Kuppuswami Ayyar, J.
1. The two appellants, the editor and printer of the Sunday Observer, a weekly organ of the Justice party, have been convicted by the Chief Presidency Magistrate, Madras, for having made defamatory averments against the complainant Mr. C. Rajagopalachariar, an ex-Congress Prime Minister of this province, in the editorial published in the issue of that paper of 4th October 1942 and sentenced to pay fines of Rs. 1000 and Rs. 500 respectively. Their plea was that the averments in question were not defamatory, that even if they were, as it was expressly stated to be only a matter of opinion made in good faith and for the public good, they were protected by exceptions 3 and 9 to Section 499, Penal Code. The Chief Presidency Magistrate found on both the pleas against the appellants and convicted them. The only two points hence that arise for consideration in this appeal are (1) whether the statement in question is defamatory and (a) whether it was made in good faith and for the public good and consequently the appellants were not guilty of any offence. The offending passage occurred in the article published under the caption 'Mr. Gandhi, the fountain source of evil,' and runs thus:
It is clear that he '(Mr. Gandhi)' is not merely the 'fountain source' but the engineering source of all acts of sabotage. It is all part of a plan. Mr. C. Rajagopalachariar and one or two other Congress leaders are, we strongly believe, aware of this plan, and are remaining out with a view perhaps to guiding it in an indirect manner. 'C. .' must have arranged with Mr. Gandhi to fall out on the Pakistan issue and be expelled from the Congress on that pretext, so that some leaders may stand out and be available for work outside.
The long and short of it all is that Mr. Gandhi organised this campaign of violence - his speeches and 'C.R.'s' speeches as to a short and swift struggle on big scale leave no doubt whatever - and wants that campaign to go on.
Before considering how far these statements can be said to be defamatory, we have to bear in mind certain facts proved by the evidence in the case and which are not disputed. Mr. C. Rajagopalachariar, a prominent leading member of the Congress was a member of the All India Congress Committee, as also of the Working Committee for a number of years except during certain short periods. He and his fellow ministers who were all of the Congress party, resigned in 1939 on the war issue. In April 1942 he introduced a resolution at a meeting of the Parliamentary Legislative Party at Madras recommending that the demand of the Muslim League for Pakistan should be conceded. Prior to that the Indian National Congress was against the granting of such a demand. As a matter of fact Mr. Rajagopalachariar himself in some of his speeches made earlier opposed the demand of the Muslims for dividing the country in the manner in which the Pakistan scheme would (vide enclosures 8, 9 and 10 attached to accused l's statement dated 20th April 1943.) The resolution of Mr. C. Rajagopalachariar in April 1942 with respect to the demand of Pakistan by the Muslims was passed in the meeting of the Madras Parliamentary Legislative Party but the All India Congress organisation was against it and a similar resolution there was thrown out. When he started propaganda in favour of Pakistan, objection was taken to the same on the ground that he could not remain in the Congress and do propaganda against the decision of the All India Congress Committee, with the result that Mr. Rajagopalachariar resigned even his primary membership in the Congress. The goal of the All India Congress was the attainment of freedom by India free from any kind of dependency on Britain. There have been various resolutions passed by the Congress bodies at various times with regard to the method to be adopted for the attainment of that goal. On 14th July 1942 the Working Committee of the All India Congress Committee passed a resolution recommending the starting of a mass struggle on non-violent lines on the widest possible scale so that the country might utilize all the non-violent strength it had gathered during the past 20 years under the leadership of 'Mr' Gandhi. This came up for consideration before the All India Congress Committee on 7th August 1942 and the same was passed. On the next day, the 8th August, the Congress leaders in the various provinces were arrested and then followed all over the country various acts of sabotage, such as the cutting of telegraph wires, the uprooting of railway lines, setting fire to police stations, railway stations, Government buildings, post offices etc. On 13th August Mr. Rajagopalachariar published a statement condemning the acts of hooliganism but stating that all delusions in the minds of people that this programme of hooliganism was what the official Congress wanted done on its behalf, should be removed. He also stated that he had disagreed from Gandhiji's plan in the then crisis, even strove to deflect him from it and that he was not seeking to argue and justifying it himself.
2. On 15th September 1942, the Honourable Sir Reginald Maxwell, the Home Member, in the course of a speech in the Central Legislative Assembly moving the resolution that the situation in India be taken into consideration, made observations to indicate that it was clear that the acts of sabotage were the result of previous organization, and that it was impossible to believe that the Congress leaders were ignorant of its existence or that their plan did not contemplate that it would be brought into play when they launched their mass movement. In October 1942, Dr. Arun-dale, the President of the Theosophical Society, published an article arraigning Mr. Gandhi as the fountain source of so much of the evil that permeated India then. It was in the course of a comment on that article of Dr. Arundale that the statements in question were made. The gist of the article was that Mr. Gandhi was not merely the 'fountain source' but the engineering source of all acts of sabotage that were committed 'subsequent to the arrest of the Congress leaders on 8th August 1942. It was further stated that the editor strongly believed that Rajagopalaehariar and one or two other Congress leaders were aware of the plan and were remaining out with a view perhaps to guiding it in an indirect manner and that 'C. E.' must have arranged with Mr. Gandhi to fall out on the Pakistan issue and be expelled from the Congress on that pretext so that some of the leaders might stand out and work from outside. The article wound up with the following observation:
The long and short of it all is that Mr. Gandhi organised this campaign of violence-his speeches and 'C.R.'s' speeches as to short and swift struggle on a big scale, leave no doubt whatever,-and wants that campaign to go on.
The article was mainly an attack on Mr. Gandhi and the reference to Mr. Rajagopalachariar was only incidental the reference being that according to the plan of the Congress Mr. Rajagopalachari and others should stand outside under some pretext so that they might be available to guide the plan indirectly at a later stage. On the face of it, it is clearly defamatory. It will certainly lower the reputation of Mr. Rajagopalaehariar in the eyes of the general public. It not only charged him with complicity in criminal acts, but also attributed to him hypocritical public conduct. Mr. Rajagopalachari denied that his resignation from the Congress was a, make-believe one or that he resigned with a view to guide the movement subsequently. The accused pleaded in the lower Court that the word 'it' in the passage 'with a view perhaps to guiding it in an indirect manner' stood for the goal of the Congress and not any plan of which sabotage was a part and that consequently the observations could not be understood in the sense that Mr. Rajagopalachariar was asked to stand out with a view to guiding in an indirect manner the plan of the Congress which included sabotage. The Chief Presidency Magistrate has rightly rejected this. The neuter pronoun 'it' must stand for the neuter noun occurring before it and that neuter noun is 'plan.' It is also stated in the second sentence in the offending passage that the acts of sabotage were all part of a plan. The word 'plan' must therefore indicate the method of attaining and not the goal itself. The passage has hence to be understood in the sense in which it has been understood by the Chief Presidency Magistrate and this is how he has interpreted its meaning:
Mr. Gandhi is the engineering source of all acts of sabotage. These acts of sabotage are part of a plan. The complainant was aware of this plan. Sometime before the plan was put into operation the complainant pretended to quarrel with Mr. Gandhi and severed his official connection with it so that he might not be arrested and might be available to guide the plan or the campaign in an indirect fashion from outside.
I would omit the words 'or the campaign' to be accurate. If the acts of sabotage were part of a plan and Mr. Rajagopalachariar was aware of it and being aware of it, made a show of resigning from the Congress so that he might ultimately aid the plan, it would clearly mean that he had complicity in the crime, viz., in the commission of the acts of sabotage as a result of the plan. Further, it accused him as a politician of hypocritical conduct by pretending to have resigned from the Congress for the purpose of indirectly and secretly guiding it in its plan part of which was the commission of criminal acts. I have therefore no hesitation in finding that the passage is defamatory and would bring down the reputation of a politician of the standing of Mr. Rajagopalachariar who once held the high office of the Prime Minister of this Province. The next question for consideration is whether the accused are protected by the provisions of exceptions 3 and 9 of Section 499, Penal Code. The appellants' case was that the statements were made for pub-lie good by accused 1 as the editor of a journal only as statements of opinion and not as categorical statements of fact, and that they were made in good faith after the exercise of due care and caution. That it may have been made for the good of the public was, I should think rightly, accepted by the Chief Presidency Magistrate. This is what he stated in his judgment,
The complainant being a prominent public man it may be assumed that any comment on his character as it appears from his public conduct would be for the public good. The only pre-requisite is that the comment should be made in good faith.
Or rather the pre-requisite for the availability of the plea of good faith is that the publication must have been made for public good as in this case or for the protection of the interest of the person making it or of some other. Therefore the only other question for consideration is whether the imputations made against the complainant were made in good faith. They were not made as categorical statements of fact, but only as the opinion of the editor. The words 'we strongly believe' and the word 'perhaps' in the passage in question clearly negative the contention that they were made as positive averments of facts. That the imputations were incorrect is proved beyond doubt. Exhibit H is a letter dated 18th July 1942 written by Mr. Rajagopalachariar and three other Congress leaders, Mr. Santanam, Mr. S. Ramanathan and Dr. Rajan. It was written after the passing of the resolution by Congress Working Committee at Wardha on 14th July, and before it was approved by the All India Congress Committee. It warned Mr. Gandhi of the far-reaching consequences of the adoption of the resolution pointed out that only chaos would follow and stressed that it was certain that the party to gain immediately by the movement would be Japan. It was further pointed out that when the leaders were removed, their guidance would not be available and that the movement would be taken advantage of by the enemy and be converted into a fifth column activity on his behalf. They added that their conviction was strong enough to make it their duty publicly to oppose the proposal. The letter ended by entreating Mr. Gandhi to desist from taking the step. This letter was written three months after the complainant left the Congress and he was one of the four who dissuaded Mr. Gandhi from starting the movement. The imputation therefore that the complainant's resignation from the Congress on the Pakistan issue was a make-believe one with a view to enable him to remain outside the Congress and guide the plan with regard to this mass struggle must be found to be false and baseless. That such a letter was sent was spoken to by Mr. Rajagopalachariar in his evidence in the box, though it was suggested for the accused during the course of the trial in the Magistrate's Court that the letter was not genuine. When I drew the attention of appellant 1 during the course of his argument to the circumstances which went to indicate that it must have been a genuine letter he very frankly stated that the accused had to take that attitude of questioning the genuineness of that document before the Magistrate on account of the manner in, and the stage of the proceedings in which it was sought to be filed in Court, and that he was not disputing the genuineness of this document in this Court and admitted it to be a genuine one.
3. But then the fact that the imputations were baseless would not in any way affect the other question, namely, whether accused 1 bona fide believed in the truth of the imputations made in that statement and that is the only question that arises for consideration in this appeal. If accused 1 bona fide believed (1) that the acts of sabotage were part of a plan of the Congress (2) that Mr. Rajagopalachariar was aware of that plan (3) and that his standing out of the Congress was only a pretext but that he was really supporting the Congress by so standing out with a view to guiding that plan, the appellants could not be guilty of the offences with which they are charged. Their case would come under Excep. 9 to Section 499, Penal Code. The Chief Presidency Magistrate has not considered and discussed the evidence let in to show that accused 1 bona fide believed in the truth of what was alleged in those three averments of his. The arguments on the first averment were brushed aside as irrelevant, the evidence on the second was ignored while the case relating to the third was considered on an incorrect basis and that too without any discussion of the evidence. In para. 18 of his judgment, with regard to the arguments addressed for the accused on the question as to whether accused l in good faith believed that the Congress was responsible for the acts of violence and sabotage, this is what he stated,
For the purpose of this case, however, it is sufficient to say that in the absence of any evidence to establish the further position that accused 1 had reasonable grounds to believe that the complainant was aware of the plans of the people (whoever they were) who organised these illegal activities or encouraged or guided them; this point is wholly irrelevant.
But then he did not consider the evidence let in to show that the editor of the Sunday Observer had reasonable basis for believing in good faith that Mr. Rajagopalachariar was aware of that plan and give any finding on it. With regard to the last point as to whether he bona fide believed that the resignation of Mr. Rajagopalachariar from the Congress was only a pretext with a view to help the plan, all that the Magistrate states in his judgment is contained in the following four sentences:
But having examined these speeches and statements of the complainant carefully, I am unable to find in them any reasonable basis for the two charges made against him , viz., complicity in acts of violence or insincere or hypocritical conduct in respect of his change of view on the 'Pakistan' issue; in other words, I am unable to see any sign of good faith on the part of the accused. This brings us back in effect to the question already discussed, viz., the proper meaning to be attached to the first passage. The accused's comprehensive and painstaking scrutiny of the complainant's speeches was undertaken on the basis that all that was attributed to Mr. Rajagopalachariar was knowledge of the ultimate aim of the Congress, viz., the achievement of Indian Independence and a desire to assist it when it got into difficulties. If that were the real meaning of the passage complained of, obviously no charge of defamation could be sustained; in many public speeches and also in his evidence in Court the complainant has made no secret of his political opinions. But as I have already said, the real meaning of these passages and the sense in which an ordinary reader would have understood them is entirely different.
The Magistrate was not justified in having proceeded to consider this plea of the accused on the basis of the plea with regard to the meaning sought to be given by them for the offending passage in the article. It is open to the accused to raise different and inconsistent pleas. Their plea in this case was that the passage was not defamatory because it bore a different significance or meaning from the one attributed to it by the complainant, and the other plea was that if it was defamatory be. cause it bore the meaning given to it by the prosecution, it was an honest expression of opinion made in good faith and for the good of the public. The Magistrate, after finding that the accused's case about the meaning of the passage was not correct, was not justified in taking that plea of the accused (on the meaning of the passage) as correct and deciding the case on this plea on that basis.
4. The case for the accused on the plea of good faith is briefly this. When in April 1942 Mr. Rajagopalachariar resigned from the Congress on the Pakistan issue and toured the country carrying on propaganda in favour of the position that the demand of the Muslims in respect of Pakistan should be conceded, he, accused 1, supported him and wrote three articles in his paper favourably commenting on the stand taken by him; but when acts of sabotage were committed after the arrest of the Congress leaders and Mr. Rajagopalachariar came with a statement condemning the acts of hooliganism but at the same time defending the Congress by stating that the Congress was not behind it, his suspicions were aroused, and in the Sunday Observer of 16th August, he wrote that these disturbances had been expected by the Congress leaders and what was really important, had been prepared by them and he added 'For 'C.R.' to raise his hands in horror is, we think, playing the innocent over-much. These protestations are intended to 'put one over' on gullible Britishers.' Subsequently, when he saw the statement of the Home Member in the Legislative Assembly, wherein he definitely charged the Congress with having organised the acts of sabotage the editor of the Sunday Observer understood that statement as a reply to the statement of Mr. Rajogopalachariar made on 13th August because as admitted by the complainant no other Congress leader had made any statement till then that the Congress was not responsible for these acts of sabotage. The Home Member in the course of his speech made the following observations:
On the basis of all the information at present available, therefore, we cannot absolve the Congress from responsibility for these very grave events and cannot allow the country to remain under any delusion as to the part they have been playing.
5. After this charge by the Home Member against the Congress in that speech, accused 1 thought he might have to revise his opinion of Mr. Rajagopalachariar and so he scrutinised all his previous statements and speeches. On 21st July to a question by the representative of the Orient Press about his programme he, Mr. Rajagopalachariar, stated that he was deliberately silent at that stage. He added that the atmosphere was then charged with thoughts about the proposal for mass civil resistance against the British authority in India and that the uncertainty must clear away before people could bestow their thoughts on other subjects. He did not tour to do any propaganda to prevent people from committing such acts of hooliganism and sabotage. From these circumstances the editor came to the conclusion that the act of Mr. Rajagopalachariar in resigning from the Congress must have been a pretext and a pretence and that he must have done so merely with a view to help the movement by doing such acts as defending the Congress leaders against the charges that might be laid against them; as also for carrying on an agitation for the release of the Congress leaders and for making attempts to get a rapprochement as between the various parties.
6. With regard to the first averment, viz., that the acts of sabotage were part of the plan of the Congress, it cannot be said that there were not enough materials from which the editor of the Sunday Observer could have bona fide believed it to be true. Mr. Rajagopalachariar himself in Ex. G stated:
Unsigned slips of paper, I understand, are being widely distributed by hand, wherein sabotage of public property is programmed. It is clothed in Gandhiji's language and stepped up in stages to give it the semblance of authority and the appearance of an ordered movement. The last and worst stages are already put in practice; and arson, mischief and deliberate dislocation of social order is afoot.
7. He no doubt stated that he wanted 'to remove all delusions in the minds of people that the programme of hooliganism was what the official Congress wanted done on its behalf.' But then he himself admitted in that statement about the passing of slips of paper as if they were issued by the Congress authorities. More than that, there was the definite official pronouncement by the Home Member in the Legislative Assembly and several passages in it meant to indicate that the Congress had a programme of its own and that included acts of sabotage. This is what the Home Member stated:
Attempts have been made and will, no doubt, continue to be made to exonerate the Congress leaders or to represent that recent events are not the outcome of the mass movement sanctioned by the All India Congress Committee at Bombay. The terms of the resolution which they then passed are such that they can hardly disclaim responsibility for any events that followed it. But apart from that, it is impossible to interpret the utterances of the Congress leaders themselves except on the assumption that they knew and approved of what was likely to occur... The Madras Government has already given publicity to instructions issued by the Andhra Provincial Congress Committee which definitely included in the programme the cutting of telephone and telegraph wires, removal of rails and demolition of bridges. One item of this programme is 'to impede the war efforts of the Government and another is 'to run parallel Government in competition with the British Government.' It is noteworthy that this circular itself quotes as its authority Mr. Gandhi's 'do or die' message. Instructions of a similar character are found in numerous bulletins and leaflets claiming the authority of the Congress which have been found in circulation since the disturbance started.
8. He definitely stated in that speech that the acts of sabotage showed clear evidence of previous organization and that it was impossible to believe that they were ignorant of its existence or that their plan did not contemplate that it would be brought into play when they launched their mass movement. Finally there is this significant charge against the Congress:
But if any doubts remained as to the identity of Congress with these disturbances it could easily be removed by quoting the very numerous instances in which known Congressmen, particularly in Bihar, have been observed openly inciting mobs to violence and sabotage; while many others went underground immediately after the Bombay meetings and have remained there for reasons best known to themselves. On the basis of all the information at present available therefore we cannot absolve the Congress from responsibility for these very grave events and cannot allow the country to remain under any delusion as to the part they have been playing.
9. In the face of this pronouncement by a responsible member of the Government on the floor of the Legislative Assembly, I do not think it could be said that appellant 1 could not have reasonably believed that these acts of sabotage were part of the plan of the Congress. The next point for consideration is about the averment about Mr. Rajagopalachariar's knowledge of this plan. In Ex. G itself he stated:
It is well known I disagreed from Gandhiji's plan in the present crises and strived to deflect him from it, and I am not seeking to argue and justify myself now.
10. This indicated to accused 1 that Mr. Rajagopalachariar knew the fact that Gandhiji had a plan, that he knew what that plan was, for he definitely stated that he strived to deflect Gandhiji from that plan. In a statement made by him and published in the 'Hindu' of 2nd August 1942, he observed:
I have heard that rumours are being circulated in the city and elsewhere that on the 7th inst. there will be strikes and disturbances and some people are even stocking provisions against such a contingency. All this talk is silly nonsense. The only thing that is happening is a meeting of the Congress in Bombay on the 7th when they will discuss the political situation. People may rest assured that there will be no looting or rioting on the 7th or on any other day in the near future either in Madras or elsewhere.
He also told the pressmen at Madras on 1st August 1942 that he had discussed with Gandhiji almost every topic under the sun including fast unto death and this statement was made soon after he returned to Madras after having had an interview with Gandhiji. In the face of these statements, I cannot find that there was no basis for the editor of the Sunday Observer believing in good faith that Mr. Rajagopalachariar was aware of this plan of the Congress. The Chief Presidency Magistrate has not referred to these pieces of evidence and all that he states is that it was not proved that Mr. Rajagopalaehariar was aware of the plan. The last point for consideration is whether there was any basis for appellant 1 believing that Mr. Rajagopalachariar's standing out of the Congress was only a pretext and that he was standing out of it only with a view to indirectly guide its plan. The appellants rely for this on the speeches of Mr. Rajagopalaehariar, his statement to the Orient Press on 21st July when asked about his further programme that he was going to be deliberately silent at that stage as the atmosphere was charged with the thoughts about the proposal for mass civil resistance, and his not doing any propaganda work to prevent people from doing such acts of sabotage subsequent to 8th August 1942. It is not disputed and there is evidence, that prior to April 1942, Mr. Rajagopalaehariar was opposed to the Pakistan demand from before February 1940. But all of a sudden in April, three months prior to July 1942 when the Working Committee passed the resolution for mass struggle, he resigned from the Congress on the Pakistan issue. He did not resign straightway. He did propaganda for Pakistan and as stated by the counsel for complainant, he was, as it were, forced to resign by his being prevented from doing propaganda work against the resolution of the Congress without resigning his membership of the Congress. After he resigned, in three of his speeches he definitely stated that though he was standing out of the Congress he was really in it and was doing everything that he could to help the Congress. In a statement issued by him and published in the Hindu of 11th July 1942, this is what he stated:
I am out of the Congress, in body, but not in spirit. I have got out of the cart not to abandon it, but in order that I may extricate it out of the bog wherein it is stuck and push it forward.
In a speech made by him at the Christian College, Tambaram , on 22nd July 1942 he stated that going into an organisation or coming out of it was the same as entering or leaving a prison was to an old offender and he repeated the simile about the cartman and stated:
If they saw a man get out of a cart, a heavily laden cart, and push it up the hill to aid his bullock or if they saw a person like him, resign from his organisation, get out of it, and push it from behind to help his colleagues to take the cart uphill, they would see the parallel between the bullock cartman's behaviour and the politician.
In another speech made at Mangalore on 28th May he stated that the Congress was not a ladder but it was his blood, that that blood nourished him, that he would take care of his blood also, he added that he had a right to take to it, quarrel with it and do anything he liked with his blood, provided he did not bleed himself to death. Therein he stated that some people asked what he could do if he took charge of Government because his powers would be very limited by acts and charters and his own answer was that in times of danger and war, no charters and orders would bind, the need of the hour would be the limit of authority and if a thing was necessary to save the people and if the people were behind him, he would certainly do it law or no law. Accused l's case that these speeches made in May and July 1942, made him feel that Mr. Rajagopalachariar had not really resigned from the Congress and that it was only for a purpose that he got out of it, that that purpose was to help the Congress to get out of its difficulties and that for helping it he would be prepared even to break the law, for, in his opinion, there was no other limit except need of the hour. It is therefore stated for the appellants that in these speeches there was sufficient basis for the impression formed by accused l.
11. After the Working Committee passed the resolution about the mass struggle in July 1942, when questioned by the representative of the Orient Press as to what his programme was Mr. Rajagopalachariar said that he was deliberately silent. After the acts of sabotage were committed, he only issued the statement. Ex. G stating that those acts were all improper and ought not to have been committed, that the Congress was not behind such acts and that it had nothing to do with them. This was understood by the accused as being part of the programme of Mr. Rajagopalaehariar in staying out, namely, to defend the Congress. This would be the impression in the mind of one who bona fide believed that the acts of sabotage were all part of the programme of the Congress. To a person who so believed it, the statement of Mr. Rajagopalachariar disclaiming any connexion between the Congress and the acts of sabotage would appear to be defending the Congress in spite of the fact that he knew that the Congress was responsible for the acts of sabotage, etc. Besides merely issuing the statement, Ex. G, the complainant did not do any propaganda work. When he differed on the Pakistan issue from the Congress he thought it necessary to tour the country and do propaganda, but when he differed from the plan of the Congress for mass struggle, he did not do any such propaganda work. On the contrary, he remained silent. When questioned about this, as P.W. 3, he stated that he thought that his conduct was the best propaganda against the movement and not speeches and that the whole of South India knew his attitude. He added that the people of South India would not participate in the movement, at least to some extent, because of his conduct. But then, the editor of the Sunday Observer must be excused if he was not able to think so. He had noticed Mr. Rajagopalachariar touring the country doing propaganda on the Pakistan issue, though the people of the country knew about his attitude in the matter when he resigned from the Congress. If on an issue like Pakistan he found it necessary to tour the country and do propaganda, could it be said that appellant 1 was wanting in good faith when he drew the inference that his silence was due to the fact that he was sympathising with the movement, especially when we remember that according to his belief, then based on the reports of the Home Member, the Congress was responsible for the acts of sabotage, though Mr. Rajagopalachariar was asserting that Congress was not responsible for the same
12. It was also suggested during the cross-examination of the complainant that he, Mr. Rajagopalachariar , had the knack of being misunderstood. He admitted that he has got a subtle intellect, though he could not accept that he was a subtle speaker. According to a report of a speech of his published in the Indian Express on 22nd January 1942, he is said to have stated that he was a subtle speaker. When questioned about it, he said that it was part Of a joke. What the joke was he was not able to state, nor was his Learned Counsel able to enlighten me. Reading the report as it stands, it looks as if he wanted the audience to be careful as he was a subtle speaker. The various speeches of his filed in this case show clearly that he makes a large use of figures of speech and parables. Naturally if the person who hears him is not able to correctly understand or appreciate the figure of speech used by him, there is the possibility of his being misunderstood. As a matter of fact, there is evidence in this case that Mr. Avanashilingam, a member of the Central Legislative Assembly, who was a fellow detenue with the complainant in the Vellore jail, noted in the diary maintained by him that Mr. Rajagopalachariar spoke at a party arranged in honour of Dr. Subbarayan before he was released on 5th May, that the complainant stated that all persons should pray for the defeat of Britain, and that it caused him great surprise when he said that. When examined as a witness he was not able to remember what he, Mr. Rajagopalaohariar, said then at the party. It is a statement made in a private diary and though it is beyond doubt that that impression must be incorrect in the face of the statement made by Mr. Rajagopaiachariar in the confidential letter written by him and three others to Gandhiji on 18th July 1942 entreating him to desist from starting the mass struggle, it cannot be denied that that was an honest impression recorded by one of the persons who heard Mr. Rajagopaiachariar that day. If it was a mistaken impression, it shows that even a cultured and educated person like Mr. Avanashilingam was capable of committing mistakes with regard to the statements made by the complainant. If accused 1 had understood the simile of the cartman getting out of the cart with a view to help it out of a bog used by the complainant in his speeches in the two meetings in July 1942 referred to above as indicating that Mr. Rajagopaiachariar was really in the Congress but was outside it only with a view to help it to get out of the troubles that it might get into, can it be said that he may not have been actuated by good faith in committing that error? It cannot therefore be said that there was no basis for accused 1 having believed in good faith and Mr. Rajagopaiachariar went out of the Congress with a purpose and that purpose was to help the Congress and guide its plan while standing outside.
13. It must also be remembered that the ideology of the party to which the appellants belong is altogether different from that of the party to which Mr. Rajagopaiachariar belonged, namely, the Indian National Congress. The ideology of the former was based on the necessity for the continuance of British connexion and they wanted the war to be won by the Britisher. Appellant 1 feared that the internal disturbances would help the enemy who was then on the east of the bay and on the border of Assam. When he heard the Home Member state that the Congress was responsible for these acts of sabotage he believed it and also believed that Mr. Rajagopaiachariar knew its plans. When in addition to that he scrutinised all the speeches and statements of Mr. Rajagopaiachariar he thought that his staying out of the Congress must have been for a purpose and so came to the conclusion that that also must have been a plan of Gandhiji and that Mr. Rajagopaiachariar was willing to stand out to help the Congress. I therefore do not think the Magistrate was justified in finding that there was no basis for the appellant bona fide believing in the truth of the imputations made by him in the offending statement which is the subject-matter of the charge.
14. It is true the editor of a journal is in no better position than an ordinary subject with regard to his liability for libel. He is bound to take due care and caution before he makes a libellous statement. In the complaint it was stated that allegations and insinuations had been made maliciously. The Magistrate has not found that malice was proved. On the contrary Mr. Rajagopaiachariar himself stated that though he had met accused 1 he never had occasion to discuss political matters with him and that as far as he knew neither the first accused nor the second had any reason for any private personal malice against him. Appellant 1 did not rush to print making these imputations immediately after the acts of sabotage were committed on 8th August. On 16th August he merely stated that in defending the Congress and absolving it from the responsibility in respect of the acts of sabotage Mr. Rajagopaiachariar was 'playing the innocent over-much.' It was only after the speech of the Home Member in the Legislative Assembly in September that he examined the statements and the speeches of Mr. Rajagopaiachariar and came to believe that his resignation was only a pretext and that he was a congressman out and out prepared to help the Congress by even going out of law for that purpose. The article in question in which the offending averments were found was not an article against Mr. Rajagopaiachariar but was a comment on Dr. Arundale's article arraigning Mr Gandhi as 'the fountain source of so much of the evil that permeates India at the present time.' The attack was aimed at Mr. Gandhi and the reference to Mr. Rajagopaiachariar was only incidental. Mr. Gandhi was stated to be not only the fountain source but the engineering source as well of all the acts of sabotage. It was further stated that he had a plan of his own and that these acts of sabotage were part of that plan. Another part in that plan was that Mr. Rajagopalaehariar and one or two other Congress leaders who were aware of the plan should remain out of the Congress with a view perhaps to guiding it in an indirect manner. That imputation was against Mr. Gandhi mainly, but incidentally against Mr. Rajagopaiachariar as being a willing partisan agreeable to stand out on the Pakistan issue and be available for work outside. If, therefore, the impression was formed in the mind of accused 1 after an examination of the statements and speeches of Mr. Rajagopaiachariar, it cannot be said that he had not exercised due care and caution especially when it is borne in mind that the editor was careful enough to buttress the averments with the words 'we strongly believe' and 'per. haps.'
15. In the statement issued by Mr. Rajagopalachariar on 13th August 1942, he stated that it was well known that he disagreed from Mr. Gandhi's plan in the crisis and strove to deflect him from it and it is urged that this was sufficient information given to the accused to show that he differed from Mr. Gandhi. But it must be remembered that according to accused 1, he took the statement of the Home Member as a direct contradiction and refutation of the averments in that statement of Mr. Rajagopalachariar. It was elicited during the course of the examination of the complainant that no other Congress leader of note had repudiated that the Congress was responsible for the acts of sabotage. That was why the statement by the Home Member was taken by the editor of the Sunday Observer to be a repudiation of that statement of the complainant. In the face of this, if he did not accept the statement of the complainant that he strove to deflect Mr. Gandhi from his plan in the absence of any definite evidence or basis, how Could he be charged with mala fides or absence of good faith. According to accused 1 his impression was that the issuing of that statement Ex. G itself was one of the modes by which he was trying to help the Congress. In such a state of mind and with such a view it could not be said that later on when he wrote the article in question he did not believe in good faith what he alleged in the passage in question.
16. The plea' of good faith may be negatived on the ground of recklessness indicative of want of due care and caution if the imputations in question had been made as categorical statements of fact; but in this case as already pointed above, the defamatory imputation was definitely stated to be only a matter of opinion as was made clear by the use of the words 'we strongly believe' and the uncertainty expressed by the word 'perhaps' found in the first passage quoted in the charge. The second passage cited in the charge does not contain any defamatory statement against the complainant and was quoted in the charge only to clarify the first passage. The use of the singular verb 'wants' in that second passage clearly indicates that it was an imputation against Mr. Gandhi alone. The reference to the complainant in the parenthetical clause was to the effect that Gandhiji's speeches and Mr. Rajagopalachariar's prove the defamatory statements made against Mr. Gandhi.
17. It is rather unfortunate that this prosecution should have been launched. Mr. Rajagopalachariar states in his evidence that the allegations against him were attempts to mislead the public, that he turned it over in his mind and finally decided to prosecute because he came to the conclusion that if left unchallenged 'these wortheless allegations might receive some credence in some quarters in view of the present atmosphere in the country and the Uncertainty of the times.' This object he could have achieved if he had released to the public Ex. H his letter to Mr. Gandhi that was written along with his three other friends on 18th July 1942 through the medium of a newspaper instead of through a Court of law in the course of his re-examination. The accused, no doubt, disputed in the lower Court the genuineness of that document. But then accused 1 frankly stated when I put him the question whether he was refuting its genuineness in this Court, that he had to adopt that course before the Chief Presidency Magistrate on account of the manner and the stage of the proceedings at which that letter was sought to be filed. After admitting the genuineness of that letter he was frank and fair enough to state that if the complainant had accepted his offer to publish any contradiction that he might send in as prominent a place as possible in his paper and send a copy of that letter also, he would have not only withdrawn every one of his imputations against the complainant but also apologized to him and eulogised him for the stand taken by him with regard to the mass struggle proposed to be started by the Congress and for the earnest efforts made by him and his friends to stem that surging tide of violence apprehended as a result of the starting of such a struggle. Though the defamatory imputations in question made against the complainant were baseless and incorrect, still as they were made by accused 1 only as a matter of opinion in good faith and for public good after taking due care and caution, the appellants are protected by exception 9 to Section 499, Penal Code. I therefore find that the' accused are not guilty, set aside the conviction and the sentences and acquit them.