Kerala High Court
The Editor vs Vinaya N.A on 26 June, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM [C.R.]
PRESENT:
THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939
RSA.No.328 of 2005 (E)
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(AGAINST THE JUDGMENT IN AS 13/2000
of ADDL. DISTRICT COURT (ADHOC), KALPETTA, DATED 26-06-2004)
&
(AGAINST THE JUDGMENT IN OS 389/1995
of SUB COURT, SULTHAN BATHERY, DATED 27-03-2000)
APPELLANT(S)/APPELLANTS/DEFENDANTS::
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1. THE EDITOR, RASHTRA DEEPIKA LTD.,
P.B.NO.7, KOTTAYAM,
REPRESENTED BY POWER OF ATTORNEY,
MR.SINSON ALEX, 27 YEARS, S/O.MR.T.L.ALEXANDER,
THEKKETHARA HOUSE, VADAYAR P.O.,
KOTTAYAM DISTRICT.
2. THE PRINTER, RASHTRA DEEPIKA LTD.,
P.B.NO.7, KOTTAYAM,
REPRESENTED BY POWER OF ATTORNEY,
MR.SINSON ALEX, 27 YEARS, S/O.MR.T.L.ALEXANDER,
THEKKETHARA HOUSE, VADAYAR P.O.,
KOTTAYAM DISTRICT.
3. THE PUBLISHER, RASHTRA DEEPIKA LTD.,
P.B.NO.7, KOTTAYAM,
REPRESENTED BY POWER OF ATTORNEY,
MR.SINSON ALEX, 27 YEARS, S/O.MR.T.L.ALEXANDER,
THEKKETHARA HOUSE, VADAYAR P.O.,
KOTTAYAM DISTRICT.
BY ADVS.SRI.PKM.HASSAN
SRI.FIROZ K.ROBIN
SRI.J.JULIAN XAVIER
RESPONDENT/PLAINTIFF::
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VINAYA N.A., D/O. RAGHAVAN NAIR,
POLICE CONSTABLE, AGED 28 YEARS,
MALAKARA P.O., NENMENI AMSOM DESOM,
SULTHAN BATHERY TALUK.
BY ADVS. SRI.E.G.GORDEN
SRI.S.K.KRISHNAKUMAR
SRI.S.K.PREMJITH MENON
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2017,
THE COURT ON 23.06.2017 DELIVERED THE FOLLOWING:
ss
K.RAMAKRISHNAN, J. [C.R.]
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R.S.A. No.328 of 2005
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Dated this the 23rd day of June, 2017
JUDGMENT
Defendants in O.S. 369/1995 on the file of the Sub Court, Sulthan Bathery and appellants in A.S. 13/2000 of Additional District Court(Adhoc), Kalpetta are the appellants herein.
2. The suit was one filed by the plaintiff for compensation for the defamatory publication made by the appellants against the respondent herein to the tune of Rs.50,000/-. The case of the plaintiff in the plaint was that, she was working as a police constable in Thirunelli Police Station at the relevant time. The defendants are the editor, printer and publisher of Rashtra Deepika Ltd., a daily published from Kottayam having circulation in several parts of Kerala including at Wayanad. She is having good reputation. Apart from a responsible women police officer, she was engaged in other social activities in association with several organizations dealing with empowerment of women and uplifting the needs of tribal people in that locality, thereby she acquired a good reputation among the members of the society. The defendants had published a news item under the caption "CT Sk(O>OW% B!(OSv:] Bp]qOPO" in their daily dated 22.05.95 without ascertaining the truth of the events and the publication was produced as Ext.A1, which contained certain innuendo pertaining the R.S.A. No.328 of 2005 2 plaintiff without naming her with a view to defame her among the public. It was published by them knowing that the allegations made against her in the news item as an antecedent were false and not true. A reading of the news item will go to show that, it was intended to malign the plaintiff and nothing more. On reading the news item, the friends and well wishers of the plaintiff expressed an astonishment and anguish and they tried to avoid her and not allowing her to participate in the programmes organized by the organization with which she was associated earlier. She suffered loss of reputation on account of the publication. It is alleged in the news item that, she was punished for ragging boys while studying in the college and she uttered abusive words at the auto rickshaw drivers of Sulthan Bathery while she was working as traffic police and these allegations were made only with a view to cause loss of reputation to her and nothing more. She sent a notice to the defendants asking them to publish an apology and also to pay a compensation of Rs.50,000/-, but they sent a reply with false allegations. So she filed the suit for damages to the tune of Rs.50,000/- for the loss of reputation caused to her on account of the deformatory publication made by the defendants against the plaintiff. R.S.A. No.328 of 2005 3
3. The defendants entered appearance and filed written statement denying the allegations made in the plaint. They further contended that the suit is not maintainable and they denied the allegations that the plaintiff is having good reputation and her reputation has been affected on account of the publication made. They further contended that the paper report was not defamatory one and what was stated therein were true and there was no reference to the plaintiff's name and as such no action for defamation would lie in civil court. Further the report was published in good faith and in public interest without malice and the statement was covered by qualified privilege. The news item was gathered from reliable sources and it was published in other newspapers also. But plaintiff did not proceed against other newspapers but only initiated action against the present defendants alone. The allegation that on reading the news item, the friends and well wishers of the plaintiff expressed their anguish and astonishment is false and denied. They have no intention to defame the plaintiff, the news items was published in discharge of a duty as a journalist and with view to prevent repetition of such things in future. Further an enquiry was conducted by DIG of police regarding the allegations came in the newspapers and found to be genuine and R.S.A. No.328 of 2005 4 action has been taken against the plaintiff and others responsible for the same. The plaintiff had not suffered any loss on account of the publication made and the amount of compensation claimed is exorbitant and they prayed for dismissal of the suit.
4. In order to prove the case of the plaintiff, PWs1 to 4 were examined and Exts.A1 to A4 series were marked on her side. In order to prove the case of the defendants, DWs 1 to 5 were examined and Exts.B1 to B4 and X1 were marked on their behalf. After considering the evidence on record, the trial court came to the conclusion that the publication made was perse defamatory and that had intended to defame the plaintiff, published with malice and it had caused a loss of reputation to the plaintiff and the defendants are not entitled to get protection either absolute or qualified privilege in making the publication and it is not justified by truth and they are liable to pay compensation to the plaintiff for the wrong committed by them and directed them to pay a compensation of Rs.25000/- to the plaintiff with 9% interest from the date of suit till realisation together with cost.
5. Aggrieved by the same, the defendants filed A.S.13/2000 before the District Court, Wayanad at Kalppetta and it was made over to Additional District Court(Adhoc), Wayanad for disposal. The learned R.S.A. No.328 of 2005 5 Addl. District Judge by the impugned Judgment dismissed the appeal confirming the decree and judgment passed by the court below. Aggrieved by the same, the present second appeal has been preferred by the appellants/defendants before the court below.
6. After hearing the counsel for the appellants, the above second appeal was admitted after framing following substantial questions of law.
1. When a person claims his or her reputation has been lowered by news item but at the same time it is spontaneously emerged during trial of the case, that are much more lowered that the undisputed facts than the alleged news item, is such person entitled to claim loss of reputation ?
2. Can injury to reputation come in the person who has no reputation ?
3. The respondents herein being clearly characterized as a lady constable who is capable of doing any thing can comply loss of injury to reputation ?
7. On hearing the appeal, this court felt that some more substantial questions of law also arose for consideration and so following substantial questions of law also framed and heard on that aspect as well.
1. Whether the courts below were justified in holding the defendants are not protected as it was not published in good faith and in public interest as a duty cast on a journalist and in good faith ?
2. Whether the courts below were justified in holding R.S.A. No.328 of 2005 6 that the defendants are not entitle to get the benefit of absolute or qualified privilege in making the publication ?
3. Whether the courts below were justified in awarding compensation without considering the mitigating circumstances brought out in favour of the appellants while quantifying the compensation payable?
8. Heard the counsel for the appellants and respondents.
9. Counsel for the appellants submitted that the publication was made in public interest regarding an incident occurred in the police station of which plaintiff was also a party and there was no name mentioned in the publication to indicate that it related to the plaintiff. When the publication was made without naming a person, then unless it was proved that it related to that person, and it was made with an intention to tarnish the image of that person, then it would be said that the plaintiff had proved that it related to her and it was not protected by any privilege conferred under law, in respect of making publication in respect of the incident of public interest in good faith. Further the plaintiff was not challenging the entire incident, but only she wanted to project certain portion of the publication alone as deformatory which was not permissible in law and the entire publication had to be read as a whole and also the circumstances under which it was made so as to consider as to whether it would amount to defamation. Further the evidence of the witnesses of the plaintiff would go to show that the R.S.A. No.328 of 2005 7 incident mentioned in the news report said to have occurred in the police station itself would be sufficient to think about the character of the plaintiff and no further damage had been caused on account of the subsequent portion of the report. So according to him, the courts below had not properly understood on the law of this aspect and misapplied the law and wrongly decreed the suit. He had relied on the decision reported in Radhakrishnan Nair v. V.Chathunni (2003(1) KLJ 127) in support of his case.
10. On the other hand, the counsel for the respondent submitted that, the courts below had concurrently found on fact, on the basis of evidence that the publication would amount to perse defamation and the defendants had failed to prove that they were entitled to get any of the privileges to stall the action for defamation. Further the subsequent remarks made against the plaintiff regarding her antecedent character was nothing, but made with malice intended to tarnish her image knowing that it was false without making any enquiry. So according to the learned counsel, the concurrent findings of the court below on facts do not call for any interference and no substantial question of law arises for consideration in this case.
11. It is an admitted fact that the plaintiff was working as a R.S.A. No.328 of 2005 8 woman civil police officer in Thirunelli police station at the relevant time and there was some incident occurred in connection with conduct of a liquor shop in a particular area by name, Appappara in Wayanad District and as part of the law and order situation, some Adivasi students involved in that agitation were taken to police station and according to the defendants, the male students were made to be in the police station during night with their under garment alone in the presence of female students causing mental harassment to both and it was done by the police officers in which a lady police constable was also involved that has become a news of that area and it was published in the newspapers. According to the plaintiff, she was the women police constable among them and a news item under the caption "CT Sk(O>OW% B!(OSv:] Bp]qOPO" published in Rashtra Deepika daily dated 22.05.95, there was an innuendo pertaining to her which was perse defamatory and caused loss of reputation to her and that was published by the defendants without making any proper enquiry regarding the allegations against her without any good faith in a negligent manner and it had lowered down her reputation among her friends and well wishers.
12. The case of the defendants was that, the publication is R.S.A. No.328 of 2005 9 protected by privilege of making publication in good faith and in public interest and they never intended the plaintiff while making the publication and there is nothing to indicate that any of the statement in the news items related to the plaintiff.
13. The plaintiff relies on the following passage in the publication relating to her, which is perse defamatory.
" ' '
.
' ' .
.
.
.
."
14. In order to prove the case of the plaintiff, plaintiff herself was examined as PW1 and she deposed that a reading of the article mentioned above would make the reader understand that it related to her and this had caused loss of reputation to her. Further PWs 2 to 4 were examined to prove that, on reading the news item, they could understand that it related to the plaintiff and that caused a bad impression about the plaintiff. PW3 was examined to prove that the plaintiff was a student in the college in which he was working and she was a good student and there was no incident of she being involved in R.S.A. No.328 of 2005 10 ragging of male students and punished for the same. PW1 also deposed that the incident mentioned about her antecedents in the college as well as while she was working in traffic at Sulthan Bathery abusing the auto rickshaw drivers were all false and no such incident had happened. It was admitted by PW1 that she was suspended in connection with the incident occurred in the police station in connection with arrest of some students, on the basis of the allegations that male students were made to sit in the lockup with under garments alone throughout the night and she had admitted Ext.X1 enquiry report recommending for departmental action against her and other police officers who were present on that day in the police station and responsible for the arrest etc., but she had stated that after six months, the suspension was revoked and she was permitted to enter in service and no further action was taken against her in this regard. She had denied the allegations regarding the incidents said to have happened in the police station. Further she had produced Ext.A4 series certificates obtained from several organizations and the school and college showing her involvement in cultural and sports activities. The evidence of PWs 2 and 4 also would go to show that, as a women civil police officer, she was engaged in activities of R.S.A. No.328 of 2005 11 conducting awareness programmes for Adivasi Children and women in association with several organizations working in that locality. No suggestion was given to any of the witnesses that she was having any bad character or she was behaving in rude manner with anyone before the incident. DWs 2 to 4 were examined to prove that some incident occurred in the police station where they suffered humiliation at the hands of the police officials including the plaintiff which caused fear in their mind, but they admitted that when they were produced before Magistrate, they did not make any complaint regarding the same. Ext.B4 series were certain publications made in Mathrubhumi daily regarding the incident, but it may be mentioned here that, in any of these publications, the personal character of the plaintiff was not projected except reporting the incident alone. The evidence of DW1 will only go to show that the news item was given by their local correspondent and they had only published the same. He had admitted in his evidence that, he did not take any steps to enquire about the genuineness of allegations made against the woman police constable in the news item as to whether it was true or not. According to him, it would have been done by the local correspondent. But the local correspondent who gave the information for making the publication R.S.A. No.328 of 2005 12 was not examined. It was in away admitted by the defendants by their conduct that the woman police constable mentioned in the news item related to the plaintiff and there was no other women police constable present in the police station at the relevant time. So it is clear from the evidence and also the particulars mentioned in the news items by way of innuendo will go to show that, it relates to the plaintiff and person having acquaintance with plaintiff will be able to understand that it relates to the plaintiff. So under such circumstances, it cannot be said that from the allegations in the news item, it cannot be inferred that it related to the plaintiff as her name was not mentioned and plaintiff cannot maintain an action for deformation on that basis.
15. In the decision reported in G. Chandrasekhara Pillai (complainant) v. G. Raman Pillai (1964 KLT 317), it has been dealt with the nature and burden of proof of the accused pleading exceptions in a case of defamation which reads as follows:
"It cannot be disputed that the burden is one the accused to make out that his case would come under any one of the exceptions Under S.105 of the Evidence Act when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the genera exceptions in the Indian Penal Code or within any special exception or priviso contained in any other part of the Code is upon him and the court shall presume the absence of such circumstances. It may be that the burden that is cast on the accused in a criminal case by virtue of S.105 is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt. It is sufficient if the accused who R.S.A. No.328 of 2005 13 pleads an exception satisfies the court of the probability of what he has been called upon to establish and that if on the evidence it appears probable that the defence set up is true he is entitled to a decision in his favour even though he may not have succeeded in proving the truth of his version beyond reasonable doubt. But it is not sufficient if the accused is able to create a doubt that the statement may or may not be true. If what is said is true then that is a defence. On the other hand, if there is doubt as to whether it is true or not, there is no defence at all and as the mater tends to bring the person defamed into contempt it is defamatory under S.500 I.P.C. Equally untenable is the contention that S.106 of the Evidence Act would apply in this case. It cannot be presumed that the complainant is at wrong doer so as to shift the onus of proof on him"
16. In the same decision it has been held, what will amount to good faith and bona fide belief relevant in cases of publication in news paper as follows:
"To bring the publication of a scandalous imputation under the Penal Law it is not necessary to prove that it was done out of any ill will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the iputation made by him would harm the reputation of the complainant. Every same man is presumed to have intended the consequences which normally follow from his act. The accused a journalist of some standing, can very well be presumed to now or to have reason to believe that the imputation published by him would harm the complainant's reputation. Exception 1 to S.499 I.P.C. recognize the publication of truth as sufficient justification if it is made for the public good. But when truth is set up as a defence it must extend to the entire libel and it is not sufficient that only a part of the libel is proved to be true. Here the truth of the allegations have not been attempted to be proved. The accused has to prove that that the publication was both in good faith and for the public good. Good faith contemplates an honest effort to ascertain the truth of the facts. Fair comment cannot justify a defamatory statement which is untrue is fact. A comment cannot be fair which is built upon facts which are not truly stated. It cannot be stated that because the accused bona fide believes that he is publishing what is true, that is any defence in point of law. Bona fide belief might, in such a case have some bearing on R.S.A. No.328 of 2005 14 the quantum of damages in a civil action; perhaps also on the question of sentence in a criminal prosecution; but otherwise it is irrelevant. Good faith means good faith and also the exercise of due care and attention. Due care and attention means that the libeller should show that he had taken particular steps to investigate the truth and had satisfied himself from his enquiry, as a reasonable man, that head come to a true conclusion. The conduct of the accused, during the course of the proceedings in a court, is a relevant factor in determining his good faith. If there are several imputations good faith or truth must be proved with respect to every imputation, and if he fails in substantiating truth or good faith in respect of any one imputation, conviction must stand. Exception nine applied only to an expression of opinion regarding character and not to assertions of fact which are in themselves defamatory. A publisher of a defamatory statement can only be protected if he shows that he had taken all reasonable precautions & then had a reasonable and well grounded belief in the truth of a statement. The plea of 'good faith' implies the making of a genuine effort to reach the truth, and a mere belief in the truth, without there being reasonable grounds for such a plea, is not synonymous with good faith. Exception 9, therefore, covers two matters, proof of good intention and the exercise of reasonable care and skill, having regard to the occasion and the circumstances. Mere subjective belief without any objective basis, is not a dependable criterion for substantiating the ninth exception; and unnecessary aspersion is indicative of want of good faith".
It is further held in the same decision that 'excessive publication of a matter would take the case out of the privilege conferred by exception 9 to Section 499 of Indian Penal Code'.
17. In the decision reported in Meera v. Mathew (2002(2) KLT 544), it has been held as follows:
"It is clear from a reading of the definition that if the complainant can establish that the words spoken by the accused concerns the complainant and is intended to harm his reputation, offence would be complete. The person aggrieved is the person against who imputation adversely affects the reputation. It is not necessary that his name should be uttered by the accused. If the R.S.A. No.328 of 2005 15 words spoken to by the accused clearly convey to a third person or even to the complainant that the person intended by the accused is actually the complainant that will be sufficient to attract Ss. 499 and 500 of the IPC. The attack may even be general, but if it conveys an innuendo as to the complainant, a prosecution ca very well be maintained. Defamation by innuendo is also not unknown to law. It was therefore held that the reference need not be explicit and if the description is such that a reasonable person, in the context in which it is made, would be able to understand it as a reference to a particular person, that would suffice. A libellous statement may not always be made with clarity. A degree of indirectness or innuendo may be there and this can very well be expected since defamation is an offence. It is reasonable to think that he who defames is not anxious to invite legal consequences and would be looking for loop holes. that, however, does not protect him from prosecution".
18. In the decision reported in Lachhman v. Pyarchand and other (AIR 1959 Rajasthan 169), the court has discussed about the scope of absolute privilege and qualified privilege in respect of making publications as follows:
"The law is well settled that no action for a communication made on an occasion of a qualified privilege and fairly warranted by it lies unless it is proved to have been made maliciously or with an improper motive. It is also well established that the work 'malice' in this connection is used in the sense of an improper motive and that the burden of proving the same lies on the plaintiff. Malice in this sense means that the statement is made for some purpose other than the one for which the law confers the privilege of making it and so the defendant is entitled to the possession of the privilege if he uses the occasion for that reason but not where he uses it for some indirect and wrong motive. Malice may be proved by intrinsic evidence or it may be inferred from the language used in the statement itself. A statement made by a party in his report or complaint to the police is absolutely privileged. The doctrine of absolute privilege forbids any inquiry into the motives of the persons who made the complaint".R.S.A. No.328 of 2005 16
19. In the same decision it has been held that, "general damages are damages which law presumes to flow from and as it were be the natural and probable consequence of defendant's act. Therefore general damages need not be pleaded specifically nor need any evidence be produced to prove them as such."
20. The same view has been reiterated in the decision reported in B.M Thimmaiah v. Smt. T.M Rukimini (AIR 2013 Karnataka 81), where it has been held that, "good character and reputation is as much important for man as it is for woman. It does count a lot in life of both men and women. Any attack on their character would certainly injure their feelings and both of them whether man or woman would be certainly entitled to maintain an action for defamation against the offender."
21. In the decision reported in Narottamdas L. Shah v. Patel Maganbhai Revabhai and another (1984 Crl. L. J. 1790), explained the meaning of character and reputation and distinction between them as follows:
"The term 'reputation' means, "What us generally said or believed about the, persons' or things' character". The two terms "character" and "reputation" are prone to be confused. Character, in the context, would mean, fortitude or morals constitution or strength of a person. It has no relevance with the belief or opinion of others in respect to a person. Therefore, character is what a person "actually is", while "reputation" is R.S.A. No.328 of 2005 17 what neighbours and others say "what he is". The man may have, in fact, a good character and yet suffer from bad reputation or vice versa. In short, 'reputation' is, what is reputed about, that is to say, common knowledge or general opinion in respect to a person. It is the estimation in which a person is held by others and not the opinion which he himself may have about himself. It may be said that 'reputation' is a composite hearsay, being the community's opinion which implies the definite and final formation of belief by the community. By no stretch of reasoning the term 'reputation' can imply one's own belief about himself".
22. In the decision reported in Rumugam v. Kittu @ Krishnamoorthy [2009(1) KLT suppl. 841 (SC)], it has been held that, "for the purpose of bringing his case within the purview of 8th and 9th exceptions appended to section 499 IPC, it would be necessary for the appellant to prove good faith for protection of interest of person making or of any other person or for public good. It is well settled that those who pleaded exception must prove it.
23. In the decision reported in Chellappan Pillai v. Karanjia (1962(2) Crl. L.J. 142), it has been held that, if the publication amount to defamation, then question whether the alleged libel was published with knowledge that it would apply to the complainant was of no consequence. Further in the same decision it has been held that:
"To bring the publication of a scandalous imputation under the Penal law it is not necessary to prove that it was done out of any ill will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made, by him would harm the reputation of the complainant. Every sane man is presumed to have intended the consequences which R.S.A. No.328 of 2005 18 normally follow from his act. A Journalist of some standing can very well be presumed to know or to have reason to believe that the imputation published by him would harm the complainant's reputation".
24. In the decision reported in Neelakantan Kamalasanan v. Achuthan Vasudevan & others (1986 KLN 354), it has been held that, exception (1) to section 499 IPC recognises the publication of truth a sufficient justification if it is made for the public good. When truth is set up as a defence, it must extent to the entire statement. It is not sufficient that only a part of the statement is proved to be true.
25. In the decision reported in Sewakram Sobhani v. shabani v. R.K. Karanjiya, Chief Editor, Weekly Blitz and others (AIR 1981 (SC) 1514) considered the privileges of journalist in publishing matters and observed as follows:
"Journalists do not enjoy any privilege, and have no greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. Journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under First Exception unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant fact in issue. If they make assertions of fact as opposed to comments in them, they must either justify these assertions or, in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith, AIR 1942 Nag 117, Approved, AIR 1914 PC 116 Rel, on.(para 11)."
26. In the decision reported in Marothi Sadashiv and others v. Godubai Narayanrao and others (AIR 1959 Bombay 443), it has R.S.A. No.328 of 2005 19 been held as follows:
"A statement, if made before an officer who was not acting in a judicial capacity or who was not exercising the attributes of a Court, cannot be said to be absolutely privileged. Hence the defamatory statements made before the Police Officer in the course of the investigation carried on under Criminal P.C., cannot be regarded as absolutely privileged, but only a qualified privilege attaches to them which is liable to be destroyed by proof of malice. That the statements were made with full knowledge that those statements were untrue is a conclusive proof of malice."
27. In the decision reported in Pandey Surendra Nath Sinha and another v. Bageshwari Pandey (AIR 1961 Patna 164), the Patna High Court has considered the scope of privilege both absolute privilege and qualified privilege and also considered the question of malice and the assessment regarding damages and observed as follows:
"The occasion of absolute privilege as defence to an action for defamation may be classed as the administration of justice, proceedings in Parliament and advising the State in affairs of State, this last mentioned category extending to communications between officers of State in relation to State affairs. The plea of 'absolute privilege' therefore, is available, for example, in respect of any statement made in the course of and with reference to judicial proceedings by any Judge, jurymen, party, witness or advocate. Such privilege is called 'judicial privilege' and 'professional privilege'.
Judicial privilege applies not only to all kinds of Courts of justice, but also to other tribunals recognised by law and acting judicially. The privilege, although it extends to tribunals acting in a manner similar to Courts of Justice, does not , however, apply to tribunals which merely discharge administrative functions, or to officials possessing merely administrative as opposed to genuine judicial functions and it makes no difference that in the performance of these administrative functions they exercise a judicial discretion. The privilege attaches not merely to R.S.A. No.328 of 2005 20 proceedings, at the trial, but also to proceedings which are essentially steps in judicial proceedings, including statements in pleadings. This privilege, therefore, will also apply to Officers of Court, who may have a duty to report do the course of a judicial proceeding.
Privilege is qualified where the defendant is entitled to make the statement, even if it is fake, but only if he makes it honestly with respect to what he states and carefully with respect to the means by which he states it. Qualified privilege exists when the defendant is exempted from the rule of strict liability for defamation not absolutely, but only conditionally on the absence of malice. When, therefore, an occasion of qualified privilege exists a person, provided he is not actuated by malice or improper motive, is entitled to make defamatory statements about another. Qualified privilege, therefore, is an intermediate case between total Amongst the chief instances of qualified privilege are also the following two: (1) Statements made in the performance of a duty; whether legal, moral, or social; such as Police investigating a crime; (2) Statements made in the protection of some lawful interest, which include statements in self-protection, protection of oneself or of one's property, and statements made to the proper authorities in order to procure the redress of public grievances.
Held further that the onus, in such a case, in the first instance was on the defendant to prove the affirmative that the privilege existed and, if he succeeded in proving privilege, then only the onus shifted and was cast on the plaintiffs to prove malice, for malice destroys privilege.
In actions for defamation the function of the Court "is to say whether the words complained of are capable of a defamatory meaning and are capable of being defamatory of the plaintiff". Here, in India also it is the duty of the Court to say whether the statements complained of are in fact defamatory, and, defamatory of the plaintiff.
In libel, damage is presumed and no doubt punitive or, as they are sometimes called, vindicative damages may be given, but extravagance is not to be permitted."
28. In the decision reported in Harbhajan Singh v. State of Punjab and Another (AIR 1966 (SC) 97), the apex court has R.S.A. No.328 of 2005 21 considered the question of good faith and public interest and considered the scope of the same as follows:
"Whether or not good faith has been proved by an accused person who pleads in his defence the Ninth Exception under S.499 to a charge of defamation under S.500, I.P.C. is a question of fact. Even if it is assumed to be a mixed question of law and fact, where the Courts below give a concurrent finding on such a question, the Supreme Court does not generally re-examine the matter for itself when exercising its jurisdiction under Art.136 of the Constitution.
Held, however, in the present case that in dealing with the question of good faith the High Court had misdirected itself materially on points of law, and that, therefore, its finding could not be accepted.
Where to the charge of defamation under S.500, Penal Code, the accused invokes the aid of Except. 9 to S.499, good faith and public good have both to the established. The failure to prove good faith would exclude the application of the Ninth Exception in favour of the accused even if the requirement of public good is satisfied."
29. In the decision reported in Jagadish B. Rao v. State (1974 Crl.L.J.1358), it has been held that:
"No public interest or public good could be served by calling the complainant, "the most hated man of the locality".
The accused acted in a reckless way and without due care and attention".
Further in the same decision it has been held that:
"The extent of proof required to discharge the burden which shifts upon the accused when he claims benefit of any of the exceptions, is a mere preponderance of probabilities.
Although the evidence required to discharge this burden is not R.S.A. No.328 of 2005 22 of that standard as is required from the prosecution, yet there must be material on record to show that this burden has been discharged. It must be shown that the belief in the truth of the impugned statement had a rational basis and was not just a blind belief. The absence of personal malice may be a relevant fact in dealing with the plea of good faith, but even then the accused will have to show that he acted with due care and attention".
30. In the decision reported in Sukra Mahto v. Basudeo Kumar Mahto and another (AIR 1971 SC 1567) while considering the scope of Ninth exception to Section 499 of the Indian Penal Code, it has been held as follows:
"7. The relevant provision in the present case is the Ninth to Section 499 of the Indian Penal Code. Section 499 deals with defamation. Section 500 prescribes punishment for defamation.
There are nine exceptions to Section 499. These nine exceptions are the cases in which there is no defamation. The Ninth Exception covers the present case and is as follows:
"It is not defamation to make an imputation on the character of another provided that the imputation he made in good faith for the protection of the interests of the person making it, or of any other person,or for the public good".
The ingredients of the Ninth Exception are first that the R.S.A. No.328 of 2005 23 imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact. So is protection of the interest of the person making it. Public good is also a question of fact. This Court in Harbhajan Singh v. State of Punjab (1965) 3 SCR 235 = (AIR 1966 SC 97)in dealing with the Ninth Exception to Section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due care and attention. This Court said there "Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to Section 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not subjective satisfaction.
8. This Court in Chaman Lal v. State of Punjab AIR 1970 SC R.S.A. No.328 of 2005 24 1372 dealing with good faith in the Ninth Exception said that "in order to establish good faith and bona fide it has to be seen first the circumstances under which the letter was written or words were uttered; secondly whether there was any malice; thirdly, whether the appellant made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith".
31. In the decision reported in Beharilal Bhawasinka and another v. Jagarnath Prasad Kajriwa (AIR 1959 Patna 490), it has been held that:
"In a civil proceedings when the evidence has been gone into by both the sides, the question of onus is immaterial and it is for the court to find out the truth unless the evidence on both sides is hopelessly worthless".
Further in the same decision it has been held that :
"The statement is protected if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society and the law has not R.S.A. No.328 of 2005 25 restricted the right to make them within any narrow limits."
Further in the same decision it has been held that:
"An appellate court should be slow to interfere with the assessment made by the trial court and then if it has to do it, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law, or short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage".
32. In the decision reported in Radhakrishnan Nair v. V. Cathunni and others (2003 (1) KLJ 127) it has been held that "The fact that the 1st defendant was speaking in his capacity as a leader of a union and as a member of the governing council of the hospital and was emphasizing the inaction of the government in not enquiring into the charges of misappropriation of government fund and did not state that the plaintiff had committed the misappropriation" and in such circumstances, they are entitled to the benefit of qualified privilege and liable to be exempted from any liability for payment of damages.
33. It is clear from the above dictums that if the publication made is perse defamatory, then the burden is on the person made the publication to prove that he is justified in making the same as R.S.A. No.328 of 2005 26 fair comment, justification by truth and in good faith and it is protected by privilege either absolute or qualified. In order to get the protection of privilege of absolute nature, it must be done in the official discharge of his duty protecting the interest of the public. In the case of qualified privilege, he must prove that it was done with due care and attention in discharge of a moral or public duty or private vested in him in the interest of public and welfare of the society at large or making such statement is to protect his own conduct. If a privilege is taken as a defence, then the entire statement made must be proved to be true and if any portion of the same is not proved to be true and made without any enquiry regarding its genuineness with the knowledge that it is likely to cause loss of reputation to the person against whom such imputations were made, then he will not be entitled to get that protection and liable for defamation. Further if only a general statement was made regarding certain action in public interest which had happened in a public institution without intending or aiming a person responsible for the same in discharge of his official duty or moral responsibility as a public person, then he is entitled to get qualified privilege and exempted from liability for making such statement. Once it is proved that the statement made is perse R.S.A. No.328 of 2005 27 defamatory and it is likely to affect the reputation of the person intended, then the person affected is entitled to get compensation and general damages for loss of reputation can be granted even though the person affected is not able to prove that he sustained any special damage on account of the impugned publication. If there is an innuendo in the imputation which is capable of pointing out a particular person to the understanding of the persons acquainted with him, then even if the name of that particular person was not mentioned and if the affected person is able to prove that, that was intended against him, then he is getting a right of action under tort to sue the person who made the imputation for compensation for making defamatory publication against him.
34. In this case there was an incident occurred in the police station and an enquiry was conducted in this regard by the higher authorities in the police department and Ext.X1 enquiry report was submitted, on the basis of which disciplinary action was taken against the plaintiff and her husband, another police constable Mohandas, is not in dispute. To that extent, the statement made in Ext.A1 publication requires protection as qualified privilege. But the subsequent statement made in the publication regarding antecedent R.S.A. No.328 of 2005 28 of a female police constable without naming that person on the basis of the evidence shows that that was intended against the plaintiff who was the only woman police constable available in the police station at the relevant time and that intended to project her as a rude person capable of doing anything of such nature, is unwarranted in the circumstances of the case and not connected with any duty cast on a journalist. The evidence adduced on the side of the plaintiff through PWs 2 to 4 will go to show that on reading the news item they could infer that it related to the plaintiff and that made them to think contempt about her. Further, there was no necessity to mention the character of a particular person alone in the publication especially when other police officials were also involved in the same incident and nothing was mentioned about them. Further the evidence of DW1 will go to show that he did not make any personal enquiry about the allegations made against the plaintiff before making the publication. He had only relied on the information given by the local correspondent and he was not aware of the sources by which he got that information as well. Further, such a statement in a matter like this is unnecessary, if it is intended to be published regarding the incident alone in public interest and in good faith and that shows the R.S.A. No.328 of 2005 29 malice on the part of the person who made the publication with an ill motive to affect the reputation of that person in respect of whom such an innuendo was made.
35. Once it is proved that it was made with some ill motive to malign the particular person without naming that person but with the knowledge that it is likely to affect the reputation of that person in the society, then the person who made the publication will not be entitled to get the protection of any of the defences available under law in action in tort for defamation namely fair comment, qualified or absolute privilege, good faith and justification by truth and they are liable to pay compensation to the person whose reputation was affected on account of the defamatory publication effected. So under such circumstances, the courts below were perfectly justified in holding that the imputation relating to the plaintiff made by way of innuendo was perse defamatory in nature affecting her reputation among the public and defendants were liable to pay compensation to her as they were not protected by any of the exception provided on this aspect. I do not find any reason to interfere with the same.
36. As regards the quantum of compensation is concerned, the Courts below have considered all the aspects including the status of R.S.A. No.328 of 2005 30 the plaintiff, her reputation in the society and loss of reputation caused on account of the impugned publication and also considering the mitigating circumstance, that part of the news item published was protected and then fixed the quantum of compensation as Rs.25,000/- though Rs.50,000/- was claimed as compensation which cannot be said to be excessive, exorbitant or awarded without any basis. This court does not find any reason to interfere with the quantum of compensation awarded as well as it appears to be just and proper in the circumstances of the case. So the questions of law are answered against the appellant and the appeal lacks merit and the same is liable to be dismissed.
In the result, the appeal fails and the same is hereby dismissed. I do not find any reason to disallow the cost of appeal to the respondent. So the second appeal is dismissed with cost to the respondent.
Sd/-
K. RAMAKRISHNAN, JUDGE.
ss&cl