the son of the Chief Minister. The primary sense of this imputation appears to be the moral accountability of the complainant for a large number of crimes which arc being committed in the State.

This suggests the idea of crimes being committed by others but with his abetment. He may be an accessory, before the fact Or after the fact, as on account of his being the son of the Chief Minister the cases are not proceeded with. Such evidence, to which my attention has been drawn on behalf of the accused in respect of this imputation, relates to the personal conduct of the complainant with regard to certain incidents to be examined presently.

32. (After discussion of evidence his Lordship proceeded:) The arguments raised in defence of the second imputation have been confined to the college incident, the alleged irregularities committed in obtaining cement and timber when the cold storage was being constructed and the letter, reportedly written by the complainant, referring to the octroi barrier. In support of the charge Unit a large number of crimes were being committed in the Punjab for which the complainant was responsible, these are the only four matters dealt with by the appellant's counsel. These matters can by no stretch of language, be styled as crimes, It has not even been shown that they were irregularities or breaches of a private right.

Holding the complainant 'responsible' for crimes committed in the Punjab could either mean that the complainant had directly committed the crimes himself or he caused their commission. In whichever sense the libellous imputation may be construed the four matters, referred to above, cannot form any basis in proof of the allegation. In the trial Court reliance was placed on several other incidents to substantiate the second imputation but they were not referred to in this Court and the findings of the trial Court on those matters have not been questioned before me.

33. It is not the case of the accused that he had made any investigation as to the truth of his allegations before committing his statement to publication; and the material, which has been placed on the record during the trial, does not show that Surrinder Singh Kairon was either connected with smuggling or could be held responsible for other crimes. In his written statement he did say that:

'During the brief time that I had at my disposal I made all such inquiries that could be made under the circumstances in reference to the material that had earlier come to my notice, and having satisfied myself that the Press Note was a fraud, I accepted the challenge and in good faith and for public good, named Shri Surrinder Singh son of Shri Pratap Singh Kairon, Chief Minister as the Minister's son involved in gold smuggling.' But despite this statement, it is not stated, as to what enquiry had been conducted to ascertain the truth of the allegations during the brief time at his disposal which was not more than 24 hours. The contradiction to the Press Note of the Punjab Government, dated the 22nd of July, 1957, was published by the accused the next day. There was hardly any time for making any enquiry and the accused has refrained from acquainting the Court as to the nature of the enquiry made by him, if any. He has nowhere stated, as to who told him, that the complainant was the leader of smugglers, Or, was responsible for the crimes in the State, or when, and under what circumstances, he came to know about It.

There is no material to show that any information beyond the press reports and the Assembly Debates was in his possession when the statement was published. In such a situation the accuses cannot claim the protection of the ninth exception as was said by a Bench of the Calcutta High Court in the case of AIR 1924 Cal 611, to which reference has been made earlier. There is no proo(sic) of any kind that the accused had investigated the truth of the charge. He has not even alleged having made such an investigation.

34. The facts of this case and the argument! addressed at the bar raise important questions of law which may be examined at this stage. In this Court the counsel for the accused-appellant has not relied upon the provisions of the first exception on the plea that his client was never giver fair opportunity by the trial Court to produce the necessary material.

35. The ingredients of the ninth exception on which the entire arguments of the appellant have pivoted are, that the imputation on the character of another should 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. In this case the accused has to prove that the publication was both in good faith and for the public good. Once it is shown that the publication was made in good faith, I will have no difficulty in assuming that the first part of the imputation, namely, that the complainant was the leader of smugglers, would be for the public good. It is hardly debatable that the making of the second imputation, as to the complainant's being responsible for the commission of large number of crimes in the Punjab, can be for the public good.

36. The term 'good faith' is defined both in Section 3(22) of the General Clauses Act (No. X of 1897), and also in Section 52 of the Penal Code. According to the General Clauses Act:

'a thing shall be deemed to be done in good faith' where it is in fact done honestly, whether it is done negligently or not.'

According to Section 52 of the Penal Code:

'Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.'

37. The definition of 'good faith' in the Penal. Code is a negative one. The term 'good faith' is not attempted to be defined there but all that is stated is that if an act is not done with due care and attention it would not be said to be done in 'good faith'. This definition comes into conflict with the definition in the General Clauses Act to this extent only that if a thing has been done negligently, though honestly, it would not be deemed to have been done in 'good faith'. The definition of the term in the General Clauses Act lays stress on one aspect only, but, that in the Penal Code places emphasis on two aspects, namely the honesty of intention along with due care and attention.

Thus section 52 excludes the element or negligence from the purview of 'good faith'. Both the definitions retain the realty essence of 'good faith', which is that a thing is lone 'honestly'. This is a Feature common to both definitions without which the term 'good faith' will lose its real meaning. 'Good faith' therefore implies, not only an upright mental attitude, and clear conscience of a person, but also the doing o an act, showing, that ordinary prudence has been exercised according to the standards of a reasonable person. 'Good faith' contemplates an honest effort to ascertain the facts upon which exercise of the power must rest. It must, therefore, be summed as 'an honest determination from ascertained facts.' 'Good faith' precludes pretence or deceit and also negligence and recklessness. A lack of diligence, which an honest man of ordinary prudence is accustomed to exercise, is, in law, a want of good faith. Once this is shown, good faith does not require a sound judgment.

38. In the context of the law of defamation, the requirement of good faith, in publishing an article derogatory to the character of the complainant is not satisfied, by merely showing a belief on the part of the publisher in the truth of the publication. It has to be shown that the publication had been honestly made in the belief of its truth, and also, upon reasonable grounds for such a belief, after the exercise of such means to verify its truth, as would be taken by a man of ordinary prudence, under like circumstances. On this question the following observations of Mitchell, J,, in Alien v. Pioneer Press Co., Minnesota Supreme Court, (1889) 3 LRA 532 (535), may he cited:

'The next question is, whether upon the evidence the question should have been submitted to the jury whether 'the article was published in good faith; that its falsity was due to mistake or misapprehension of the facts.' This depends upon what is meant by the expression 'in good faith', as used in this connection.

We may assume that the Act was designed to protect honest and careful newspaper publishers, It is not to be presumed that the Legislature intended to make so radical a change in the law of libel as to make mere belief in the truth of the article the test of good faith. If so, they have introduced a very dangerous principle, which virtually places the good name and reputation of the citizen at the mercy of the credulity or indifference of every reckless or negligent reporter. 'Good faith' requires proper consideration for the character and reputation of the person whose character is likely to be injuriously affected by the publication. It requires of the publisher that he exercise the care and vigilance of a prudent and conscientious man, wielding, as he does, the great power of the public press.'

39. A publisher of a defamatory statement can only be protected if he shows that he had taken all reasonable precautions and then had a reasonable and well-grounded belief in the truth of the statement. The plea of 'good faith'. Implies the making of a genuine effort to reach the truth, and a mere belief in the truth, without there being reasonable grounds for such a plea, Is not synonymous with good faith. Exception 9, therefore, covers two matters, proof of good intention and the exercise of reasonable care and skill, having regard to the occasion and the circumstances. Mere subjective belief, without any objective basis, is not a dependable criterion for substantiating the ninth exception; an unnecessary aspersion is indicative of want of good faith.

40. The Advocate-General, in support of his argument, that there was no good faith, has placed-reliance on the observations made in a decision of the Privy Council, reported in ILR 41 Cal 1023: (AIR 1914 PC 116) Arnold v. King-Emperor. In certain respects there is similarity in this case and the Privy Council decision. In that case the appellant Mr. Arnold was the Editor of the 'Burma Critic', a newspaper, published in Rangoon, and the proceedings arose out of a defamatory article entitled 'A Mockery of British Justice', defaming-Mr. Andrew, a district Magistrate,

In a rape case of a girl aged about 11 years-one Captain McCormick was prosecuted. The District Magistrate was of the view that the charge was false and he had discharged Captain McCormick under section 209 of the Criminal Procedure Code. The allegation against the District Magistrate was, that he had by wrongly discharging the accused 'committed the basic breach of trust and was unworthy of the position he had.' The jury returned a unanimous verdict of guilty and the Chief Judge sentenced the appellant to one year's simple imprisonment, expressing the view that in, his opinion no grosser, more unwarranted or mischievous libel could have been published, and that the offence had been aggravated by the conduct of the defence as the advocates not only reiterated but added to vituperation contained in the articles, and there was no expresssion of apology or sorrow for the injury caused to the complainant, even up to the end of the case, and Lord Shaw said-

'While the plea of ventas was not openly or plainly made, their Lordships regret to observe that surreptitiously it did appear and reappear in the case by way of repeated innuendo.'

41. As to the question which has to be tried in such a case, Lord Shaw said:--

'Notwithstanding the elaboration of the arguments and the introduction of much matter affecting the conduct of McCormick and the conduct of Mr. Andrew, it was accordingly this question, and this question only, which the jury charged by Sir Charles Fox had to try, namely, whether in publishing the libels admitted to be false Mr. Arnold did so in good faith because he believed them to be true, having given due care and attention to seeing that they were so. If the jury were satisfied that he did give that due care and attention, and that he acted in good faith, then the exception formed a good defence, and the accused would be found not guilty.' (Page 1050 (of ILR Cal) : (at p. 119 of AIR)).

A similar argument, as had been advanced in this case before me was also raised by the counsel for the accused. The argument was 'that although charges were false yet he was excused by Statute because he believed them bona fide and had given due care and attention to their truth.' Reliance was placed upon a letter received for publication, signed as 'Vigilance'. In this case also reliance has been placed upon the debates in the Vidhan Sabha and also on newspaper-articles. The following observations of Lord Shaw are helpful for purposes of this case:--

'An investigation in the department of a Lieutenant-Governor of great experience having resulted in exonerating Mr. Andrew from blame, the appellant assumed the grave responsibility for reopening the matter. He gave the authorities no inkling of any fresh information which had come to his hand, and in answer to their enquiry he simply stated that it was the old incident which be was reviving. UP to the present, the appellant has not given at their Lordships' Bar or in any Court any statement of any fresh facts which he had discovered. This circumstance was, in their Lordships' opinion, well worthy of consideration by the jury.

In the second place, both Judge and jury had seriously to consider the attitude of Mr. Arnold himself. He neither defended the articles as true nor did he give any assistance on the subject of what were the actual things upon which he founded his own beliefs nor finally upon what the steps were, if any, which he took to investigate their truth before giving them to the public.

Thus, although the true issue in the case was as to his own bona fides and the care and attention which would verify that, Mr. Arnold's action when charged gave no help to the Court and must to some extent have embarrassed even his own defence.' (pages 1057, 1058 (of ILR Cal): (at p. 122, of AIR)).

(42) As to the conduct of the defence, Lord Shaw said:--

'Their Lordships make every allowance for the heat of advocacy which as noted by the Chief Judge, seems to have been in this case great. But when a gross mistake of that kind on a matter of fact -- the truth of which when exposed would have ruined any administrative or judicial officer's carreer--was discovered, the libel should not have been adhered to for a moment. The mistake should have been acknowledged and an apology tendered. This was not done, but upon the contrary the case was conducted to its close upon the footing that an unstated defence was the real and good defence, namely, that the libels and all the libels were true. Nobody is to be blamed in these circumstances for thinking that the plea of good faith on the part of Mr. Arnold had sustained a serious shock.' (pages 1081, 1062 (of ILR Cal): (at P-123 of AIR)).

43. This decision brings out four principles: Firstly, that 'good faith' means good faith and also the exercise of due care and attention;

Secondly, that due dare and attention means that the libeler should show that he had taken particular steps to investigate the truth and had satisfied himself from his enquiry, as a reasonable man, that he had come to a true conclusion;

Thirdly, that the conduct of the accused, during the course of the proceedings in a Court, is a relevant factor in determining his good faith; and

Fourthly, that if there are several imputations, good faith or truth must be proved with respect to every imputation, and, if he fails in substantiating truth or good faith in respect of any one imputation, conviction must stand.

44. In the case before me the accused has not said a word that he had investigated into the truths of the imputations made by him. In his written statement, he Said that he had hardly any time for making an enquiry, not more than 24 hours. His attitude in the trial Court and as made clear in this Court by his counsel, has been of complete recalcitrance to the end. Though in clear terms it was stated that reliance was not being placed upon the first exception and the plea of truth had been given up, the appellant expressed no regret or remorse for having published the impugned statement. In the words of his counsel -- 'My client is not out to tender an apology. It is a matter of principle and personal conviction with him. He stands by what he has said.' In the written statement, the libel has been reiterated and by way of justification, several other calumnious reflections have been indulged in.

45. In Queen Empress v. Dhun Singh, ILR 6 All 220 at p. 222, the accused, who was facing libel charge had pleaded that the defamatory statement was protected by the eighth exception being an accusation made in good faith to a porton in law having full authority. Straight J. said-

'It will be observed that two ingredients are essential to establishing of this protection-

(i) that the accusation must be made to a person in authority over the party accased; and

(ii) that the accusation must be preferred in good faith -- that is to say, with such reasonable care and attention on the part of the person making it in first satisfying himself of the truth and justice of his charge, as an ordinary man should be expected to exercise.''

Referring to the plea that there was a strong suspicion in the mind of the accused of the impugned conduct of the complainant, Straight J. said:

'But this was not enough, and he should have exercised greater care and attention in making himself sure of his facts before committing his accusations on this point to writing. As to the residue of matters mentioned in the six earlier heads of charge, it is clear to my mind from the evidence and his own statement before the Magistrate that the appellant acted upon mere rumours that were flying about Pilibhit, and as they referred to the cases of other persons, in which he had no direct interest, more stringent tests must be applied in determining the question of his good faith. Even if proof of such rumours was admissible, of which I am by no means clear, it was his duty, before committing them to writing as direct charges against Badrul Hasan, to satisfy himself by all reasonable means at his command that they were well founded in fact, and if he failed in this respect, he published them at his peril, and must take the responsibility for them that the law imposes.' (pages 223, 224).

46. Reference may also be made in this connection to the case of Shibo Prosad Pundah, ILR 4 Cal 124, where observations have also been made to similar effect.

47. The principal argument of the counsel for the appellant has been that the reports in the Vidian Sabha and the newspaper-articles, to which reference has already been made, had been published before be had issued the impugned statement to the press, and from this it should be deduced that the requisite due care and attention, as contemplated by section 52 in support of the plea of good faith, had been exercised. The reports which had preceded his statement do not mention the prime of the complainant anywhere. Reierence made to a Minister's son being involved in smuggling, cannot, by necessary implication, refer to the complainant.

These speeches expressed the concern of the speakers at the increasing undetected gold smuggling on the border and they thought that sufficient steps were not being taken to stop it. Suggestions were made that important and influential men in Politics and in the Government were interested in gold smuggling. The speeches and the newspaper reports do not, in any way, connect the complainant as one of Such smugglers or leader of smugglers. The language of the speeches and press publications cannot be stretched so as to persuade a reasonable man that the speakers and the journalists had the complainant in their mind when they were referring to the Minister's son.

48. Even if the speeches and the press-newshad expressly referred to the complainant andeven if they had used the identical language,which had been indulged in by the appellant, theprevious publication of similar imputation wouldhave given to the accused, no protection. The accused cannot justify the defamatory statement onthe ground that similar reports had appeared orby saying, that rumours to that effect were afloat,as stated in Halsbury's Laws of England (videVol. 24, para 84, page 47)-

'If the defendant made a statement, whether in writing or by word of mouth, which is defamatory of the plaintiff, it is no justification, or no sufficient justification, that the statement purported to be made on the relation of another, and that it had, in fact, been related to the defendant by that other, even though the defendant disclosed the name of his informant at the time or subsequently at the earliest opportunity.'

49. Every re-publication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him. The publisher of a libel is strictly responsible, irrespective of the fact whether he is the originator of the libel or is merely repeating it. But as pointed out already, in this case, no question of repeating of a libel arises, because the defamatory statement has originated with the impugned statement of the accused.

50. An absolute immunity attaches to the speeches made on the floor of the Vidhan Sabha. The members of the Legislative Assembly and of the Parliament are absolutely privileged and they can make with impunity libellous statements while participating in the deliberation of the House and the Court has no jurisdiction to entertain an action in respect of defamatory utterances by them as the Members, under the law, are not amenable to civil or criminal action, despite the fact that the statements are grossly defamatory and deliberately false. This privilege, however, does not extend to a statement published by a member outside the House even though it may be an exact reproduction of what was said during the debate. This matter was settled in England, in an early case, R. v. Lord Abingdon, (1794) 5 R. R. 783.

In that case Lord Abingdon had delivered a speech in the House of Lords during the course of which he had indulged in libellous invective against the character of one Mr. Sermon, an attorney. Lord Abingdon sent the printed version of his speech for publication in the newspapers. Lord Kenyon observed, that the privilege claimed by Lord Abingdon was restricted to words spoken in the House of Lords and confined to its walls. Lord Abingdon was found guilty of having published the libel-charge and was sentenced to imprisonment and was also ordered to pay a fine,

51. The same principle was reiterated in R. v. Creevey, (1813) 14 R. R. 427. It was held that-

'a member of the House of Commons may be convicted upon an indictment for a libel in publishing in a newspaper the report of a speech delivered by him in that House, if it contains libellous matter, although the publication be a correct report of such speech. '

Rayley J. said-

'A member of Parliament has undoubtedly the privilege for the purpose of producing parliamentary effect to speak in Parliament boldly and clearly what he thinks conducive to that end. He may even for that purpose, if he thinks it right, cast imputations in Parliament against the character of any individual; and still he will he protected. But if he is to be at liberty to circulate those imputations elsewhere, the evil would be very extensive. No member therefore is at liberty so to do.'

52. It follows that the members of the Vidhan Sabha, if they had indulged in publishing speeches, libellous in character, in newspapers, they would not have been protected. Surely, the accused cannot escape the consequences of the criminal law of defamation by giving publicity to libellous utterances made by members on the floor of the Assembly. In this case it is to be noticed that the members of the Legislative Assembly, to whose speeches reference was made, did not make any imputations against the character of the complainant either inside or outside the Assembly. If any one of them had published libels to the world Outside by issuing press statements or by addressing public meetings the protection of the parliamentary privilege could not have been successfully claimed.

It follows, that it is perilous, to repeat in public a libellous statement, even if its first publication in a House of Legislature is privileged. Each repetition is a fresh defamation and the reason, who has made the words of another his own, is liable to the same extent as if he had originated the story. It is equally well-settled that previous libellous publication by another, of the same defamatory words, is neither an evidence of the truth I nor proof of the exercise of due care and caution.

53. The accused should have realised that there was no mention of the name of the complainant even in the speeches of those members of the Assembly who were known critics and opponents of the Chief Minister. In this connection reference has already been made to the statements of D. W. 18, Shri Jagat Narain, M.L.A., and D. W. 34, Shri Probodh Chander, M.L.A. Neither of them has said that he had received complaints against Surrinder Singh regarding gold smuggling. The appellant before rushing to the press should have, as a man of ordinary prudence, paused and pondered, that even those members o the Vidhan Sabha who were open antagonists of the complainant's father had not said, that his son was engaged in smuggling, even when they were fully protected by the law.

It should have occurred to the appellant that that was because they could not support such an allegation, Even if, an exactly similar statement had been made on the floor of the Vidhan Sabha, the accused should have realised, that no privilege is attached to the repetition of the protected statement. Again, when the Government had issued a press-note categorically denying that no son of a Minister was engaged in smuggling, the accused should have been on the guard, and, he should have exercised greater caution, and should have taken pains to ascertain the facts, before publishing his refutation. He has not chosen to acquaint the Court as to what efforts, if any, had been made by him for finding out the truth.

54. Reliance upon rumours, even if widely current, is no defence to a charge of a criminal libel not being protected by exception 9. It is no defence on the part of the accused to say, that the matters referred to in the alleged libel were bruited about and the rumours, which were in circulation, were being believed. By proving prevalence of rumours, the accused can neither substantiate the defence of truth, nor of good faith. The accused can only succeed on producing proof of the truth of the matter charged, as libellous, and not by leading evidence, as to his own belief in its truth. Evidence of rumours, and of appellant's conviction, in their veracity, will not suffice to stave off the injurious consequences of an assault, on the other man's reputation. If an information is shown to have been obtained from a supposedly reliable source, and thereafter it is subjected to a reasonable investigation, a belief in its truth will mitigate the guilt. In order to earn complete immunity all the ingredients of the ninth exception have to be substantiated before a libeller can be suffered to injure the complainant's good name.

55. What matters in all such cases is truth and not the persistence in the libel. A certain statement may be said to be in everybody's mouth, but that is no proof of its truth, and, that is why, a previous publication by another of the defamatory words is no justification for their repetition, far less, the evidence of their truth. Each repetition, being in the nature of a fresh defamation, the credence given to such unverified reports cannot protect the defamer against the outcome of his ill advised and hasty conduct.

A wrong cannot be justified or excused by a wrong. The endorser of a lie is in no better position than its drawer; and the tale-bearer has no advantage over the tale-maker. He who circulates a libel, is liable, equally, with the originator. It is not open to a person in the position of the accused-appellant to adopt as true the untrue statements made by others and then come out with the defence of good faith.

56. Cave J., in Scott v. Sampson, (1882) 8 Q.B.D. 491, said:--

'To admit evidence of rumours and suspicionsis to give any one who knows nothing whatever ofthe plaintiff, or who may even have a grudgeagainst him, an opportunity of spreading, throughthe means of the publicity attending judicial proceedings, what he may have picked from the mostdisreputable sources, and what no man of senswho knows the plaintiff's character would formoment believe in.'

57. It will not be inappropriate to analyse what is understood by the terms 'character' 'reputation' and 'rumour' as these are prone to be confused. 'Character' is what a person actually is and 'reputation' is, what neighbours say, what he is. Thus a man may have, in fact, a good character and yet suffer from bad reputation or vice versa. 'Reputation' is what is reputed. It is the common knowledge of the community or a general opinion in respect to a person. It is the estimation in which a person is held by others and not the opinion which he may have of himself. 'Reputation' is a composite hearsay, but it is admitted in evidence on grounds of necessity. 'Reputation', however, is distinguished from 'rumour'. In the words of Professor Wigmore:

'Reputation, being the community's opinion, is distinguished from mere rumour in two respects. On the one hand, reputation implies the definite and final formation of opinion by the community; while rumour implies merely a report that is not yet finally credited. On the other hand, a rumour is usually thought of as signifying a particular act or occurrence, while a reputation is predicated upon a general trait of character, a man's reputation, for example, may declare him honest, and yet to-day rumour may have circulated that this reputed honest man has defaulted yesterday in his accounts.'

58. A bad general reputation can, therefore, be proved but not rumours or suspicions. It is not Open to give evidence of particular facts showing bad character or disposition. Section 55 of the Indian Evidence Act allows as admissible the evidence of general reputation and of general disposition but not of particular facts or of traits.

59. In Hobbs v. Tinling and Co., 1929-2 KB 1 (17-18), Scrutton Lord Justice observed:

'The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation, and the plaintiff may rebut it by 'coming prepared with friends who have known him to prove that his reputation has been good.' On the other hand, the defendant may not give evidence of rumours at the time of publication to the same effect as the libel, nor may the defendant give evidence of specific facts and circumstances to show the disposition of the plaintiff, as distinct from general evidence that he has that reputation. If those specific facts are to the same effect as the libel, which he has not justified, he cannot justify under the plea of damages. If those facts are different from the libel they do not prove actual reputation, which can be proved under the first head, but that he ought not to have such a reputation.'

60. The decision in 1929-2 KB I was followed in Speidel v. Plato Films, Ltd., (1960) 2 All ER 521 at p. 525. The Court of Appeal observed:--

'What is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not. Further, the inquiry must be limited to general reputation. If under the guise of investigating what sort of reputation a man bears, one were to investigate whether he was thought or said to have committed specific acts, the inquiry would soon degenerate into an inquiry about what a man had actually done in his past life as ascertained by rumour and not by tact. All this is laid down in (1882) 8 QBD 491 and 1929-2 KB 1, particularly per Scrutron, L. J. Scrutton, L. J., says clearly that one cannot prove in chief specific instances of misconduct, as distinguished from general reputation, whether involved in the libel or not, in order to mitigate damages.''

It was also said at p. 526:

'The bad reputation which is pleaded in mitigation of damages must bear some relation to the libel that is complained of. You cannot, for example, mitigate the fact that you have falsely called a man a traitor by proving that he had a reputation for loose morals.'

61. These were actions in tort in which the plaintiff had claimed damages for libel. The principles of law in a criminal prosecution for defamation are not different in this matter. In this respect in either case loss of reputation is the foundation for an action or prosecution. On the basis of the reasoning in the above cases it is difficult to justify reception of evidence relating to the incident in the college or pertaining to transactions of cement or timber or even evidence of association. These pieces of evidence cannot be taken in support of either of the two impugned imputations.

62. It was, however, open to the accused to show that the complainant had the reputation of being the leader of smugglers but no such evidence has been placed on the record. Such evidence, as has been adduced, docs not connect the complainant with the gold smuggling.

63. The next question that arises in this case, is as to what evidence has to be led, by the accused in a defamation case, when he is pleading either 'truth' or his 'good faith' as understood in law. The learned counsel for the appellant contended that the standard of proof differs when the onus lies on the accused. The plea of justification of the charge levelled by the accused has to be proved strictly as if it were an indictment. The law is stated thus by Lord Halsbury:

'If the statement complained of imputes the commission by the plaintiff of a criminal offence, the defendant, to succeed in his plea of justification, must prove the commission of the offence charged as strictly as if the plaintiff was being prosecuted for the offence.'

64. Both, the libellous imputations as to the complainant being leader of Smugglers and his being responsible for a large number of crimes in the Punjab, imputed the commission by him of criminal offences.

65. In Chalmers v. Shackell, (1834) 172 ER 1326. it was held:

'In an action for libel, to support a plea of justification stating that the plaintiff had forged and uttered, knowing it to be forged, a certain bill of exchange, to justify a verdict for the defendant, the same evidence must be given as would be necessary to convict the plaintiff if he were on trial for those offences.'

66. In Willmett v. Harmer, (1839) 173 ER 678 (679), Lord Denman, C. J., in summing up said:

'The first plea of the defendants is a plea of justification of so much of the libel as imputes the crime of bigamy to the plaintiff; and I think-that on this plea of justification, you should have the same strictness of proof as on a trial for bigamy.'

67. Applying the above principle, a Court is entitled to expect from the accused, without discharging the onus placed upon him, of proving any defence mentioned in the exception -- that he should adduce facts which would show due care and attention justifying honest belief in the truth of the allegations.

68. The counsel for the appellant said, that his client had not the resources to be in a position to have access to the authentic records which might prove the truth of the imputations and, therefore, had to depend on circumstances and what other people had said. While advancing this argument the counsel for the accused unwittingly disclosed the weak foundations on which the case of his client was rested. This argument of his, is destructive of the plea of good faith. If the accused had no authentic information he was not under any inevitable constraint, or, indispensable compulsion which had made it obligatory for him to rush to the press with a statement which was pregnant with grave consequences for the complainant, whose reputation had been reviled, as a result of wide publicity given to the libellous imputation.

In publishing the statement in question, the accused conducted himself with unbecoming haste and gross impropriety which cannot be excused or palliated by any exigency. There is not even a semblance of good faith in respect of the other imputation that the complainant was responsible for the commission of a large number of crimes in the Punjab. No attempt of any kind was made to foist responsibility, upon the complainant, of crimes which are being committed in the Punjab. A naive and disingenuous plea was taken that the second imputation referred to certain crimes committed by the complainant in connection with the college incident, the obtaining of cement and timber and the letter to the Executive Officer with respect to octroi charges.

Not only no crimes have been brought home to the complainant but the incident, which has been referred to above, had not even a remote relation to the second imputation. The accused in my view, has completely failed to substantiate the plea of good faith in respect of his second charge. The material which has been placed during the trial in support of the defence of good faith is of such a flimsy character that it betrays the defence.

69. The conduct of an accused person subsequent to the publication of a libel, before and during trial, may also be taken into consideration by the Court. It is within the power of the accused, in a case like the present, to mitigate his offence or even aggravate his guilt. In a civil action the defendant can mitigate the damages. By tendering apology or expressing contrition an accused person may lessen the gravity of offence. A public retraction or an expression of remorse, without reservation, is recognised as an extenuating factor and has the effect of blunting the edge of the offence though such an effect cannot be attained by an half-hearted apology or reluctant and tardy amends. For sufficiency of retraction, it should manifest an honest intention to repair the harm done to the injured reputation of the complainant.

Reparation to the defamed person must not be merely colourable. The accused or the defendant, as the case may be, should admit that the charge was unfounded, made without proper information and express regrets for its publication. But the appellant has either not chosen to, or, has not been advised to make amends for the injury caused. On the other hand, he has, by his conduct during the trial, added to his offence. The written statement which was filed by him more than 10 months after his oral statement under Section 342 has been ill-advised in the extreme and whoever advised him to adopt that course of conduct has not helped him but has harmed him.

At the late stage at which the written statement was filed the accused, as well as his counsel, should have been fully aware of the facts of the case and the legal merits of the pleas taken in this behalf. The long passage from the written statement which has been reproduced in the earlier part of this judgment shows, that by submitting written statement, the opportunity was utilised for further defaming the complainant and his father in a manner which was wanton and indefensible by any test. Instead of explaining the two imputations made in the light of the defences taken, the accused not only, persisted in reiterating the imputations already made, but he launched a further tirade of invectives and libels which had not the remotest relevance.

70. The accused claims to be a man of some education and he was the Provincial Secretary of the Punjab branch of the Praja Socialist Party. Not only he cast all discretion to the winds, hut utilised this trial not for proving the truth of the particular allegations made but in heaping further calumnies and obloquies of a grave character. The conduct of the accused during the trial, and even, some of the arguments at the Bar gave me an impression that the real object was not to substantiate the legal defences but to utilise the privileged occasion, of the trial, for indulging in further libels.

The cross-examination of the complainant on 14 hearings, to which hardly any reference was made during the course of arguments, also indicated an attempt more in the nature of mud-spattering than with a view to eliciting material in support of the defence plea. Similar attempts, whenever resorted to, have been reprobated by the Courts. The defence of justification of the libel, has always been considered to be perilous for the accused, because, whenever there is failure of proof the plea Is deemed as an aggravation of the offence. But in this case in the written statement the accused has recklessly and wantonly indulged in making wild and foul imputations with the set purpose of smearing the character of the complainant.

71. It would have been an act both courageous and graceful to own up his error but the accused has not adopted the course which men of fairness and honour would not have hesitated to pursue. He has not only tenaciously adhered to the calumnious reflection but has utilised the criminal proceedings to serve a most questionable end -- viz., character assasination. The accused must have known that he could not justify the imputation. He nevertheless persisted in causing that description of pain which a person feels, who knows himself to be the object of unfavourable sentiments of his fellow beings. The intentional causing of such pain which false defamatory Imputation gives, is an evil not easily remediable. It is not always possible even by a judicial verdict to restore a reputation which has been severely bruised.

72. The practice of filing written statement has been strongly discountenanced and severely condemned as pernicious by the Courts of this country. The written statement is evolved out of the brains of the counsel, helped by the friends of the accused and the practice has been uniformly deprecated. In this case the accused, when he was being orally examined under Section 342, replied to all questions, except one, by saying 'I will file a written statement.' It cannot, therefore, be said that the written statement represented the mind of the accused or the facts as were known to him. This view is amply supported by the following among other cases:

1. Emperor v. Dwijendra Chandra Mukherjee, 19 Cal WN 1043: (AIR 1916 Cal 6330;

2. Deputy Legal Remembrancer, Bihar and Orissa v. Matukdhari Singh 20 Cal WN 128: 'AIR 1917 Cal 687);

3. Dwarka Singh v. Emperor, 47 Cri LJ 780: (AIR 1947 Pat 107);

4. Mohammad Anis v. Emperor AIR 1938 Oudh 405;

5. Samarendra Singh v. Emperor, AIR 1948 Oudh 99;

(6) Tilkeshwar Singh v. The State of Bihar, (S) AIR 1956 SC 238 and

7. Sidheswar Ganguly v. State of West Bengal, AIR 1958 SC 143.

73. It was submitted at the Bar and also stated in the written statement, that the accused had no animus against the complainant or his father, and they were not even known to him, and in the absence of any enmity or ill-will with the complainant or the members of his family, the libellous statement was without malice. Neither ill-will nor malice is an ingredient of the offence of defamation, and want of either, cannot serve as a defence. An unproved plea of justification, injudicious cross-examination of the person aggrieved, and obstinately persisting in the libellous charge without any sufficient reason, may be taken into consideration, as evidence of malice. Malice at law does not mean, that the accused was actuated with hatred or ill-will or even that he had an actual intent to vilify or defame such a person. It suffices that the statement was made wilfully or purposely or without any lawful excuse or justification.

74. Publication of a libellous statement whether motivated by a rancorous hatred, or emanating from a misdirected zeal of a crusader, in inflicting pain on the person defamed, or, in lowering him in the esteem of his fellow-beings, admits of no differentiation. The pernicious results which follow, and the mental suffering which is caused, are not dependent upon the state of mind o the propagator of the calumnies. The injury sustained, the odium suffered, and the humiliation endured in consequence of a calumnious imputation, do not vary with the motives which prompted the libel. No man has a right to libel another for the edification of the community, Or for any other salutary purpose.

75. The last argument on behalf of the accused-appellant, to which I may now address myself, is, that fair and proper opportunity for proving the defence case, was not given by the trial Court to the accused. (This argument was reject-ed by his Lordship.)

76. It was then urged that the accused had been prejudiced because privilege had been claimed by the Home Ministry in the Government of India with respect to the report by the Deputy Director Intelligence Bureau regarding smuggling in Punjab in the first half of 1956. D. W. 8, Shri Hari Parkash Sharma, Sectional Officer, brought the original document asked for by the Court. He submitted an affidavit of the Joint Secretary in the Ministry of Home Affairs claiming privilege for producing the document in the Court. On this the Additional Sessions Judge on 17th November, 1958, said 'I have gone through the document. The privilege is allowed.'

77. The counsel for the accused has not questioned the correctness of the above order of the Additional Sessions Judge in granting privilege under the law but what is said is that the accused should have been acquitted if the privilege was granted. The learned counsel for the accused has cited two American cases in support of his contention -- viz.; Clinton E. Jencks v. United States of America, 353 US 657 and Roviaro v. United States, 353 US 53. The decision in these cases cannot be of any avail to the accused-appellant because they rest on particular law prevailing in that country, which is obviously different from the law in India.

According to the law in the United States of America it is within the power of a Court to overrule the claim of privilege on the ground that the disclosure is essential for determination of the defence of the accused and where Government insists on claiming privilege the Court can, if it so deems fit, acquit the accused. The law in this country is contained in Ss. 123, 124 and 162 of the Indian Evidence Act and it does not even suggest that an accused is entitled to acquittal when privilege has been claimed with respect to unpublished official records relating to any affairs of State. The contention of the learned counsel for the accused, claiming acquittal for his client where privilege has been claimed on behalf of the State, has no substance and must be rejected.

78. After having taken careful note of the arguments at the Bar and after having examinee the evidence on the record, I feel satisfied that the trial Court arrived at a correct conclusion in finding the appellant guilty under Section 500, I. P. C., for defaming the complainant,

79. The question as to the appropriateness of the sentence is somewhat perplexing. The main object of the defamed complainant is to clear his character which has been unjustly aspersed. By these proceedings the law gives the innocent man, who has been calumniated, the means of retrieving his reputation, which has been sullied by the libeller. The refutation of the libel is the all important purpose which the complainant desires to achieve. The complainant's anxiety in prosecuting the accused was presumably to vindicate his character; and in this he has succeeded. The punishment of the offender from the point of view of the complainant is a secondary matter. His purpose would have been substantially served if he had obtained a retraction and an expression of regret from the accused.

80. One of the ends of imposing punishment is to make the wrong-doer suffer in mind for the mental suffering, his wrong act has caused to his victim, who has sought judicial protection against! the assault on his good name. To a person in the position of the accused, a censure administered and a strong disapprobation expressed by the Court of his scandalous conduct should be felt as a punishment.

81. Though Harbhajan Singh by his injudicious zeal and insensate persistence in the libel and later on by his recalcitrant attitude, has aggravated his offence and has thereby deprived himself of lenity which might have been shown to him, the sentence of one year's simple imprisonment passed on him is nevertheless unduly severe. I maintain the conviction of the accused-appellant, but I order that instead of undergoing one year's simple imprisonment, he shall undergo three month's simple imprisonment and I also sentence him to pay a fine of Rs. 2,000/-. In default of payment of fine, he is sentenced to undergo three months* simple imprisonment. He is on bail which is cancelled and he is directed to surrender himself and to undergo the unserved portion of his sentence.

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