1. This revision case has been filed by one Talangare Mammunhi against the judgment of the Additional First Class Magistrate of South Kanara acquitting accused 1 who was charged under Section 500, Penal Code. The petitioner who filed the complaint out of which this revision case arises is a landlord and merchant residing in Talangara in Kasargod taluk. The respondent (accused 1 in the lower Court) is a merchant of Kasargod. The defamation is said to consist in the publication in a Malayalam newspaper called 'Chandrika' dated 5th July 1946 of a notice (Ex. P-2) in the following terms:
Poyakkara Abdul Rahiman of Theruvath, Kasaragod hereby gives notice as follows:Khan Bahadur Mahammad Sehamnad Sahab, Talangare Mamunhi Sahib on one side and myself on the other, have been at loggerheads owing to several differences. Both of them are rich and influential and they have as their partisans ex-potailShekali, Potail Mahammad Kunhi, T. Hassan Kutti, Kapi Abdul Khander, Methale Mammunhi, Thurthi Moidiu Kunhi, Ahmad Master. I apprehend that the first named two persona with the collaboration of the others aforesaid will attempt in some way or other to endanger my life. For this reason, I have been obliged to be very wary while going about at night. In such circumstances, I am notifying to concerned authorities and to the public that it will be my conviction that if I should be the victim of a sudden tragedy or calamity the above-named persons should be considered as the cause.
There can be no doubt that the notice is prima facie defamatory. It contains the imputation that the persons mentioned therein, including the complainant who examined himself as P.W. 1 in the Court below, were conspiring to do accused 1 bodily injury if not to take away his life, that he was consequently afraid to go out at night, and that he wanted the public to know that if any harm befell him the persons responsible would be those named. In short, what is alleged is that those persons were concerting measures to commit a serious criminal offence, and that they were capable of committing such an offence. The Additional First Class Magistrate was of the opinion that the matter was defamatory. In fact it is not possible to maintain the contrary.
2. The fact of publication is not in dispute; nor is the authorship of the notice. The 'Chandrika paper' hag admittedly a wide circulation in Malabar and in Kasargod taluk.
3. The reasons which induced the Magistrate to acquit accused l are expressed none too clearly. The following sentences extracted from his judgment perhaps contain the reasons that weighed with him. The Magistrate first puts to himself the question,
whether the accused by the publication of Ex. P-2 intended to harm the reputation of the complainant or that the accused knew or had reason to believe that it would do so.
If the matter is defamatory, this question, as it is worded, can only have an affirmative answer. In considering the evidence under this question, however, the Magistrate observes that
it cannot be said that he (the complainant) had not given any room for accused 1 to think about him in the manner it has been stated in Ex. P-2.
4. Towards the end of the discussion occurs the observation that accused 1 is a person with not much of education, that he must have believed that a publication of the kind would solve his difficulties more effectively, and that 'after all what is contained in Ex. P-2 is a mental fear of accused 1 about these persona including P.W.1.' The Magistrate finally held that accused 1 'honestly believed that he came under Exception 9 of Section 499, Penal Code.'
5. The manner in which the Magistrate approached the consideration of the point really at issue, the tests he laid down to himself in examining the evidence and his treatment generally have come in for considerable criticism at the hands of Mr. Nambiar, counsel for the petitioner.
6. The petitioner and the respondent are Moplabs. It cannot be doubted that there were two parties among the Moplahs of Kasargod, one led by the respondent and the other by one Kunhamoo. The question is whether and how far the petitioner can be said to have identified himself with Kunhamoo's party, and more particularly whether the petitioner is likely to have been involved in a conspiracy to maim or murder the respondent, which is what the imputation in Ex. P.2 amounts to.
7. It would appear that on 15th January 1945 there was a rioting in a suburb of Kasargod in which the two parties of Moplahs were implicated. The principal victims of the rioting were the servants of the respondent, but the petitioner however was not among the accused in the rioting case.
8. On 30th January 1945, accused 1 sent up a petition to the District Superintendent of Police, South Kanara, in which he complained that the Deputy Superintendent of Police sent for him and suggested that he should get some persons to file petitions against Kunjambu and Talangare Mammunhi (the complainant), who is also a supporter of Thurthi Moidin Kunhi who is a relative of the latter, that he (accused l) suspected this move as insidious, and that be said that 'he would not do any such thing, as he had no animus against them.' On 8th February 1945 proceedings under the security Sections of the Criminal Procedure Code were commenced by the Sub-Inspector of Police, Kasargod, against two parties, one led by accused 1 and the other by the complainant and another. Nine other persons were described in Ex. D-13, the first information report, as the active partisans and adherents of the latter party; but it would appear that the name of the complainant was deleted, and no charge sheet was, as a matter of fact, filed against him. D.W. 4, the Sub-Inspector who sent up Ex. D-13, deposed that he could not say if the deletion was done at the instance of his superior officer who thought that there was no justification to include the complainant also. It would appear that the security proceedings against both parties were subsequently dropped altogether. On 1st August 1945 the Sub-Inspector of Police of Kasargod once again initiated proceedings under Section 107. Exhibit D-7 is the charge sheet. In this also the complainant was included, but once again his name was deleted. D.W. 1, the Sub-Inspector of Police concerned, deposed that after consulting the Deputy Superintendent of Police he deleted the names of four persons among whom the complainant was one, that ultimately eleven persons were charged on each side and that both the security proceedings ended in acquittal.
9. Somewhat curiously, on 17th November 1945, accused 1 stated in his deposition in M.C. No. 51 of 1945 in the Court of the Sub-Divisional Magistrate, Puttur, (EX. P. 17) that to his knowledge there was no faction in Kasargod. This of course may not be true. Notwithstanding the alleged apprehension that bodily harm, if not death, may be caused to him by the complainant and others, it is strange that the first accused made no complaint either to the police or to a Magistrate. On seeing the notice in the 'Chandrika' dated 5th July 1946 the complainant caused a lawyer's notice to be issued to accused l calling upon him to withdraw the notice and apologise in writing and threatening that otherwise he would take civil and criminal proceedings. This notice was received by accused l on 16th July 1946. Three days later he sent two petitions, one to the District Superintendent of Police and another to the Deputy Inspector General of Police in identical terms in which he stated that, for the protection of his interests and for the public good by prevention of crime and to facilitate investigation if any danger such as he apprehended to his life were to happen, he considered it prudent and necessary to give wide publicity to his fears go that everybody may be on the alert to render all assistance they can in any emergency. He enclosed with the petition a translation into English of the notice in the 'Chandrika'. It is obvious that these belated petitions to the police were sent more by way of a legal justification of what, accused 1 must have been advised, was a defamatory publication, rather than for any redress or protection which he sought from the police. The present complaint was filed on 4th August 1946, and it would appear, whether for that reason or because the police felt there was no justification for the serious allegations made by accused 1, that no action was taken by them. D.W. 2 who is an agent of the 'Chandrika' and who wrote out the notice under the instructions of accused 1 deposed that he asked accused l when he approached him to write out the notice whether it would not be better to file a petition before the Magistrate or the police, and that accused 1 said that he would do it but wanted that the notice must be published immediately. D.W. 2 deposed further that he did not ask accused l about the necessity of publishing the notice in a paper at Calicut when the threatened acts were only at Kasargod. 'When accused l was asked what the basis for his fear was and whether any one had given him any information the only answer he gave to D.W. 2 was about a shooting incident which is said to have occurred sometime in 1933 and in which one Shekali shot at his brother-in-law. Between this incident and accused 1'a apprehension no connection has been established except that accused 1 is said to have remarked that when there are men like Shekali about, he may not be safe.
10. It is of course not possible to say that the complainant is altogether unconnected with the rival faction, but the evidence is utterly inadequate to support the inference that there could have been any reasonable ground for the belief of accused l, if he really entertained any such belief, that the complainant would go to the extent of hiring men to do serious bodily harm to him.
11. Exception 9 to Section 499, Penal Code, on which the defence of the accused is sought to be based is in these words:
It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
Mr. Nambiar argued, relying on Emperor v. Col. Bholanath : AIR1929All1 that the belief should not be one entertained without due care and attention, and also that the Court must decide when the question arises whether the person making the imputation was or was not acting for the protection of the interest of himself or of any other person or for the public good, the test in the latter respect being an objective and not a subjective one. As laid down in the decision just referred to, it will not do merely if a person who makes an imputation believes that he has been acting for the protection of the interest of himself or of any other person or for the public good and it is a question of law and not of fact for decision in a particular case by the Court as to whether the person making the imputation was or was not so acting. In the first place it is doubtful in this case whether the belief of accused 1 in the imputation, if he entertained any such belief, was entertained in good faith, that is to say, not without due care and attention. Secondly, it is difficult to hold, for reasons which I shall presently give, that in making the imputation in the manner in which it was made accused 1 was acting for the protection of his own interest.
12. It is obvious that the manner in which an imputation is made and the nature of the medium that is selected for making it are very material in cases of this description.
13. In Queen v. Sankara 6 Mad 381 it was ruled that in considering whether the privilege contemplated by the exception to Section 499 was exercised with due care and attention the Court is bound to look among other things at the mode of publication which is adopted and to see whether it is so far in excess of the privilege as to indicate a conscious disregard of the legal right of the party on whose character the imputation is made. It was finally decided in that case that communicating a libellous statement by a postcard which may be read even by those to whom the communication is not addressed is a wanton excess of privilege which vitiates it altogether. In Thiagaraya v. Krishnaswami 15 Mad. 214 it was similarly held that an indiscriminate distribution of handbills containing a defamatory statement so that it could be read even by persons belonging to communities other than the one for whom it was intended destroyed the privilege. To the same effect is the decision in Vinayak v. Shantaram A.I.R. 1941 Bom. 410 where the publication in a newspaper of the resolutions passed at a meeting of particutar community condemning the action of one of its members was held to be excessive publication which would take the case out of the privilege conferred by Exceptions 9 and 10 to Section 499.
14. There can, in my opinion, be no doubt that even if there was any bona fides in accused 1's belief that the complainant was likely to bring about any bodily harm to him there is no justification whatever in publishing the notice in a paper which, as already stated, has a wide circulation not only in Kasargod but also in Malabar. It is difficult to see how the publication of the notice is for the public good, nor is it clear how it would help to protect the interest of accused 1. A complaint to the police or to the Magistrate is the obvious means which the accused should have adopted, and this, as already pointed out, was what he thought of only after he received notice from the complainant'a lawyer threatening criminal proceedings.
15. It has, however, been argued by Mr. Santosh on behalf of accused l and by Mr. Raghunathan who represented the Public Prosecutor that this Court may not interfere in revision with an order of acquittal. In Sankaralinga Mudaliar v. Narayana Mudaliar A.I.R. 1922 Mad 502 a Full Bench of this Court held following the well-known judgment of Jenkins C.J. in Fanjdar Thalmr v. Kashi Chowdhury A.I.R. 1915 Cal. 388 that the High Court will, at the instance of a private person, interfere in revision with a judgment of acquittal 'only where it is urgently demanded in the interest of public justice'. To this rule, however, according to Vinayak v. Shantaram A.I.R. 1941 Born. 410 cases of defamation form an exception, because in cases of defamation which from their very nature affect private parties and not the public the Government is usually unwilling to interfere. In Gopala Bhattar v. Parthasarathi lyengar 1937 M.W.N. 19, Pandrang Row J. took, on the other hand, the view that the general rule that judgments of acquittal should not ordinarily be interfered with in revision applies with greater force to cases where the offence is one like defamation in respect of which there is a civil remedy available which is, in some respects, more appropriate and satisfactory than the remedy by way of criminal prosecution. It is, however, unnecessary to resolve the apparent conflict between the Bombay view and the view to which Pandrang Row J, gave expression. The Bombay view is evidently based on the observation of Jenkins C.J. in Faujdar Thaknr v. Kashi Chowdry A.I.R. 1915 Cal. 388 of the report that he always understood that 'offences of an essentially personal character such as defamation or insult were viewed differently for the purpose of revision and for an obvious reason.' In Vinaynk v. Shantaram A.I.R. (28) Bom. 410 while pointing out that on the evidence the accused might properly have been convicted the learned Judges refrained from directing any retrial on the ground that since in a revision application an order of acquittal cannot be converted into one of conviction, and the most that could be done is to direct a retrial which may conceivably result in a mere fine, it would be waste of time and money to direct a retrial in which the public has no interest whatever, Pandrang Row J., in the case quoted, also refused to set aside the judgment of acquittal and only satisfied himself by declaring that the decision of the lower Court was wrong. The same procedure was adopted by Horwill J. in Panchayat Board, Mangalagiri v. Koitayya : AIR1942Mad279 in dealing with a prosecution under the Madras Local Boards Act.
16. I understand that there has been civil litigation between the parties in respect of the defamation in question. In view of the practice of this and other Courts which, if I may say respectfully, is quite salutary, there is no need to set aside the order of acquittal or to order a retrial, but in order to relieve the complainant from the loss of reputation to which he has been subjected by the publication in question I would only declare that the order of the lower Court is wrong, and that on the evidence accused l might properly have been convicted.