Patna High Court
Devbrata Shastri vs Krishna Ballabh on 17 February, 1953
Equivalent citations: AIR 1954 PATNA 84
JUDGMENT Misra, J.
1. This application in revision arises in the following circumstance: Shri Krishna Ballabh Eahay, Revenue Minister, Government of Bi-har, instituted a complaint against the petitioner, who happens to be the chief editor of a daily newspaper at Patna, known as Navarashtra, in the court of a magistrate at Hazaribagh alleging that there was a defamatory publication in that newspaper concerning the complainant which lowered him in the estimation of the public, for which the editor was liable to be punished under Section 500, Penal Code. The case was transferred from Hazaribagh to Patna under the orders of this Court and placed before Mr. S.C. Gupta, Judicial Magistrate, for trial. The trial was duly taken up, and while the complainant was under cross-examination, the defence lawyer put certain questions to the complainant in respect of his general reputation with a view to eliciting that the general reputation of the complainant was such that the petitioner committed no offence in publishing the correspondence in question respecting the case against one Zahur Ali, yarn importer, whose house at Ranchi was raided by the police on 16-5-1951. It is unnecessary to state the details of the case against Zahur Ali or the actual defamatory matter contained in the correspondence of 8-7-1951, and the correction note in regard to that correspondence published in the issue of the newspaper of 11-7-1951, because that concerns the merits of the case under trial before Mr. S.C. Gupta, Judicial Magistrate.
2. The order complained of in the present petition is dated 22-7-1952, by which the learned Magistrate disposed of the application of the learned defence lawyer dated 10-7-1952, and in substance negatived his prayer that he was entitled to ask questions in general concerning the character and reputation of the complainant so as to show that it was already of such a type that the news item or correspondence complained of could not lower it further, and hence the publication by the editor did not bring him within the mischief of Section 500, Penal Code. The petitioner thereafter moved the learned Sessions Judge of Patna for making a reference to this Court for setting aside the order passed by the learned Magistrate and giving a direction that the petitioner's advocate should be permitted to carry on the cross-examination along the line he was seeking to do. The first Additional Sessions Judge of Patna, who heard the application, however, refused to make a reference on the ground that the application was directed against an interlocutory order, and as such, he was not inclined to accede to the prayer of the petitioner. He, however, made certain observations, which were more or less along the line which was followed by the learned Magistrate.
3. Learned counsel for the petitioner has raised in the present petition the points which were pressed before the learned magistrate as well. He has drawn our attention in this connection to a number of decisions, which, according to him supported his contention that in the case of a prosecution under Section 500, Penal Code, it is open to the accused person to put questions to the complainant not only with regard to his veracity or to impeach his credit, but also to show the type of reputation the complainant enjoyed in public estimation. Learned Counsel has formulated his argument in broad terms like this. Section 499, Penal Code, which defines defamation, reads as follows:
"Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or haying reason to believe that such imputation will harm, the reputation of such person is said, except in the cases hereinafter excepted, to defame that person."
This section, it is contended, makes special reference to reputation as an element to be established by the prosecutor which ran the risk of being harmed by any defamatory statement. The prosecutor, therefore, has to prove his reputation in the first instance, and as a necessary corollary it is certainly the right of the accused person to counter the existence of that reputation by necessary questions in cross-examination as also by leading evidence, if necessary. The main argument, therefore, is based upon the provisions of Section 499, Penal Code. In this connection he has invited our attention to a number of decisions, both Indian and English, and has also quoted from certain authoritative writers on this subject.
4. The three Indian cases mainly relied upon by him are: -- 'Laidman v. Hearsey', 7 Ail 906 (A), -- 'Devi Dial v. King Emperor', AIR 1923 Lah 225 (B) and -- 'Munnala] v. D. P. Singh', AIR 1950 All 455 (C). It is contended that -- '7 All 906 (A)' was a Division Bench ruling of that Court and Petheram C. J. who delivered the judgment, held:
"The question here is whether, with referene to these words alone, and apart from the rest of the section, Captain Hearsey intended to harm the reputation of Mr. Laidman. Before this question can be answered, it is essential to see what Mr. Laidman's reputation is, and, moreover, Mr. Ross puts the case for the prosecution on the ground that Captain Hearsey acted with a malicious intention to injure the complainant by telling a falsehood, and not with a genuine intention to furnish proper information to the public. Upon this issue, it must be material to ascertain whether Captain Hearsey, in his letter as a whole, was telling the truth or not."
It is argued that it is clear from this fact that reputation became the fact in issue in the trial under Section 500, Penal Code, in terms of its definition under Section 499, Penal Code, and as such evidence concerned reputation, it was held to be admissible. It is necessary to bear, however, the facts of that case in mind in order to appreciate the worth of this contention. In that case, what the accused person, Captain Hearsey. was alleged to have done was that he wrote a letter, dated 25-2-1885, to the Government of India and to the Government of North West Provinces stating that on 9th of February while he was in the court of Mr. George J. Laidman, the complainant, who was the Subordinate Judge of Dehradun and Musoorie, to give evidence in a law suit, he saw three respectable Rajput zamindars entering the court of Mr. Laidman in connection, with a case in which they were interested and which had been remanded to the Subordinate Judge's Court by the High Court for rehearing and revision. The Subordinate Judge looked up and finding them there burst nut into abuse in the following words: "Sooars. badmashes baramzadas. tum hamaro degree (?) high Court ko appeal kiya"; and after repeating the three obnoxious and abusive epithets, ordered them out of the court till their case was called on. As Captain Hearsey left the court, the three zamindars approached him and asked him if he had heard the Subordinate Judge abusing them. He said that he did. They complained to him of that kind of treatment and expressed their difficulty as to where they would get justice if this was the attitude and behaviour of the court which was in seisin of their case.
Captain Hearsey assured them of redress, and accordingly, he brought the matter to the notice of the Government of India and the Government of the North West Provinces commenting in his letter on the conduct of the Subordinate Judge which was characterised as not only illegal and cruelly oppressive, but also ungentlemanly and cowardly in the extreme. He also referred to another specific instance of the behaviour of Mr. Laidman when he was officiating for the Superintendent of the Dun in the end of 1883 and fined a gentleman in Mussoorie a sum of Rs. 300 for saying in a privileged conversation that the Municipality were a set of pigs. He stated further that this was not an isolated case of Mr. Laidman's abusing respectable natives in his court, and when the time came, he would produce several others whom he had treated in a similar manner. The allegation in the letter of the accused in that case related not only to the particular date on which Captain Hearsey happened to be present in the Court of the complainant, but also to specific instances of his behaviour on other occasions. The prosecution case was laid not only on the ground of the accused person writing a defamatory letter against the complainant, but also on the ground that Captain Hearsey acted with a malicious intention to injure the complainant by telling a falsehood. As a matter of fact, the Hon'ble the Chief Justice appeared to hold that the questions must be confined to specific instances and not to reputation in general. Many questions were discussed in course q£ the argument at the Bar, but it is not necessary to refer to them specifically, as the decision, was based upon the nature of the allegation in the letter complained of.
It is clear from what has been stated above, that the principle of law laid down in that case will not help the petitioner in the present case, as the allegation in the correspondence complained of in this case, relates to a single instance, namely the part, if any, played by the complainant, or, at any rate, his connection with the talk dated 15-5-1951; there appears to be some error regarding this date between phone No. 126 Ranchi, alleged to be the telephone number of Zahur Ali, and phone No. 179 Patna, which is alleged to be telephone number of Shri Krishna Ballabh Sahay, Revenue Minister, Government of Biliar. There are certain allegations in the correspondence with regard to the transfer of Shri Gopi Krishna Sahay, the Sub Inspector of the anti-smuggling force, who was responsible for the raid at the house of Zahur Ali, which again arises out of the same incident. Whatever aspersions, therefore, are cast in the correspondence on the character or reputation, if any, of the complainant are confined to a particular incident which alone can be the subject matter of enquiry in the present case pending before the Judicial Magistrate. The principle of law as laid down in the Allahabad case will not apply to the facts of the present case, because there is no reference to any other incident of a similar character involving the conduct of the complainant.
5. The next case relied upon by learned Counsel for the petitioner is -- 'AIR 1923 Lah 225 (B)', which is a single judge decision of the Lahore High Court wherein it was held:
"Similarly in a criminal prosecution where it is essential, in order to constitute the offence of defamation, that the person who makes or publishes the imputation complained of should intend to harm, or know or have reason to believe that the imputation will harm the reputation of the person concerning whom it is made or published, the question what reputation the complainant had is relevant. If the petitioner in the present case were able to prove that the complainant had a notoriously bad reputation as a bribe-taker it might reasonably be argued that the imputation made as to his having taken a bribe on the particular occasion in question, even if false, could not damage his reputation as he had none to lose; and in any case proof of the complainant's bad reputation would affect the sentence to be passed in case of conviction, I hold therefore, that the evidence which the petitioner wished to adduce in proof of the complainant's bad reputation was wrongly excluded."
It is true, no doubt, that there was reference to a particular incident only in that case as the complainant alleged that there was an imputation against him published by the accused in that case that the complainant had compelled the accused to pay a bribe in order to avoid a prosecution for a certain offence. Martineau J. in that case held that evidence as to the complainant having taken bribes on specific occasions other than the one which formed the subject of that case would be irrelevant, but that the accused person was entitled to produce evidence to show that the complainant had the reputation of being a bribe-taker. The learned Judge in that case relied upon -- 'Scott v. Sampson', (1882) 8 QBD 491 (D) and Odgers on Libel and Slander, 5th edition, for the view that in an action for damages for libel or slander, evidence might be given that the plaintiff had a general bad character in mitigation of damages, and in a criminal prosecution, the same principle should apply, as there was no difference in essence between a civil action and a criminal prosecution, where the reputation of the person concerning whom the publication is alleged to have been made is a necessary element to be proved. It is true no doubt that the Lahore decision, if taken to lay down the law correctly, supports the contention on behalf of the petitioner, but for the reasons I propose to give hereafter, it cannot be accepted as correct law on the point, and we are unable to agree with the view expressed in that decision.
For one thing, it is clear that this case differs from the decision in -- (7 All 006 (A)', referred to above, as in the Allahabad case general evidence was not the point in issue and it was not favoured by Petheram C. J., but it was confined to specific instances of similar conduct on the part of the person defamed, and the allegation in that letter also ran to the same effect. In the second place, there is a basic distinction between the fact in issue in a civil action for libel and slander and the fact in issue in a criminal prosecution under Section 500, Penal Code, as in a civil action what the plaintiff seeks to do is to compensate himself for the loss of his reputation in terms of money. The quantum of damage, therefore, must differ from case to case and according to the status of the plaintiff. Not so in a criminal prosecution where what really matters is the mens rea of the accused person. The difference between the two kinds of cases is a real and substantial one. It is not only considered by Sir Ashutosh Mukherji in -- 'Amrit Lal v. Corporation of Calcutta', AIR 1917 Cal 348 at p. 358 (FB) (E) thus:
"The distinction between a tort and a crime, between a civil suit and a criminal proceeding, may be regarded as of an elementary character, and the same wrongful act sometimes gives rise to a civil as well as to a criminal liability. The purpose of the civil suit is to compel the defendant to compensate the plaintiff for what he has unjustly suffered, while the object of the criminal proceeding is punishment and the cure of what may be called a public wrong. A crime is thus a wrong which the Government deems injurious to the public at large and punishes through a judicial proceeding instituted in its own name or on its behalf".
Further "The essence of the matter is that the proceeding has been instituted not to indemnify a person, to the extent of the loss he may nave suffered from a wrongful act, but to inflict punishment on the wrong-doer for an act which the Government deems injurious to the public at large".
Indeed, this principle has been a well established thing in our system of jurisprudence and may have different implications in respect of acts which may be the subject matter of the criminal prosecution or a civil action at the same time.
6. The third case mainly relied upon by Mr. R.R. Sinha on behalf of the petitioner is -- 'AIR 1950 All 455 (C)', which is a single Judge decision of that High Court where it was held:
"In disallowing the questions the main consideration, which seems to have weighed with the learned Magistrate, was that having made one imputation the accused was not entitled to make other imputations likely to defame the complainant. He, however, failed to consider what the accused was entitled to establish in his defence. Apart from denying or attempting to justify the alleged imputations, he was entitled to rebut the complainant's case that the imputation was likely to harm his reputation. He could do that by showing that the complainant's reputation was in view of certain acts of omission or commission already at a low ebb. He was also entitled to show that the complaint was not bona fide".
In that case, the complainant was charged by the accused in his correspondence to a newspaper that the complainant had utilised his position as Collector and District Magistrate to acquire certain properties along with other imputations likely to lower the complainant in the estimation of the public relating to the manner in which he discharged his duty as Collector and Magistrate. The defence lawyer in the case wanted to put questions respecting the various occasions in which the complainant's reputation had been questioned by various persons, which questions were disallowed by the learned trying magistrate as in his opinion "it cannot ever be the purpose of the provisions of the Evidence Act governing cross-examination to make the forum of a case of alleged defamation the forum for several more defamatory allegations".
The learned Judge relied upon the cases in -- '7 All 906 (A)' and -- 'AIR 1923 Lah 225 (B)' & apparently followed the decision in --AIR 1923 Lah 225 (B)', in toto not keeping in view the distinction between a civil action and criminal prosecution. For the reasons stated above for our inability to accept the correctness of the view of the law expressed in -- 'AIR 1923 Lah 225 (B)', we are unable to accept this decision as well as laying down the correct proposition. As a matter of fact, the learned Judge, while referring to -- '7 All 906 (A)' and extracting the general principle therefrom did not take into account the real nature of the allegation which was the subject matter of the case in -- '7 All 906 (A)1 and which we have set out above.
7. In this connection the learned counsel for the petitioner has also invited our attention to an English case, which was referred to in -- '7 All 906 (A)', namely, -- '(1882) 8 Q. B. D. 491 (D)', where it was held that evidence of general reputation might be led by the defence, and likewise questions in cross-examination might be put to the plaintiff regarding his general reputation, quoting with approval a passage from Starkie on Evidence which runs as follows:
"To deny this would be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed theif would be placed on the same footing with the most honourable merchant, a virtuous woman with the most abandoned prostitute. To enable the jury to estimate the probable quantum of injury sustained a knowledge of the party's previous character is not only material but seems to be absolutely essential".
It is clear that -- 'Scott v. Sampson', (D), was a civil action for libel wherein the amount of damages payable to the plaintiff was necessary to be determined by the court before the suit of the plaintiff could be decreed. As a matter of fact, the very use of the words "to estimate the probable quantum of injury sustained, a knowledge of the party's previous character is not only material but seems to be absolutely essential shows why it was held to be necessary that the defendant could call evidence to show the kind of reputation the plaintiff possessed.
As a matter of fact, Mathew, J. in that very case sounded a warning to keep in view the caution necessary while referring to the argument on behalf of the plaintiff- that "If the defendant were right, a plaintiff in an action for libel would be placed in a position of great difficulty, for he might not be prepared to meet charges of which he would nave had no notice, and an unscrupulous or vindictive, defendant might thus make use of the action brought to clear the plaintiffs character to heap calumnies upon him as unfounded as the original libel. The result would be that a court of law would be less dreaded by the worst libellers than by their victims, for few men would face a trial at the risk of having to encounter charges which the malicious ingenuity of the defendant might render it almost impossible to meet". It was, therefore, the consideration of the quantum of damage which really weighed with the court in allowing evidence of general reputation, keeping out, of course, matters relating to rumours and suspicions about the plaintiff's character or disposition.
8. Mr. Lalnarain Sinha on behalf of the opposite party has drawn our attention to the -- 'Enlgishman, Ltd. v. Lajpat Rai', 37 Cal 760 (F), wherein also the same principle was re-affirmed and it was held that the general reputation of the plaintiff in respect of libel was relevant because his Lordship concluded :
"The injury, therefore, to his reputation by the imputation contained in the defendant's libel is far less than it would have been had he professed to use his influence for the purpose of allaying rather than promoting discontent".
On this ground the amount of damage allowed to the plaintiff Lajpat Rai was sealed down.
9. The learned Counsel for the petitioner has also drawn our attention to 'Russel on Crime 10th edition, volume 1, at page 806 for the proposition that in English law a libellous statement is regarded as penal for it creates ill blood and provokes the parties to acts of revenge and breaches of the peace or because of its supposed tendency to raise angry passion, provoke revenge, and thus endanger public peace. He contends that since the framers of the Penal Code distinctly ruled out this conception in framing Section 499 and made defamation an offence without any reference to its tendency to cause a breach of the peace reputation became under Section 500, Penal Code, in itself a fact in issue, and as such evidence to show the kind of reputation the prosecutor possessed became as a necessary implication relevant in such a proceeding. We are unable to accept this contention as well, as in our opinion, the reasons why the framers of the Code phrased Section 499 as they did are not to determine the gravamen of the charge which will have to be ascertained with reference to the ingredients to be proved in terms of the express provision of the section.
It is no doubt true that there are certain exceptions with regard to the manner in which a newspaper man in England might be prosecuted for libel and the way in which he can be prosecuted in India, where there is no special procedure prescribed for him unlike Section 8 of the Law Libel Act, 1888, and Section 4, Newspaper Libel and Registration Act, 1881, but so far as the facts in issue are concerned, there is no difference between the English law and the Indian law on the point. The original distinction between words of libel having a tendency to provoke a breach of the peace is now more a matter of historical interest than, of practical importance. As Russell himself puts at page 895 "As every person desires to appear agreeable in life, and must be highly provoked by such ridiculous representations of him as tend to lessen him in the esteem of the world, & take away his reputation, which to some men is more year than life itself, it has been held that not only charges of a flagrant nature, reflecting a moral turpitude on the party, are defamatory, but also such as set him in a discreditable, scurrilous, ignominious or ludicrous light, whether expressed in printing or writing, or by signs or pictures, for these equally create ill blood and provoke the parties to acts of revenge and breaches of the peace".
The argument on the underlying policy of criminal law in England and in India regarding libel or defamation has no bearing upon the point for consideration in the present application.
10. Mr. R.P. Sinha has also drawn- our attention to the case of -- 'Firangi Rai v. Emperor', AIR 1933 Pat 189 (G), in support of his contention that proof. of reputation is necessary in a criminal proceeding, and also to show how that is to be done by the party concerned. That was a case under Section 110, Criminal P. C., and reputation there was the-point to be established before the person proceeded against might be asked to furnish security to be of good behaviour. Apart from the fact that Section 110, Criminal P. C. is a preventive section of the law of crime, it is directly connected with Section 117 of the Code of Criminal Procedure whose Sub-section (4) lays down that a man being habitual offender or being so desperate and dangerous as to render his being at large without security hazardous might be proved by evidence of general repute or otherwise. It is thus clear that the nature of evidence required to be adduced in a proceeding under Section 110, Criminal P. C. could have no bearing on the question where there is no statutory provision like Section 117, Sub-section (4) Criminal P. C. The learned Advocate does not contend that there is an identical provision in Section 499, Penal Code. As a matter of fact, it is remarkable that while Section 499 defines the offence, it also provides for the various exceptions which are in the nature of pleas which the accused person can put forward to answer the charge of defamation levelled against him.
There is no mention of the fact that he-could also plead that the prosecutor's reputation was such as was not or could not be tarnished by the alleged defamatory statement. A reference to the various exceptions provided in that section makes it clear that the words 'conduct' and 'character' occur specifically in some of these exceptions. They are Exceptions 2, 3, 5, 6 and 9. It is remarkable, however, that wherever the word 'conduct' occurs, there is a cautious limitation provided so as to restrict the scope of enquiry about the prosecutor's character in so far as it is reflected in the particular conduct complained of We ran take the second Exception as an illustration of this fact which runs thus:
"It is not defamation to express in good faith any opinion whatever respecting the conduct of a , public servant in the discharge of his public functions, or respecting his character, so Jar as his character appears in that conduct, and no further."
The other Exceptions also are to the same effect. The way in which the legislature has provided these exceptions would also incidentally indicate that it was never intended that the prosecutor's character in general should be treated as a fact in issue in a trial under Section 500, Penal Code. The inference which we could draw from the way in which Section 117, Criminal P. C. has been drafted stands against the contention on behalf of the petitioner on this point. In view of this, it is not necessary for us to deal with how reputation has to be proved as considered in -- 'AIR 1933 Pat 189 (G)'.
11. Learned Counsel for the petitioner has also placed before us certain passages from Taylor on Evidence, twelfth edition under 3. 350 for the proposition that 'character' and 'reputation', according to the learned author, could mean more or less the same thing. The passage relied upon runs as follows:
"The term 'character', as here used, is not, as some able Judges have considered it to be synonymous with 'disposition', but it simply means 'reputation', or the general credit which a man has obtained in public opinion- A witness, therefore, who is called to speak to character, unlike a master who is asked for the character of his servant, cannot give the result of his own personal experience and observation, or express his own opinion, but in strict law, ho must confine himself to evidence of mere general repute. This rule, -- which appears to rest rather on authority than on reason, -- would probably have been rejected long ago by the Courts, had it not been for two causes. First, the rule, in practice, is seldom strictly enforced, and, next, it has to a certain extent been modified by the Judges. Aware that 'the best character is generally that which is the least talked about', they have found it necessary to permit witnesses to give negative evidence on the subject, and to state that they never heard anything against the character of the person on whose behalf they have been called".
The point sought to be made out of this is that evidence with regard to reputation on this authority should be allowed to be led, and the petitioner is thus entitled to give evidence or to put questions in cross-examination to the complainant with regard to his reputation which is necessary to be established in terms of Section 499, Penal Code. It will be necessary to revert to this argument when we deal with this point under various sections of the Evidence Act bearing upon the question of character evidence, because this argument has a twofold objective, one to lead evidence of reputation on account of the phraseology of Section 499, Penal Code, and the other on account of the Evidence Act. With regard to the Penal Code, as considered above, assuming that evidence in certain circumstances of reputation might be given, this does not advance in substance the argument for the petitioner, because unless we are satisfied otherwise that evidence relating to reputation or character is admissible, this passage, which makes character identical with reputation, will have no material bearing. As a matter of fact, what is explained in this section fay Taylor is again how and what the witness has to say when he is called to speak to character and nothing more.
12. The learned counsel for the petitioner has endeavoured to support his argument with reference to the various sections of the Evidence Act as well. He refers to Sections 52 to 55, and to Section 55 in. particular for his argument that in India the word 'character' includes both reputation and disposition, unlike the English law where 'disposition' is not included in the word 'character'. He argues from this that it is open to a party in India to lead evidence with regard to a man's general disposition & his reputation both of which taken together very much widen the scope of enquiry with regard to a man's character when it becomes the fact in issue. Here the learned Advocate confines his argument to the limit laid down in the section, namely, that evidence might be given only of general reputation and general disposition and not of particular acts by which reputation or disposition was shown. But I am unable to follow this argument of the learned Advocate as Section 55 in terms refers to several acts, and if any light has to be thrown, upon the point in controversy in the present case, from, the terms of Section 55, Evidence Act, it is clear that it is only in civil cases, where the question of amount of damages to be awarded to the plaintiff is concerned, that the character of the plaintiff becomes relevant. As a matter of fact, in none of these four sections is there any reference to the character of a prosecutor as being in any circumstance relevant. This rules out the argument based on Section 499, Penal Code.
Mr. Lal Narain Sinha, who appears for the opposite party, has also referred to these very sections in support of his contention that even if reputation is taken as identical with character, the admissibility of evidence with regard to character must be governed by the provisions of the Evidence Act which are exhaustive of the evidence which is admissible in a case either civil or criminal. He has referred to a number of decisions for the proposition that no evidence beyond what is permissible under the Indian Evidence Act can be led in a case, but he relies particularly upon -- 'Sris Chandra v. Rakhalananda'. AIR 1941 PC 16 (H), wherein their Lordships of the Judicial Committee distinctly rule out any idea that the provisions of the Evidence Act on the point of admissibility of evidence could be supplemented by any consideration of what might be regarded as matters 'essential for the ascertainment of truth. As their Lordships put:
"Once a statute is passed which purports to contain the whole law, it is imperative. It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by the statute because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not are the result of long experience choosing no doubt, to confine evidence to particular forms, and therefore eliminating others which it is con-ceivable might assist in arriving at truth. But that which has been eliminated has been considered to be of such doubtful value as, on the whole, to be more likely to disguise truth than discover it. It is, therefore, discarded for all purposes and in all circumstances."
In view of this clear pronouncement upon the point, his contention is that unless it could be shown on behalf of the petitioner that under any of the provisions of the Evidence Act, character of the prosecutor has been specifically made relevant, it is not open to the accused person to insist on his right to show that the character of the prosecutor is of a particular brand different from what he claims it to be. It appears to us that this is so. I have already referred to Section 55 where in a civil action the character of the plaintiff has been specifically made a fact in issue for the purpose of ascertainment of damages, but no such provision has been made in regard to the character of the prosecutor or complainant in a criminal case. It is not that the legislature had not in mind that in certain kinds of prosecutions the accused might think it necessary to assail the character of the prosecutor, and yet it made no provision with regard to the evidence respecting the character of the complainant in a case of defamation. The very absence of this provision also goes against the contention advanced on behalf of the petitioner. This view receives further support from Sub-clause (4) of Section 155, Evidence Act where, on a charge of rape, it has been specifically provided that the accused might show that the prosecutrix was of generally immoral character. There is no reason why the legislature would not have made a similar provision in respect of the character of the complainant in a case of defamation if it thought that this was necessary to establish or was relevant on a charge under that section.
The learned Counsel for the petitioner attempted to meet this contention by submitting that these sections of the Evidence Act were subject to a general provision in the same Act as to what could be proved in the context of a case. The general provision is that every fact in issue can be the subject matter of proof, & since in a prosecution for defamation reputation was a fact in issue, it was open to the accused person to assail that by means of questions in cross-examination or by adducing defence evidence on the point. This argument has been answered in substance in our discussion of the point in connection with the use of the word 'reputation' in Section 499, Penal Code. We have held above that reputation is not at all a necessary fact to be proved in a charge under that section and hence it does not become a fact in issue. Facts in issue on a charge under that section are the necessary ingredients to be established in order to bring the charge home to the accused person, and those ingredients relate only to the publication of a libellous statement intending to harm, or knowing or having reason to believe that such imputation would harm the reputation of the person.
Mr. Lalnarain Sinha in this connection has argued that the reputation of a person, either as plaintiff or as complainant, has to be taken for granted as an existing fact however low it might be, and an aspersion cast upon that reputation is bound to make it worse than what it was before. However black a man's character may be, it can certainly be tarred & made to appear much blacker than what it was before, and therefore, it could never be the fact in issue in a criminal prosecution, ana only for a limited purpose in a civil suit for damages for defamation. He refers to Corpus Juris, volume 37,U/s 428 where the following passage occurs:
"Since plaintiff's bad reputation is no Justification for the publication of a defamatory charge against him, the general bad reputation of plaintiff is not as a general rule admissible under a plea of justification."
He contenas, therefore, that in a criminal case it is not within the scope of enquiry before the magistrate to enter into that question at all.
13. Halsbury in his Laws of England, Hail-sham Edition, volume 20 at page 507 enunciates the proposition as follows:
"In actions of libel and in actions of slander for words which are actionable per se, it is not necessary for the plaintiff to allege in his statement of claim that he has suffered special damage. If, however, in such actions he wishes to recover special damage, he must allege and prove it. If he fails to prove special damage, he still has the right to resort to and recover general damages. For the law presumes that the publication of a libel or a slander which is actionable per se has of itself a natural and necessary tendency to injure the plaintiff".
Again, at page 510:
"The fact, however, that a plaintiff is shown to have a bad reputation which cannot be made worse is no answer. A plaintiff proving a statement which is prima facie defamatory and is not answered by justification privilege, or fair comment is always entitled to nominal damages."
These observations which apply to civil action will apply to a criminal prosecution with even greater force. In -- 'Ram Narain v. Emperor' AIR 1924 All 566 (I) which was a prosecution under Section 500, Penal Code, it was held that a person committed defamation within the meaning of Section 499, Penal Code, who published any imputation concerning any person intending to harm the reputation of that person whether harm was actually caused or not.
14. The learned Counsel for the petitioner has advanced another line of argument in support of his case. He says that even if it be held that the petitioner might not cross examine the complainant in respect of his reputation, he might still cross-examine him or lead evidence to the same effect because he had a right to show circumstances mitigating the gravity of the offence which would weigh with a court of law in determining the degree of punishment which it would think proper to mete out to the accused person. His argument is that in this view the position in regard to a civil libel or a criminal libel boils down to the same point. Just as in a civil action questions with regard to the plaintiff's reputation would be permissible on the ground of quantum of damages, so also in a criminal case evidence to that effect should be permissible to enable the accused person to bring on record circumstances of a mitigating character. It is difficult for me to accept this argument on analogy, because as already held, in a civil suit the plaintiff comes to court to be reimbursed in damages in terms of money for what he has lost, and hence he has got to prove what actually is the quantity of his loss. It is not so in a criminal case.
It is true that the accused person can, by his conduct in certain circumstances, invoke the leniency of the court by apology or in some other manner, but he cannot do it by insisting upon showing up the character of the complainant in general. It might start a roving enquiry about the prosecutor's character bringing on the record matters which are not capable of affirmative proof, or in any case making the trial an enormously lengthy affair. Leaving out of consideration this aspect of the matter, we have got to answer this argument on the question of mitigation in reference to Section 499, Penal Code, itself. The legislature therein has made detailed provisions as stated before, as to what are the things and the circumstances which an accused person may prove even after he has done something which comes within the definition of defamation in order to escape liability for the same. Since there is no provision for mitigating circumstances in that section, it is not open to an accused person to claim as a matter of right, against the provisions with regard to character in the Evidence Act, to introduce matters regarding reputation.
15. It may be that under the first exception to Section 499, Penal Code, in a case of defamation imputing anything which is true concerning any person, if it be for the public good that the imputation, should be published, the truth of the matter alleged may be established, and as has been held in a number of decisions, this can be done either by putting questions in cross-examination of the complainant or by leading evidence on behalf of the defence. In some cases, according to the nature of the allegation made by an accused person, it may well be that he gets the privilege of putting questions to the prosecutor or his witnesses which are very near damaging the reputation of the person concerned. It cannot be denied that the burden of proving the exception lies upon the accused person, and on account of that responsibility he may feel justified, in certain circumstances, in putting questions or leading evidence which may not be warranted under any general right of showing up the reputation of the prosecutor. That, however, is an aspect of the matter with which we are not concerned in the present case. Here the allegation, as stated above, refers to a particular incident only, which is found on a consideration of the evidence by the learned trying magistrate to refer to the complainant, will alone be the subject matter of the charge.
If the petitioner pleads or elects to base his case on the truth of the allegation and also that the publication was in the public interest, or it comes under any other exception, he will certainly be entitled to put any questions relating to the incident itself. There is nothing further in the alleged correspondence in question published in the petitioner's newspaper dated 8-7-1951, which can be said to go beyond Zahur Ali's release on bail without filing even a yakalatnama and the transfer of Sri Gopi Krishna Sahay, the Sub-Inspector of Police of the anti-smuggling force at Ranchi. Hence even under Exception 1, questions can only be directed towards the end of proving the truth of whatever has transpired in the arrest, release and transfer, etc., of the persons concerned in that case. In this view, it is not necessary for us to express any opinion as to how the scope of cross examination and admissibility of evidence might be affected by different kinds of allegations in different contexts. The case of -- 'Hobfas v. TInling and Co. Ltd., and Hobbs v. Notthingham Journal Ltd.', decided by the Court of Appeal ((1929) 2 KB 1 (J)) throws a good deal of light on the principles and points involved in the discussion set out above.
It will be useful to make a short excerpt from this elaborate judgment as relevant for the present purpose. Greer, L. J. at page 46 of the Report held:
"I think also they ought to have been, told that in estimating the amount of the damages they were entitled to consider, not merely the character of the plaintiif but also the conduct of the defendants; that a man does not lose his right to damages because his character is not free from reproach, that a man with a damaged character is entitled to have his damaged character protected, and if newspapers for their own purposes falsely allege that he has been guilty of crimes and misconduct the jury might well consider that even a man of bad character ought not to have his character made out to be blacker than the proved facts warrant."
16. Learned Counsel for the opposite party has further invited us not only to give a clear pronouncement on the point of law involved in the case, but to go further and to decide which of the various questions which were disallowed should not have been disallowed. In my opinion, it will not be fair for us at this stage to enter into the particulars of the trial. The learned Magistrate will, of course, keep in view the principle we have laid down in this case, and as for other questions, he will be guided by the general provisions of the Evidence Act as to how far questions pertaining to the character of a witness may be put so as to shake his credibility as a witness under Section 146, Evidence Act. and how far a witness requires protection of the court in terms of Section 152 or any other section in Chapter 10 of the Act. It is neither proper nor practicable for us to fetter the discretion of the learned Magistrate in the matter.
17. The contentions specifically raised on behalf of the petitioner having failed, the application is dismissed. The learned magistrate will now proceed on with the trial in its due course.
Reuben, C.J.
18. I agree.
19. Mr. R.P. Sinha argues that one element of defamation is intention to harm reputation or knowledge that reputation will be harmed, and therefore evidence is admissible that the complainant has no reputation. This is a plausible argument and finds some support in the cases cited by him. The fallacy in the argument is that what the defence want to prove is not that the complainant has no reputation, but that the complainant's reputation is so low that it cannot be injured by the imputation. In other words the point sought to be put in issue is not the existence o± a reputation but the level at which the reputation stands. It is this level of which Petheram C. J., was thinking when in -- '7 All 906' (A) he said: "The question here is whether, with reference to these words alone, and apart from the rest of the section, Captain Hearsay intended to harm the reputation of Mr. Laidmao. Before this question can be answered it is essential to see what Mr. Laidman's reputation is....."
So also in -- 'AIR 1923 Lah 225 (B)' Martineau J. thought the question "what reputation the complainant had" to be relevant and Bhargava J. in -- 'AIR 1950 All 455 (C)' expressed the view that the accused could adduce evidence to prove that "the complainant's reputation was, in view of certain acts of omission or commission, already at a low ebb."
The fact is that every one has reputation and the only question that can arise regarding it is whether it is high or low. This question, with all respect to their Lordships, is irrelevant in a prosecution for defamation. The law does not contemplate that any person's reputation is so low that it cannot fall tower by the publica tion of fresh defamatory matter relating to him. Also, it is unthinkable that the law can intend that defamatory matter about a person of high reputation can be published without incurring liability for prosecution under Section 500, Penal Code, merely because his reputation stands so high that the imputation is not likely to be believed. Even in Civil libel the absence of 'damnum' is no defence and the plaintiff may recover general damages without proof of special damage. Still less can it be a defence in a criminal case that the reputation of the complainant is such that it cannot be injured by the imputation. The view is supported by the fact that the truth of the imputation is not by itself a defence, vide the first exception to Section 499. It has been pointed out by my learned brother that while the Civil Court is concerned to compensate the plaintiff, the Criminal court acts to punish a crime which it deems to be injurious to the public at large. In this view, what Greer L.J. said about the right of a man with a damaged reputation to protection from the Civil Court is even more true of the Criminal Court.