1. This rule has been obtained by two persons who were tried foe having defamed the Chairman of the Howarh Municipality. They were convicted and sentenced to pay certain fines, in default to undergo simple imprisonment for certain terms. Out of the fines compensation was directed to be paid to the complainant. The decision of the trial Court was upheld in appeal by the Sessions Judge and it is with respect to the last decision that the present rule has been obtained.
2. The facts briefly are as follows : The accused Radha Gobinda Dutta was the Editor and the accused Lakshmi Kanta Bhattacharjee was the printer of a Bengali daily newspaper known as the Paschim Banga Patrika. On 8th July 1948 an article was published in that paper in the form of a questionnaire. This is Ex. 1. It is the case for the prosecution that this article defamed the complainant Saila Kumar Mukherjee, the Chairman of the Howarh Municipality and that the accused committed an offence punishable under Section 500, Penal Code. The defence taken is that the questionnaire which admittedly was published in that newspaper did not contain any defamatory matter, that is to Say, it did not contain any matter which may be described as making any imputation regarding the complainant which would harm his reputation. Next, the defence was that the accused were protected by Exceptions 1, 2, 3, and 9 mentioned in Section 499, Penal Code, which defines the offence of defamation. As I have stated before both the Courts below have rejected the defences. 3. Learned advocate for the petitioners gives up the defence of Exception 2, and he relies upon all the other defences taken in the Courts below. The learned Sessions Judge in a very detailed and able judgment has discussed all the points raised by the defence and he has come to the conclusion that the statements contained in Ex. 1 are defamatory and that none of the Exceptions can be availed of by the accused. In my view this decision is perfectly correct. I shall first deal with the question whether the statements published in Ex. 1 come within the mischief of Section 499, Penal Code. In this connection certain Surrounding circumstances must be considered. A few days prior to the publication, leaflets were distributed in Howarh containing imputations against the complainant which are clearly defamatory and indeed on this point there was no dispute. This leaflet is Ex 2. Now, the leaflet and the so called questionnaire published in the Paschim Banga Patrika should be considered together and if they are considered together it becomes abundantly clear that the questions contained in the Paschim Banga Patrika, although they were in the form of mere questions, were defamatory in character. I reproduce below the leaflet Ex. 2 leaving out certain paragraphs therein which are not relevant to the case and also the questionnaire Ex. 1:
Exhibit 2. 'A few questions about the Howrah Municipality.
Will the Chairman Saila Babu reply?
Sri Saila Kumar Mukherjee, the Congress Chairman, of the Howrah Municipality tries to extort cheap praise by speaking at intervals in throatful voice about laudable long range and short range schemes for the betterment of the Howrah Municipality. But the following few facts will clearly manifest his depth of feeling for the betterment of the Municipality. We hope Saila Babu will have sufficient moral courage to refute the facts, if groundless, by his replies.
1. After the self-immolation of Mahatma Gandhi arrangements were made for a Sradha Basar at the Howrah Town Hall. Newspapers and handbills published by the Municipality indicate that it was held under the auspices of the Municipality and the Chairman of the Municipality Sri Saila Kumar Mukherjee himself raised about Rs. 13,500 (Thirteen thousand and a half) for this function from wealthy persons, rich marwaris and the public. But he has not as yet submitted any account to the Municipal Meeting. Questioned he says this function has no connection with the Municipality and thus he evades. Will he, without any further delay, submit an account to the public?
2. It is known to us that the expenses of the case of the Commissioners of the Howrah Municipality against Mr. Nomani appointed by the late Government of Bengal that rolled up to the Privy Council were by the citizens of Howrah and some Commissioners personally. Government lost the case and about Rs. 11000 (Eleven thousand) was allowed as costs. But we have been astonished to hear that Saila Babu has misappropriated the said amount of Rs. 11000 (Eleven thousand). What is the reply of Saila Babu to this ?
3. It is true that for some special reason be appeared at the appeal Committee at the time when the question of assessment of the Allenberry Workshop run by Messrs. Dalmia Jain was being decided and reduced the valuation of only the Allenbery Company from Rs. 83,065 to Rs. 61,936. What is the reason of reducing the three monthly income by Rs. 1000? It is heard that just after this Saila Babu purchased a motor car cheap. Is it true?
4. Why was the contract for Rs. 60,000 of the Road Board given to the lowest tenderer Sri Kumar Pal without the consent of the Commissioners? Is it true that a large sum of money has been paid to the said contractor Sri Kumar Pal though the work has not been finished up to the sixteenth part? It is beard that just after getting this contract the said contractor was engaged for repairing the house of Saila Babu and wicked people are saying that it is for this reason that Saila Babu has special favour for this contractor : What does Saila Babu say ?
5. Will Saila Babu say why he has got the lease of the Municipal tank given to B.K. Sarkar & Co. at a low rate or at a nominal rate disregarding the resolution and direction given in a general meeting of the Commissioners? Is it true that the contract for bran has been given to the said B.K. Sarkar & Co. disregarding the clear direction of the Commissioners? Why was the contract for the supply of bran given to the said Contractor at the rate of Rs. 14-4-0 although the market rate is Rs. 13? Besides this why was the charge at the rate of 0-8-0 for bags of bran allowed separately? Though no price is ever paid for the bags of bran. Why did Saila Babu allow this extra price of bags at the rate of Rs. 0-8-0 over-riding this practice? Will Saila Babu say whether this contractor B.K. Sarkar & Co. is his benamdar and whether a large gum of his money has been laid out in the work of this contractor?
6. It is true that the value of land in Ward III where are situate Saila Babu's paternal house and landed property assessed at a rate lower than what has been done in respect of Wards VI and II of the Municipality during the revision of assessment. According to which reason or principle has the value of the land on which Saila Babu's house stands assessed at Rs. 300 (Three hundred rupees) per cottah and that in Ward VI at Rs. 600 (six hundred rupees) per cottah? Will our Chairman who has a soft corner for the public throw light on this matter?
7. Will Saila Babu inform why was the valuation sketch of his own house increased by penning through and why was the valuation sketch done by one of his friends Jyotish Chandra Mitra craned and re-written?
8. In the house of Saila Babu at 21 Ramla Mukherjee Lane, there are 7 rooms and 4 bath rooms in the 2nd story, 12 rooms and 2 halls and one bath room in the 1st story and 26 rooms. 4 halls, one puja dalan and 3 tin sheds in the ground floor and attached with the house is a land measuring 2 bighas 3 cottahs and 3 Ch. Why was the valuation of this building fixed at Rs. 3100?
9. Has there been a shortage of money of Saila Babu after he became the Chairman of the Municipality? We are awaiting Saila Babu's reply in this matter.
10. On this shortage of money we are whispering a small question to Shaila Babu. Is the pay of the driver of Saila Babu's personal motor car paid from the Municipal fund?
11. Why has (sic) Saila Babu is the leader of the Municipal Party disregarding the written instruction of the Congress Municipal party from the words 'Howrah Municipality from the Howrah Municipality jeep car.' Has it been removed lest it might stand in the way of its arbitrary use by him or least it might lower his prestige to the people of High Court? The people demand an explanation from Saila Babu in this respect.
In the end we want to speak of ft small matter to Saila Babu. The Howrah Municipality is the property of the citizens of Howrah. It would have been better if the relatives and friends were nourished from his own property rather than from the money of the rate-payers. May he not forget this knowledge.'
Sd. Sri Sital Chandra Kundu,
The 2nd July, 1948.
Circular Road, Howrah
Ex. 1 :
'PASCHIM BANGA PATRIKA -- Dated 8th July, 1948 page 3.
Questions for the Chairman, Howrah Municipality to answer.
We have received number of complaints against Sri Saila Kumar Mukhopadhyay, Chairman, Howrah Municipality. We hope he will remove all doubts in the minds of the public by stating as to whether such complaints are correct.
1 Did Sri Saila Kumar Mukhopadhyay collect from wealthy persons, rich Marwaris and from the members of the public a sum of about Rs. 13,500 in connection with Gandhi Sradhha Basar Is it correct that he has not as yet furnished before any meeting of the Municipality any account for such sum ?
2. Is it not correct that the cost of the litigation between the Commissioner for the Howrah Municipality and Mr. Nomani appointed by the then Government of Bengal up to the Privy Council had been borne individually, by the citizens of Howrah and certain Commissioners Is it not true that the Howrah Municipality won the case and got about Rs. 11,000 as damages Who has taken the money?
3. Is it true that for certain special reasons he, by being present in the Appeal Committee meeting had the assessment of only Allen Berry and Co., run by Messrs. Dalmia Jain reduced from Rs. 83,065 to Rs. 61,936 ?
4 Is it true that a Road Board contract for Rs. 60,000 was denied to the party who quoted the lowest tender and was given without the consent of the Commissioners, to one Srikumar Pal whose tender was third from the lowest Is it true that large sums have been paid to the said contractor Srikumar Pal although one-sixteenth of the work has hardly been completed ?
5. Did he cause a lease of a Municipal tank to be granted to B.K. Sarkar Co., at a small or nominal value, by ignoring the resolution and direction of Commissioners in a General Meeting Is it true that a contract for gram bas been given to the said B.K. Sarkars Co, notwithstanding specific instructions of the Commissioners to the contrary Was the said contractor allowed Rs. 14-4-0 for supply of gram although the market rate was Rs. 13 ?
6. Is it true that in connection with re-assessment, valuation of the land bas been made at a reduced rate in Ward No. III where Saila Babu's ancestral home and properties are situate, compared to the valuation of land in Wards NOS. II and VI ?
7. Has the valuation of his residential house been increased by tampering with sketch book Has the valuation Sketch Book of the house of his friend Babu Jyotish Mitra, a Commissioner, been erased and re-written Sai a Babu's residential house at 21, Ram Lal Mukherjee Lane consists of 7 rooms and 4 bath Rooms in the second floor, 12 rooms, 2 halls and one bath room in the first floor and 26 rooms, 4 halls, 1 Puja Dalan and 3 rooms in the ground floor. The said house is on a plot of land 2 bighas 2 cottas 3 chattacks in area. Has this palace been valued at Rs. 3100 ?
8. Is the driver of Saila Babu's private car paid out of the funds of the Municipality ?
9. Have the words 'Howrah Municipality' been deleted from the Jeep Car of the Municipality ?
A comparison of these two documents makes it quite clear that the questionnaire was referring to the defamatory allegations made in the leaflet. They virtually amounted to a re-publication of the defamatory statements contained in the leaflet. It is quite a common ruse to make defamatory statements in the form of questions. What the Editor is saying in Ex. 1., is this? 'We have received a number of complaints against you and we hope you will clear yourself by answering the following questions.' thereafter he puts the questions in a sly manner omitting from the questions any direct imputation. It is quite clear however that the questions and the preface to the questions indicate that the Chairman was being charged with having done dishonest things and he is asked to answer the charges. A statement of this nature would amount, in my opinion, to defamation and the publishers of such statements would be guilty of the offence of defamation unless he is protected by the Exceptions mentioned in Section 499, Penal Code. A simple illustration will, I think, prove the point. Suppose a newspaper published the following statement 'To Mr. A : We have heard that people are saying that you commit theft and dacoity. We give you this opportunity of clearing yourself by answering the following questions.' Would not that amount to defamation In my opinion it certainly would. It really amounts to a re-publication of the defamatory statements which the person is called upon to answer. Merely because the publisher of the defamatory statements asks the person defamed to exonerate himself, that does not in any way protect the publisher.
4. The next question for determination is whether the accused are protected by any of the Exceptions. Exception I is in the following terms :
'It is not defamation to Impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.'
To get the benefit of this Exception the accused must prove that the statements contained in the questionnaire are true and that they are made for the public good. Learned advocate for the petitioners contends that it is sufficient if the petitioners can prove that the statements made in the questionnaire are substantially true. He relies upon an unreported decision of this Court in Criminal Revision Case No. 1143 of 1947 (Prabhat Chandra Ganguly v. A. H. R. S. Doha). There can be not quarrel with this proposition, but the words 'substantially true' mean true in regard to the material portion of the allegation or insinuation. As an example I would take the first question. 'Did Sri Saila Kumar Mukhopadhyay collect from wealthy persons, rich Marwaris and from the members of the public a sum of about Rs. 13,500' etc. It is true that some money was collected in connection with the Gandhi Sraddha Basar. The truth regarding that allegation cannot make the insinuation contained in paragraph I substantially true. The insinuation there is that the complainant acted on behalf of the Municipality and collected this sum on behalf of the Municipality and neglected to furnish accounts. Now, it has been established that the money was not collected on behalf of the Municipality at all and that there was no duty upon the complainant to furnish any account to the Municipality. It is thus clear that the accused have not succeeded in showing that the insinuation-contained in the first question is substantially true. The same may be said with respect to all the questions. Certain facts therein are no doubt substantially correct, but the insinuation under, lying these facts is not substantially correct. Exception I therefore has no application.
5 As regards Exceptions II and III I am of opinion that they have no relevancy. They deal with expressions of opinions in respect of the conduct of a public servant or in respect of the conduct of any persons touching any public question. In the present case we are not concerned with the expression of any opinion at all. The case relates to defamatory imputations which are allegations of fact and not expressions of opinions. I need not therefore consider these two Exceptions.
6. The last (Ninth) Exception is in the following terms:
'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.'
To get the benefit of this Exception the accused must prove that he acted in good faith and for the public good. He must establish both these points. There is certainly no good faith established in this case. The question has been dealt with very well by the learned Judge. If the accused were acting in good faith, one would have expected them to go to the Chairman of the Municipality and ask him for an explanation. Nothing of the kind was done The accused relying upon anonymous leaflets drew up a sort of a charge sheet against the Chairman. Such conduct is clearly not in good faith. For this reason I hold that Exception IX has no application.
7. In my opinion the charge has been fully proved and I discharge this rule.