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Bibhuti Bhusan Das Gupta and anr. Vs. Sudhir Kumar Mazumdar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 421 of 1964
Judge
Reported inAIR1966Cal473,1966CriLJ986
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 439; ;Indian Penal Code (IPC), 1860 - Sections 9, 52, 499 and 500
AppellantBibhuti Bhusan Das Gupta and anr.
RespondentSudhir Kumar Mazumdar
Appellant AdvocatePrasun Chandra Ghose and ;Ramendra Nath Chakraborty, Advs.
Respondent AdvocateJ.M. Banerjee, ;Sibkumar Majumdar and ;Naresh Ch. Ganguli, Advs.
Cases ReferredHarbhajan Singh v. State of Punjab
Excerpt:
- .....were all false and that the correction of a portion of the same 'was published not as a matter of good faith but as a camouflage to take shelter under section 499 i. p. c.' on his findings he convicted and sentenced both the petitioners as stated above.8. the learned sessions judge on appeal by the petitioners rejected on a discussion of the evidence that defence plea that the statements were true. he found that the opposite party did pay the holding tax for the year 1951-52 but that through mistake the payment was not recorded in the municipal register. he further found that there was in effect a talk of filing a suit in view of the municipal records and that it was in pursuance of the arrangements that were being made for recovery of the municipal claim by suit that the letters 'cs'.....
Judgment:
ORDER

T.P. Mukherji, J.

1. This Rule is directed against the conviction of the two appellants under Section 500 I.P.C. and the sentence of a fine of Rs. 300 each in default S. I. for a fortnight passed thereunder. Petitioner No. 1 is the editor and petitioner No. 2 is the publisher and printer of a weekly journal called Mukti' published in the town of Purulia. The opposite party is a practising advocate of the Purulia Bar and was the Chairman of the Purulia Municipality from May 1958 till July 1960.

2. In its issue of August 8, 1960 the journal started publication of an article title 'Paura Prasanga'. In the second instalment of this article in the issue of the journal dated August 15, 1960 certain allegations and statements regarding the complainant were made and it is those statements and allegations which were made the subject matter of a petition of complaint under Section 500 I. P. C. against the present petitioners.

3. The statement published was to the effect that the holding tax of the opposite party at the rate of Rs. 96 per year remained in arrears from 1951-52 to 1957-58 while the opposite party was a Commissioner of the Purulia Municipality and that this fact came out in course of the Audit that was held in 1957-58. It was further stated that at the audit of 1959-60 it was discovered that in the outstanding register of 1957-58 the letters 'CS' (Civil Suit) were entered against the entry relating to this arrears. Enquiries it was stated have revealed that no civil suit was in fact instituted against the Chairman and there was a, comment in this connection that it could not be expected that the Chairman would file a suit against himself and it was further commented that the entry regarding filing of a civil suit was falsely made in order to mislead the auditor. The statement added that during the last municipal election the holding of the opposite party was in arrears, but still the opposite party managed to get through the scrutiny of his nomination paper by taking recourse to falsehood.

4. The opposite party wrote to petitioner No. 1 after publication of the above statement alleging that the allegations made therein were all false and malicious and demanding written apology within three days and public withdrawal of the same in the next two successive issues of the paper. In default of compliance with these demands legal action was threatened.

5. The petitioner No. 1 wrote back that whatever was published is founded on truth and that he had published the same for the public good in discharge of his duties as a journalist. Thereafter the present petition of complaint was filed.

6. It may be mentioned in this connection that in its issue dated August 22, 1960 the journal published a correction of the previous statement to the effect that so far as the arrears of municipal dues are concerned it was not at the rate of Rs. 96 for the period mentioned, but that the total arrears amounted to Rs. 96 only.

7. The learned magistrate found that the statements made in the offending publication were all false and that the correction of a portion of the same 'was published not as a matter of good faith but as a camouflage to take shelter under Section 499 I. P. C.' On his findings he convicted and sentenced both the petitioners as stated above.

8. The learned Sessions Judge on appeal by the petitioners rejected on a discussion of the evidence that defence plea that the statements were true. He found that the opposite party did pay the holding tax for the year 1951-52 but that through mistake the payment was not recorded in the municipal register. He further found that there was in effect a talk of filing a suit in view of the municipal records and that it was in pursuance of the arrangements that were being made for recovery of the municipal claim by suit that the letters 'CS' were noted in the outstanding register in due course of business, but that for certain reasons the suit was not filed and that when subsequently the matter was brought to the notice of the opposite party during his tenure as Chairman of the municipality he made the payment virtually under protest. So far as the latter part of the relevant publication relating to the manipulation of the scrutiny is concerned, the learned Sessions Judge found that the defence, case regarding an objection to the nomination on the ground of default by a rival candidate at the election and the rejection of the said objection on certain false statements alleged to have been made by the opposite party, as was suggested on behalf of the present petitioners, had not been proved. On his findings he dismissed the appeal and directed the fine imposed to be realised.

9. Against this conviction and sentence the petitioners have obtained the present Rule. Mr. Ghosh appearing in support of the Rule contended that the learned Sessions Judge completely misdirected himself in approaching the case from a totally wrong angle. His argument was that the defence being both that the statements were true and also that the same had been made in good faith for public good, the learned Sessions Judge should not have disposed of the case as he has done only on his finding that the allegations made were untrue. Mr. Ghosh claimed for the petitioners in the case the protection of the 9th Exception to Section 499 I. P. C. and urged that there is ample material on record to indicate unmistakably that the offending portion in the publication concerned was made in good faith. He argued also that the learned Sessions Judge fell into an error in coming to his finding that the facts stated were not true, but in this proceeding under Section 439 of the Cr. P. C. that finding on a pure question of fact cannot be challenged when it is not found that in coming to his finding the learned Sessions Judge omitted to consider any material evidence or that any evidence was misread.

10. Mr. Banerjee on behalf of the complainant opposite party referred me to the definition of 'good faith' in Section 52 of the Indian Penal Code; he relied on the findings of the learned Sessions Judge as to the falsity of the statement in the offending publication and urged that there could be no good faith in the matter in view of the fact that the duties of the editor were not duly performed by the petitioner No, 1 in this case. In this connection he referred to the cases, Emperor v. Jhabbarmal : AIR1928All222 and Muhammed Nazir v. Emperor reported at p. 766 of the same Volume : AIR1928All321 . Mr. Banerjee also referred to the case Dongar Singh v. Krishna Kant Vyas : AIR1957MP162 in support of his argument that if proper enquiries were not made and proper care and attention was not given but mere gossip was accepted as gospel, good faith cannot be pleaded.

11. There is no question that the offending publication is defamatory per se. The correction published in the next issue of the journal does not take away from the defamatory character of the statement and that correction in view of its nature would not help the defence in any manner. Besides correcting a defamatory article in the manner, even if such correction takes away the sting from the article which is not the case here would not exonerate the offender. A correction under such circumstances may prove want of malice but is not enough to prove good faith. The offence is committed with the publication of the libel and subsequent correction which takes away the sting therefrom may only go to mitigate the sentence. In the present case even the sting in the offending publication was not taken away by the correction subsequently made.

12. In this case we have as the complainant a public man of the place, who had beenelected Chairman of the local municipality. His acts and conduct as a public man were liable to be probed, criticized and exposed before the public gaze. The public has a right to know the strength and foibles of its public men and anything said or published in good faith in fair criticism of their conduct would be protected as the same would be for the good of the public who have placed them in that position.

13. Petitioner No. 1 is the editor of a local journal. He has certainly his duties and responsibilities as such to perform. He controls a media of publicity and he helps in moulding the public opinion and his responsibility in the matter of publication is great. He can claim no better privilege in the matter of publication of libellous statements than his next door neighbour. Considering his special position his responsibility in the matter is in a sense greater. I do not mean to say that he is in a more disadvantageous position as editor of a journal and in the matter of publication of offending statements than the man in the street, but considering his status, level of intelligence and education, knowledge of affairs and men, he must submit to a more rigorous test of 'good faith' when he claims the protection of the 9th Exception to Section 499.

14. The words 'good faith' used in the 9th Exception to Section 499 has been the subject of judicial interpretation in numerous cases. The term has been defined in Section 52 I.P.C. in the negative form and all actions and statements have been eliminated from the definition which are not done or believed without due care and attention. The earliest case in which the 'good faith' of a person charged with defamation came in for consideration was referred to by Mr. Ghosh as the case. In the matter of Shibo Prosad Pandah reported in (1879) ILR 4 Cal 124. It was observed in that case that in dealing with the question of 'good faith' the proper point to be decided is not whether the allegations put forward by the accused in support of the defamation are in substance true, but whether he was informed and had good reason after due care and attention to believe that such allegations were true.

15. The case, Promotha Nath Mukhopadhya v King Emperor, 27 Cal WN 389: (AIR 1923 Cal 470) reiterated the above principle. Suhrawardy, J. observed in that case that -

'The Court in determining whether the accused should or should not have placed implicit reliance on the credibility of his source of information, should not, in my opinion, place before itself the standard which it would demand to convince it of the trustworthiness of the persons supplying the information.'

16. In the case, Dr. N.B. Khare v. M.R. Massani, AIR 1942 Nag 117 it was held that the press has no special privilege and that it is in the same position as any other man. If assertion of facts is made and the same is defamatory, it must either be justified or it must be shown that it was made in good faith for public good.

17. The latest decision referred to by Mr. Ghosh is Harbhajan Singh v. State of Punjab : 1966CriLJ82 where it has been held that the onus on the accused under the 9th Exception to sec. 499 is discharged by proof of a preponderance of probability and the standard of proof is comparable to the standard in civil proceedings. 'Good faith', it was observed, does not, however, require logical infallibility, and in this connection the case in (1879) ILR 4 Cal 124 (Supra) was referred to with approval.

18. The facts of the present case have to be considered in the light of the legal position enunciated above. Here was a case where the editor published an offending article undoubtedly containing defamatory statements against the complainant. His plea is that the statements are true and further that even if not true they were made in good faith for the public good. Now, so far as the truth or otherwise of the statements is concerned the final court of fact has found that they are not true and it is on this finding alone that he has found the petitioners guilty. The question as to whether the petitioners were entitled to the protection of the 9th Exception to Section 499 I. P. C. was not considered and it falls for decision in this case.

19. The publication alleged, taking into consideration the correction subsequently made, that in 1957-58 the holding of the opposite party was in arrears to the extent of Rs. 96/-, that in. the outstanding register of 1956-57 there is an entry against this outstanding due to the effect 'C. S.' and further that no civil suit had as a matter of fact being filed and it was commented that the Chairman is not expected to file a suit against himself and that the remark above was inserted falsely to mislead the auditor. It was amply proved in the case that in the municipal records the holding in question was recorded as in arrears to the extent of Rs. 96/-, it was also proved that the remark 'C. S.' was made against the outstanding dues for the holding in the outstanding register; it was also proved that no civil suit had been filed for realization of the money.

20. The opposite party brought in evidence to prove that he had actually paid the arrears of 1951-52, but that the same was not entered in the municipal records. The evidence shows that in the year 1960 a sum of Rs. 96/- was paid by the complainant-opposite party towards that outstanding due. Explanation was offered in that regard and that explanation as well as the evidence regarding the earlier payment alleged were accepted by the final court of facts. The truth or otherwise of an offending publication is not germane to the issue in considering the applicability of the 9th exception to Section 499 I. P. C. whereunder the question for decision is whether there was good faith at the back of the publication and whether the same was made for the public good. If we recall in this connection the dictums in the cases referred to above, it would be quite apparent that in view of the municipal records the editor had good reason after due care and attention to believe that the relevant allegations regarding the O. P's holding being in arrears were true and that the preponderance of probability was on the side of the truth of those allegations. Defamation would attach to a statement that the municipal Chairman is in arrears in payment of his municipal tax and not in the extent of the arrears. Good faith at the back of the allegation of the fact of arrears is evident from the municipal records in this case. If that is so, the onus that lay on the accused under the 9th Exception to Section 499 I. P. C. was amply discharged. I cannot find in the circumstances of this case that the inexactitude as to the extent of the arrears in the first publication as it stood before the correction 'would rob the petitioners of that protection.

21. So far as the remark 'C. S.' and the allegation that it was falsely made because no civil suit was in fact instituted cannot also be taken exception to in view of the fact that the remark was really there and that no suit had been instituted. We are not concerned with the question as to whether there had been steps taken for filing a suit and that for good and sufficient reasons the suit was not instituted. The fact stands that no suit was instituted. If no suit was instituted in fact, the remarks 'C. S.' ought not to have been made against the entry concerned and the remark, if made, would certainly be a false one. Whether this was done in order to mislead the auditor or not is a matter for inference. Even on the evidence on behalf of the defence in this case it is difficult to find any justification for the remark in the absence of a suit having been actually filed. Whatever that be, from what I have pointed out above it can never be said that the petitioners did not have good reasons after due care and attention to believe that the allegations that were being made were not true. Their allegations are fully supported by the municipal records and an editor is not expected before publishing damaging allegations to enquire about the truth or otherwise thereof from the person against whom the allegation is made; if that were the law the 9th Exception to Section 499 I. P. C. would be rendered nugatory. I find that so far as the first portion of the offending statement relating to the O. P's holding having been in arrears, the remark 'C. S.' having been inserted in the outstanding register in the absence of any suit having been filed and the comment that the same was made falsely to mislead the auditor are concerned, these were made in good faith. As I have already pointed out the conduct and actions of public men should be an open book and any fair criticism of such conduct and actions made in good faith would be protected. Here is a case where the petitioners must be held to be entitled to the protection of 9th Exception to Section 499 I. P. C.

22. The same, however, cannot be said of the last part of the offending allegation regarding the opposite party having had manipulated the scrutiny of his nomination paper at the last election. The learned sessions judge has found that this allegation has not been proved. The case of the defence was that at the time of the scrutiny of the nomination papers an objection to the nomination of the opposite party was made by his rival but that the opposite party on the basis of false statements regarding the arrears induced the authority holding the scrutiny to get the objection rejected. The nomination papers filed were exhibited in the case (Exhibit 13) and they do not show that any objection to the nomination was filed by anybody. D. Ws. 1 and 2 were produced to prove the allegations, but the rival candidate himself who was stated to have preferred the objection was not brought to court. O. P. 1 wanted to say obviously that he relied on the information supplied by D. Ws. 1 and 2 and the question is whether he gave due care and' attention in the matter of accepting the truth of the said allegations. If any such objection had been really made that objection was bound to succeed in view of the municipal records and the fact that the objection had not succeeded should have put the appellants on their guard against publishing the allegation which on the face of the record now appears to be highly improbable. The person who is stated to have preferred the objection was obviously available, but no enquiries appear to have been made from him and if without such an enquiry the petitioners who certainly knew of the nature of the municipal records relating to the arrears of the O. P's holding could bring themselves to believe that objections on the ground of the arrears had been made but had been rejected in the face of the municipal records, that belief cannot be held to be founded on due care and attention in the matter. The preponderance of probability in the circumstances of the case was that no such objections had been preferred and if in spite of that the petitioners without making further enquiries had published the false allegation they cannot in my opinion now take shelter behind a plea of good faith. 'Due care and attention' should have dictated further enquiries into the allegation and as no such enquiries were made, the petitioners must be deemed to have acted irresponsibly and even if the evidence of D. W. 1 be true he must be held to have taken gossip as gospel. The evidence of D. W. 2 was not accepted by the learned judge. The result is that the plea of good faith cannot be entertained so far as this part of the publication is concerned.

23. In view of all that I have stated above I find that the learned sessions judge fell into an error in denying the present petitioners the protection of the 9th Exception to Section 499 I. P. C. so far as the first part of the offending publication is concerned. As regards the second part of the publication the petitioners I find are not entitled to the protection of that Exception. In the result, their conviction must stand.

24. The Rule is accordingly discharged. The conviction of the petitioners under Section 500 I. P. C. is maintained. As the better part of the offending publication is protected as having been made in good faith for the public good the sentence is reduced to a fine of Rs. 50/- each in default S. I. for a week.


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