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K.M. Mathew and ors. Vs. T.V. Balan - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Reported in1985CriLJ1039
AppellantK.M. Mathew and ors.
RespondentT.V. Balan
Cases Referred(See Morgan v. Odhams Press Ltd.
Excerpt: the report complained of as offending the accused. a statement that some had received the salary withheld by the government would not therefore be an offensive one. 14. on behalf of the accused, it was submitted that the complaint has to be quashed, as it failed to comply with the mandatory requirements of section 199 cr. 15. the general principles applicable to a situation like the present one are no longer obscure. chokkappa 1973crilj52 .16. some of the earlier decisions may also furnish an interesting background about judicial reaction to different situations of grievances relating to defamation. individual members were held competent to complain about the defamation. it was held that the conference was not such a determinate class like the one in the cases referred granted by the high court. the accused felt that the present case was one such.6. three of the accused, accused 1, 3 and 4. filed the above criminal miscellaneous case on 11-10-1982, invoking the power of this court under section 482 cr. p.c. and praying that the complaint and proceedings pursuant thereto be quashed.7. the petition was entertained by this court on 12-10-1982. further proceedings were stayed. the respondent-complainant, who entered appearance in the case in due course, strongly opposed the petition. it was contended on his behalf that the case is not one where the accused should be permitted to have an easy escape through a side walk as it were. the case is one where the accused had to face the trial, according to him,8. the offending report was read over and over.....

K. Sukumaran, J.

1. In February, 1981 there was a strike of the College Teachers. Later, it was withdrawn. It appears that the Government had interdicted payment of salary for the strike period to those who had participated in the strike.

2. On 10-6-1981, the Calicut edition of 'Malayala Manorama' published a news item, emanating from its Trivendrum reporter, captioned : 'They pocketed the salary withheld by the Government.' The report was indubitably not complimentary to those connected with the strike. It was clearly stated in the report that most of the Government College Teachers abused their position as 'drawing officers' and thus received the salary and allowances which had been withheld by (he Government. The Association of Government College Teachers through its General Secretary contradicted the report. He asserted that neither the office bearers nor the active workers of the organisation had received salary in the manner suggested. This report was published in the same paper on 14th June. 1981.

3. The dent in the report caused to the reputation of the organisation and its office bearers was seriously viewed by them. The publication of the clarificatory statement of the Association in the paper did not satisfy the General Secretary of the organisation. He therefore filed on 7-11-1981 a complaint, C.C. 228 of 1981 before the Judicial First Class Magistrate No. 1, Tellicherry. The complainant was described as 'T. V. Balan, General Secretary, Association of Kerala Government College Teachers.' The .Chief Editor, Editor, Staff Reporter and Printer of the paper were arrayed as the accused. The complaint was presented under Section 200, Cri. P.C. It averred that the accused had committed offence punishable under Section 500, Penal Code, and prayed that summons be issued to the accused and that the accused be dealt with according to law.

4. On service of summons, the accused appeared before the Magistrate Court. They were released on bail. Ultimately the case stood posted to 14-10-1982 for evidence.

5. Facing a criminal trial is not a pleasant pastime. In rare cases, when factual situation and legal position are so clear, relief from an unwarranted harassment arising out of a criminal trial can be granted by the High Court. The accused felt that the present case was one such.

6. Three of the accused, accused 1, 3 and 4. filed the above criminal miscellaneous case on 11-10-1982, invoking the power of this Court under Section 482 Cr. P.C. and praying that the complaint and proceedings pursuant thereto be quashed.

7. The petition was entertained by this Court on 12-10-1982. Further proceedings were stayed. The respondent-complainant, who entered appearance in the case in due course, strongly opposed the petition. It was contended on his behalf that the case is not one where the accused should be permitted to have an easy escape through a side walk as it were. The case is one where the accused had to face the trial, according to him,

8. The offending report was read over and over again by counsel appearing on both sides. On behalf of the respondent, particular stress was made on portions which had been specifically referred to in the complaint, the excerpts of which had been extracted therein. The report, according to the complainant, did make out a case which should go to the trial.

9. The serious and difficult question is whether the case should necessarily go to the trial.

10. It is desirable that at outset reference is made to the passages in the report complained of as offending the accused. They are : (1) The title of the report already referred to above. (2) A sentence which reads : 'And some leaders of the Government College Teachers Organisations who had staged the strike had not hesitated to receive the undeserved salary and allowances.' and (3) A statement reading : 'Emoluments went down the drain as regards those teachers in private colleges and the junior lecturers in the Government College themselves, who had entered the strike trusting the leaders; for they are not entitled to draw the salary direct from the treasury, by writing (the bill) direct.'

11. The grievance of the complainant in particular is : 'The report was baseless, malicious and published with an intention to defame the Association and the complainant in particular.' The motive of creating a dissention among the association members was attributed to the accused. According to him, the report created an impression that the association members and its leaders misappropriated government money by misusing their authority. The complainant claimed that he and other leaders of the Association had been held in high esteem by the people, that the reputation had been eroded considerably as a result of the publication of the offending report, and that there was even 'exodus from the members of the Association.' The complainant also felt that 'the reputation of its leaders touched rock bottom.'

12. As regards passages 1 and 3 extracted above, no case could be made out for action under Section 500. Penal. Code, Receiving salary withheld by the Government could be by adopting legal, normal or permissible ways. A statement that some had received the salary withheld by the Government would not therefore be an offensive one. A statement that the teachers of private colleges or junior lecturers could not receive salary direct from the treasury is also not a defamatory one. The consequent disability of such persons to draw salary from the treasury would be equally unobjectionable.

13. The complainant therefore rightly concentrated in emphasizing the per se defamatory character of statement No. 2 above. An, allegation that the leaders of an organisation received undeserved salary and allowances may prima facie disclose an offence. If that be so, the powers under Section 482 should not be invoked to stay the trial, contended the complainant.

14. On behalf of the accused, it was submitted that the complaint has to be quashed, as it failed to comply with the mandatory requirements of Section 199 Cr. P.C. That provision, which specially deals with prosecution for defamation, interdicts the court from taking cognisance of offence under Chap. XXI, Penal Code (which deals with offences 'of defamation') except upon a complaint made by some person aggrieved by the offence. (emphasis supplied). In the present case, the complainant is not a person aggrieved by the offence was the argument urged on behalf of the petitioners-accused.

15. The general principles applicable to a situation like the present one are no longer obscure. The decisions of the Supreme Court have sufficiently illumined the path. One of the early decisions was Sahib Singh Mehra v. State of U.P. : 1965CriLJ434 . That case, as also the English decisions were reviewed in the later case, G. Narasimhan v. T. V. ChokKappa : 1973CriLJ52 .

16. Some of the earlier decisions may also furnish an interesting background about judicial reaction to different situations of grievances relating to defamation. Eastwood v. Holmes (1858) 175 ER 758 concerned a case where action was initiated against the British Archaeological Association. A report of the proceedings of that Association had referred to certain antiquities as 'recent fabrication.' The court held that action could not be maintained. The observations of Willes, J., very frequently quoted in subsequent decisions, read:

If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual...

Those observations were approved by Holmes and Cherry L. JJ. as laying down sound law. O. Brien v. Ason (1913) 47 Ir. Lt. 252.

17. The Indigo Planters of West Bengal who felt defamed as a class, initiated action leading to what is referred as 'Nil Darpan' defamation case. Mayne's Criminal Law of India, 4th Ed. refers to that case at page 863. The complaint was entertained in the case from particular individuals of Indigo Planters. Similarly, complaints were entertained from particular individuals of the Police force which as a class had been defamed. See Pratap Chandra Guha Roy v. King Emperor (1925) 29 CWN 904 : 1925-26 Cri LJ 1539.

18. The Statesman of Calcutta faced, in 1927, 'a complaint under Section 500, I.P.C. It had published an article which, among others, stated:

The marriage age of the Hindu woman was still between nine and thirteen...the country's widows to the number of nearly 30 millions were regarded as under God's curse, sluts at home and prostitutes abroad.

A Division Bench consisting of Chotzner and Gregory, JJ. took the view that the case needed further enquiry and could not be stopped at the threshold. (See Mahim Chandra Roy v. A.H. Watson ILR 55 Cal 1280 : 1929-30 Cri LJ 407.

19. Some of the girl students of the Intermediate College of Aligarh, successfully resorted to legal action for defamation when the 'University Punch' published reports about their frequenting broad Marris Road, green meadows and canal banks which were frequented by pleasure seeking youth, and in the context of Meena Bazar exhibition held within the precincts of the college, made reference to them as 'Muslim harlots' of Meena Bazar. Seen Wahid Ullah v. Emperor AIR 1935 All 743 : 1935-36 Cri LJ 816. Again the Allahabad High Court took the view that the Rashtriya Swayam Sevak Sangh, was a determinate body. See Tek Chand v. R.K. Karanjia 1969 Cri LJ 536 (All).

20. In contrast to the above cases is Asha Parekh v. State of Bihar 1977 Cri LJ 21 (Pat). That was a case initiated by four advocates against those responsible for the production of a film 'Nadan'. Udaya Sinha, J. of the Patna High Court elaborately considered the case law on the point, and ultimately held that the portrayal of the lawyer in the film had no relevance to lawyers as a class, and the dialogues and visible representations pointed out only to Advocates who indulged in objectionable practices.

21. Sahib Singh Mehra's case : 1965CriLJ434 supra, was one where an imputation was made against the body of public prosecutors. The Supreme Court held that the persons defamed constituted an identifiable and determinate body. Individual members were held competent to complain about the defamation.

22. In Narasimhan's case : 1973CriLJ52 , the offending report was about a resolution passed by a conference. The Supreme Court observed that though the conference was organised by the Dravida Kazhagam, such a conference was a separate body with its own organisation. Similarly, though the draft of the resolution was prepared by the Secretary of the Trichi Branch of the Dravida Kazhagam, it had been moved by the President of the conference and passed by the conference. The conclusion of the Supreme Court is given in para 21 of the judgment. It was held that the conference was not such a determinate class like the one in the cases referred to earlier. And the court further observed:

It is impossible to have any definite idea as to its composition, the number of persons who attended, the ideas and the ideologies to which they subscribed, and whether all of them positively agreed to the resolution in question.

(emphasis supplied)

23. In Narasimhan's case (1973 Cri LJ 52), the Supreme Court noted that when there is an express statutory provision as in Section 499 Explanation 2, the rules of the common law in England cannot be applied. It was at the same time observed that there existed no difference in the principles as laid down in Explanation 2 to Section 499 and the law as applied in such cases in England.

24. The decision of the Supreme Court extracts passages from English text books and refers to the English decisions up to Knuoffer v. London Express Newspaper Ltd. 1944 AC 116. A subsequent English decision of importance on this topic is that of the House of Lords, Morgan v. Odhama Press Ltd. (1971) 2 All ER 1156. Chapter four of 'Libel and Slander' by Peter J. and Carter-Ruck gives reference to other decisions on the point but not reported in legal journals.

25. The principles that emerge from the decisions appear to be the following : As a general rule, a complaint can be filed by anybody, whether he is an aggrieved person or not. Section 199, Cr. P.C. engrafts an exception to that general rule. In relation to offences covered by Sections 499 - 502 occurring in Chap. XXI, I.P.C. only an aggrieved person can move the Magistrate. The section is mandatory. If a complaint is filed by one who is not an aggrieved person, the trial and conviction would be void.

26. Under Section 499, read along with Explanation 2, a defamatory imputation against a collection of persons would fall within the definition of defamation. The language of the 'Explanation' is no doubt wide. Nevertheless,, the collection of the persons must be an identifiable body so that it is possible to say with definiteness that the particular group of persons, as distinguished from the rest of the community, was defamed. The identity of the collection of persons must be established as relatable to the defamatory words or imputations. (See paras 13 and 14 of the judgment in : 1973CriLJ52 (supra). Only a definite and determinate body would amount to a collection of persons' referred to in Section 499, I.P.C., read with Explanation 2 thereto.

27. Applying the above principles, I am of the view that the offending passage does not postulate an identifiable and determinate group of persons. The statement does not say that all the leaders of the teachers organisations received unmerited emoluments. The significance of the introduction of the word 'some' while referring to the leaders cannot be overlooked. The employment of that term would necessarily make the class unidentifiable and indeterminable. In that view of the matter, it is impossible to assert that all -the leaders were the recipients of undue emoluments. As to who among them were the bad elements would be anybody's guess.

28. The position is almost similar to the one considered by the Patna. High Court in Government Advocate v. Gopal Bandu Das AIR 1922 Pat 101 : 1922-23 Cri LJ 433. Two constables were alleged to have committed particular acts on particular occasions. There was, however, no reference to them as belonging even to a particular thana or police station. The court held that there was nothing to indicate who the two police officers in question were. It was observed that when two constables were accused of a particular act, it did not follow from that that all constables suffered in their individual reputation.

29. When, therefore a report states that some leaders indulged in a disgraceful conduct, all the leaders would not suffer in their reputation. In that situation, a member of such an unidentified and indeterminate class cannot pose as an aggrieved person within Section 199, Cr. P.C. The complaint is therefore incompetent and the trial is one without jurisdiction. In that view of the matter, I quash the complaint.

30. In coming to the above conclusion, a concern to ensure to the press the liberty it needs in the discharge of a great public duty, has largely weighed with mer Freedom of expression is the very life-blood of a healthy society. In a way it is the palm, the prize and the crown of democracy. Many have suffered the pillory of oppression, for the cause of the press. Very many cases have been fought for preserving the freedom of speech, in the wide sense it is understood. 'Freedom of speech means freedom not only for the views of which you approve, but also freedom for the views of which you most heartily disapprove.' (See Vorrall v. Great Vermouth Borough Council (1980) 1 All ER 839 (844-845), where the learned Judge quoted the lines of Tennyson, when he referred to England, as the land where -

A man may speak the thing he will

A land of settled government

A land of just and old renown

Where Freedom slowly broadens down

From precedent to precedent.

(Tennyson, 'you ask me why', 11 8-12) In Home Office v. Harman (1982) 1 All ER 532 (543), it was observed:

The right to receive information will generally involve a right to impart it; any exception must be strictly scrutinised and powerfully justified..Milton, in his famous address to Lords and Commons, urged that freedom to print and publish should not be shackled or restricted, and said in his peroration : 'give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties.

31. The power of the press, and the prime importance in its protection is, however, not the exclusive consideration. An individual's reputation has also to be reckoned with by a court of law. If, Milton was all praise for the print and the press, Shakespeare stressed the importance of the individual's reputation. That is what we find from the lines of the great poet quoted in the Introduction to 'Libel and Slander' by Peter F. and Carter Ruck, 1972 Ed. The lines quoted, include those in Othello, reading:

But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.

(See Othello, Act III, Scene 3)

and those in Richard II:

The purest treasure mortal times afford Is spotless reputation, that away,

Men are but gilded loam or painted clay.

** ** **

Mine honour is my life, both grow in one, Take honour from me and my life is done.

32. The power of the press as a means of communication ever since the first monthly journal had been founded in Holland in 1686 and the earliest English newspaper in 1702 (See Europe 18th Century, George Rude P. 167), is well understood. But immeasurable as the power is, it is necessarily to be modulated by restraints of responsibility.

33. Nearly two hundred years back, the warning against abuse of power of the Press was given:

The abuse of the liberty of the Press has of late years become great, that no character is safe...The Public have been to blame by encouraging such papers. Many like the talk of a scandal, which does not affect themselves - and the man of middling rank chuckled to read the amours and intrigues of Lords and Ladies, little thinking that his turn would one day come, his harmless actions be misrepresented, and his character blasted in a paragraph.

(Gazetteer and New Daily Advertiser, 7-12-1789), According to Carnfield, the above was 'a remarkably acute forecast of the future, up to and including the present day.' (See his book. 'The Press and Society' Page 74). Brazburg v. Hayes (decided by the Supreme Court of America by a majority of 5 to 4 on 29-5-1972) and the Observer's case (where Jack Lundin was involved) decided by the High Court in England on 19-2-1982 have not recognised a claim for absolute immunity for the journalist.

34. An eminent Editor said, years back:

Newspaper writing is no sui generis; it is in literature what brandy is in beverages. (See Press and Society supra)

It is equally profitable in that context to remember the words of Lord Hailsham:

Since the days of Noah, the effects of alcohol have been known to induce the state of mind described in English as recklessness.

(See R v. Lawrence (1981) 1 All ER 974)

35. The press cannot obviously afford to be reckless in its functioning; it must pay heed to the words of Lord Reid:

The publishers of newspapers must know the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they normally do, honestly reach conclusions which they might be expected to reach. If one were to adopt a stricter standard it would be too easy for purveyors of gossip to disguise their defamatory matter.

(See Morgan v. Odhams Press Ltd. (1971) 2 All ER 1156.).

36. The petition is disposed of as above.

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