1. The petitioners are the committee members of the Kodaikanal Club. They have been convicted of defaming Mrs. Norris, who, as the wife of a member, is privileged to use the club under rule IV, Clause 2 of the Club Rules. She is not of course a member of the club. The penalty imposed by the learned Magistrate was a fine of Rs. 10 on each accused. This is a most unfortunate case in many respects. The complainant was no doubt (although dealing with her own countrymen) entitled to avail herself of the remedy by prosecution rather than by civil action in damages. The effect has been curious in a community used to, what I will describe as, the right rather than the privilege of giving evidence on oath. Although it has been of the utmost importance in this case that they should (the burden of proof being cast upon them) be able to give evidence on oath, the accused have been prohibited from doing so owing to the proceedings being in a criminal forum. I will return to this aspect of the case later.
2. The facts are as follows :--The Kodaikanal Club has opened its door to members of the Services--Officers are honorary members--and on two nights a week, the dance room is thrown open to British Other Ranks of His Majesty's forces. The Other Ranks are confined to the dance room and are prohibited from using certain other rooms of the club of which the reading room is one. They are also (no doubt for good and sufficient reasons) not allowed to consume intoxicating liquors in the Club. Mrs. Norris receives a number of British Other Ranks at her house 'Speke' as paying guests at a small charge, and there is no doubt that she is much interested in their entertainment and welfare. On the 28th October, 1943, by Ex. G, the Honorary Secretary on behalf of the committee, wrote to the complainant's husband, Dr. Norris in Ceylon pointing out that Mrs. Norris at about 9-15 p. m. on the 26th October, was in the reading room before the fire with Other Ranks. It was pointed out that the presence of Other Ranks as guests was restricted to the recreation room on Tuesdays and Fridays from 7-30 to 10-30 p.m. The letter concludes: ' The Committee will be glad if you and Mrs. Norris will observe this rule in future'. By Ex. G-1, Dr. Norris acknowledged Ex. G and apologised saying that he was in no doubt that the breach of the rule by his wife was due to inadvertence. On 10th February, 1944, the alleged defamatory letter by the Honorary Secretary (Ex. A), was sent to Dr. Norris, who was still in Ceylon. It reads as follows:
On 29th October 1943 as instructed by the committee, I wrote to you on the subject of your wife having introduced non-members (B.O. Rs.) into the club. On that occasion the President personal v spoke to your wife and explained to her the breach of the rules, which she had committed.
You replied in your letter, dated 3rd November 1943, expressing regret in the belief that your wife had acted inadvertently in ignorance of the rules.
I am now directed by the committee to bring to your notice that on the night of Tuesday February 1st, 1944, a member of the Committee found your wife and several R.A.F. (B O. Rs ) drinking in the reading room of the club--a place, which they are not allowed to enter. The committee also learns that on the after-noon of 8th February, 1944, your wife was also seen in the reading room alone with a B.O.R. On the same night after the dance a servant of the club reported that your wife was with several B.O. Rs. in the reading room and she asked for them to be served with intoxi-eating drinks.
I am directed by the Committee to inform you that, in their opinion, the conduct of your wife is injurious to the harmony and interests of the club with reference to R. XII (2).
I am also directed to inform you that in the event of any further such breach of the rules by your wife, after you had an opportunity of communicating with her,' the Committee acting under R. XII (4) will proceed to withdraw from her the privilege of using the club.
I am forwarding to you separately a copy of the rules of club and I am sending to your wife a copy of this letter.
3. It will be seen that there are three incidents referred to--one on the 1st February the second on the afternoon of the 8th February, and the third on the evening of the 8th February. I am not concerned with the second incident as the Magistrate has quite rightly paid no attention to it, since the Committee apologised. Apart from that, on the face of it, it is clearly not defamatory. The charge against the accused differs in one respect from the actual alleged incident. It will be seen in the letter, Ex. A, incident No. 3 reads thus:
On the same night after the dance, a servant of the club reported that your wife was with several B.O. Rs. in the reading room and she asked for them to be served with intoxicating drinks.
4. In the charge, this incident is reproduced as follows:
That on the same night she was with B.O. Rs. in the reading room and asked for drinks to he served to them.
5. The distinction may have been inadvertently made, but it is not immaterial. The Magistrate was, therefore, concerned with two incidents, and the case before him was put in this manner. Issues 1 and 2 were : (1) Were the allegations defamatory per se? (2) If so, were they true? and (3) If not, were the accused protected by any one or more of the exceptions to Section 499, Indian Penal Code? Presumably, the 8th and 9th exceptions were invoked. The 9th exception seems to be appropriate.
6. It is therefore necessary to look at the evidence. I might at this stage say that although this is a criminal revision case, I am constrained to investigate the evidence, because, it appears to me that certain important aspects have been overlooked and that no proper consideration has been given to the statements of the accused themselves. This is regrettable. They are, no one doubts, honourable men who by reason of their exercising a semi-public function have found themselves hailed before a criminal court. They deserved at least as much consideration as the complainant.
7. [His Lordship after discussing the evidence proceeded]:
8. My impression of the two incidents is this. With regard to the first that Mrs. Norris was not having a drink of any sort in the reading room on the night of February 1st, but that Mr. Lake honestly thought that she was, and from the surrounding circumstances was quite entitled to think so. With regard to the second incident on the evening of February 8th--that the servants did see the Other Ranks either in the lounge or reading room or both : Other Ranks admittedly went into the reading room and were in the lounge for a brief time as stated by Mrs Norris. I think the servants formed an honest opinion that the drinks were ordered for them; and here again, they were justified in forming that opinion, even if it was a wrong one. With regard to this incident, it does not appear that any complaint was made to the Secretary regarding the non-serving of drinks; and it is quite certain that they were not served because of the above belief of the barman.
9. The question then arises, were the Committee acting honestly and with due care and attention in writing to Dr. Norris on the basis that the Secretary and servants had made true report. These matters are always questions of fact in every case. I have already indicated that they were abundantly justified in doing so with regard to the incident of the night of February 1st. As to the incident of February 8th, it seems to me that following on the incident of October 1943 and the incident--a most unfortunate incident--of February 1st, 1944, there was nothing so striding about the report from a trusted servant on February 8th as to introduce the element of negligence into the conduct of the Committee when they accepted their employee's account. Is a committee precluded from believing an old and trusted servant? Had this been a civil suit, the accused would have been in a much more favourable position. They could have given evidence on oath. The plea of privilege would have been almost irresistible as there could hardly have been any element of malice. The Magistrate has negatived malice alleged only against accused 1, Mr. Beckett, rightly describing the suggestion as baseless. The definition of good faith would have been that found in the General Clauses Act:
A thing shall be deemed to be done in good faith where it is done honestly whether it is done negligently or not.
10. I have accepted that the statements contained in Ex. A are defamatory but not in the least in the manner Dr. Norris supposes. I do not attach the sinister meaning to the word 'drinking' which, the evidence shows, so offended Dr. Norris. Had the expression been ' having drink with' or 'having drinks with ' I doubt if anything would have been thought of it. I cannot believe that anybody reading that letter would ever have understood anything more than that the complaint was that Mrs. Norris had broken the club rules, in the first incident, by being with persons in a prohibited part of the club and, in the third incident by endeavouring in breach of the rules to provide persons with alcohol, who were not permitted to consume it in the club. These are definite breaches of the club rules and such allegations may well be defamatory, but not very defamatory, of the persons about whom they are made. Still I do not think that the members' of the Kodaikanal Club would have been very greatly shocked and distressed at hearing of this conduct on the part of one of their members as the prosecution urges. After all, what Mrs. Norris was doing, if true, was breaking the club rules in her over-hospitality to Service guests.
11. The question, then, is entirely one of good faith. A good deal of confusion seems to have been introduced in this case by a discussion in the lower Court which was sought to be prolonged before me, based on the notion that Mrs. Norris is a member of the Kodaikanal Club. She is not a member. She is a person privileged to use the club by reason of her husband being a member. Rule XII refers to the infringement of rules and the penalties therefor. At the stage when Ex A was written, it was clearly not the intention of the Committee then to take disciplinary action provided by Rule XII against Mrs. Norris, i.e., to withdraw her privilege of using the club. That they contemplated so doing, if there was any further breach of the rules is evident from the penultimate paragraph in Ex. A. What then was the position of the Committee at the time of the writing of Ex. A? There had been according to their information, breaches of the club discipline by a person who had no more than the privilege of using the club. Whether informally they might have approached her before posting Ex. A is not a matter for me to decide It so much depends on the personalities concerned. The Committee might have been wiser in first approaching Mrs. Norris informally; on the other hand they might not. The member concerned was Dr. Norris and the Committee were undoubtedly entitled to address him. They had already had trouble from one lady who, having the privilege of using the club, had been reprimand or cautioned for breaking the rules. The Committee did approach her direct and were threatened with legal proceedings for their pains. After that, the Committee were perhaps a little shy of approaching the lady privileged members, and so they wrote to the complainant's husband sending a copy of the letter to Mrs. Norris for her information, which I do not think can be criticised. It is, however, clear from the last sentence of Clause 4 of rule XII that, had it been decided to withdraw the complainant's privilege, she should, under the general law for which there is abundant authority in what are known as the Club Cases, have received due notice of the inquiry and been given an opportunity to reply to the charge against her. The Committee did not decide to do that. They quite definitely decided only to issue a warning with a statement of the facts as they understood them to the member responsible, Dr. Norris. They expressly omitted the words injurious to the ' character and reputation ' of the complainant and confined their complaint to ' harmony and interests'. Vide rule XII, Clause 2. With regard to the action of the Committee, it is remarkable that virtually no attention was paid, at any rate as far as can be derived from the judgment, to the written statements of the accused. It must be remembered it was their only method in these criminal proceedings of replying, especially in a Court where club servants were regarded as automatically unbelievable against the word of the member. I cannot but be impressed by the earnestness of the accused's written statements, especially that of Mr. Westerdale. That they acted honestly and in good faith in the sense that those expressions are ordinarily understood is beyond doubt. There have been a number of criticisms of their conduct after the letter was sent. Mrs. Norris complains bitterly that they would not then hear her. Here again for the reasons I have indicated above, I express no opinion about this. All I am concerned with is that the libel had been published by then, and any subsequent conduct of the Committee is relevant only to the penalty. The Committee is criticised because they apologized and withdrew with regard to the second incident but withdrew only the allegations relating to incidents 1 and 3. I express no opinion about this either, especially as I hope this unhappy affair will soon be forgotten. I think it, however, right to say this, that nothing that has emerged in this case seems to me in the least to affect the character of Mrs. Norris nor that of any member of the Committee. To me, the most striking feature of the whole affair is an apparent lack of proportion shown by everybody in respect of the whole story. The only importance the case has is that it shows how extremely difficult it is in a social club for a Committee faced with any form of disciplinary action against members or quasi-members to act with universal approval. It is for that reason that, even if wrong, Committees deserve and are given that protection (embodied in Exception 9) without which it would be impossible for such a body to function. This is most especially so when a complaint has to be issued not to a member himself about his own conduct but to a member relating to the conduct of another person. Honest freedom of expression must be preserved unless Committees are always to have the threat of criminal proceedings hanging over them.
12. Having indicated that the Committee of this club, acted in good faith even if they were mistaken, and did not act without due care and attention, it follows that this petition must be allowed. The accused are acquitted, and the fines, if paid, will be refunded.