Bangalore District Court
Sri M.Diwakar Babu S/O vs Sri. G.Janardhana Reddy on 23 March, 2020
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH82)
:Present :
Sri RAMACHANDRA D. HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Dated: This the 23rd day of March, 2020
Spl. CC No. 829 / 2019
COMPLAINANT:- Sri M.Diwakar Babu s/o
M. Anjinappa,
Aged about 48 years
r/o Agadi Mareppa Compound
Behind Raghavendra Talkies
Brucepet, Bellary
(Sri M.T.N., Adv)
V/s
ACCUSED:- 1. Sri. G.Janardhana Reddy
s/o Changareddy
Aged about 56 years
r/o Veeranagouda colony
Behind Fire Station
Bellary
Also,: Printer, Editor and
Publisher of Ee Namma
Kannada Naadu, Kannada Daily
News Paper
2 Spl. CC No.829/2019
Ennoble House,
K.C.Road, Bellary
2. B.Sriramulu s/o Thimmappa
Aged about 53 years
Proprietor City Cable Net work
r/o Devinagara, Bellary
3. B.K.Narasimha Murthy
s/o Shivashankarashastri
Aged about 53 years
Manager, City Cable Network
K.C.Road, Bellary
4. Joshi s/o Eranna
Aged about 45 years
Reporter, City Cable Network
K.C.Raod, Bellary
Date of offence 11-06-2004
Date of report of offence PCR complaint
Name of the complainant Diwakar Babu, complainant
filed private complaint
Date of commencement of 14.2.2007
recording of evidence
Date of closing of evidence 17.1.2008
Offences complained of Sec.500 of IPC
Opinion of the Judge Accused found not guilty
Complainant represented by Sri M.T.N. Adv.,
Accused defended by Sri C.R.P., Adv
JUDGMENT
This criminal case arises out of the private complaint filed by the Complainant in PC No.133/2004 on the file of 3 Spl. CC No.829/2019 Addl. Civil Judge and JMFC, Bellary (then Civil Judge (Junior Division), alleging the offences punishable U/s.500, 501 and 502 r/w 34 of IPC.
2. After filing of the complaint, said court took cognizance of offences and posted the case for recording sworn statement of Complainant and his witnesses.
3. Before the said court, Complainant recorded his sworn statement along with his witnesses. The said court passed an order on 27.5.2005 registering the Criminal Case against the accused persons for the aforesaid offences and issued process against the accused.
4. Pursuant to the summons issued by the said court, all the accused appeared before the said court and were enlarged on bail. There was compliance of Sec.207 of Cr.P.C., along with the process itself. The said case was registered as CC No.1600/2005 on the file of Addl. Civil Judge (Jr.Dn.,) and JMFC, Bellary.
4 Spl. CC No.829/2019
5. Before the said court itself, the evidence was recorded, even the statement of the accused U/s.313 of Cr.P.C., came to be recorded. When the case was posted for arguments, said court passed an order on 17.6.2019 stating that in view of establishment of this Court i.e., LXXXI Addl. City Civil and Sessions Judge (CCH82), a Special Court constituted as per Government Order No.LAW 10 LCE 2018 dt.8.2.2018 and notification of Hon'ble High Court of Karnataka bearing No.GOB(I)1/2018, Dt.23.2.2018 exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka, above case is transferred to this Court. After transmission of the records, this case is re-numbered as Spl.CC 829/2019. Before this court also presence of accused No.1 to 4 is secured.
6. Brief and relevant facts leading to the case of the Complainant are as under:-
"That the Complainant by name M.Diwakar Babu filed private complaint against accused No.1 to 4 under Sec.200 5 Spl. CC No.829/2019 Cr.PC., stating that, he is a law abiding and peace loving citizen of Bellary, making his livelihood by doing business as a dealer in pesticides and also doing transport business in Bellary. He states that, he hails from a respectable family which has commanded a rich heritage in the State of Karnataka, in general and Bellary District in particular.
Since from the time of his ancestors his family has established themselves as a reputed political family and their family is known as Mundlur family and commanded honour and dignity and simplicity.
It is further stated in the complaint that, he was born in the said family and brought up in a disciplined way. His family name is having a good name and reputation in Bellary district. Since from generations, his family commanded glorious history and success in business and politics. It is further stated by the Complainant that, his father was successful businessman and called Gentle and Genius person. One of the brothers of the Complainant Sri M.Ramappa was elected to Assembly for three times from 6 Spl. CC No.829/2019 Bellary City and Kurugodu constituencies and was a Minister of State for Energy.
He states that, he entered into politics as a member of City Municipal Council, subsequently as a Chairman of City Municipality and elected for two terms as MLA from Bellary Constituency and held the office of Minister for Rural Development and Panchayathraj and as a Minister for Co-Operation. Thus he says that, he has got good raport, reputation and good character. He is one of the District Congress Front-line Leaders and has a bright political future. His family is known for simplicity, noble social work and kind hearted approach. He is thriving hard for the betterment of people of Bellary District.
A specific allegation has been made by the Complainant that, accused No.1 being the President of District Unit of Bharathiya Janatha Party, addressed the press meet on 11.6.2004. In the said press meet, he spoke at length about Mundluru family and in particular making various allegations against the Complainant as follows:-7 Spl. CC No.829/2019
"ದವಕರ ಬಬಬ ಹರಕ ಕಷಷನ ಕಕಲ ಮಡಸದರರಬಬದರಲ ಯವದದ ಅನಬಮನಗಳಲಲ. ಪ ಕಸದರವರ ಕಕಲಯಲ ದವಕರ ಬಬಬ ನದರವಗ ಭಗವಹಸದರರದಬ ಅನಬಮನ ಪಡಲಕಕ ಅನದಕ ಕರಣಗಳಬ ಇವ. ಈ ಕಕಲಯಲ ದವಕರ ಬಬಬರವರ ನದರ ಹಸಸಕಪವದ ಎರಬಬದಕಕ ರಬಜಬವತಬ ಅರದರ ಪದಲದಸರಬ ತನಖ ನಡಸದರ ತಳಯಬತಸ. ಮಬನಸಪಲಟ ಮಮನದಜರ ವಜಯ ಕಬಮರ ನಗರ ಸಭ ಸದಸಮ ರಘವದರದಕರ ಕಕಲಯನಬ ನ ದವಕರ ಬಬಬ ಮಡಸರಬಹಬದಬ. ಈ ಕಕಲ ರಜಕದಯವನಬ ನ ಪಕರರಭಸದ ಲ ರಬ ಮಬರಡಕ ಕಬಟಬರಬ, ರರಲಲದ ಬಬಬ ಕಕಲಯನಬ ನ ಲ ರಬರವರದ ಮಬರಡಕ ಮಡಸದರ ಅರತ ಜನರಬ ಹದಳಬತಸರ. ದವಕರ ಬಬಬರವರ ಮದಲ ತಕಣ ಕ ಕಮಕರಗಕಳಳಬದಕರದಬ ಎಸ.ಪ., ಮತಬಸ ಜಲ ಲ ಧಕರಗಳಗ ಒತಸಯಸಬತಸದವ."
It is specifically alleged by the Complainant that, the statement of accused No.1 is politically motivated. He did such a statement knowingly that such allegations are false, malicious and baseless. They are per se defamatory. It is further alleged by accused No.1 that, the Complainant got murdered Harikrishna and he has directed and participated in killing of Prasad (Arrack Contractor). It is 8 Spl. CC No.829/2019 also alleged by accused No.1 in his statement that, Complainant might have done away with Manager of City Municipal Council Vijayakumar and Raghavendra. It was alleged by the accused No.1 that culture of murder politics was introduced by Mundluru Family.
It is further alleged that, accused No.1 is editor, printer, publisher of Kannada daily "Ee Namma Kannada Naadu". The statement was printed and published at Bellary. It appeared in the said paper on 12.6.2004. It is having wide circulation in the District of Bellary. Said press press meet was broad casted by cable net being owned by this accused No.2 at the instance of accused No.1. Accused No.2 to 4 are being the owners, they are the editors and reporters of said news channel.
It is specifically alleged by the Complainant that, the said news item and the statement of accused in the news paper contained a defamatory statement against the Complainant. Thus it is alleged that accused No.1 to 4 have committed the offences punishable under Sec.500 of IPC. It 9 Spl. CC No.829/2019 has caused irreparable damage to the reputation of the Complainant. His family has enjoyed reputation in the society. He has been branded falsely as anti-social element and notorious criminal. This resulted in diminishing of reputation of the Complainant at large.
It is further alleged by the Complainant that, it has caused embarrassment to the Complainant's family, friends, relations and the political party, which the Complainant belongs. The allegations alleged against the Complainant and Complainant's family are defamatory in nature and their image has been tarnished in the eyes of public. It is an attack on the moral character of the Complainant and his family members. The Complainant wants to preserve his reputation and unviolated esteem. But the Complainant is disturbed by false and disgraceful statement of the accused No.1. This illegal act of the accused persons come under the purview of Sec.499 of IPC. Thus it is alleged that, accused No.1 to 4 have committed the offence not only under Sec.499 of IPC and 10 Spl. CC No.829/2019 also under Sec.500, 501, and 502 r/w 34 of IPC. Therefore, private complaint was filed by the Complainant to take necessary action against the accused and deal with the accused persons in accordance with law."
7. As stated supra, after filing of the complaint, cognizance of the offence was taken, process came to be issued against the accused persons after recording sworn statement of the Complainant and his witnesses. After appearance of the accused persons before the said court, Substance of accusation under Sec.500 of IPC came to be framed, readover to the accused persons, in the language known to them on 20.11.2006. Accused No.1 to 4 pleaded not guilty and claimed to be tried.
8. To substantiate the case alleged against the accused persons, Complainant examined in all three witnesses as PW1 to 3 and got marked 08 documents as Ex.P.1 to Ex.P. 8. The records of this case do reveal that, PW3 was examined in part. After his examination-in-chief, he did not turned upon for cross-examination. It was closed 11 Spl. CC No.829/2019 by the said court, observing that there is no cross- examination to PW3.
9. Even after transmission of entire records to this court, attempt was made by the Complainant to secure PW3. It was fairly submitted by the Complainant before the court that, as PW3 has changed party, he do not intend to attend the court for cross-examination. Therefore, evidence of PW3, in view of the submission of Complainant and his counsel, is treated as non-est.
10. After closure of evidence before the said court itself, accused were questioned under Sec.313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of Complainant and his witnesses. They denied their complicity in the crime and choose to lead defence evidence. But inspite of giving sufficient opportunities to accused persons to lead defence evidence, they did not lead. Therefore, it was ordered by the said court that the accused have no defence evidence and posted the case for arguments. 12 Spl. CC No.829/2019
11. When the case was posted for arguments, the entire records are transmitted to this court.
12. Heard the arguments of learned counsel for the Complainant and learned counsel for accused at length. Meticulously perused the records.
13. The points that would arise for my consideration are as under:-
1) Whether the Complainant, proves beyond all reasonable doubt, that this accused No.1 being the editor, publisher of kannada daily news paper by name "Eee Namma Kannada Naadu" and accused No.2 being the owner of City Cable Network, Bellary and accused no.3 and 4 being employees under accused No.2, of the said net work, on 11.6.2004 this accused No.1 in a press meet addressed the press meet alleging against the Complainant by giving statement as :-13 Spl. CC No.829/2019
"ದವಕರ ಬಬಬ ಹರಕ ಕಷಷನ ಕಕಲ ಮಡಸದರರಬಬದರಲ ಯವದದ ಅನಬಮನಗಳಲಲ. ಪ ಕಸದ ರವರ ಕಕಲಯಲ ದವಕರ ಬಬಬ ನದರವಗ ಭಗವಹಸದರರದಬ ಅನಬಮನ ಪಡಲಕಕ ಅನದಕ ಕರಣಗಳಬ ಇವ. ಈ ಕಕಲಯಲ ದವಕರ ಬಬಬರವರ ನದರ ಹಸಸಕಪವದ ಎರಬಬದಕಕ ರಬಜಬವತಬ ಅರದರ ಪದಲದಸರಬ ತನಖ ನಡಸದರ ತಳಯಬತಸ. ಮಬನಸಪಲಟ ಮಮನದಜರ ವಜಯ ಕಬಮರ ನಗರ ಸಭ ಸದಸಮ ರಘವದರದಕರ ಕಕಲಯನಬ ನ ದವಕರ ಬಬಬ ಮಡಸರಬಹಬದಬ. ಈ ಕಕಲ ರಜಕದಯವನಬ ಲ ರಬ ಕಬಟಬರಬ, ರರಲಲದ ನ ಪಕರರಭಸದ ಮಬರಡಕ ಬಬಬ ಕಕಲಯನಬ ಲ ರಬರವರದ ಮಡಸದರ ಅರತ ನ ಮಬರಡಕ ಜನರಬ ಹದಳಬತಸರ. ದವಕರ ಬಬಬರವರ ಮದಲ ತಕಣ ಕ ಕಮಕರಗಕಳಳಬದಕರದಬ ಎಸ.ಪ., ಮತಬಸ ಜಲ ಲ ಧಕರಗಳಗ ಒತಸಯಸಬತಸದವ."
Thus by means of spoken words and by publishing the same in said cable net work, concerning the complainant, intending to harm his reputation, and thereby committed an offence punishable U/s. 500 of IPC?
2) What order?
14. My answer to the above point is as under:- 14 Spl. CC No.829/2019
Point No.1:- In the negative Point No.2:- As per final order for the following.
REASONS
15. Point No.1 :- Learned counsel for Complainant with all vehemence submits that, accused No.1 is the printer, editor and publisher of "Ee Namma Kannada Nadu, accused No.2 is proprietor, accused No.3 is Manager and accused No.4 is the reporter of City Cable Net Work. He submits that the Complainant was an MLA and was also a Minister. His family is called as Mundlur Family. In all the criminal cases with regard to the alleged murder as stated in the publication, Complainant was not the accused. In those cases, accused persons were acquitted by the Sessions Court. Such publications are published as per Ex.P.3 to 5 news papers. He relied upon the evidence of PW1 and PW2 and submits that, on reading of entire cross- examination directed to these witnesses, there is no effective cross-examination so as to disbelieve the case made out by the prosecution.
15 Spl. CC No.829/2019
16. He further submits that, because of this publication so did by the accused No.1 by giving press- statement, the whole family of the Complainant, his relatives, etc., have been puzzled and their reputation is diminished and tarnished. Because of these allegations, he questions that, who would respect the Complainant, as allegations are made against the Complainant with regard to the alleged murder. It was telecasted. Name of the Complainant is dragged without any reasons. FIRs are nothing to do with the said complaint. Evidence of PW1 clearly demonstrate that, these accused persons have committed offences as alleged in the complaint. In support of his submission, he placed his reliance on the oral and documentary evidence placed on record and submits that the Complainant has established guilt of the accused to the hilt.
17. As against this submission, learned counsel for for accused persons submit that, defence of the accused person is one of the exceptions under Sec.499 of IPC. He 16 Spl. CC No.829/2019 submits that, exception No.1 and 9 of Sec.499 of IPC are very much attracted. It is the 'pratyaropa' according to his submission. According to him, no individual allegations are made against the Complainant. Accused No.1 pressed for conducting investigation so as to bring truth in the eyes of the public. Issue is addressed to the public. He submits that, the probabilities of the case are to be taken into consideration. Further he submits that, on reading of evidence of PW1, there are admissions in the cross- examination, which probabilises defence of the accused persons. So also, it shows the conduct of the Complainant. Ex.P.2 does not impute any defamatory remarks on the Complainant. There are no direct allegations against the Complainant. There is an admission to that effect by PW1. He submits that, it is counter statement or attack (pratyaropa) as against the statement of the Complainant. Further, he submits that, with this back ground, Ex.P.2 may be taken into consideration and read. Even during the course of 313 statement, accused No.1 has given his explanation. PW3 is not examined in this case, which is 17 Spl. CC No.829/2019 fatal to the case of the prosecution. Omnibus statement were made and they cannot attract the provisions of Sec.499 of IPC. Publishers and editors of other papers are not arrayed as accused in this case, which is fatal. Thus he submits that, burden is on the Complainant to prove his case and is not on the accused persons. He submits that initial burden so cast on the Complainant is not properly discharged as provided under the provisions of Indian Evidence Act.
18. I have given my thoughtful consideration to the submissions of both sides. Meticulously perused the materials placed on record. Now let me analyse that, whether the Complainant has established his case with legal evidence or otherwise.
19. PW1 being the Complainant has reiterated the complaint allegations in his evidence on oath. In his examination-in-chief he says with regard to so called statement given by the accused in the press meet as under:-.
18 Spl. CC No.829/2019
ದನರಕಕ 12-06-2004 ರರದಬ ಒರದಬ ಪಕಸ ಮದಟರಗ ಕರದಬ, ಅದರಲ ದವಕರ ಬಬಬ ಹರಕಕಷಷನ ಕಕಲಯನಬ ನ ನದರವಗ ಮಡಸದರ ಹಗಕ ಪ ಕಸದಬಬಬ ಎಕರಜಕರಟಕಮಕಕರ ಕಕಲಯ ನದರ ಹಸಸಕಪ ಇದ ಎರಬಬದಗ ಹದಳರಬತಸರ. ಲ ರಬ ಮರಡಕ ಕಬಟಬರಬ ಕಕಲ ರಜಕದಯವನಬ ನ ಪಕರರಭಸದ ಎರಬಬದಗ ಹದಳರಬತಸರ.
ಮಬನನಪಲಟ ಮಮನದಜರ ವಜಯಕಬಮರ ಇವರ
ಕಕಲಯನಬ
ನ ಸಹ ದವಕರಬಬಬ ಮಡಸರಬಹಬದಬ
ಎರಬಬದಗ ಹದಳಕ ನದಡದರ. ಕನನಲರ ರಘವದರದಕ
ಕಕಲಯನಬ
ನ ಸಹ ನನಬ ಮಡಸರಬಹಬದಬ ಎರಬಬದಗ
ಹದಳಕ ನದಡದರ. ರರಲಲಬಬಬ ಇವರ ಕಕಲಯನಬ
ನ ಸಹ
ಲ ರಬ
ಮರಡಕ ಇವರ ಮಡಸದರ ಎರಬಬದಗ ಜನರಬ
ಹದಳಬತಸರ ಎರಬಬದಗ ಹದಳರಬತಸರ.
20. Thus he says that, in the press meet being called by accused No.1, he has given a statement to the press stating that the Complainant is the cause for murder of one Harikrishna, so also one Prasad Babu, Excise Contractor, etc. There is involvement of the Complainant in the commission of the said crimes. He also stated that, the 19 Spl. CC No.829/2019 Mandluru family has started the murder politics. Even he says that, the Complainant might have caused the murder of Vijayakumar, Municipality Manager, so also Complainant may be the reason for for causing murder of Raghavendra. Thus, he states that this statement given by this accused No.1 is per se defamatory. Therefore, accused are liable for conviction.
21. This PW1 has been thoroughly cross-examined by the counsel for the accused. It is elicited that, right from 1950 onwards, the family of the Complainant is involved in politics and from 1950 for two times the father of the Complainant became the MLA. It is elicited that, the father of the Complainant tried to include the Bellary to Andhra Pradesh, but did not succeed. He lost his election. Thereafter, became the member of legislative assembly of Karnataka State. This PW1 admits that, his father did agitation in the year 1956 to include Bellary in Andhrapradesh.
20 Spl. CC No.829/2019
22. It is further elicited that, in the year 1994, this Complainant got elected as an MLA independently. Thereafter, he joined Congress Party. Thereafter he joined Janata Party. But being in the JDS party, he supported congress candidate. Relying upon this evidence counsel for accused submits that this Complainant is not at all a real politician. He frequently changed his political parties etc.
23. It is further elicited that, this Complainant has not at all ascertained that the said City Cable Net Works, Bellary belongs to whom. According to his evidence, it belongs to accused No.2 MLA i.e., Sri Ramulu. But no documents are produced to that effect. It is further stated by him that, 'Ee Namma Kannada Nadu' news paper belongs to accused No.1. It is stated by him that when he was an MLA and Minister, there were no criminal cases against him. But deposes ignorance before the court that in the year 1996, there was a complaint filed by one Jagadisha, Municipal Commissioner, in Cr.No.341/1996 21 Spl. CC No.829/2019 before the Brucepet Police Station. He further deposed ignorance that in the said complaint it was alleged that this Complainant has caused obstruction in the discharge of government duties by the Complainant Jagadisha. So also deposed ignorance about filing of complaint in Cr.No.10/1996 before the Brucepet Police station by one Rathnakara PSI, alleging that this Complainant has caused obstruction in discharge of the public duties. Even deposed ignorance about filing of complaint by one PSI Govindappa in Cr.No.119/1999 before Gandhinagara Police Station. He admits about pendency of the complaint after completion of all the boundary disputes etc. Even deposed ignorance that, there was complaint filed against him with regard to the murder of one Yellappa. Thus he deposes complete ignorance about filing of complaint against him by the aforesaid persons. He admits that, in the year 2008 there were complaints filed against him. Even he admits that in the year 1994, a complaint filed against him in Cr.No.21/1994 under the Excise Act in Andhra Pradesh 22 Spl. CC No.829/2019 Police Station. He never denies about filing of a complaints against him. But deposes ignorance before the court.
24. He admits that, when he was a minister in the Government, he used to come to know about the happenings of the events within his constituency. He is not possessing any cable net work at Bellary. He admits in para-16 at page No.8 of cross-examination as under:-
ನನಗ ಬಳಳರಯ ಹರಕಕಷಷ ವಮಕಸಯ ಪರಚಯ ಇದ. ಹರಕಕಷನ ಇವರಬ ದನರಕಕ 16-09-2002 ರರದಬ ಬಳಳರಯಲ ಕಕಲಯದರಬ ಅನಬ ನ ವದಬ ನಜ. ನನಗ ಬಸವ ಉರರ ಬಸವರಜಬ ನ ವವರ ಪರಚಯ ಇದ. ಹರಕಕಷಷ , ಬಸವರಜಬ, ಕಕಷಷಕಬಮರ ಅನಬ ಇವರಲಲ ಸದರ ಮಗ ಚನಲ ಎರಬ ಟ.ವ.ಚನಲ ಅನಬ ನ ಬಳಳರಯಲ ಹಕರದದದರಬ ಅರದರ ನಜ. ಬಸವರಜ ಮತಬಸ ಹರಕಕಷಷ ದ ನನಗ ಗಕತಸಲಲ.
ಇವರ ನಡಬವ ಭನನಭಪಕಯ ನಡದದಬ ಹರಕಕಷಷ ಇವರಬ ಬಳಳರ ಚನಲ ಎರಬ ಪ ಕತಮದಕ ಚನಲ ಮಡಕಕರಡದದರಬ ಅರದರ ನನಗ ಗಕತಸಲಲ. ಹರಕಕಷಷ ಮತಬಸ ಬಸವರಜಬ ಇವರಗ ಭನನ ಭಪಕಯ ಬರದ ಸರಧಬರದಲ ನನನ ಕಬಟಬರಬದ ಶಟಕ ಹಗಕ ನ ಪರಚಯತಗ ಕರದದದರಬ ಅರದರ ನನಗ ಕಬಮರಸಲಮ ಇವರನಬ ಗಕತಸಲಲ. ನನನ ಕಬಟಬರಬದ ಶಟಕ ಹಗಕ ಕಬಮರಸಲಮ ಇವರಬ ತನಗ 23 Spl. CC No.829/2019 ಪಕಣಭಯ ಒಡಡದರರದಬ ಹರಕಕಷಷ ಇವರಬ ದಕರಬ ದಖಲಸದದರಬ ಅರದರ ನನಗ ಗಕತಸಲಲ. ಹರಕಕಷಷ ಇವರ ಕಕಲ ಆದ ಬಗಗ ಘಟನಯ ಮರನದ ದನ ನನಗ ಗಕತಸಯತಬ. ಘಟನ ನಡದ ದನದರದಬ ನನಬ ಬಳಳರಯರದ ಬರಗಳಕರಗ ಹರಪ ಎಕಕಪಕಸ ರರಲಗ ರತಕ 9-05 ಕಕ ಹಕರಟದ ಅರದರ ನಜ. ರರಲನಲ ನನನ ಸರಗಡ ಯರಕ ಇರಲಲಲ.
ಗನನಮಮನ ಹಕರತಗ ಯರಕ ಇರಲಲಲ. ನನಬ ಅರದಬ
ದ , ಪವರನಯಜತವಗರಲಲಲ. ದನರಕ
ಬರಗಳಕರಗ ಹಕರಟದಬ
17-09-02 ರರದಬ ನನಗ ಬಳಳರಯಲ ಜಲ
ಲ ಪರಚಯತಯಲ
ಮಬಖಮ ಅತಥಯಗ ಒರದಬ ಕಯರಕ ಕಮ ನಗದಯಗತಬಸ ಅರದರ
ನನಗ ಗಕತಸಲಲ.
25. He deposes that, he knew that one Harikrishna was murdered on 16.9.2002. He was knowing him. He admits that the said Harikrishna, Basavaraja, Krishna Kumar were running the Megha TV Channel at Bellary. He is unaware about the mis-understanding between Basavaraju and Harikrishna etc. He deposes ignorance that Harikrishna lodged a complaint that there was life threat from the family of Complainant and one Kumaraswamy to his family. He came to know about the murder of said 24 Spl. CC No.829/2019 Harikrishna. He says that, when the said incident took place, he was travelling in Hampi Express to Bengaluru.
Except his gunman nobody was along with him. He says that, his visit to Bengaluru at that time was not pre-planed. He deposed ignorance that, on 17.9.2002 there was a function arranged wherein this complaint was the chief guest at Zilla Panchayath, Bellary.
26. Thus the evidence of this PW1, if scrupulously perused, he deposes so many ignorance with regard to the incident that have been spoken to by accused No.1 in his press-statement. He admits that Basavaraju was an accused in the murder case of Harikrishna. He admits that Basavaraju was his follower.
27. This PW1 has been cross-examined at length. It has come in the evidence of PW1 Complainant that, he does not know about the dispute between the deceased Prasad Babu and Kumaraswamy. Even he goes to the extent that, he does not know what his brothers are doing. Further, he deposes that he do not know whether one 25 Spl. CC No.829/2019 Paritala Ravi committed the offence of abduction of deceased Prasad Babu. He admits that, the Mundluru Kumaraswamy was arrested in the alleged murder case of deceased Prasad Babu. He volunteers to say that, he was arrested much after filing of the complaint. He further admits that, Kumaraswamy was accused in the murder case of Prasad Babu. Further, he admits that, one Muthaiah, DFO of Karnataka forest Department complained against him alleging offence under Sec.307 of IPC. He volunteers to say that, about five cases are booked against him by that officer and the police department. He says that, he has not attended the press meet alleged to have been conducted by accused No.1 on 11.6.2004. He has not examined any press reporter or any person who has attended said meeting. He says that, his friends have recorded the video from the TV telecast. He has not examined the person who has recorded the video in this case. He further says that, the accused Janardhana Reddy did public political meeting prior to 2004 Vidhanasabha Elections and also after 2004 Vidhanasabha elections. He 26 Spl. CC No.829/2019 says that, the said Janardhana Reddy has not told anybody or to himself or in public meeting that "I am the only person who is responsible for the murders took place in Bellary" Said evidence reads as under:-
"The accused Sri Janardhana Reddy as alleged against me in public meeting politically prior to 2004 Vidhana Sabha Elections and also after 2004 Vidhana Sabha Election. The said Sri Janardhana Reddy had not told to anybody or to myself or in the public meeting that I am the only person who is responsible for the muders took place in Bellary.
I gave press meet after the alleged press meet of Sri Janardhana Reddy referred above and given statement that the so called allegations made against me are all false."
28. Thus he did a press meet after the alleged press meet of Janardhana Reddy referred above and given 27 Spl. CC No.829/2019 statement that so called statement against him are all false. He admits that, the press statement was published in Telegu, Kannada daily news papers in Eee Namma Kannada Nadu, Prajavaani, Samyukta Karnataka, Vijaya Karnataka, etc. But says that, he has not taken any action against the above said editors of news papers for having published false press news. He admits that in a democratic state, critics against public representatives is common by the public and press in general, but not by responsible persons. He admits that "it is true to say that whenever any doubt or any strong allegations is made against any public representative by anybody there is no any wrong to demanding police enquiry against such persons."
29. He further admits that "generally such police enquiry will be demanded by the public in general in the interest of the State and public in general." He admits that, he has not mentioned in his complaint under what circumstances accused has given his statement. He denies the suggestion that accused Sri Janardhana Reddy has 28 Spl. CC No.829/2019 initiated the police enquiry against him only. This suggestion is denied by him as false. He admits that, after 2004, he continued his routine political activities as usual. He cannot say that, the alleged statement is defamatory, but is given in good faith of the accused in the news papers. He admits that, the news paper cuttings which he has produced in this case shows different "headings". In all the news paper cuttings produced by him, the matter published by each editor of the press is in different passion.
30. Placing reliance upon this evidence spoken to by this PW1 in the cross-examination, counsel for the accused persons submit that, this press statement given by accused No.1 which is published in the news papers as well as telecasted in TV was in good faith and in the interest of public. He submits that, Exception 1 and 9 to Sec.499 of IPC are aptly applicable to the defence of the accused.
31. PW2 P.Vasu, is an independent witness states that, on reading the news papers and on hearing about the press statement given by this accused No.1, he became 29 Spl. CC No.829/2019 frustrated and his respect for the Complainant was diminished. He has been thoroughly cross-examined. He says that he watched the news telecasted in the cable TV for about 10 minutes. Thus entire episode of press meet is not being witnessed by this PW2. He admits that cable operators Harikrishna, Raghavendra, Excise Contractor Prasad Babu are murdered. He says that accused No.1 has alleged that Complainant has committed the murder of those persons. After hearing such news in the said news papers, he did not talk to the Complainant, etc. Thus this PW2 categorically states in his evidence that because of this press statement, the respect which he had with the Complainant was diminished and this statement has tarnished the Complainant's reputation.
32. As stated supra, PW3 though examined, his evidence is treated as non-est. Therefore, evidence of PW3 will not help the case of the Complainant in any manner. 30 Spl. CC No.829/2019
33. So far as documentary evidence are concerned, this Complainant relies upon Ex.P. 2(a) wherein we find the press statement issued by accused No.1 has been published in this "Kannada Nadu" news paper. The heading reads as under:-
"ಹತಮ ರಜಕದಯ ಪಕರರಭಸದ ಕರಗಕಸಕ ಬಜಪ ಪ ಕತಮರಕದಪ"
34. So also in similar terms, in Telugu some publication is made, of which no translation is furnished by the Complainant. So also in Samyukta Karnataka dated 20.6.2004 under the heading:-
ದ "ಹತಮ ರಜಕದಯ ಆರರಭಸದಕ ಮಬರಡಕರಬ ಕಬಟಬರಬಕ ಆರಕದಪ"
35. It is a counter statement as per the submission of the counsel for accused. So also in another news paper Ex.p.5 similar statement is appearing in Vijayakarnataka news paper under the heading as below:- 31 Spl. CC No.829/2019
"ಕಕಲ ರಜಕದಯ ಮಬರಡಕರಬ ಕಬಟಬರಬದ ಕಕಡಬಗ"
36. PW1 admits that though the matter is same, but under different headings in different passion, this statement is being published in these news papers.
37. Counsel for the Complainant relies upon the judgment of the Court in CC No.1967 of 2001 wherein the present accused No.1 is an accused in the said criminal case filed by one M.Goverdan s/o late Hanumana, wherein we find that a private complaint was filed under Sec.200 of Cr.P.C., alleging offence U/s.500 of IPC against the present accused No.1. The said Criminal Court has convicted the accused and imposed a fine. It is settled principle of law that judgment of criminal court in one case is not binding on the other case i.e., each case is to be decided based upon the merits of the case and based upon the facts of each case. Therefore, this Ex.P.6 cannot be a basis to believe the story of the Complainant in this case. The said judgment has no bearing on this case.
32 Spl. CC No.829/2019
38. Complainant also has produced another judgment of civil court in O.S.102 of 2001 wherein this accused No.1 was defendant. Said suit filed by one N.Virupaksha, wherein the damages have been awarded by the said court on account of alleged publication of defamatory article. Facts of this case are quite different than the facts of the said judgment. Therefore, these two judgments will not help the case of the prosecution in any manner.
39. In this case, the Complainant has alleged that the said press statement so did by the accused No.1, which is published in the news paper is per se defamatory.
40. Learned counsel for complainant relies upon the judgment of the Hon'ble Supreme Court of India reported in AIR 1966 SC 97 in the case of Harbajan Singh Vs. State of Punjab. This judgment is also relied by counsel for the accused in support of his submissions. In the said judgment, Hon'ble Supreme Court of India have stated with regard to application of Sec.499 of IPC, which defines 33 Spl. CC No.829/2019 defamation. In Para-12, 14 and 18 of the said judgment Hon'ble Supreme Court of India have observed as under:-
12. Section 499 of the Code defines defamation. It is unnecessary to set out the said definition. because it is common ground that the impugned statement published by the appellant is per se defamatory. and so. we must proceed to deal with the present appeal on the basis that the said statement would harm the reputation of the complainant. Exception 9 to s. 499 provides that it is not defamation to make an imputation on the character of another. provided the imputation be made in good faith for the protection of the interest of the person making it. or for any other person. or for the public good. In the present case. the ingredient of public good is satisfied. and the only question which arose for decision in the court below and which arises before us. is whether the imputation can be said to have been made in good faith. There is no doubt that the requirements of good faith and public good have both to be satisfied.
and so. the failure of the appellant to prove good faith would exclude the application of the Ninth Exception in his favour cven if the requirement of public good is satisfied.
34 Spl. CC No.829/2019
14. It is true that under s. 105 of the Evidence Act, if an accused person claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused. But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit an exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That. no doubt. is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability." As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the 35 Spl. CC No.829/2019 original onus never shifts and the prosecution has at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not. in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt.
18. There is another infirmity in the judgment of the High Court, and that arises from the fact that while dealing with the appellant's claim for protection under the Ninth Exception, the learned. Judge has inadvertently confused the requirements of Exception One with those of Exception Nine. The First Exception to s. 499 is available to an accused person if it is shown by him that the impugned statement was true and had been made public for the public good. In other words, the two requirements of the First Exception are that the impugned statement must be shown to be true and that its publication must be shown to be for public good. The proof of truth which is one of the ingredients of the First Exception is not an ingredient of the Ninth Exception. What the Ninth 36 Spl. CC No.829/2019 Exception requires an accused person to prove is that he made the statement in good faith. We will presently consider what this requirement means. But at this stage, it is enough to point out that the proof of truth of the impugned statement is not an element of the Ninth Exception as it is of the First; and yet, in dealing with the appellant's case under the Ninth Exception, the learned Judge in several places, has emphasised the fact that the evidence led by the accused did not prove the truth of the allegations which he made in his impugned statement. The learned Judge has expressly stated at the commencement of his judgment that the appellant had not pressed before him his plea under the First Exception, and yet he proceeded to examine whether the evidence adduced by the appellant established the truth of the allegations made in his impugned statement as though the appellant was arguing before him his case under the First Exception. In dealing with the claim of the appellant under the Ninth Exception, it was not necessary, and indeed it was immaterial, to consider whether the appellant strictly proved the truth of the allegations made by him.
41. Relying on these observations and the ratio so laid down, it is submitted by the counsel for the Complainant that the requirements which are required to 37 Spl. CC No.829/2019 be proved by the Complainant have been proved with legal evidence. His submission is that whatever the burden of proof which cast on the Complainant has been discharged. Now the onus lies on the accused persons.
42. On scrupulous reading of the facts of this case as well as evidence brought on record in the cross- examination directed to PW1 and 2, initial burden is on the Complainant to prove the offence u/s.499 of IPC with legal evidence. As in this case, the accused have taken up the plea of exception falling under Exception-9 of Sec.499 of IPC, law treats the onus as discharged, if the accused persons succeeds, in proving a preponderance of probability.
43. In this case, the evidence brought on record in the cross-examination as well as the answer given by accused in the course of 313 statements, shows that there was no malice or animosity against the Complainant by these accused persons. A statement is given by the accused No.1 as per the submission of the accused that "let there 38 Spl. CC No.829/2019 be a investigation with regard to murder of Raghavendra." If investigation is done, according to him, the truth will come out. So according to the submission of the counsel for accused, this onus which has been cast on the accused have been discharged with preponderance of probabilities. He further submits that, burden now shifts on the Complainant, which is still to discharge his original burden. The test of probabilities that evidence proves the defence of the accused as per the submission of the counsel for the accused. When the test of probabilities have been brought on record in the cross-examination, then the accused are entitled to claim the benefit of Exception-9 of Sec.499 of IPC. Thus the onus on the accused person may be well compared to the onus on a party in civil proceedings and just as in civil proceedings court trying an issue makes its decision on adopting the test of probabilities. Here the two requirements of exceptions, i.e., proof of truth is one of the ingredients of first exception, and but it is not the ingredient of 9th exception. This 9th exception requires an accused person to prove that they made the statement in 39 Spl. CC No.829/2019 good faith. Thus the observations made by the Hon'ble Supreme Court of India and the ratio laid down are applicable to the present facts of the case.
44. No doubt, the accused as per the submission of the counsel for the accused, believed that whatever stated by accused No.1 himself will not sustain in the case of good faith under the 9th exception. But he pressed for investigation to be done by the concerned police authorities. So the principles laid down in the said judgment are applicable to the defence of the accused, rather than the plea set up by the Complainant in this case. It is stated by accused persons in their 313 statement that, there was no animus in the mind of accused No.1 against the Complainant. This fact is not seriously disputed by the Complainant. Malice in that sense, therefore, be eliminated dealing with the accused plea. Absence of personal malice may be relevant fact in dealing with the plea of defence set up by the accused in this case.
40 Spl. CC No.829/2019
45. Learned counsel for Complainant also relies upon the following cases:-
1) LAWS (SC) 1970 (3) 31 - Chamanlal Vs. state of Punjab.
2) 1971(1) SCC 885 - Sukra Mahto Vs. Basdeo Kumar Mahto and others.
3) 1981(3) SCC 208 - Sewakaram Sobhani Vs. R.K.Karanjia
4) 2002 Crl.L.J. 3845 - Meera Vs. Mathew
5) 2009(1) SCC 101 - M.A.Ramugam Vs. Kittu @ Krishna Murthy
46. I have scrupulously perused the principles so laid down in the said judgments. With regard to the principles laid down in the said judgments, there is no dispute as such.
47. As laid down by the Punjab and Haryana High Court in the second judgment in the case of Chamanlal Vs. State of Punjab, in the 9th Exception, it is stated that "the Ninth Exception states that if the imputation is made in 41 Spl. CC No.829/2019 good faith for the protection of the person, making it or for another person or for the public good it is not defamation."
48. In this case there is no evidence whatever brought on record by the Complainant that this imputation was not done in good faith. On reading the statement being given by accused No.1, so also the paper clips produced by the Complainant shows that, this accused No.1 pressed for investigation. It has been telecasted and published in the news papers. The principles laid down in the above judgment cannot be made applicable to the present facts of this case, so set up by the Complainant. No doubt, good faith is question of fact and it has to be established as a fact that the accused did enquiry before did the imputations etc. As stated above, the nature and scope of onus of proof, proves that the accused have to discharge in seeking the protection of Exception 9 to Sec.499 and that the accused lead evidence, brought some evidence in the cross-examination stating that he acted in good faith and he pressed for investigation. So this is test of probabilities as stated under 9th Exception and the evidence brought on 42 Spl. CC No.829/2019 record in the cross-examination establishes the defence of the accused.
49. As stated above, proof of truth of accused statement is not an ingredient of 9 th Exception, as it is of the 1st Exception. Under 9th Exception, it is not necessary, and indeed it is immaterial to consider the accused has strictly proved the truth of the allegations made by him. Therefore, the rigid rule or test for deciding whether an accused persons acted in good faith under 9 th Exception, as laid down in Harbajan's case. Question has to be considered on the facts and circumstances of each case, i.e., what is the nature of the imputations made, under what circumstances, they came to be made, what is the status of the person speaking, etc. So also was there is any malice in the mind of the accused persons, when they made this kind of imputation, are to be proved by the Complainant. Therefore, argument of counsel for accused that Exception 9 to Sec.499 of IPC can be applied is to be upheld.
43 Spl. CC No.829/2019
50. In the matter of defamation, the position of news papers is not in any way different from that of members of public in general. Law says that the responsibility in either case is the same. The degree of care and attention is no way less in the case of news paper publications than that required from ordinary men. In the case of publication of a defamatory matter actual source of information on which the person accused has acted and the justifiability of his so acting ought to be considered. In this case, press meet was conducted by accused No.1, it was video recorded as per the material brought on record and published in various news paper publications as marked as exhibits in this case. Evidence so brought on record do not prove the culpability of the accused persons in the manner alleged by the Complainant. Therefore, Section 105 of Indian Evidence Act i.e., in case of defamation, casts burden upon the accused to establish that the publication in question had been made in good faith i.e., with due care and caution. It is established by the accused persons in this case. Merely stating that the contents of the publication 44 Spl. CC No.829/2019 are defamatory and attack the conduct of the Complainant and morality, would not be sufficient. For the offence of defamation, the ingredients as stated in Sec.499 of IPC and explanation thereon have not been brought on record with legal evidence, by the Complainant.
51. Because, so far as defamation is concerned, we have to understand the definition of defamation first. As per the Commentaries on the Law of Defamation, it is not possible to give an exhaustive definition of defamation. Various definitions have been suggested by different authors. Broadly speaking, defamation may be defined as 'a false and damaging statement.' Salmond has defined it as a wrong that consists in the publication of a false and defamatory statement respecting another without lawful justification. It is conventional to say that the defamation includes a statement concerning any person which exposes him to hatred, ridicule or contempt. But this statement is no longer considered as exhaustive.
45 Spl. CC No.829/2019
52. The best method of approach to the definition of defamation is to consider it from the point of view of the right which the defamatory statement is alleged to infringe. The element of defamatory statement is that it is not sufficient to merely to prove that the statement has injured the man's reputation, but the statement should be such as would injure it in the minds of ordinary, just and reasonable citizens.
53. If accused make a statement that is defamatory, but he can prove it to be true, he will be covered by the defence of justification. Equally, if he publish a statement that is not true, but is not defamatory either, he cannot be sued for defamation. Thus the following are the requisites of defamatory statement, i.e., statement is defamatory if on reading, hearing, it would make an ordinary, reasonable person tend to;
(a) thing less well as a person of the individual referred to;
46 Spl. CC No.829/2019
(b) thing that the person referred to lacked the ability to do their job effectively;
(c) shun or avoid the person referred to; or (d) treat the person referred to as a figure of fun or an object of ridicule.
54. Defamation may be printed; broadcast on TV or radio; in films and videos; on the intent; made during public performances of a play.
55. In this case, it is alleged by the Complainant that whatever press statement given by the accused is printed and broadcast in TV and video is taken .
56. Sec.499 of Indian Penal Code speaks of defamation. Entire section 499 of IPC reads as under:-
Sec.499. Defamation. - 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 having reason to believe that such imputation will harm, the 47 Spl. CC No.829/2019 reputation of such person, is said except in the cases hereinafter excepted, to defame that person.
Explanation 1. - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3. - An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others; lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of 48 Spl. CC No.829/2019 that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
57. Sec.499 of IPC has got nine Exceptions, which the defence counsel relies upon. The law says that when a person pleading exception, must prove it. Herein this case, Exception No.1 and 9 have been claimed by the defence to show that whatever the press statement given by the accused No.1 comes under the purview of Exception No.1 and 9 of this Section 499 of IPC. First Exception and Ninth Exception to Sec.499 of IPC read as under:-
First Exception.-- Imputation of truth which public good requires to be made or published. - It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.49 Spl. CC No.829/2019
Ninth Exception. - Imputation made in good faith by person for protection of his or other's interests. - It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
58. In order to apply First Exception, it must be before the public that such imputation should be made or published. Thus it is clear from the plain perusal of Sec.499 of IPC that, for the benefit of First Exception the imputation should be against the complainant. The remaining exceptions do no require it to be so. They only require that it should be made in good faith. When truth is set up by the 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. The truth of the imputation complained off shall amount to a defence, if it was for the public benefit that the 50 Spl. CC No.829/2019 imputation should be published, but not otherwise. Therefore, in order to invoke Exception No.1 to Sec.499 of IPC, then the entire matter published should not only be true, but must also be true to be for public good.
59. So far as Exception 9 is concerned, it is not essential that before a person can be held entitled for the privilege of having made a statement in good faith for the protection of his interest, he should establish that every word he has spoken is literally true. Therefore, Exception 9 affords a protection to a person, who makes defamatory statement for the protection of interest of the person making it or of any other person or for the public good.
60. On reading the aforesaid Exception-9 to Sec.499, it shows that, it is sufficient, if a communication is made by a person for the protection of one's own interest in which the other also has a interest. This is clearly brought out by the illustration to the Exception. It cannot be seriously suggested that, the communication now in question satisfies this test. If this analogy is applied to the 51 Spl. CC No.829/2019 present facts of this case, on reading the so called press statement given by accused No.1 and the publication in the "Ee Namma Kannada Nadu" News Paper and other papers, it starts with " ಹತಮ ರಜಕದಯ ಪಕರರಭಸದ ಕರಗಕಸ ಬ.ಜ.ಪ ಪ ಕತಮರಕದಪ". Ex.P.2(a) it starts with " ಸಸಳದಯ ನಗರಸಭ ನಮ ನದದರಶನ ಸದಸಮ ರಘವದರದಕ ಕಕಲ ಪ ಕಕರಣದ ಬಗಗ ಮಜ ಸಚವ ದವಕರ ಬಬಬ ಮಡರಬವ ಆರಕದಪ ಶಬದದ ಸಬಳಬ ಳ , ಜನರನಬ ನ ದಕರ ಈ ರದತ ಮತರದದರ.' It is suggested that this statement is a counter-attack or statement by this accused No.1 to the statement given by this Complainant. Even in the other news papers, similar terms have been used by the publishers. By way of the said statement, it is published that ' ರಘವದರದಕ ಕಕಲಯಲ ಕಕಡ ಮಜ ಸಚವರ ಹಸಸಕಪ ಇರಬಹಬದಬ ಇನಬ ನ ವ ಸರಶಯ ನಮಗ ಬರದದ. ಈ ಬಗಗ ಪದಲಸರಬ ತದವಕ ತನಖ ನಡಸಲ." This statement so stated in this publication reveal that the accused No.1 called upon the concerned police agency to investigate so as to bring the truth before the public at large. Even in all other news papers also similar terms have been used. 52 Spl. CC No.829/2019
61. During the course of arguments learned counsel for accused placed reliance on the judgment of Hon'ble Supreme Court of India reported in AIR 1966 SC 97 in a case between Harbhajan Singh Vs. State of Punjab and another. In the said judgment, the Hon'ble Supreme Court of India have laid down the law with regard to the Exception to Sec.9 of the Sec.499 of IPC, and also have discussed with regard to the provisions of Sec.105 of Indian Evidence Act, so also, on 'good faith' as defined under section 52 of IPC. It is relevant to note the said principles laid down in the said judgment as follows:-
"(a) Penal Code, S.499, Except.9 and S.52
- good faith - Proof of- It is question of fact -
concurring findings as to good faith by lower courts - Supreme Court when will interfere in appeal.
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, IPC is a question of fact. Even if it is assumed to be a mixed 53 Spl. CC No.829/2019 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.
(b) Penal Code, S.499, Except.9 - Good faith and public good have both to be satisfied. Where to the charge of defamation under S.500 of IPC, the accused invokes the aid of Except. 9 to S.499, good faith and public good have both to be 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.
(c) Penal Code S.499, Except.9 - Evidence and proof - Evidence Act (1872) - S.105 -
Charge of defamation - Accused taking exception to charge under Except. 9 - Degree of proof that has to be offered by accused.
54 Spl. CC No.829/2019
There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the prosecution has discharged its onus of proving the guilt of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where he is called upon to prove that his case falls under an Exception, law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically, the original onus never shifts and the prosecution has at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.
Where an accused person pleads an Exception he must justify his plea, but the degree and character of proof which he is expected to furnish in support of the plea, cannot be equated with the degree and 55 Spl. CC No.829/2019 character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities, so must a criminal court hold the plea made by the accused proved, if a preponderance of probability is established by the evidence led by him.
(d) Penal Code, S.499, Except. 9 - Nature and scope of onus of proof which accused has to discharge - Held, accused was protected by Except. 9 to S.499.
The nature and scope of the onus which the accused has to discharge in seeking the protection of Exception 9 to S.499 is as under:-
(i) If it is shown that the accused has led evidence to show that he acted in good faith, and by the test of probabilities that evidence establishes his case, he will be entitled to claim the benefit of Exception 9.56 Spl. CC No.829/2019
(ii) the proof of truth of the impugned statement is not an ingredient of the Ninth Exception as it is of the first; under the Ninth Exception it is not necessary, and indeed it is immaterial, to consider whether the accused has strictly proved the truth of the allegations made by him
(iii) It is true that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. It must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. That is where the element of the due care and attention plays an important role. If before making the statement the accused did not show due care and attention, that would defeat his plea of good faith. But it must be remembered that good faith does not require logical infallibility.
(vi) It is not possible to lay down any rigid rule or test for deciding whether an accused person acted in good faith under the Ninth Exception. The question has to be considered on 57 Spl. CC No.829/2019 the facts and circumstances of each case, what is the nature of the imputation made, under what circumstances did it come to be made, what is the status of the person who makes the imputation, was there any malice in his mind where he made the said imputation, was any enquiry made by him before he made it, are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith under the Ninth Exception.
(v) Absence of personal malice may be a relevant fact in dealing with the accused's plea of good faith, but its significance or importance cannot be exaggerated. The accused will have to show that he acted with due care and attention, even in the absence of personal malice.
Held: After carefully considering the evidence to which the attention of the court was drawn that the High Court committed an error in holding that the accused had failed to show that he acted in good faith when he published the defamatory statement.
58 Spl. CC No.829/2019
Held further that the publication of the impugned statement was for the public good and that the accused was entitled to claim the protection of the Ninth Exception to S.499.
(e) Penal Code, S.52 and S.499, Except. 9 -
Good faith - Element of honesty is not
introduced in S.52.
The term "good faith" is defined in S.52 of the Penal Code, as also in S.3(22) of the General Clauses Act, 1897. In the definition in the Penal Code, the element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced."
62. On reading of the said judgment, Hon'ble Supreme Court of India have laid down the law with regard to the 9th Exception and how it is to be considered. So the nature and scope of the onus of proof which the accused has to discharge in seeking the protection of Exception 9 to Sec.499 of IPC have been well discussed as under at caption (d) supra.
59 Spl. CC No.829/2019
63. In para-14 of the said judgment, Hon'ble Supreme Court of India have discussed with regard to the provisions of Sec.105 of the Evidence Act as under:-
Para 14. It is true that under S.105 of the Evidence, if an accused person claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused. But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is a consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the 60 Spl. CC No.829/2019 prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accuse, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never 61 Spl. CC No.829/2019 shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt."
64. The principles laid down in the aforesaid judgment relied upon by the counsel for accused can be made applicable to the present facts of the case also.
65. He also relied upon the judgment of Hon'ble High Court of Karnataka reported in ILR 1999 KAR 3480 in the case of "Ganesh Narayan Hegde Vs. S.Bangarappa and others". In the said judgment, Hon'ble High Court of Karnataka have observed as under:-
Criminal Trial - standard of proof required in defamation cases - India Penal Code 1860 (Central Act No.45 of 1860) Sec.499 -Exception 9 and Section 500 - High Court did not accept the contention of the complainant that degree of proof required in defamation cases is "Preponderance of Probability" and "not beyond reasonable doubt" to prove the guilt of the accused.62 Spl. CC No.829/2019
In the cited decision, it is also stated that the degree of proof that is required is preponderance of probability and not beyond reasonable doubt. When it is for the prosecution to prove the case against the accused, it has to prove the guilt of the accused beyond reasonable doubt. Where the accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability".
More often, the politicians make attempts to highlight the lacunas in the administration, favouritism and other aspects. No political party is free from it.
The respondent No.1 was neither interested to mar the prospects of Mr. Ramakrishna Hegde to succeed in the election nor was he interested to defame the Complainant. Rpt No.1 was an MLA. So he owed a duty to the public at large. He received so many representations. Ex.D.8 was one of them. He has to have a concern for poor people. On account of smuggling, he must have thought that the poor people 63 Spl. CC No.829/2019 were put to great hardship as they were unable to get rice even for Rs.3,500/- per quintal. Merely he was arrival candidate for the Chief Ministership does not mean that necessarily, he was bound to go out of the way and cross the limits of Lakshmana Rekha and resort to character assassination. The statement made at the press conference was only in pursuance of the receipt of Ex.D8. Since he is a public man he might have thought fit to bring to the notice of the Chief Minister regarding the smuggling of rice. Moreover, he has received the representations from the people as per Ex.D.8. This is dated 15.4.1983. On the basis of this, if at all the respondent No.1 has made the statement, I think no ulterior motive can be attributed to the maker of this statement. Moreover, this letter was received much earlier than the press conference. The story could have been different if this letter was received after the press conference was over.
The rational thinking from man to man differs. When the relation is strained, even good suggestion becomes a poison;
64 Spl. CC No.829/2019when relation is cordial, poison becomes nectar. There are pulls and pushes in politics and some politicians play their cards well. It is also oft quoted that one man's food is another man's poison. There are chances of dubbing obligatory duties as defamatory statements. No doubt the evidence discloses that at the relevant time, Sri Ramakrishna Hegde and the respondent No.1 belonged to different parties and they were aspiring for the same post. So when two people have got aspirations for the same post, there is neck to neck race. No man can be perfect. Even without knowledge, out of sheer emotions, one is likely to cross Lakshman Rekha. Be it as it may be, it should be assessed objectively without any prejudice and bias.
Moreover, the press report sometimes cannot be said to be hundred percent
correct. The placement of the words may give rise to number of interpretations. It is left to the person to suit his purpose by resorting to the interpretation which is in his favour. In the above cited decision, their Lordships were also of the view that it is not possible to lay down any right rule 65 Spl. CC No.829/2019 or test in deciding whether an accused person has acted in good faith under the 9th Exception.
In my opinion the evidence that has been led by the Complainant does not pointedly clinch the issue that the respondent No.1 did not make this statement for the public good and in good faith. The statement in good faith should be free fro any negligence and recklessness and it must be made with due care and caution. In my opinion, the approach of the learned JMFC does not call for any interference.
66. In the said judgment, Hon'ble High Court of Karnataka have culled out so called publication and nature and scope of onus of scope which the accused has to discharge in seeking protection of Exception 9 to Sec.499 of IPC. Here in this case, there is no allegation by the Complainant that the accused No.1 had a malice against him and it may be relevant factor in dealing with the accused plea of good faith. During the course of 313 66 Spl. CC No.829/2019 statement, this accused No.1 to the question posed to him has stated as under:-
ಪಕಶನಕ ಈ ಪಕಕರಣದಲ ಎನದರಕ ಹದಳಕ ನದಡಬವದದಯದ ಉತಸರಕ ಲ ರಬ ಕಬಟಬರಬ ಕಲವರದಬ criminal ಮಬರಡಬ activity ಯಲ ಭಗಯಗದರ ಎರದಬ ವಷಯ ಚಚರಗ ಬರದಬ ಆ ವಷಯವನಬ ನ ಪಬಲಕ interest ಗಕದಸಕರ ಸವರಜನಕರಗ ದ ಗಕತಸಗಲ ಎರದಬ ಆ ರದತ ತನಖ ಯಗಬದಕರದಬ ಮತನಡದಬ ವರಯಕಸಕವಗ ಫಯರದದರರಗ ಯವದದ ದಲದಷದರದ ಮತನಡಲಲ.
67. Thus he has stated that, there may be some old criminal cases against Mundlur family and he has not stated directly that this Complainant is involved in the commission of the murder. Even the gist of the publications so published in the news paper stated supra, do reveal that, there is no direct allegations did by the accused No.1 alleging that there is an involvement of accused No.1 in the commission of the crime. He sought for investigation in a proper manner.
67 Spl. CC No.829/2019
68. If we apply the provisions of Sec.105 of the Evidence Act, so also the provisions of Sec.52 of the IPC with regard to 'good faith', it is shown by the accused that, he acted in good faith. By the test of probabilities, evidence so led proves the defence of accused persons . The accused are entitled to claim the benefit of Exception No.9 to Sec.499 of IPC. The onus on accused may well be compared to the onus on a party in civil proceedings by adopting the test of preponderance of probabilities. If this principle is applied, then criminal court can hold that, accused are able to establish their plea of probability.
69. Counsel for the accused have produced eight documents in support of his submission to show that, this Complainant is also involved in so many criminal cases, before various police stations not only at Bellary, but also in Andhrapradesh. PW1 being the Complainant in this case has deposed ignorance about the criminal cases filed against him. So also, he has deposed so many ignorances with regard to the suggestions so directed to him. 68 Spl. CC No.829/2019
70. In dealing with the claim of the accused under the 9th Exception, indeed it is immaterial to consider whether the accused had strictly proved truth of the allegation made by him as laid down in the judgment of Hon'ble Supreme Court of India in Harbajan's case. Therefore, if all these factual features coupled with the position of law is put together, the defence of accused definitely comes under the Exception 9 to Sec.499 of IPC. When the press reports, some news of public interest without malice, though the news may be unfavourable to some individual, publication is protected by Exception 9 to Sec.499 of IPC.
71. It is held by the Hon'ble Supreme Court of India in a judgment reported in (2016)7 SCC 221 in a case between Subramanya Swamy Vs. Union of India, Ministry of Law and others, with regard to the offence of defamation, at caption 'O' it is held as under:-
O. Penal Code, 1860 - Ss.499 and 44 - Criminal defamation - Ingredients - Held, 69 Spl. CC No.829/2019 Complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the Complainant - The criminal offence emphasises on the intention or harm.
Held: To constitute the offence of defamation under Sec.499 of IPC there has to be imputation and it must have been made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence made by him would harm the reputation of the complainant. The criminal offence emphasises on the intention or harm. Sec.44 of IPC defines "injury". It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Thus, the word "injury"70 Spl. CC No.829/2019
encapsulates harm caused to the reputation of any person. It also takes into account the harm caused to a person's body and mind. Sec.499 provides for harm caused to the reputation of a person, that is, the complainant.
72. In this case ingredients so stated are not fulfilled by the Complainant. There is inconsistency in the evidence of PW1. So also we find discrepant evidence with full of embellishments. In criminal cases, it is the duty of the Complainant or the prosecution as the case may be, to prove its case beyond reasonable doubt. Even slightest doubt arises in the case of the Complainant/prosecution, that benefit of doubt has to be extended to the accused person. Same analogy can be applied to the present court.
73. Though accused No.2 to 4 have been arrayed in this case, not even a single whisper is made by the Complainant that these accused persons are really responsible in publication or telecasting of the press meet by the accused. More so, though the said publication have been published in the news papers like Vijaya Karnataka, 71 Spl. CC No.829/2019 Samyukta karnataka and other papers, the Editors or the Reporters of the said news papers have not been arrayed as accused in this case. It is fatal to the case of the Complainant.
74. Evidence of PW1 indicate that, he is directing his allegations only against accused No.1. On scrupulous reading of the evidence placed on record by the Complainant by himself and PW2, it suffers from material particulars. It is full of contradictions, omissions, discrepancies and contradictions. These factors are not properly explained by the complainant. Thus the Complainant has utterly failed to prove his case with legal evidence. Hence, I record my findings to Point No.1 in the negative.
75. Point No.2:- As a result of my foregoing discussion and reasons stated thereon, accused No.1 to 4 are entitled for acquittal. Resultantly, I proceed to pass the following:-
72 Spl. CC No.829/2019
ORDER Acting under Sec.255(1) Cr.P.C., accused No.1 to 4 are acquitted of the charges leveled against them for the offences punishable U/Sec.500 of IPC.
Their bail bonds stand canceled. Accused No.1 to 4 are set at liberty.
(Dictated to the Judgment Writer, transcribed and typed by him, same is revised and corrected by me and then pronounced in the Open Court on this the 23 rd day of March, 2020) (RAMACHANDRA D. HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) ANNEXURE:
Witnesses examined by the Complainant.
PW1 M.Diwakara Babu
PW2 Vasu
PW3 Janardhan
73 Spl. CC No.829/2019
Witnesses examined by the defence/accused. -- NIL Documents exhibited by the Complainant.
Ex.P.1 Compact disc
Ex.P.2 Kannada Naadu news paper dt.13.6.04
Ex.P.3 Ee Nadu Telugu news paper dt.13.6.04
Ex.P.4 Samyukta Karnataka news paper
dt.13.06.04
Ex.P. 5 Vijaya Karnataka news paper dt.13.6.04
Ex.P. 6 CC of judgment in CC No.1967/01
Ex.P. 7 & Certified copy of judgment and decree in 8 O.S.102/01 Documents exhibited by the defence/accused. - Nil List of Material Objects marked by the prosecution:-- Nil LXXXI ACC & SJ, Bengaluru City (CCH-82) Rrk.