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Harbhajan Singh Vs. State of Punjab - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtSupreme Court of India
Decided On
Reported inAIR1966SC97; 1966CriLJ82; [1965]3SCR235
ActsCriminal Law; Common Law; Indian Penal Code (IPC), 1860 - Sections 499 and 500; Code of Criminal Procedure (CrPC), 1898 - Sections 52, 342 and 527; Indian Evidence Act - Sections 105; Prevention of Corruption Act, 1916 - Sections 2; General Clauses Act; Foreign Exchange Regulation Act - Sections 8(1); Land Customs Act - Sections 5(3); Sea Customs Act - Sections 19; Indian Arms Act; Indian Opium Act; Constitution of India - Article 136
AppellantHarbhajan Singh
RespondentState of Punjab
Cases ReferredSidheswar Ganguly v. State of West Bengal
criminal - burden of proof - criminal law , common law, sections 499 and 500 of indian penal code, 1860, sections 52, 342 and 527 of criminal procedure code, 1898, section 105 of indian evidence act, section 2 of prevention of corruption act, 1916, general clauses act, section 8 (1) of foreign exchange regulation act, section 5(3) of land customs act sea customs act, section 19 of indian arms act, indian opium act and article 136 of constitution of india - appellant charged under section 500 of indian penal code for publishing defamatory statement - trial court after examining witnesses found appellants statement defamatory per se and ordered conviction - appeal filed before high court - observed appellant case not covered by exception 9 to section 499 and plea of good faith not proved -.....gajendragadkar, c.j.1. by this appeal, which has been brought to this court by special leave,the appellant harbhajan singh challenges the correctness of his conviction foran offence under s. 500 of the indian penal code, and the sentence imposed onhim for the said offence. the criminal proceedings against the appellant werestarted on a complaint filed by surinder singh kairon, son of s. partap singhkairon, who was at the relevant time the chief minister of the state ofpunjab., in his complaint, the complainant surinder singh alleged that theappellant had published in the press a statement against him which was highlydefamatory of him. the said statement was published in the 'blitz',which is a weekly magazine of bombay, on july 23, 1957, and extracts from itwere given publicity in the.....

Gajendragadkar, C.J.

1. By this appeal, which has been brought to this Court by special leave,the appellant Harbhajan Singh challenges the correctness of his conviction foran offence under s. 500 of the Indian Penal Code, and the sentence imposed onhim for the said offence. The criminal proceedings against the appellant werestarted on a complaint filed by Surinder Singh Kairon, son of S. Partap SinghKairon, who was at the relevant time the Chief Minister of the State ofPunjab., In his complaint, the complainant Surinder Singh alleged that theappellant had published in the Press a statement against him which was highlydefamatory of him. The said statement was published in the 'Blitz',which is a weekly magazine of Bombay, on July 23, 1957, and extracts from itwere given publicity in the 'Times of India' and certain otherpapers. According to the complaint, the defamatory statement was absolutelyuntrue and by publishing it, the appellant had rendered himself liable to bepunished under s. 500, I.P.C.

2. It appears that on July 22/23, 1957, the Punjab Government issued a Pressnote in which it was averred that certain Urdu Dailies from Jullundur wereindulging in mischief and false propaganda, alleging complicity of a Minister'sson in smuggling on the border. The Press note alleged that this was done witha view to malign the Government and to cause suspicion in the mind of public.The Punjab Government categorically denied the said allegation. The Press noteadded that the papers which were publishing the said false reports should comeout openly with the name of the son of the Minister instead of repeatedlypublishing things in a vague and indirect manner, and that they should not takeshelter behind anonymity and should not be afraid of the consequences of thepublication of these allegations. The Press note concluded with the Statementthat the Punjab Government had already taken steps to curb smuggling and theywere determined to put it down with a firm hand.

3. It was in response to the challenge thus issued by the Punjab Governmentin its Press note that the appellant published the impugned statement whichreads :

'My attention has been drawnto a Punjab Government Press Note categorically denying the complicity of aMinister's son in smuggling. That Press Note also throws a challenge to someUrdu Dailies 'to come out openly with the name of the son of theMinister' and then face the consequences. I don't know whether thenewspapers concerned will take up this challenge of the Punjab Government ornot, but as one of those who have been naming that son of the Minister as oneof the leaders of the smugglers from Public platform, I hereby name that son asSurinder Singh Kairon son of S. Partap Singh Kairon, Chief Minister. And I doso 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 ofsmugglers but is responsible for a large number of crimes being committed inthe Punjab. But because the culprit happens to the Chief Minister's son thecases are always shelved up.

If the Punjab Government acceptsthis challenge, it should do so by appointing an independent committee ofimpartial Judges from outside the Punjab and then let us see who has to facethe consequences. If the Punjab Government dare not do so, I would not mindserving a term in Jail for having had the courage to come out with the truth.May I bring it to the notice of Punjab Government that Chief Minister's son isbeing discussed in almost every Punjabi house, but people are afraid of talkingabout him in public lest they be punished for that.'

4. It is this statement which has given rise to the present criminalproceedings.

5. After this statement was published, Mr. Ajaib Singh, SeniorSuperintendent of Police, Amritsar, issued a statement on the 25th July, 1957,which was published in the 'Tribune' on the 26th July. By thisstatement, Mr. Ajaib Singh assured the people that persons concerned insmuggling cases had been interrogated and he was satisfied that the allegationthat some Minister's son was involved in smuggling was false and inaccurate. Tothis statement, the appellant issued a rejoinder which was published in the'Hind Samachar', which is an Urdu Daily of Jullundur, on July 27,1957. Then, followed the complaint which was filed by the complainant on August17, 1957. That, shortly stated, is the background of the present criminalproceedings.

6. The complaint was filed in the court of the Magistrate, First Class, TarnTaran. Thereafter, the appellant moved this Court under s. 527 of the Criminalprocedure Code for the transfer of the said case from the court of theMagistrate where it had been filed. This Court directed on October 4, 1957,that the case in question should be remitted to the Punjab High Court so thatit should be transferred by the said High Court from the court of theMagistrate at Tarn Taran to a court of Sessions in Delhi. That is how the casewas transferred to the court of the Additional Sessions Judge, Delhi, and wastried by him.

7. In support of his complaint, the complainant examined himself and ledevidence of three other witness. The purport of the oral evidence led by thecomplainant was to show that the complainant was a person of status and goodreputation, was carrying on business and had suffered in reputation andcharacter by the defamatory statement published by the appellant.

8. When the appellant was examined under s. 342, Cr.P.C., he told thelearned Judge that he would prefer to file a detailed written statement. Later,he did file his written statement and made several pleas against the chargeleveled against him by the complainant. In substance, he alleged that theallegations made by him in his impugned statement were true and he hadpublished the said allegations in the interest of public good. In other words,he claimed the protection of the First Exception to s. 499, IPC. He alsopleaded that the imputation which he had made against the complainant had beenmade in good faith and for public good. Thus, he also claimed the protection ofthe Ninth Exception to s. 499, IPC.

9. In support of his defence the appellant wanted to summon 328 witnessesand a large number of documents. The trial court allowed him summon 35witnesses in all, but eventually be examined only 20 defence witnesses. He alsoproduced several documents.

10. After considering the oral and documentary evidence produced before him,the learned trial Judge came to the conclusion that the words used by theappellant in his statement, which was published in the Papers, were defamatoryper se, and he held that the appellant had failed to make out a case eitherunder the First Exception or under the Ninth Exception. In the result, heconvicted the appellant and sentenced him to one year's simple imprisonment.

11. The appellant then preferred an appeal before the Punjab High Court,challenging the correctness and propriety of the order of conviction andsentence passed against him by the learned trial Judge. Before the appellantCourt, the appellant claimed the protection of the Ninth Exception only and didnot press his case that he was entitled to the protection of the FirstException as well. He also urged that he had been materially prejudicedinasmuch as the trial Judge had not given him a fair and proper opportunity tolead his evidence both oral and documentary. The learned single Judge, whoheard his appeal, considered the arguments urged before him on behalf of theappellant and came to the conclusion that the appellant had failed to prove hisclaim that the impugned statement fell within the scope of the Ninth Exceptionto s. 499, IPC. He took the view that the appellant had 'completely failedto substantiate the plea of good faith.' The material which had beenplaced before the trial Judge in support of defence of good faith was,according to the High Court, of a very flimsy character and could not sustainthe plea. It may be pointed out at this stage that the High Court found that incase the appellant had proved his good faith, it would not have felt anydifficulty in coming to the conclusion that the publication of the impugnedstatement was for the public good. But since, according to the High Court, goodfaith had not been proved, the appellant was not entitled to claim theprotection of the Ninth Exception. Then, as regards the grievance made by theappellant that he had not been given a reasonable opportunity to lead hisevidence, the High Court held that the said grievance was not well-founded. Inthat connection, the High Court referred to the fact that though the trialJudge had allowed the appellant to examine 35 witnesses, the appellant examinedonly 20 witnesses, and it observed that the large mass of documentary evidencewhich had been produced by the appellant did not serve and useful or materialpurpose even for the defence of the appellant; and so the contention thatprejudice had been caused to him by the failure of the learned trial Judge togive him a reasonable opportunity to lead evidence was rejected by the HighCourt. In the result, the High Court confirmed the order of conviction passedagainst the appellant by the trial Judge, but ordered that instead ofundergoing one year's simple imprisonment, the appellant shall undergo threemonths' simple imprisonment and pay a fine of Rs. 2,000. In default of paymentof fine, he was directed to undergo three months' simple imprisonment. It isagainst this order that the appellant has come to this Court by special leave.

12. Normally, we would not have examined the correctness of the finding recordedby the High Court in respect of the appellant's plea of good faith, becausethat is a finding made by the High Court on appreciating oral and documentaryevidence and as it happens, the said finding confirms the view taken by thetrial Judge himself. Whether or not good faith has been proved by an accusedperson who pleads in his defence the Ninth Exception to a charge of defamationunder s. 500, IPC, would be a question of fact and even if it is assumed to bea mixed question of fact and law, if the courts below make a concurrent findingon such a question, this Court generally does not re-examine the matter foritself while exercising its jurisdiction under Art. 136 of the Constitution.But in the present case, we cannot accept the finding of the High Court,because it is plain that in dealing with the question of good faith the HighCourt has misdirected itself materially on point of law.

13. Section 499 of the Code defines defamation. It is unnecessary to set outthe said definition, because it is common ground that the impugned statementpublished by the appellant is per se defamatory, and so, we must proceed todeal with the present appeal on the basis that the said statement would harmthe reputation of the complainant. Exception 9 to s. 499 provides that it isnot defamation to make an imputation on the character of another, provided theimputation be made in good faith for the protection of the interest of theperson making it, or for any other person, or for the public good. In thepresent case, the ingredient of public good is satisfied, and the only questionwhich arose for decision in the court below and which arises before us, iswhether the imputation can be said to have been made in good faith. There is nodoubt that the requirements of good faith and public good have both to besatisfied, and so, the failure of the appellant to prove good faith wouldexclude the application of the Ninth Exception in his favour even if therequirement of public good is satisfied. This position is not disputed by Mr.T. R. Bhasin who appears for the appellant.

14. Mr. Bhasin, however, contends that in appreciating the evidence of theappellant and his arguments in respect of his good faith, the High Court hasclearly misdirected itself, because it has expressly observed that indischarging the onus of providing good faith, it is necessary to remember thatthe plea of good faith must be proved 'as strictly as if the complainantwere being tried for the offences imputed to him.' The High Court has addedthat the accused pleading justification virtually becomes the accuser, and thatis why the burden has been placed by law upon him both in England and in India.The learned Judge of the High Court made his point still clearer with theobservation that in cases of criminal defamation, an accused has not only tojustify the whole of his libel, but the plea taken has to be proved as strictlyas if the complainant was being prosecuted for the offence. The sameobservations have been repeated by the learned Judge in several places in hisjudgment. Mr. Bhasin contends that the approach which the learned Judge hasadopted in dealing with the plea raised by the appellant under Exception 9 isclearly erroneous. In our opinion, Mr. Bhasin is right.

15. It is true that under s. 105 of the Evidence Act, if an accused personclaims the benefit of Exceptions, the burden of proving his plea that his casefalls under the Exceptions is on the accused. But the question which oftenarises and has been frequently considered by judicial decisions is whether thenature and extent of the onus of proof placed on an accused person who claimsthe benefit of an Exception is exactly the same as the nature and extent of theonus placed on the prosecution in a criminal case; and there is consensus ofjudicial opinion in favour of the view that where the burden of an issue liesupon the accused, he is not required to discharge that burden by leadingevidence to prove his case beyond a reasonable doubt. That, no doubt, is thetest prescribed while deciding whether the prosecution has discharged its onusto prove the guilt of the accused; but that is not a test which can be appliedto an accused person who seeks to prove substantially his claim that his casefalls under an Exception. Where an accused person is called upon to prove thathis case falls under an Exception, law treats the onus as discharged if theaccused person succeeds 'in proving a preponderance of probability.'As soon as the preponderance of probability is proved, the burden shifts to theprosecution which has still to discharge its original onus. It must beremembered that basically, the original onus never shifts and the prosecutionhas, at all stages of the case, to prove the guilt of the accused beyond areasonable doubt. As Phipson has observed, when the burden of an issue is uponthe accused, he is not, in general, called on to prove it beyond a reasonabledoubt or in default to incur a verdict of guilty; it is sufficient if hesucceeds in proving a preponderance of probability, for then the burden isshifted to the prosecution which has still to discharge its original onus thatnever shifts, i.e., that of establishing, on the whole case, guilt beyond areasonable doubt.

16. It will be recalled that it was with a view to emphasising thefundamental doctrine of criminal law that the onus to prove its case lies onthe prosecution, that Viscount Sankey in Woolmington v. Director of PublicProsecutions [1935] A.C. 452, observed that 'no matter what the chargeor where the trial, the principle that the prosecution must prove the guilt ofthe prisoner is part of the common law of England and no attempt to whittle itdown can be entertained.' This principle of common law is a part of thecriminal law in this country. That is not to say that if an Exception ispleaded by an accused person, he is not required to justify his plea; but thedegree and character of proof which the accused is expected to furnish insupport of his plea, cannot be equated with the degree and character of proofexpected from the prosecution which is required to prove its case.

17. In this connection, it may be relevant to refer to the observations madeby Humphreys J. in R. v. Carr-Braint [1943] 2 All..156 : 'LordHailsham, L.C., [in Sodeman v. R. [1936] 2 All .1138 was in agreement withthe decision of the majority of the Supreme Court of Canada, in R. v. Clark(1921) .S.C.R. 608 where Duff J., in the course of his judgment, expressedthe view that the necessity for excluding doubt contained in the rule as to theonus upon the prosecution in criminal cases might be regarded as an exceptionfounded upon considerations of public policy. There can be no consideration ofpublic policy calling of similar stringency in the case of an accused personendeavouring to displace a rebuttable presumption.' In R. v. Corr-Braint[1943] 2 All.156, a somewhat similar question arose before the Court.In that case, the appellant was charged with the offence of corruptly making agift or loan to a person in the employ of the War Department as an inducementto show, or as a reward for showing, favour to him. This charge was laid underthe Prevention of Corruption Act, 1916, and in respect of such a charge, s. 2of the Prevention of Corruption Act, 1916, had provided that a considerationshall be deemed to be given corruptly unless the contrary is proved. Thequestion which arose before the Court was; what is the accused required toprove if he wants to claim the benefit of the exception At the trial, theJudge had directed the jury that the onus of proving his innocence lay on theaccused and that the burden of proof resting on him to negative corruption wasas heavy as that ordinarily resting on the prosecution. In other words, theJudge in substance told the jury that the accused had to prove his innocencebeyond a reasonable doubt. The Court of Criminal Appeal held that thisdirection did not correctly represent the true position in law. According to theCourt of Appeal, the onus on the accused was only to satisfy the jury of theprobability of that which he was called upon to establish, and if he satisfiedthe jury that the probability was that the gift was made innocently, thestatutory presumption was rebutted and he was entitled to be acquitted.

18. What the Court of Criminal Appeal held about the appellant in the saidcase before it is substantially true about the appellant before us. If it canbe shown that the appellant has led evidence to show that he acted in goodfaith, and by the test of probabilities that evidence proves his case, he willbe entitled to claim the benefit of Exception Nine. In other words, the onus onan accused person may well be compared to the onus on a party in civil proceedings,and just as in civil proceedings the court trying an issue makes its decisionby adopting the test of probabilities, so must a criminal court hold that theplea made by the accused is proved if a preponderance of probability isestablished by the evidence led by him. We are, therefore, satisfied that Mr.Bhasin is entitled to contend that the learned Judge has misdirected himself inlaw in dealing with the question about the nature and scope of the onus ofproof which the appellant had to discharge in seeking protection of ExceptionNine.

19. There is another infirmity in the judgment of the High Court, and thatarises from the fact that while dealing with the appellant's claim forprotection under the Ninth Exception, the learned Judge has inadvertentlyconfused the requirements of Exception One with those of Exception Nine. TheFirst Exception to s. 499 is available to an accused person if it is shown byhim that the impugned statement was true and had been made public for thepublic good. In other words, the two requirements of the First Exception arethat the impugned statement must be shown to be true and that its publicationmust be shown to be for public good. The proof of truth which is one of theingredients of the First Exception is not an ingredient of the Ninth Exception.What the Ninth Exception requires an accused person to prove is that he madethe statement in good faith. We will presently consider what this requirementmeans. But at this stage, it is enough to point out that the proof of truth ofthe impugned statement is not an element of the Ninth Exception as it is of theFirst; and yet, in dealing with the appellant's case under the Ninth Exception,the learned Judge in several places, has emphasised the fact that the evidenceled by the accused did not prove the truth of the allegations which he made inhis impugned statement. The learned Judge has expressly stated at thecommencement of his judgment that the appellant had not pressed before him hisplea under the First Exception, and yet he proceeded to examine whether theevidence adduced by the appellant established the truth of the allegations madein his impugned statement as though the appellant was arguing before him hiscase under the First Exception. In dealing with the claim of the appellantunder the Ninth Exception, it was not necessary, and indeed it was immaterial,to consider whether the appellant had strictly proved the truth of theallegations made by him.

20. That takes us to the question as to what the requirement of good faithmeans. Good faith is defined by s. 52 of the Code. Nothing, says s. 52, is saidto be done or believed in 'good faith' which is done or believed without duecare and attention. It will be recalled that under the General Clauses Act,'A thing shall be deemed to be done in good faith where it is in fact donehonestly whether it is done negligently or not.' The element of honestywhich is introduced by the definition prescribed by the General Clauses Act isnot introduced by the definition of the Code; and we are governed by thedefinition prescribed by s. 52 of the Code. So, in considering the question asto whether the appellant acted in good faith in publishing his impugnedstatement, we have to enquire whether he acted with due care and attention.There is no doubt that the mere plea that the accused believed that what hestated was true by itself, will not sustain his case of good faith under theNinth Exception. Simple belief or actual belief by itself is not enough. Theappellant must show that the belief in his impugned statement had a rationalbasis and was not just a blind simple belief. That is where the element of duecare and attention plays an important role. If it appears that before makingthe statement the accused did not show due care and attention, that woulddefeat his plea of good faith. But it must be remembered that good faith doesnot require logical infallibility. As has held by the Calcutta High Court inthe matter of the Petition of Shibo Prosad Pandah I.L.R. 4 Cal. 124, indealing with the question of good faith, the proper point to be decided is notwhether the allegations put forward by the accused in support of the defamationare in substance true, but whether he was informed and had good reason afterdue care and attention to believe that such allegation were true.

21. Another aspect of this requirement has been pithily expressed by theBombay High Court in the case of Emperor v. Abdool Wadood Ahmed I.L.R. 31 Bom.293. 'Good faith', it was observed 'requires not indeed logicalinfallibility, but due care and attention. But how far erroneous actions orstatements are to be imputed to want of due care and caution must, in eachcase, be considered with reference to the general circumstances and thecapacity and intelligence of the person whose conduct is in question.''It is only to be expected', says the judgment, 'that the honestconclusions of a calm and philosophical mind may differ very largely from thehonest conclusions of a person excited by sectarian zeal and untrained tohabits of precise reasoning. At the same time, it must be borne in mind thatgood faith in the formation or expression of an opinion, can afford noprotection to an imputation which does not purport to be based on that which isthe legitimate subject of public comment.'

22. Thus, it would be clear that in deciding whether an accused person actedin good faith under the Ninth Exception, it is not possible to lay down anyrigid rule or test. It would be a question to be considered on the facts and circumstancesof each case - what is the nature of the imputation made; under whatcircumstances did it come to be made; what is the status of the person whomakes the imputation; was there any malice in his mind when he made the saidimputation; did he make any enquiry before he made it; are there reasons toaccept his story that he acted with due care and attention and was satisfiedthat the imputation was true These and other considerations would be relevantin deciding the plea of good faith made by an accused person who claims thebenefit of the Ninth Exception. Unfortunately, the learned Judge has rejectedthe plea of the appellant that he acted in good faith, at least partly becausehe was persuaded to take the view that the evidence led by him did not tend toshow that the allegations contained in his impugned statement were true. Thisnaturally has, to some extent, vitiated the validity of his finding.

23. It also appears that the learned Judge was inclined to take the viewthat the elaborate written statement filed by the appellant nearly ten monthsafter he had been examined under s. 342, should not be seriously considered,and that the appellant failed to make out his case of good faith at the earlystage of the trial. Indeed, the learned Judge has passed severe stricturesagainst the contents of the written statement and has blamed the appellant'slawyer for having advised him to make these contentions. In support of hisfinding that written statements of this kind should be discouraged and cannotbe seriously taken into account, the learned Judge had referred to twodecisions of this Court. One is the case of Tilkeshwar Singh and others v. The State of Bihar : 1956CriLJ441 , where this Court was called upon toconsider the validity of the argument urged before it that there had not been aproper examination of the appellants under s. 342, and so, their convictionshould be quashed. In rejecting this argument, this Court pointed out that whenthe appellants were examined under s. 342, they said they would file writtenstatements, and in the statements subsequently filed by them, they gaveelaborate answers on all the points raised in the prosecution evidence. That iswhy this Court observed that the appellants had not at all been prejudiced byreason of the fact that all the necessary questions were not put to them unders. 342. It is in this connection that this Court incidentally observed that s.342 contemplates an examination in court and the practice of filing statementsis to be deprecated. But that is not a ground for interference unless prejudiceis established. The learned Judge has read this observation as laying down ageneral principle that the filing of a written statement by an accused personshould be deprecated and the plea made by him in such a written statement neednot, therefore, be seriously considered, because they are generally the resultof legal advice and are no better than afterthoughts. We do not think that theobservation on which the learned Judge has based himself in making thiscriticism justifies his view. In many cases, the accused person would prefer tofile a written statement and give a connected answer to the questions raised bythe prosecution evidence. Indeed, s. 256(2) of the Cr.P.C., provides that if anaccused person puts in a written statement, the magistrate shall file it withthe record. If the written statement is filed after a long delay and containspleas which can otherwise be legitimately regarded as matters of after-thought,that no doubt would affect the value of the pleas taken in the writtenstatement. But we do not think that it would be possible to lay down a generalrule that the written statement filed by an accused person should not receivethe attention of the court because it is likely to have been influenced bylegal advice. In our opinion, such a distrust of legal advice would be entirelyunjustified.

24. The other decision the learned Judge has referred to is in the case ofSidheswar Ganguly v. State of West Bengal : 1958CriLJ273 . In that case,this Court has observed that there is no provision in the Code of CriminalProcedure for a written statement of the accused being filed at the Sessionsstage, and it is in respect of written statement filed at the Sessions stagethat it has made the further comment that in a case tried by the learnedSessions Judge with the help of the Jury, if such a statement is allowed to beused by the Jury, it may throw the door open to irrelevant and inadmissiblematter and thus throw an additional burden on the presiding Judge to extricatematter which was admissible from a mass of inadmissible statements which mayhave been introduced in the written statement. In the present case, we are notdealing with a statement filed at the Sessions trial properly so called, andso, we need not pause to consider the effect of these observations.

25. In the present case, the written statement is an elaborate document andit gives the version of the appellant in great detail. In considering thequestion as to whether the allegations made in the written statement could bedismissed as no more than an afterthought, we cannot ignore the fact that atthe very commencement of the proceedings, the appellant gave a list of 328witnesses and called for a large number of documents, and as we will presentlypoint out the witnesses whom he examined and some of the documents which he hadproduced, tend to show that the appellant had revived information at therelevant time which supported his plea that the allegations which he was makingagainst the complainant appeared to him to be true; otherwise, it is not easyto understand how the appellant could have given a list of witnesses and calledfor documents to show either that the allegations made by him were true, orthat in any event, in making the said allegation he acted in good faith and forthe public good. If the evidence led by the appellant as well as the nature ofthe cross-examination to which he subjected the complainant and his witnessesare taken into account, it would be difficult, we think to reject his plea ofgood faith on the ground that the written statement was filed very late and thepleas taken in it are an after-though. It is because of these infirmities inthe judgment under appeal that we allowed Mr. Bhasin to take us through theevidence in this case. We ought to add that Mr. Anand, who appeared for thecomplainant, fairly conceded that having regard to the fact that the learnedJudge had misdirected himself in law, the appellant would be entitled to requestthis Court to examine the evidence for itself before it accepted the conclusionof the learned Judge on the question of appellant's good faith.

26. Before we proceed to refer to the broad features of the evidence, itwould be relevant to mention one fact. The appellant was at the relevant timethe State Secretary of the Punjab Praja Socialist Party. He is a public workerand belongs to an active political party. He had stated that there was noanimus in his mind against the complainant and his father, and that is notseriously disputed. Malice in that sense must, therefore, be eliminated indealing with the appellant's plea. It is quite true that even if the appellantwas not actuated by malice, it would not be possible to sustain his plea ofgood faith merely because he made the impugned statement as a public worker andhe can claim that he was not actuated by personal malice against thecomplainant. Absence of personal malice may be a relevant fact in dealing withthe appellant's plea of good faith, but its significance or importance cannotbe exaggerated. Even in the absence of personal malice, the appellant will haveto show that he acted with due care and attention.

27. There is another fact which must also be borne in mind. The statementwhich the accused published was in response to the challenge issued by theGovernment of Punjab. It is not easy to understand why the Punjab Governmentthought it necessary to issue a Press statement in regard to allegations whichwere made by the Urdu papers against a Minister's son. But the PunjabGovernment appears to have entered the arena and issued a challenge to thenewspapers in question, and it was in response to this challenge that theappellant published the impugned statement. In this statement, the appellantrequested the Punjab Government to appoint an independent Committee ofimpartial Judges to investigate the matter, and he undertook to prove the truthof his charge if an independent committee was appointed. In that connection, hestated that he wished to bring it to the notice of the Punjab Government thatthe Chief Minister's son is being discussed in almost every Punjabi house, butpeople were afraid of talking about him in public lest they be punished forthat. That is the genesis of the impugned statement.

28. The two defamatory statements made by the appellant are that thecomplainant is the person against whom the allegations are made in the Press,and that he is not only a 'leader of smugglers but is responsible for alarge number of crimes being committed in the Punjab.' The statement addedthat 'because the culprit happens to be the Chief Minister's son, thecases are always shelved up.' The question which calls for our decision is: has the appellant shown that he acted in good faith when he made animputation against the complainant that he was the leader of the smugglers andwas responsible for a large number of crimes being committed in Punjab Indealing with this question, we ought to take a broad survey of the evidence ledby the appellant and the background in which the impugned statement came to bemade. It appears that before the impugned statement was made, newspapers hadbeen publishing reports against a Minister's son without naming him. SomeMembers of the Punjab Legislative Assembly had also made similar statements onthe floor of the House.

29. The appellant examined some witnesses. Jagat Narain, who is an M.L.A.,was one of them. He stated that in the year 1956, gold smuggling had increasedon the Amritsar border and that he derived his knowledge from the newspapers.He said he had received complaints orally and in writing about the goldsmuggling on the border and these suggested the complicity of a Minister's sonin smuggling. When he was asked whether he could name the informants, he statedthat he would not like to name them lest they get into trouble.

30. Sajjan Singh is another witness whom the appellant examined. He was theParliamentary Secretary of the Praja Socialist Party. He stated that theappellant had visited Amritsar area in 1957 and he had told the appellant aboutthe large scale smuggling in the border area. He had also told him that HazaraSingh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some ofthe Members of the Legislative Assembly were helping the smugglers and that thepolice did not take any action against Hazara Singh because of his connectionwith the complainant. This witness had seen Hazara Singh and the complainantmoving together in connection with the election campaigns of 1952 and 1957. Theelection of 1957 took place some time in February, 1957; and so, the evidenceof this witness shows that he had given the information about the complainant'sconduct in respect of Hazara Singh and other matters in about February, 1957.

31. That takes us to the evidence of Kulwant Rai of village Sirhali,District Amritsar. Against this witness, cases were pending under s. 8(1) ofthe Foreign Exchange Regulation Act, s. 5(3) of the Land Customs Act and s. 19 of the Sea Customs Act. It has also been alleged against him that 140 tolas ofsmuggled gold had been found in his possession. He was also prosecuted by Mr.Dhir, Magistrate, Tarn Taran, under the Indian Arms Act, and prosecution underthe Indian Opium Act was also pending against him. It appears that two casesagainst him were withdrawn because a communication dated May 18, 1957, wasaddressed by the Home Secretary to the Punjab Government to the DistrictMagistrate Amritsar, directing him to withdraw the two cases pending againsthim. The letter required the District Magistrate to take action in that behalfimmediately. It is remarkable that an affidavit was filed by Kulwant Rai datedMay 21, 1957, wherein he stated that the Chief Minister had passed an order onMay 7, 1957, for the withdrawal of the cases against him and that theGovernment order in that behalf would be received by the court very soon. Thismeans that Kulwant Rai knew about the decision of the Government to withdrawcases against him even before the said decision was communicated to theDistrict Magistrate and then to the trial Magistrate. It is also significantthat on June 9, 1957, when the proceedings under s. 514 Cr.P.C., were fixed forhearing against Kulwant Rai, he was absent from court and a telegram wasreceived by the Magistrate that Kulwant Rai was ill and his absence should beexcused. This telegram was sent not by Kulwant Rai but by the complainant. Thecomplainant no doubt denied that he had sent such a telegram, but the HighCourt has found that in all probability, the telegram had been sent by thecomplaint. The complainant also did not admit that he was a friend of KulwantRai. There again, the High Court was not prepared to accept the complainant'sversion.

32. On this evidence, it seems plain that the complainant knew Kulwant Raivery well and did not stop short of helping him actively by sending a telegramto the Magistrate to excuse Kulwant Rai's absence on the date of hearing of thecase against him. From the evidence of Kulwant Rai whom the appellant had toexamine to support his plea of good faith, it is not difficult to infer thatKulwant Rai was charge-sheeted in respect of several offences, and anallegation had been made against him that he was connected with gold smuggling.If the appellant knew that the complainant was friendly with such a character,would he be justified in claiming that in giving expression to his belief thatthe complainant was hand in glove with Kulwant Rai, a gold smuggler, he wasacting in good faith That is the question which has to be answered in thepresent case.

33. In dealing with this aspect of the matter, the learned Judge no doubtfound that the material on the record was enough to justify the conclusion thatthere was friendship between Kulwant Rai and the complainant and that thecomplainant had sent a telegram to the Magistrate on Kulwant Rai's behalf, buthe thought it had not been proved that in fact, Kulwant Rai had been engaged ingold smuggling. No doubt, a case was pending against him for gold smuggling;but the learned Judge held that the pendency of a criminal case does notnecessarily prove that the charge leveled against Kulwant Rai was in facttrue. It is this approach which is substantially responsible for the learnedJudge's conclusion that good faith is not proved in respect of the allegationsmade by the appellant that the complainant was a friend and leader of goldsmugglers. The learned Judge overlooked the fact that in dealing with thisaspect of the matter, the pertinent enquiry is not whether, in fact, the chargeof gold smuggling had been proved against Kulwant Rai and whether it is shownsatisfactorily that the complainant was assisting him in that behalf. What ispertinent to enquire is, if the appellant knew about this evidence at therelevant time and he believed that the complainant was assisting Kulwant Rai inrespect of his gold smuggling activities, could he be said to have acted ingood faith or not when he published the statement in that behalf

34. We may incidentally point out that we cannot overlook the fact that theappellant experienced some difficulty in proving his case in the presentproceedings, because witnesses were not willing to come out and give evidence,though they may have given that information to the appellant before he made hisstatement. Take for instance, the case of Hardin Singh of village Patti. Itappears that this witness was arrested by the police on June 19, 1959 as asuspect smuggler and he was kept in the lock-up from June 19 to June 25, 1959and was thereafter let off. According to him, he was arrested because he hadbeen summoned as a defence witness in the present case.

35. Let us then consider the case of Hazara Singh and the association of thecomplainant with him. Hazara Singh comes from the same village to which thefamily of the complainant belongs, and yet, he was not prepared even to admitthat he knew the complainant or his family. The learned Judge realised thatHazara Singh was not prepared to speak the truth at least on some points, andso, he observed that he was willing to accept the appellant's case that thecomplainant, Sadhu Singh and Major Naurang Singh, Senior Superintendent ofPolice were on friendly terms. He, however, thought that it was not clearlyshown on the record whether Hazara Singh was entered as a badmash in the policeregisters and that there was also no convincing evidence on record to show thatHazara Singh was a gold smuggler. The learned Judge referred to the evidencewhich showed that the complainant and Hazara Singh were moving together duringthe election days and were friendly with each other; but that, according to thelearned Judge, did not prove the truth of the statement that Hazara Singh was agold smuggler and that the complainant was his friend. This approach again ispartly based upon importing into the discussion the consideration about thetruth of the statement which would be relevant under the First Exception butwhich is not material under the Ninth Exception.

36. In connection with Hazara Singh, and Kulwant Rai, there are twodocuments to which our attention has been invited by Mr. Bhasin. Thesedocuments show that Kulwant Rai was treated on the Police record as a notorioussmuggler and habitual offender, and Hazara Singh was treated as a bad characterand his name was borne on register No. 10, and his history sheet was opened atNo. 110A Basta Alif. There has been some argument before us at the Bar on thequestion as to whether these two documents are duly proved. Mr. Anand for thecomplainant has strongly urged that these documents are not proved, and in anyevent, no reliance was placed on them in the courts below. This lattercontention is undoubtedly true; but the contention that the documents were notproved in the present case strikes us as none too strong, because thesedocuments have been included in the paper book after the lists made by therespective advocates for the parties were exchanged and the index was finallysettled with their approval in the Punjab High Court. The learned Advocate forthe State or the complainant did not object to the inclusion of these twodocuments in the record, and this showed that they were treated as duly formingpart of the record. It does appear that Mr. Dhir, the Resident Magistrate,Kaithal (D.W. 27) has produced the whole file of the case in respect of theproceedings taken under s. 514. Cr.P.C., and Mr. Bhasin contends that alongwith the file, the two documents in respect of Kulwant Rai were received. Mr.Anand no doubt suggested that it was not shown under what statutory provisionthese documents are kept; but since the admissibility of these documents doesnot appear to have been challenged in the courts below, we think it is too lateto raise this technical point at this stage. However, in dealing with the appeal,we are prepared to exclude from our consideration evidence furnished by thesetwo documents. Even without them, there is enough evidence to show that thecomplainant was friendly with Kulwant Rai and Hazara Singh, and on the whole,we are inclined to take the view that if the appellant knew about thecomplainant's friendship and active association with these two persons and hadother information about the activities of these two persons, it cannot be saidthat he did not act in good faith when, in response to the challenge issued bythe Punjab Government, he came up with the impugned statement and sent it forpublication in the Press.

37. Then, in regard to the other allegation that the complainant wasconcerned with the commission of offences in Punjab, we may refer to theevidence led by the appellant to show that in making this charge, he acted ingood faith. The witness to whose evidence reference has been made by Mr. Bhasinin respect of this part of the case is Mr. K. K. Dewett, who was the Principalof the Punjab University College, Hoshiarpur, between June, 1952 and April,1958. The incident to which this witness deposed took place in 1953. At thistime, the complainant had left the college at Hoshiarpur. On January 19, hewent to that college to get his certificate Principal Dewett in his evidencedid not support the appellant in his suggestion that the complainant hadbehaved in a criminal way and had threatened to assault the students in thecollege on that occasion. But the confidential report made by him on January22, shows that in the witness-box Principal Dewett hesitated to disclose thewhole truth. This report unambiguously indicates that the complainantthreatened several students with a stick, and it speaks of two or threeincidents that took place which created a considerable excitement and commotionamong the student community in the college. In this report, the Principal, infact, describes the situation as very ugly, and he refers to the fact that thestudents went on strike and passed resolution, demanding the rustication of thecomplainant from the University and also protesting against inaction andpartiality of the Principal himself. This confidential report was furtherenquired into, and the documents in respect of this enquiry are also on therecord. The students seem to have demanded that the complainant should bearrested, because they were afraid that he would collect his friends and causemischief to them. Ultimately, the Vice-Chancellor made a report to theChancellor that having examined the matter, he came to the conclusion that thecomplainant was 'a bit bumptious and throws his weight about in a waywhich fellow-students find irritating'. He added 'How one wishes thatthe sons of men holding exalted offices in the State would behave in a wayconsistent with the dignity of their parents'. The learned Judge does notappear to have taken into account these reports, but has substantially reliedon the oral evidence of the Principal himself. Even so, he has recorded his conclusionthat the evidence shows juvenile indiscipline on the part of the complainantbut no juvenile delinquency and certainly no 'crime in the sense of thelibellous imputation made'. In dealing with this part of the imputationagain, the learned Judge should have asked himself the question as to whetheron the material of the kind disclosed by the confidential report made by thePrincipal, would a person of ordinary prudence acting bonafide in good faith benot justified in coming to the conclusion that the complainant was not onlythrowing his weight about, but was also threatening assaults in the college,because he thought he would be immune from legal process by virtue of hisposition The fact that the appellant called for several documents and gave alist of witnesses as soon as he entered on his defence, shows what he knew atthe relevant time, and his plea that he acted in good faith has to be judged onthe basis that he made the imputations because he had material of this kind inhis possession.

38. It is true that the appellant has stated in his written statement thatseveral persons came and reported to him against the complainant, and amongstthem were included some high police officials as well; but having regard to thefact that the complainant's father occupied the position of the Chief Ministerof Punjab, they were not willing to come forward and give evidence in court. Infact, the appellant had requested the Punjab Government in his impugnedstatement to appoint a commission of inquiry and had stated that if acommission of inquiry was appointed, he would prove his charges against thecomplainant. It is in the light of these circumstances, that we have to decidewhether the appellant has proved that he acted in good faith or not. In dealingwith this question, we cannot overlook or ignore the probabilities on which theappellant relies, the surrounding circumstances to which he has referred andthe actual evidence which he has led.

39. Incidentally, we may mention two other documents on which Mr. Bhasin hasrelied. On February 20, 1957, the complainant wrote a letter to 'Major Sahib'(SSP). In that letter, he told the Major Sahib to grant leave to S. GurdialSingh No. 1725 posted at Chowki Khosa Burj, and he added that it was veryurgent, and asked him to do it immediately. Similarly, on June 3, 1956, thecomplainant wrote a letter to the Executive Officer, Taran Taran, in which hestated 'our 10/12 trucks loaded with wood will be reaching Taran Taran oneor two daily. Therefore, you please instruct your Moharrir on theJandiala-Amritsar road that he should not create any obstruction regardingoctroi'. It would be noticed that the complainant had been writing toGovernment servants in respect of matters falling within their authority assuch servants; and that shows, according to Mr. Bhasin, that the complainantwas throwing his weight about even in matters with which he had no connectionat all.

40. We have carefully considered the evidence to which our attention wasdrawn by Mr. Bhasin as well as Mr. Anand, and we have come to the conclusionthat the High Court was in error in holding that the appellant had failed toshow that he acted in good faith when he published the impugned statement. Aswe have already stated, it has been found by the High Court and it is notdisputed before us that the publication of the impugned statement was for thepublic good; and so, our conclusion is that the appellant is entitled to claimthe protection of the Ninth Exception.

41. Before we part with this appeal, we ought to add that this matter camebefore this Court for hearing on the 1st September, 1964, and an interlocutoryjudgment was delivered by which certain documents were called for. On thatoccasion, Mr. Bhasin had pressed before this Court his contention that thetrial Judge was in error in not calling for certain documents which theappellant wanted to rely on, and in upholding the plea of privilege made by theState Govt. in respect of certain other documents. We wanted to satisfyourselves whether the documents on which Mr. Bhasin wanted to rely wererelevant and whether the plea of privilege claimed by the State was justified.Some of these documents have been received by this Court in pursuance of ourinterlocutory judgment. But we do not think it necessary to consider thismatter, because the documents which Mr. Bhasin wanted to be produced or provedmight at best, if they are admitted, be of help to him to show that theallegations made by the appellant are true. That however is a plea which fallsunder the First Exception and since the appellant did not claim the benefit ofthat Exception in the High Court, we do not think it would be open to theappellant to press his point that we should examine the question as to whetherthe trial Judge erred in not allowing the appellant to bring these documents onthe record. That is why we did not look at these documents and have notconsidered the question raised by Mr. Bhasin at the time when the interlocutoryjudgment was delivered in this case. In other words, the appellant is notallowed to raise his plea that the allegations made by him in the impugnedstatement are true.

42. Even so, in view of our conclusion that the appellant has succeeded inshowing that he is entitled to the protection of the Ninth Exception to s. 499,the appeal must be allowed and the order of conviction and sentence passedagainst the appellant set aside. If the fine imposed on the appellant has beenpaid by him, the same should be refunded to him.

43. Appeal allowed.

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