Andhra HC (Pre-Telangana)
Dr. S. Krishna Rao vs Ushodaya Publications on 10 October, 2007
Equivalent citations: 2008(2)ALD819
JUDGMENT T. Ch. Surya Rao, J.
1. The unsuccessful plaintiff seeks to assail the judgment and decree dated 20.9.1986 passed by the learned Principal Subordinate Judge, Visakhapatnam, in O.S. No. 306 of 1982. He filed the suit for compensation of Rs. 50,000/- for the loss sustained by him because of the defamatory statement published by the defendant in Eenadu Telugu Daily dated 21.10.1981 and for a direction to the defendant to publish another report denying former defamatory report along with an apologetic statement.
2. The quintessence of the case of the plaintiff was that while he was working as Medical Officer, Primary Health Centre at Kotturu of Srikakulam Taluk he rendered commendable service on account of which the Primary Health Centre gained prominence and stood first in rural family planning operations cases for the years 1979-80 and 1980-81 and for the services rendered by him and appreciating his conduct, character and behaviour, the District Collector felicitated him in a function held in the premises of Z.P. High School at Kotturu on 17.9.1980 and pursuant to the successive recommendations of the District Medical and Health Officer, Srikakulam and Director of Medical and Health Services, the Government of Andhra Pradesh adjudged him as the Best Medical Officer and gave a cash reward under G.O. Ms. No. 619, Medical and Health, dated 21.9.1979 and that for the outstanding work done by him during the flood relief operations in the wake of Vamshadhara Floods in the year 1980-81 he received several letters of appreciation from his superior authorities and for his professional efficiency and sincerity in work he was highly regarded among the Doctors and people respected him in the taluk of Kotturu and other taluks in Srikakulam District.
3. While so, the defendant published a news item under the caption "Kummakkaina Abinaya Keechukula Keerathakam" in Eenadu Telugu Daily dated 21.10.1981 involving the outraging of modesty of a nurse in Kotturu Primary Health Centre, by name, Vanaja. The plaintiff was very much pained to see the report which was unsupported by facts and with which the plaintiff was no way concerned. That report made the readers to believe the involvement of the plaintiff in the reported incident. It was a publication made intentionally and deliberately on a false and defamatory statement concerning the plaintiff without any just cause or excuse on account of which the plaintiff suffered injury to his reputation and exposed him to contempt, ridicule and public hatred and lowered the plaintiff in the estimation of right thinking members of the society. The plaintiffs reputation and character have been vilified and his character was assassinated and his image was damaged in the eyes of public in general and in the villages of Srikakulam District in particular. The plaintiff thereby suffered physically and mentally and spent many a sleepless night.
4. The plaintiff addressed a letter to the defendant through Sri M.V. Narasinga Rao condemning the printed matter and requested the defendant to publish a denial report but the defendant refused to receive the letter. The plaintiff, therefore, got a lawyer's notice dated 9.2.1982 issued to the defendant demanding publication of another report denying the news item dated 21.10.1981 and an amount of Rs. 50,000/-towards compensation for the damage suffered by him. The defendant having received the said notice did not care even to reply. Moreover, the defendant continued to publish the reports aimed to tarnish the image of the plaintiff in Eenadu on 4.8.1982 under the heading "Kalara sold aaru nelala balika mruthi" and on 28.9.1982 under the heading "Adigaminchina lakshyam" stating that Kinthali Primary Health Centre stood in the family planning operations upto to July, 1982 and in fact it was Primary Health Centre, Kotturu that stood second. Hence, the suit.
5. In the written statement filed by the defendant, inter alia it denied the allegations made by the plaintiff against it and claimed the news item published in Eenadu Daily was based on information received from reliable sources and the defendant never had nor has any malice towards the plaintiff. The defendant never had intention of causing damage to the alleged reputation of the plaintiff and in fact the news item did not lower the estimation of the plaintiff in the eyes of the public. It is stated further that the version of the plaintiff could not be published early due to unavoidable reasons but not due to any other reasons.
On the above pleadings, the trial Court framed the issues as under:
(1) Whether the plaintiff is man of reputation, efficiency and status?
(2) Whether the news item was published bona fide?
(3) Whether the news item lowers the estimation of the plaintiff in the eyes of the public?
(4) Whether the plaintiff is entitled to damages of Rs. 50,000/-?
(5) To what relief?
6. During the course of trial, as many as six witnesses were examined on the side of the plaintiff and got Exs.A1 to A16 marked. The staff nurse Smt. S. Vanaja was examined as D.W. 1 on the side of the defendant. Appreciating the evidence adduced on either side, the learned Principal Subordinate Judge reached a clear conclusion that the plaintiff was a man of reputation, efficiency and status and on account of Ex.A.1 news item his prestige was lowered down in the eyes of the public. However, the learned Principal Subordinate Judge was of the view that Ex.A.1 press note contained the information given by D.W. 1 to the Reporter and although there were some embellishments or embroideries in the said news item, since it was based on the information gathered from D.W. 1, the defendant was protected under a qualified privilege and the defendant had no malice against the plaintiff and consequently dismissed the suit. That part of the judgment is now being assailed in the instant appeal, as aforesaid.
7. Sri K.V. Subrahmanya Narusu, learned Counsel appearing for the appellant, would contend that the defence taken by the respondent was only justification by truth, but at the time of arguments the case was developed by taking up the defence of qualified privilege which, in fact, was not supported by any plea and that the conduct of the respondent in refusing to publish the version of the appellant and the resolution passed by the staff and publication of items as second incident are all indicia of the malice on the part of the defendant.
8. Sri B. Nalin Kumar, learned Counsel appearing for the respondent represents that there is no malice on the part of the respondent towards the appellant and in the absence of malice regardless of the truth or otherwise of the statement, the respondent is not liable and is not required to prove the truth of the statement and that public servants cannot sue for damages in the absence of malice and that the freedom of press cannot be curtailed since it is not a case of a yellow journalism.
9. The appellant at the relevant time was working as a Medical Officer at Primary Health Centre at Kotturu in Srikakulam District. Therefore, obviously he is a public servant. He claims to be a person of character, conduct and reputation and acclaimed to be an efficient and sincere Doctor among the Doctors in the district and respectable person among the people in the taluks of Kotturu and Srikakulam. There has been no gainsaying of the same by the respondent specifically inter alia in the written statement, except a general denial of the claim of the appellant and putting him in strict proof of the same. On an appreciation of the evidence adduced on the point, the learned Principal Subordinate Judge reached a clear, cogent and unequivocal conclusion on issue No. 1 that the appellant was a man of reputation, efficiency and status. On issue No. 3, the Court reached the conclusion that Ex.A.1 news item published in Eenadu Telugu Daily about the incident that said to have taken place on the intervening night of 1/2.10.1981, lowered down the prestige of the appellant in the eyes of the public on account of his implication in the said incident. The clear-cut findings reached by the Court below are not assailed by the defendant by filing any cross-objections or cross-appeal. The bona fides of the news item and the entitlement of the appellant for damages are sought to be assailed in the instant appeal while trying to support the findings of the trial Court on those two issues.
10. Even otherwise, that Ex.A.1, news item lowers the prestige of the appellant and his image in the public view can be seen from the statement made inter alia in the item at the end. But then the facts stated in Ex.A.1 news item being in the nature of hearsay secondary evidence per se are not admissible in evidence. Vide Samant N. Balakrishna v. Jeorge Fernandez , Lakshmiraj Shetty v. State of Tamilnadu ; Quamarul Islam v. S.K. Kanta and Ors. 1994 Suppl. (3) SCC 5; Mobina Begum/Indian Assn. for Development of Rural Areas v. Union of India and Ors. . If the involvement of the appellant in the crime as alleged in the news item is in issue, certainly Ex.A.1 in view of the law stated hereinabove per se is not admissible.
11. In the instant case, the authenticity of Ex.A.1 news item or the truth or otherwise of the statement contained in Ex.A.1 qua the appellant is not a fact in issue between the parties inter se. Publication of Ex.A.1 news item in Eenadu Telugu Daily Newspaper is an admitted fact. The nature of the allegation made inter alia therein qua the appellant is derogatory or not to the interest of the appellant; whether such a statement is made with malicious intention or not; and whether it lowers his reputation and estimation in the eyes of public are the crucial issues to be seen. The rule of inadmissibility of hearsay evidence has its own exceptions. Sections 6, 17 to 30, 32 to 35 and 74 of the Indian Evidence Act are the relevant provisions which carve out an exception to the hearsay rule. Unless that part of the news item which according to the appellant is scandalous and is defamatory in nature is read it cannot be known that such a statement is defamatory or not. That is directly in issue between the parties. Inasmuch as the publication of Ex.A.1 news item is an admitted fact and the imputation made inter alia therein is scandalous and is defamatory or not is the only point involved, I am of the considered view that the mischief of hearsay evidence is not attracted in the instant case. Since it is alleged that the imputation made in Ex.A.1 is malicious, Ex.A.1 news item becomes relevant under Section 14 of the Indian Evidence Act. Therefore, the admissibility of Ex.A.1 is beyond any doubt. A perusal of the said statement shows that anybody who reads the said statement would tend to believe the involvement of the appellant in which event it lowers his prestige or estimation in the view of that reader is also beyond doubt inasmuch as it ascribes the involvement of the appellant in the alleged sexual assault over a staff nurse working under him.
12. There is the oral evidence adduced on the point on the side of the plaintiff by examining PWs.2 to 6. On a reappraisal of the evidence, I am of the considered view that the two findings reached by the learned lower Court that the appellant is a person of reputation and Ex.A.1 news item is in the nature of affecting or damaging his reputation, are well founded and they do not warrant any interference by this Court.
13. The learned Counsel appearing for the appellant seeks to contend that what is pleaded by the respondent in his written statement inter alia was justification by truth and the respondent failed to substantiate the same by examining a single staff member and that the defence of qualified privilege which weighed very much with the trial Court has not been taken and it is only an after-thought and subsequent development and that the conduct of the respondent in having refused to publish the other version of the appellant and the resolution of the staff shall be seen which are the indicia of malicious intention. In support of the above contentions the learned Counsel seeks to place reliance upon the judgments in Khair-ud-Din v. Tara Singh AIR 1927 Lah. 20, T.G. Goswami v. The State AIR 1952 Pepsu 165, O. Ramalingam v. Director, Daily Thanthi and A.B.K. Prasad v. Union of India .
14. In the Khair-ud-Din's case (supra), judgment, the Lahore High Court held thus:
It is the duty of a journalist only to publish complaints which he is satisfied are true, If he publishes complaints of a defamatory nature which are not true he must suffer the consequences. A journalist who publishes a statement about an individual is in the eyes of law precisely in the same position as any other person. He is not specially privileged as to what he may say. But on the other hand he undoubtedly has a greater responsibility to guard against untruths; for the simple reason that his utterances have a far larger publication than have the utterances of the individual and they are more likely to be believed by the ignorant by reason of their appearing in print.
From the above it is obvious that a journalist is placed on par with an individual and he cannot claim to be in any higher position than an individual in the eye of law. Therefore, he is duty bound only to publish the information which he is satisfied to be true.
15. The Pepsu High Court in the T.G. Goswami's case (supra), held thus:
The fact that the accused is a journalist does not make any difference, for the simple reason that the press have no special privileges, and are in no better position than any other man. They have rather greater responsibilities and should be more cautious in making scandalous imputations. Their high position and status and the method of publication at their disposal are apt to do more harm, than if the imputation was made or published by an ordinary individual, because some sanctity is generally attached to what is published in a newspaper. The defence of fair comment only protects statements of opinion, it does not extend to defamatory allegation of facts.
In Para 5, the Court made the following observations:
Every sane person 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 know, or to have reason to believe that, the imputation published by him would harm the complainant's reputation.
The quintessence of the above case appears to be more or less what has been stated in the former judgment referred to hereinabove.
16. A Division Bench of the Madras High Court in the O. Ramalingam's case (supra), judgment held thus:
For escaping liability in damages regarding such defamation three tests must be satisfied, namely accurate and faithful publication, general importance of it and absence of animus injurandi. If the impugned publication is proved to be malicious then person responsible for such publication cannot escape tortuous liability by claiming qualified privilege.
It is obvious, therefore, that the general importance of the publication made, the accurate and faithful publication of the news item and the absence of any malice are the three tests to be seen by the Courts in an action for damages for defamatory statement made or published.
17. In A.B.K. Prasad's case (supra), a Division Bench of this Court held thus:
The right of freedom of press is not higher than the right of freedom of speech of an individual and this right, as is said, is not an absolute right. This is a right guaranteed under Article 19 of the Constitution of India and this right is subject to restrictions mentioned in Article 19 of the Constitution. Even without that, it is well settled principle of equity that, once freedom to move his arm ends where somebody's nose starts. Freedom of expression or freedom of press would not certainly include freedom to defame. It would, however, be a different story if such publication is made which is factually correct and which is in the public interest.
This Court upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code.
18. The learned Counsel appearing for the appellant seeks to place reliance upon certain passages from the Text Book on Law of Torts by Ratanlal and Dhirajlal, 23rd Edition, Reprint 2001, at Page 235 thus:
The falsity of the charge is presumed in the plaintiff's favour. The burden of proof that the words are false does not lie upon the plaintiff. Defamation of a person is taken to be false until it is proved to be true. Further if a man has stated that which is false and defamatory, malice is also assumed. It is, however, customary for the plaintiff to allege in his plaint that the imputation is false and malicious. 'Malicious' here means that the publication was without just cause or excuse. The motive of the defendant is not material in determining the liability.
19. For brevity and better appreciation of the fact in issue it is expedient to notice the publication-Ex.A.1. It is captioned as "Kummakkaina Abhinava Keechakula Kirathakam". In the penultimate para of the news item, it has been stated thus "Kumari Vanajanu longadeesukovadani ke Doctor Krishna Rao Naidu ee kuthantranni prothsahinchaadu ani aasupathri cibbandi kondaru chepparu. Aeethe thama perlu raya vaddani varu koraaru". According to the learned Counsel appearing for the appellant that purposefully the said statement was made inter alia in Ex.A.1, news item so as to harm the reputation of the appellant and the truth of the said statement is not proved by any evidence. A careful perusal of the above excerpted portion shows that the staff in the hospital informed the reporter that the appellant so as to compel the staff nurse to submit herself encouraged the accused to commit the alleged act. At the request of the staff members alone, their anonymity seems to have been protected. It becomes the plain obligation of the reporter or journalist, as the case may be, to protect the anonymity of the persons who furnish information which is of public interest. If their names were to be disclosed no person would come forward to give the necessary information either for fear of being proceeded against or unnecessarily dragged in any litigation. Therefore the anonymity of such persons who furnish such information needs to be protected by the journalist?
20. In the Text Book on Law of Torts by Ratanlal and Dhirajlal (referred to supra), at Page 249 it is stated thus:
Newspapers are not compelled to disclose the source of their information at an interim stage in answer to interrogatories. This rule is known as the "newspaper rule" and has been applied in India. But except in respect of administration of interrogatories, newspapers have never been held to enjoy the privilege of not being compellable to disclose the sources of their information. The Courts have no doubt an inherent wish to respect the confidentiality of information between a journalist and his sources, but the journalists and the information media have no privilege protecting them from the obligation to disclose their sources of information if such disclosure is required by the Court in the interest of justice.
It is obvious, therefore, that at the initial stage the anonymity of the persons who furnished information shall be protected. But at a later stage when such a disclosure is required in the interest of justice, journalists and information media cannot claim any privilege in regard thereto.
21. The respondent in the instant case examined D.W. 1 the de facto complainant who made the complaint against three persons that attempted to outrage her modesty. She deposed in her evidence that the appellant refused to receive the report and told her that he would compromise the dispute between her and others and then she gave the report to the other Doctor Sashibhushana Rao that evening and also gave report at the Police Station, Kotturu. She further deposed that the statement made by her to the press reporter had come in the daily of Eenadu on 21.10.1981 and that she had gone through the item reported in the press and the contents of the report came in the paper were in accordance with the statement made by her before the press reporter and that she told the press reporter about the suspected involvement of P.W. 1 in the incident and that the reporter asked her as to whom she was suspecting and that besides the names of three persons, she also told that she suspected the involvement of P.W. 1. She further deposed in her evidence that even before the incident the appellant's approach and gestures; in other words dispositions; towards her were not proper. In the cross-examination, however, she stated that in Exs.A.1 and A.4 it was not written that she told the reporter about P.W. 1 making some gestures even prior to the incident. In the cross-examination at another stage she admitted that she did not tell the reporter positively that P.W. 1 to take hold over her got the incident done by his known people but she told that she suspected the hand of P.W. 1. The actual words articulated by her in her evidence in the cross-examination have been extracted in the bracketed portion thus "eenadu reporter ku nenu Doctoru garu nannu longadeesukovadiniki pani chisaru ani cheppaledu. Kani Doctorugan meeda naku anumanam undi ani cheppanu." While in the chief-examination she was assertive and positive, in the cross-examination, she tried to dilute her former version. At any rate, she did not deny the fact that she stated to the reporter when she was interviewed by him about her suspicion over the appellant. Obviously she seems to be the author of the defamatory statement regardless of the fact that her version is distorted in publishing the same. There appears no reason for the reporter to distort her version unless it is actuated by a clear malice. Curiously she was not proceeded against for defamation by the appellant. D.W. 1 is the only witness on the side of the respondent. In the wake of the evidence given by her, not disclosing the names of the persons, who furnished the information to the reporter, in my considered view, is of no significance.
22. From the evidence of D.W. 1 it is obvious that the disputed portion of the statement made inter alia in Ex.A.1 news item cannot be considered to be without any basis and malicious.
23. As regards the plea of qualified privilege, true such a plea has not been taken in the written statement inter alia. Nonetheless, it cannot be gainsaid that it comes within the domain of a question of law. The object behind the plea is to protect the freedom of the press. Whether or not the matrix of the case warrants the plea of qualified privilege and to what extent such a plea is available are the questions of fact to be seen with reference to the evidence adduced on either side and the nature and content of the news item published in a newspaper. I am, therefore, of the considered view that even in the absence of any plea, the plea of qualified privilege being a question of fact, is still available to the respondent to be taken in the instant case.
24. In this regard, the learned Counsel appearing for the respondent seeks to contend that the respondent is not required to prove the truth if malice is absent regardless of the truth or otherwise of the statement. It is his further contention that public servant cannot sue for damages in the absence of malice when statement is connected to the public functions. In the decision sought to be relied by him in Indian Express Newspapers v. Union of India , the Apex Court held that unless it is not a yellow journalism, freedom cannot be curtailed by levying damages.
25. The Apex Court again in Express Newspapers (P) Ltd. v. Union of India held that right to privacy and right to freedom are to be balanced.
26. To buttress the contention that public servant cannot sue for damages in the absence of malice, the learned Counsel appearing for the respondents seeks to place reliance upon a judgment of the Apex Court in Rajagopal v. State of Tamil Nadu . In Para 26 while summarizing the principles enunciated by the apex Court, in principle No. 3 it was held thus:
In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of Court and Parliament and Legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.
27. The law on the point has thus been succinctly enunciated by the Apex Court while holding that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21 of the Constitution of India. Therefore, whenever the case of public official comes to the Court, their acts and conduct are relevant to the discharge of their official duties, the right to privacy or for that matter the remedy of action for damages is simply not available. In view of this authoritative pronouncement of the Apex Court, the action on the part of the appellant must fail. It cannot be gainsaid that the news item which in the perception of the appellant is defamatory, directly touches his acts and conduct with reference to his official duties. In that view of the matter, it must be shown by him that the publication is false and actuated by malice and personal animosity.
28. An attempt in this regard has been sought to be made by the appellant that when he sent a letter to the Eenadu press requesting to publish his version it was not only refused nay two more items came in the press affecting his image. In fact, the version of the appellant has also been published in the newspaper on 17.12.1982 which has been marked as Ex.A.16. It is stated by the respondent inter alia in the written statement that due to unavoidable circumstances the version of the appellant could not be published. So in view of this evidence, no malice can be presumed in the instant case. The passage sought to be relied upon from the Text Book on Law of Torts by Ratanlal and Dhirajlal (referred to supra) is of no avail to the appellant having due regard to the authoritative pronouncement of the Apex Court in what is known as famous Auto Sankar's case referred to above. For the above reasons, I am of the considered view that there is nothing to interfere with the judgment and decree passed by the trial Court.
29. In the result, the appeal fails and is dismissed. But, under the circumstances, there shall be no separate order as to costs.