D.S. Dave, J.
1. This is an application in revision by complainant Brij Ballab against the order of the learned Sessions Judge, Bikaner, dated 20-3-1959.
2. The facts giving rise to it are that the petitioner filed a complaint under Section 500 I. P. C. in the court of the Sub-Divisional Magistrate, Bikaner, on 21-11-1958, against two persons, namely, Shri Brij Nandan Shinghai and Shri Satya Dev. The petitioner's complaint was that in June, 1958, he was Circle Manager, Bank of Bikaner. Accused No. 1, Shri Brij Nandan Shinghai, who was Internal Auditor, made a report dated 18-6-58 in respect of the complainant's work. According to the complainant, that report contained several defamatory remarks, which were made by accused No. 1 only on account of his ill-will and malice towards the complainant and that the charges, which he had levelled against the complainant, were absolutely false. It was further alleged that accused No. 1 had published the defamatory imputations made against the complainant at several public places and in the presence of several citizens.
As regards accused No. 2 Shri Satya Dev, it was alleged that he was the General Manager of the Bank of Bikaner, that he knew full well that the allegations made against the petitioner by accused No. 1 were false and baseless and still in order to defame the complainant, he placed the report o accused No. 1 in a meeting of the Board of Directors where some officers of the Reserve Bank of India were also present. It was, therefore, prayed that both the accused should be convicted and sentenced under Section 500 I. P. C. The Sub Divisional Magistrate examined the complainant on oath and thereafter he ordered process to be issued only against accused No. 1.
As regards accused No. 2, it was observed by him that it did not appear from the complainant's statement it he (accused No. 2) had published any imputations against him (complainant) and in his opinion, no case was made out against him. The Magistrate did not pass a clear order of discharge, but he impliedly dismissed the petitioner's complaint against accused No. 2. Aggrieved by this order, the complainant filed a revision application in the court of the Sessions Judge, Bikaner. The learned Judge also agreed with the trial court and dismissed the revision application. It is against this order dated 20-3-59 that the complainant has approached this Court.
3. Learned counsel for the petitioner has urged that accused No. 2 had certainly published the imputations made by accused No. 1 when he placed the report of accused No. 1 before the Board of Directors. It is contended that the word 'publish' used in Section 499 I. P. C. means 'to make known to others'' and since accused No. 2 made the defamatory report known to the Board of Directors, his action came within the purview of the said section. It is further urged that although the imputations were, in the first instance, made by accused No. 1, the repetition of the same or the publication thereof by accused No. 2 also amounted to an offence. Lastly, it has been urged that the complainant had alleged malice on the part of the accused No. 2, that this question should have been decided by the trial court only after taking evidence and therefore it is prayed that the orders of the courts below should be set aside and the Magistrate should be directed to issue process against accused No. 2 and proceed in the matter according to law.
4. Learned counsel for non-petitioner Shri Staya Dev, on the other hand, has argued that his client had done nothing except placing the report of accused No. 1 before the Board of Directors, that this was done in the normal course of his duties, that it did not amount to publication, because he did not publicize the matter to the public in general, that from the perusal of the complaint or the statement of the complainant malice or ill-will was not established against his client and therefore the Magistrate was quite justified in dismissing the complaint against him.
5. I have given due consideration to the arguments raised by learned counsel for both the parties. The first question which arises for determination is whether it can he said from the perusal of the complaint or the complainant's statement that accused No. 2 had published any defamatory imputation against the complainant. I agree with learned counsel for the petitioner to the extent that the literal meaning of the word 'publish' used in Section 499 I. P. C. means 'making known to others'. I also agree with him to the extent that repetition or re-publication of the defamatory matter may also amount to an offence in certain circumstances, but in my opinion, the use of the word 'publish' in Section 499 I. P. C. does not contemplate those communications which one is bound to make to others in the normal course of his legal duties.
For instance, if a telegram containing some defamatory matter is sent by somebody from Calcutta to Bombay and the Post Master at Calcutta communicates that message to the Post Master at Bombay in discharge of his legal duties, then it cannot be said that he is publishing the defamatory imputation. Similarly, if somebody sends an open picture or pictorial card exhibiting a defamatory carrricature of some person through the post office, the postman, who delivers the same to the addressee cannot be said to publish it to him because he does it in the normal course of his official duties.
In the above cases if the post master or the postman goes out of his way and publishes the same matter to the public in general or shows it to some persons other than employees of the Postal Department in order to defame the person in respect or whom it is written, then only it may amount to publication. It is common knowledge that several complaints containing defamatory statements are received everyday in several Government Departments and such letters are handed over in the normal course of duties by one officer to another officer or to a clerk or by one clerk to another clerk or to an officer. If the argument of learned counsel for the petitioners is accepted, then every officer and every cleark and superintendent and everybody, who has to deal with that document and passes it on to others, would be taken to publish the same.
I find it difficult to accept that this is the meaning which is given to the word 'publish' in Section 499 I. P. C. In the present case, all that has been alleged by the complainant against accused No. 2 is that he placed the report made by accused No. 1 before the Board of Directors at a meeting. Learned counsel for the non-petitioner has drawn the attention of this Court to the Memorandum of Association and Articles of Association of the Bank of Bikaner Ltd. Article 119 thereof says that the Directors may appoint a General Manager for such term and for such remuneration as they may think fit subject to the approval of the Government of Rajasthan. Article 120 further provides that a General Manager appointed under Article 119 will be subject to the direction and control of the Directors .
It is also not disputed by learned counsel for the petitioner that his client was subordinate to the General Manager. This makes it quite clear that, accused No. 2 in his official capacity as General Manager had placed a report made about his subordinate before the Board of Directors who had appointed him and to whose direction and control he was subject. It is not alleged by the complainant against accused No. 2 that he made any remarks of his own which might be defamatory against the complainant. It is crystal clear that whatever was done by accused No. 2 was done by him in the normal course and in discharge of his legal duties and therefore, to my mind, it cannot be said that he had published any imputation regarding the complainant. He had only communicated to the Board of Directors and placed before that what accused No. 1 had written about the complainant.
6. Learned counsel for the petitioner has referred to Watt v. Longsdon 1930-1 KB 130 and urged that even if it be held by this Court that the communication made by accused No. 2 was a privileged communication, the trial court ought to have inquired into the question of good faith. In 1930-1 KB 130 the Scottish Petroleum Company, which carried on business, amongst other places, in Morocco, had posted at Casa Blanca (a port in Morocco) a manager named Browne and a managing director named Watt. The company had in England a chairman named Singer who held a very large proportion of shares in the company and another director, Longsdon. a young man under thirty years of age.
In April, 1928, Mrs. Watt was in England while her husband was in Casa Blanca. In May 1928, Mr. Browne wrote a letter from Casa Blanca to Longsdon regarding Mr. Watt which contained several defamatory matters. Longsdon showed this letter to Singer and also to Mrs. Watt. Watt thereupon instituted proceedings against Longsdon for libel on the publication of Browne's letter to Singer and Mrs. Watt, and of Longsdon's letter to Mr. Browne. It was held by Scrutton L. J. that inhis view there was a duty, both from a moral and a material point of view, on Lougsdon to communicate the letter to Singer, the chairman of his company, and therefore he agreed with the view of the court below that the publication was privileged.
It was only in respect of the communication to Mrs. Watt that it was field that it was not privileged. Greer L. J. and Russell L. J. who were also parties to the judgment thought that the conduct of the defendant needed examination with regard to the question of malice and therefore his case was sent for re-trial. It may foe observed that the facts of that case were very different because Browne had written a private letter to Longsdon and it was not received by him in the normal course of business or in his official capacity and there were certain other circumstances on account of which a retrial on the question of malice was considered necessary. In the present ease, the report of accused No. 1 was received by accused No. 2 in his official capacity and it was in the normal course of his duties that he placed St before his superiors.
To my mind, it was certainly a privileged communication and even if he had passed any censure against him in good faith, it would have been covered by Exception 7 of Section 499 I. P. C. The complainant has no doubt alleged lack of good faith on, the part of accused No. 2, but he has not stated any facts from which bad faith may be spelled out on his part. 'Good faith' is defined in the Indian Penal Code as doing something with due care and attention and, to my mind, it cannot be said by any stretch of imagination that accused No. 2 did not proceed with due care and attention simply because he placed that report before his superiors. It appears from the complaint and the complainant's statement that the petitioner's grievance against accused No. 2 is that he did not tell the Board of Directors, while submitting the report of accused No. 1, that the allegations made by him were false and that he should have done so, because an enquiry was already made by him into the matter.
I have given due consideration to this argument and, to my mind, it cannot be said that accused No. 2 was not proceeding with good faith simply because he did not add his remarks to the report. He might have thought it proper not to express any opinion unless it was invited by his superiors or thinking that he may be mis-understood as showing favour to the complainant. Simply because an officer does not express his own opinion about a certain communication, it cannot be presumed against him that he has proceeded in bad faith.
7. Learned counsel for the petitioner has urged during the course of his arguments that accused No. 2 had placed this report before the Staff Committee as well, but I find that no such allegation was made either in the complaint or in the statement given by the complainant before the Magistrate. A new question of fact cannot be allowed to be raised in revision.
8. In my opinion, there is no substance in this revision application and it is, therefore, dismissed.