Sri V Sunil Kumar vs Sri Pramod Muthalik on 13 September, 2024

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Karnataka High Court

Sri V Sunil Kumar vs Sri Pramod Muthalik on 13 September, 2024

Bench: M.Nagaprasanna

Reserved on : 30.08.2024
Pronounced on : 13.09.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13TH DAY OF SEPTEMBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.19821 OF 2024 (GM-RES)

BETWEEN:

SRI V.SUNIL KUMAR
S/O VASUDEV
AGED ABOUT 49 YEARS
MEMBER OF LEGISLATIVE ASSEMBLY
KARKALA LEGISLATIVE CONSTITUENCY
KARKALA TALUK, UDUPI DISTRICT

ALSO AT:
NEKLAGE GUTTU
NEAR KALIKAMBA TEMPLE
KARKALA KASABA, KARKALA TALUK
UDUPI DISTRICT - 576 101.
... PETITIONER

(BY SRI VINOD KUMAR M., ADVOCATE)

AND:

SRI PRAMOD MUTHALIK
S/O HANUMANTHA RAO
AGED ABOUT 67 YEARS
RESIDING AT "PANCHAJANYA"
2

PARAPU JUNCTION, NAKRE ROAD
KUKKUNDOOR VILLAGE, KARKALA TALUK
UDUPI DISTRICT - 576 101.
... RESPONDENT

(BY SRI MANJUNATH S. HALAWAR, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO A) QUASHING THE ORDER ISSUANCE OF
PROCESS DATED 20/03/2024 PASSED BY THE 42ND ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BANGALORE, IN PCR NO
9331/2023, NOW NUMBERED AS CC NO 11709/2024, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 499 AND 500 OF IPC,
PRODUCED AT ANNEXURE D, HOLDING THAT IT IS AN ABUSE OF
PROCESS OF LAW AND ETC.,

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 30.08.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner, a Member of Legislative Assembly of Karkala

Legislative Constituency is knocking at the doors of this Court

calling in question an order dated 20-03-2024 by which the XLII

Additional Chief Metropolitan Magistrate, Bengaluru, in

P.C.R.No.9331 of 2023 takes cognizance of the offences and issues

summons for the offence under Section 499 of the IPC and
3

punishable under Section 500 of the IPC and has sought quashment

of the entire proceedings in C.C.No.11709 of 2024.

2. Facts, in brief, adumbrated are as follows:-

The issue relates to the Assembly elections that were

conducted for the Karnataka Legislative Assembly in the month of

May 2023. The respondent registers a complaint in P.C.R.No.9331

of 2023 on the score that his reputation built over 40 years has

caused a dent by the candidate contested opposite to him. The

incident is, after the election results on 13-05-2023, in a public

function arranged by the petitioner at Bandimutt bus stand, Karkala

he has with an intention to defame made false allegations against

the respondent. The allegation made publicly was that, the

respondent/complainant has committed murder of Hindus in the

name of Tiger Gang and the accused persons are still in Kalaburgi

jail. Though the complainant professes Hinduism, which one is pure

Hinduism is a doubt. On these words, the respondent/complainant

registers a private complaint before the learned Magistrate against

the petitioner on the score that the statements made by the

petitioner in public have caused a dent to the reputation of the
4

complainant. On the complaint, the concerned Court takes

cognizance of the offence, records the sworn statement and issues

process to the petitioner. Issuance of process is what has driven

the petitioner to this Court in the subject petition.

3. Heard Sri M.Vinod Kumar, learned counsel appearing for

the petitioner and Sri Manjunath S. Halawar, learned counsel

appearing for the respondent.

4. The learned counsel appearing for the petitioner submits

that the statements made during elections cannot be taken as

defamation; it was a statement made in a public rally. He would

submit that even the respondent has made several statements

against the petitioner and the petitioner has ignored all of them on

the ground that they were made during election rally. He would

seek to place reliance on the judgments of the Apex Court in the

cases of A. VIJAYAKANTH v. PUBLIC PROSECUTOR1, R.

RAJAGOPAL v. STATE OF TAMIL NADU2 and that of the High

1
(2017) 11 SCC 319
2
(1994) 6 SCC 632
5

Court of Allahabad in SALMAN KHURSHID v. STATE OF U.P.

AND ANOTHER 3.

5. Per contra, the learned counsel appearing for the

respondent/complainant would vehemently refute the submissions

to contend that the reputation of the complainant has been

damaged on account of the statements made by the petitioner.

They are all untrue. He has neither associated with the Tiger gang

nor has been jailed for any murder. Therefore, it is a matter of trial

for the petitioner to come out clean. He would submit that if the

petitioner is aggrieved by the statements made by the respondent

in the election rally, it is open to him to initiate proceedings. He has

not done so. He would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

7. Elections to the Karnataka Legislative Assembly get over

by announcement of results on 13-05-2023. Results declared the

petitioner won and the respondent who contested as an

3
2023 SCC OnLine All 52
6

independent candidate lost. At a victory rally on 14-05-2023, the

petitioner is alleged to have made a statement against the

complainant. The statement was made in a public rally while

making his speech and calling the respondent a deal master, a

congress 'B' team etc. inter alia. The clippings were widely

published in the electronic media and the print media as well.

People have witnessed the said election speech. On this score, that

the statements made have caused dent to the reputation of the

complainant, the complainant registers the complaint invoking

Section 200 of the Cr.P.C. seeking the Court to take cognizance of

the offence under Section 190A of the Cr.P.C. The entire speech

where allegations were made was made a part of the private

complaint. The paragraph that is germane for consideration of the

lis is as follows:

".... .... ....

5. It is submitted that the complainant has contested the MLA
election 2023 in Karkala Constituency as an independent
Candidate. The accused also contested in the said election
and has won the election on 13/05/2023. After the Election
Results, i.e. on 14/05/2023 in a public function arranged by
the accused's party held at Bandimutt Bus Stand, Karkala,
the accused spoken against the complainant with a malafide
intention to defame the complainant and made false
allegations against the complainant. The accused without any
proof and basis made severe malicious, unfounded
7

allegations against the complainant with an intention to take
revenge against the complainant. The contents of the false
allegations are reproduced herein below.

a) "ಪ ೕ ಮು ಾ ಕ ೇ ಹಣ ೋಸ ರ ಉತರ ಕ ಾ ಟಕದ ಂದುಗಳ ಹ ೆ!ಯನು$
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£À£ÀUÉ, CªÀgÀ£Àß G©â¹ ¥À©â¹, ¨ÉÃ½¹¢ÝÃgÀ®è.

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8ಾ ಾeೋಣ, ಸಭ! ೆIಂದ ಇ ೋಣ ಅಂತ LೇM.<."

The entire speech of the accused is recorded in the C.D. and
the same is produced herewith.

6. It is submitted that, These allegations made by the
accused are totally false and baseless, unfounded and
without any iota of truth of evidence or proof. The
allegations have brought disrepute, mental agony,
pain torture to the complainant. The said allegations
8

are now published in public media and in news papers
through out in India The Vijayavani news Paper
published on 15/05/2023 is produced herewith. The
Karkala Town Police against the accused. But the
police have did not take any action and issued
endorsement to the complaint The Complaint given by
the complainant and the endorsement issued by the
Police is produced herewith and the same may be read
as part of this complaint.

7. It is humbly submitted that the complainant has no nexus
with so called Tiger Gang Gokak. The complainant is not a
deal master as alleged by the accused. He never
negotiated with any body and contested the election
against the accused. The accused has made false
vexacious and reckless allegations against the
complainant out of political vengeance with a malafide
intention to harm and knowing that such imputation
will harm the reputation of the complainant. After such
allegations the people look at the complainant with
suspicion. The act of the accused lowers the credit of
the complainant. The imputation of the allegation is
hurtfull, which also hurt the feelings of the followers
of the complainant."

(Emphasis added)

The concerned Court takes cognizance of the offence against the

petitioner by a detailed order dated 10.01.2024. The order reads

as follows:

"01. This Private Complaint is filed by the Complainant under
section 200 of Code of Criminal Procedure ('Cr.P.C.' for short)
against the Accused praying for an order to take cognizance of
the offence under section 499 and 500 of IPC and to issue
process to the Accused.

02. In the complaint, it is stated that he is the Founder and
National President of Shri Rama Sena. The Complainant has
9

earned substantial reputation for his impeccable work for Hindu
Movement and as a Social Worker. He was member of Rashtriya
Svayam Sevaka Sangha and he was in charge of Four Southern
States of India as a heard Bhajarang Dal which is ailed
association of R.S.S. and Vishva Hindu Parishad. He served for
Hinduthva since Forty Years.

03. It is further stated that the Accused is a Member of State
Legislative and Former Minister of Government of Karnataka.
Every statement of the Accused must be based on some
evidentiary proof.

04. It is further stated that the Complainant has contested the
MLA Election-2023 in Karkala Constituency as a Independent
Candidate. The Accused also contested in the said election and
has won the election on 13-05-2023. After the Election Results,
i.e., on 14-05-2023 in a public function arranged by the
Accused's Party held at Bandimutt Bus Stand, Karkala, the
Accused spoken against the Complainant with a malafide
intention to defame the Complainant and made false allegations
against the Complainant. The contents of the false allegations
are reproduced herein below:

"a) ಪ ೕ ಮು ಾ ಕ ೇ ಹಣ ೋಸ ರ ಉತರ ಕ ಾ ಟಕದ ಂದುಗಳ ಹ ೆ!ಯನು$ %ೈಗ'
%ೈಗ'
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ಇ .

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10

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ತನಕ ಾನು ZÀZÉðUÀ¼ÀÄ £Á£ÀÄ ¨Á¬Ä Rಡ ಲ ೋeೋಣ ಸಭ! ೆIಂದ 8ಾ ಾeೋಣ,
ಸಭ! ೆIಂದ ಇ ೋಣ ಅಂತ LೇM.<".

05. It is further stated that these allegations made by the
Accused are totally false and baseless, unfounded and without
any iota of truth of evidence or proof. The allegations have
brought disrepute, mental agony, pain torture to the
Complainant. The said allegations are now published in Public
Media and in Newspapers through out in India.

06. It is further stated that the Complainant has no nexus with
so called Tiger Gang Gokak. The Complainant is not a deal
master as alleged by the Accused. He never negotiated
with any boy and contested the election against the
Accused. The Accused has made false vexacious and
reckless allegations against the Complainant out of
political vengeance with a malafide intention to harm and
that knowing that such imputation will harm the
reputation of the Complainant. After such allegations, the
people look at the Complainant with suspicion.

07. It is further stated that the Accused with out any
basis declared that the Complainant is a deal master and
murderer. Such malicious, unsubstantiated, unfounded
and reckless imputations have deeply hurt the public
standing and reputation of the Complainant who has
spent decades in public life and service and thereby built
an immense reputation for himself in the eyes of the
public, which has been severely impaired by the acts of
the Accused. Hence, on these allegations, the
Complainant prayed to take cognizance of the offence
under section 499 and 500 of IPC against the Accused.
11

08. Along with this Private Complaint, the Complainant has also
produced the documents i.e., Vijayavani Kannada Daily
Newspaper, C.D with Speech of the Accused dated:14-05-2023
at Bandimutt Bus Stand, Karkala, copy of the Complaint given
by the Complainant against the Accused before the Karkala
Town Police with acknowledgment, endorsement issued by the
Police, copy of the Complaint given by the Complainant against
the Accused before the Karkala Town Police with
acknowledgment, endorsement issued by the Police, certified
copy of the entire order sheet of the Learned Civil Judge and
JMFC at Karkala Original Private Complaint which is returned by
the Learned Civil Judge ad JMFC at Karkala and list of witnesses.

09. After having heard the arguments of the Lrd. Counsel for the
Complainant and also on perusal of the averments made in the
complaint and the documents produced, I am satisfied that
the Complainant has made out a prima-facie case to take
cognizance of the offence under section 499 and 500 of
IPC and to proceed further. Accordingly, I proceed to pass
the following:-

ORDER

Cognizance is taken of the offence under section 499 and 500 of I.P.C against Accused.

The case is posted for Sworn Statement of the Complainant and witness if any, by: 07-02-2024."

(Emphasis added) The concerned Court records that the speech that was made in which the complainant was allegedly defamed had no nexus to a gang called a Tiger gang at Gokak and he is not deal master as is alleged. This was not only the allegation, the entire speech is reproduced in the order of taking cognizance. The speech, I mean 12 the duration of the speech that contained defamatory statements made against the complainant. The sworn statement of the complainant and statement of witnesses were recorded by the concerned Court. On 20-03-2024, the concerned Court registers a criminal case and issues summons to the petitioner. The order reads as follows:

"... .... ....

07. After having heard the arguments of the Lrd. Counsel for the Complainant and also on perusal of the averments made in the complaint coupled with the Sworn Statement of the Complainant and his Witnesses and also the documents, the following point arise for my consideration:

1) Whether the Complainant has made out grounds to register a Criminal Case against the Accused for the alleged offence and proceed against him as sought for?

2) What order?

08. My answer to the above points is as hereunder:

Point No:1:- In the Affirmative, Point No.2: As per final order for the following:

REASONS

09. Point No.1:- It is the case of the Complainant that he is a person with great reputation in the society and the Accused with the intention of defaming the reputation of the Complainant has given a false statement against the Complainant and the said statement given by the Accused is 13 published in various New papers having wide publication all over India.

10. The Complainant in the complaint and also in his Sworn Statement has stated that the Accused has made a defamatory statement against him. As already stated, the Complainant has alleged the commission of the offence under section 499 of I.PC., which is punishable under section 500 of I.P.C. On going through the complaint averments and the Sworn Statement of the Complainant, prima-facie, it goes to show that the Complainant is defamed.

11. In support of the said Sworn Statement, the Complainant has produced Kannada Daily Newspaper "Udayavani" dated 15-05-2023, which is marked as Ex.C.01, the relevant portion of Udayavani Paper which is marked as Ex.C.02(a), C.D., which is marked as Ex.C.02, certificate under as section 65-B of Indian Evidence Act, by way of Affidavit is marked as Ex.C.03, copies of the complaints given by the Complainant against the Accused before the Karkala Town Police Station with acknowledgement, which are marked as Ex.C.04 to 06 and endorsement issued by the Karkala Town PS, Udupi, which is marked as Ex.C.07. On going through the contents of the said documents, it is found that they prima-facie support the version of the Complainant. Moreover, the Complainant has examined Three Witnesses on his behalf as CW-2 to 4. They have also deposed in the lines of the Sworn Statement of the Complainant.

12. The offence of defamation is defined under section 499 of I.P.C., which reads as under:

"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 reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the 14 reputation of that person if living, and is intended to be hurtful to the feelings of his family or her 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 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".

13. A meaningful reading of the above provisions, along with the complaint averments, Sworn Statement of the Complainant and his Witnesses and the documents produced, at this stage, this Court is of the opinion that the complaint discloses the ingredients of the offences alleged to have been committed by the Accused and that the material brought on record as a result of inquiry under section 200 of Cr.P.C., prima- facie constitutes valid evidence which, if believed and un- rebutted at the trial would result in conviction.

14. It is well settled principle of law that before ordering for issuance of process against the Accused, the Court has to decide whether prima facie case is made out or not on the basis of the materials placed before it. Before exercising power under section 204 Cr.P.C., it is the duty of the court to see that whether the Complainant has made out sufficient grounds for issuance of process. In the decision reported in - AIR 2010 S.C. 2261"

(Shivjee Sing -Vs- Narendra Tiwari), the Hon'ble Supreme Court held that the expression "sufficient ground" used in section 203, 204 and 209 of Cr.P.C., means satisfaction that, a prima-facie case is made out against the person 15 Accused of committing an offence and not sufficient ground for the purpose of conviction.

15. In another decision reported in AIR 2014 S.C. 957 (Fiona Shrikhande -Vs- State of Maharashtra), it is observed that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima-facie satisfy whether there are sufficient grounds to proceed against the Accused and it is not the province of the Magistrate of esquire into a detailed discussion on the merits or demerits of the case.

16. Thus, in the light of the rulings referred supra, on an overall appreciation of the facts of the case, material placed The before the court and also law applicable, this court is of the considered opinion that the complainant has made out sufficient grounds for proceeding against the Accused for the offence under section 499 of I.P.C., which is punishable under section 500 of I.P.C and thereby made out the grounds for issuance of summons for attendance of the Accused before this court. In the result, I answer Point No.1 in the AFFIRMATIVE.

17. Point No.2:- For the reasons assigned and the findings given on Point No.1, I proceed to pass the following:

ORDER Office to register Criminal case against the Accused for the offence under section 499 of I.P.C., punishable under section 500 of I.P.C., in Register No.III and issue summons to the Accused through Jurisdictional Police, if Sub-section 3 and 4 of section 204 of Cr.P.C. are complied."

(Emphasis added) 16

8. The issue now would be, whether the statements made by the petitioner would attract the ingredients of Sections 499 and 500 of the IPC. What would attract the ingredients of Sections 499 and 500 of the IPC need not detain this Court for long or delve deep into the matter. The Apex Court in plethora of judgments considers this issue. The Apex Court in the case of M.A.RUMUGAM v. KITTU ALIAS KRISHNAMOORTHY4 has held as follows:

".... .... ....

13. Section 499 of the Penal Code reads, thus:

"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 reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."

14. Eighth and Ninth Exceptions to Section 499, to which reliance has been placed by the learned counsel, read as under:

"Eighth Exception.--Accusation preferred in good faith to authorised person.--It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject- matter of accusation.

*** 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 4 (2009) 1 SCC 101 17 protection of the interest of the person making it, or of any other person, or for the public good."

15. The word "good faith" has been defined in Section 52 of the Penal Code to mean:

"52. 'Good faith'.--Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention."

16. The complaint petition filed by the respondent herein contained a statement that he was implicated allegedly on the basis of an information received by the appellant from one Namasivayam, son of Rajagopal and Kaliappan, son of Ramu of Naluvedapathi Village that they had damaged nine coconut trees by pouring acid mixed kerosene on the respondent's advice. The aforementioned allegation against the respondent was published in various newspapers viz. Maalai Murusu, Maalai Malar, Dhina Boomi, Dhina Karan, Dhina Malar as well as in some weeklies.

17. On the aforementioned backdrop, he alleged to have been defamed as thereby, "false propaganda among the village people and implication of his name in the complaint against the enemies Kakliappan and Namasivayam besides publishing the same in the dailies and weeklies" was made against him. It was furthermore stated:

"Since there was no basic evidence in the complaint, it was given with the sole intention of defaming the petitioner herein and the complainant did not cooperate for the investigation, the case registered in Thalaignayiru Police Station in Crime No. 360 of 2003 could not be proceeded further and the charge-sheet could not be filed. Therefore, the case on the file of the Judicial Magistrate, Tiruthuraipoondi was closed on 7- 4-2005. Because of the illegal activities of the respondent, the petitioner complainant herein is unable to make his foreign trips and suffered heavy financial loss and lost his status among his relatives and the people of the village and suffered enormous mental agony."

18. Allegations made in the said complaint petition, thus, in our opinion, make out a case for proceeding against the appellant under Section 500 of the Penal Code as thereby imputation concerning the respondent had 18 been made intending to harm or knowing or having reason to believe that such imputation would harm his reputation.

19. For the purpose of bringing his case within the purview of the Eighth and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good.

20. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bona fide would, thus, be on the appellant alone.

21. At this stage, in our opinion, it would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities.

22. The respondent was furthermore discharged by the learned Magistrate in exercise of its jurisdiction under Section 167(5) of the Code of Criminal Procedure stating that the police authorities could not complete the investigation within a period of six months."

(emphasis supplied) The Apex Court in JEFFREY J. DIERMEIER v. STATE OF WEST BENGAL5 has held as follows:

                             "....          ....           ....




5
    (2010) 6 SCC 243
                              19

28. "Defamation" is defined under Section 499 IPC. It reads as under:

"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 reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."

29. To constitute "defamation" under Section 499 IPC, there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

30. However, as per Explanation 4 to the section, no imputation is said to harm a person's reputation, unless that imputation directly or indirectly 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 that person, in the estimation of others 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.

31. As stated above, the thrust of the argument of the learned counsel for the appellants was that since the "Word of Caution" was issued in "good faith" for the benefit of those who were planning to acquire the CFA certificate, and the same being for the "public good", the case falls within the ambit of the Tenth Exception to Section 499 IPC and, therefore, the appellants cannot be held liable for defamation.

32. The Tenth Exception to Section 499 IPC reads as follows:

"Tenth Exception.--Caution intended for good of person to whom conveyed or for public good.--It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good."

It is plain that in order to bring a case within the scope of the Tenth Exception, it must be proved that the statement/publication was intended in "good faith" to convey a caution to one person against another; that such caution was intended for the good of the person to whom it was conveyed, or of such person in whom that person was interested, or for the "public good".

33. Before dealing with the question whether or not the Tenth Exception would be attracted in the instant case, it would be appropriate at this juncture, to deal with the objection raised by the learned Senior Counsel appearing for Respondent 2, that no plea regarding applicability of the Tenth Exception having been urged before the High Court, the appellants are estopped from raising such a plea at this stage.

34. Ground IV in the petition before the High Court was in the following terms:

"Ground IV--For that the publication dated 12-2-2007 was essential and in public interest and thus made to protect the interest of the general public who might otherwise have been induced to join the course offered by the complainant/Opposite Party 2 in the belief that it was entitled to conduct the same. The language of the publication is a fact and there is no question of there being any defamation involved in the same."

It is clear from the above that in their defence, the appellants had pressed into service the Tenth Exception to Section 499 IPC. It was their case that the publication in question was in public interest as it was made to protect the interests of those who were planning to join the CFA course announced by the University. In our view, the appellants are not seeking to raise a new ground and, therefore, the respondents' objection on that account deserves to be rejected.

35. Now, reverting back to the main issue, as aforestated, the appellants issued the offending "Word of Caution" ostensibly in order to warn those who were either planning to hire an investment professional or to obtain a CFA designation that there was an interim injunction against Respondent 2 from using their aforenoted trade marks. It is claimed by the appellants that the said notice was aimed at that group of people who were interested in acquiring a definitive standard for professional competence or for those who wanted to hire such professionals and not for the general public as such. According to them, this is clear from the text of the "Word of Caution", which says that "If you are planning to either hire an investment professional or obtain a designation, you need to make informed decisions that benefit your future."

36. However, it cannot be denied that while the publication refers to the interim order passed by the Delhi High Court, it omits to mention that the said injunction will not come into effect till the end of current academic session of the CFA programme, which, according to Respondent 2, was to conclude in May 2009, and that the order would not mean expression of final opinion on the matter. According to Respondent 2, the omission of the last two sentences of the interim order was a conscious and deliberate suppression to somehow project ICFAI in a bad light in order to harm its reputation in the eyes of the professional community and, therefore, the offending publication was neither in "good faith" nor in "public interest".

37. It is trite that where to the charge of defamation under Section 500 IPC the accused invokes the aid of Tenth Exception to Section 499 IPC, "good faith" and "public good"

have both to be established by him. The mere plea that the accused believed that what he had stated was in "good faith" is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt.

38. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with the degree of proof expected from 22 the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in "good faith" and for "public good" under the said Exception.

39. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom the imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding the appellants' plea of "good faith" and "public interest". Unfortunately, all these are questions of fact and matters for evidence.

40. In the instant case, the stage for recording of evidence had not been reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of "good faith" and "public good" so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by Respondent 2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties.

41. For the aforegoing reasons, we are of the opinion that the High Court was right in refusing to quash the complaint under Section 500 IPC. The appeal, being devoid of any merit, is dismissed accordingly. Nothing said by the High Court or by us hereinabove shall be construed as expression of final opinion on the merits of the complaint."

(Emphasis supplied) 23 After the aforesaid judgments, the Apex Court in the case of SUBRAMANIAN SWAMY v. UNION OF INDIA6 has held as follows:

".... .... ...

23.Meaning of the term "defamation"

23.1.Salmond & Heuston on the Law of Torts, 20th Edn. [Bata India Ltd. v. A.M. Turaz, (2013) 53 PTC 586 : 2012 SCC OnLine Del 5387; Pandey Surendra Nath Sinha v. Bageshwari Pd., AIR 1961 Pat 164 : 1960 SCC OnLine Pat 116] define a "defamatory statement" as under:

"A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking member of society...."

23.2.Halsburys Laws of England, 4th Edn., Vol. 28, defines "defamatory statement" as under :

"10. Defamatory statement.--A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business."

23.3. The definition of the term has been given by Cave, J. in Scott v. Sampson [Scott v. Sampson, (1882) LR 8 QBD 491 (DC)] as a "false statement about a man to his discredit".

23.4. "Defamation", according to Chambers Twentieth Century Dictionary, means to take away or destroy the good 6 (2016) 7 SCC 221 24 fame or reputation; to speak evil of; to charge falsely or to asperse. According to Salmond:

"The wrong of defamation, consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative."

[Gatley's Libel and Slander (6th Edn., 1960) also Odger's Libel and Slander (6th Edn., 1929)] 23.5.Winfield & Jolowicz on Torts [ (Sweet and Maxwell, 17th Edn., 2006).] defines "defamation" thus :

"Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person."

23.6. In the book The Law of Defamation [ Richard O' Sullivan, QC and Roland Brown] , the term "defamation" has been defined as below :

"Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name or reputation of another person."

23.7. In Parmiter v. Coupland [Parmiter v. Coupland, (1840) 6 M&W 105 : 151 ER 340] , "defamation" has been described as : (ER p. 342) "... A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule...."

23.8. The definition of "defamation" by Fraser was approved by McCardie, J. in Myroft v. Sleight [Myroft v. Sleight, (1921) 90 LJ KB 883 : 37 TLR 646] . It says :

"a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned 25 or avoided or which has a tendency to injure him in his office, profession or trade."

23.9.Carter Ruck on Libel and Slander [Manisha Koirala v. Shashilal Nair, 2002 SCC OnLine Bom 827 : (2003) 2 Bom CR 136] has carved out some of the tests as under :

(Manisha Koirala case [Manisha Koirala v. Shashilal Nair, 2002 SCC OnLine Bom 827 : (2003) 2 Bom CR 136] , SCC OnLine Bom para 23) "(1) A statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, profession or trade.

(2) A false statement about a man to his discredit.

(3) Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?"

... ... ...

30. While speaking about reputation, William Hazlitt had to say:

"A man's reputation is not in his own keeping, but lies at the mercy of the profligacy of others. Calumny requires no proof. The throwing out of malicious imputations against any character leaves a stain, which no after-refutation can wipe out. To create an unfavourable impression, it is not necessary that certain things should be true, but that they have been said. The imagination is of so delicate a texture that even words wound it."

... ... ..

80. The decision in Peerless General Finance and Investment Co. Ltd. [RBI v. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424] relates to the principles to be adopted for understanding the statute. In K. Bhagirathi [K. Bhagirathi G. Shenoy v. K.P. Ballakuraya, (1999) 4 SCC 135] , the Court has referred to the principle having regard to the statutory context. We have already referred to the decision in Hospital Mazdoor Sabha [State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610: (1960) 2 SCR 866] wherein it has been ruled that the principle of noscitur a sociis is merely a rule of construction and it cannot be allowed to prevail in a 26 case where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. The term "defamation" as used in Article 19(2) should not be narrowly construed. The conferment of a narrow meaning on the word would defeat the very purpose that the Founding Fathers intended to convey and further we do not find any justifiable reason to constrict the application. The word "defamation" as used in Article 19(2) has to be conferred an independent meaning, for it is incomprehensible to reason that it should be read with the other words and expressions, namely, "security of the State", "friendly relations with foreign States", "public order, decency or morality". The submission is based on the premise that "defamation" is meant to serve private interest of an individual and not the larger public interest. Both the aspects of the said submission are interconnected and interrelated. Defamation has been regarded as a crime in IPC which is a pre-constitutional law. It is urged that such kind of legal right is unconnected with the fundamental right conceived of under Article 19(1)(a) of the Constitution. Additionally, it is canvassed that reputation which has been held to be a facet of Article 21 in Dilipkumar Raghavendranath Nadkarni [Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124 : 1983 SCC (L&S) 61] , Mehmood Nayyar Azam [Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1 : (2012) 4 SCC (Civ) 34 : (2012) 3 SCC (Cri) 733: (2012) 2 SCC (L&S) 449] and Umesh Kumar [Umesh Kumar v. State of A.P., (2013) 10 SCC 591: (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] , is against the backdrop where the State has affected the dignity and reputation of an individual. This aspect of the submission needs apposite understanding. Individuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. It is a concrete 27 and visible phenomenon. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived.

... ... ...

170. Having dwelt upon the ingredients, it is necessary to appreciate the Explanations appropriately. There are four Explanations to the main provision and an Explanation has been appended to the Fourth Exception. Explanation 4 needs to be explained first. It is because the said Explanation provides the expanse and the inherent control wherein what imputation has been regarded as harm to a person's reputation and that an imputation can only be treated as harm of a person's reputation if it 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 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. It is submitted by Dr Dhavan, learned Senior Counsel, that Explanation 4 has many a distinction and covers a number of criteria which can be used widely. He has commended us to a passage from State of J&K v. Triloki Nath Khosa [State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19] solely for the purpose that Explanation 4 engulfs micro-distinctions which is impermissible. To appreciate manifold submissions urged by the learned counsel for the petitioners, it is seemly to refer to how these Explanations have been understood by the Court. We are conscious that we are dealing with the constitutional validity of the provision and the decisions relate to interpretation. But the purpose is to appreciate how the Explanations have been understood by this Court.

171. Explanation 1 stipulates that an imputation would amount to defamation if it is done to a deceased person if the imputation would harm the reputation of that person if he is living and is intended to be harmful to the feelings of his family or other near relatives. It is submitted by the learned counsel for the petitioners that the width of the Explanation is absolutely excessive as it enables the family members to prosecute a criminal action whereas they are debarred to initiate civil action for damages. According to the learned counsel for the 28 petitioners, Explanation 1 is anomalous and creates a piquant situation which can effortlessly be called unreasonable, for when a civil suit cannot be entertained or allowed to be prosecuted by the legal heirs or the legal representatives, how could they prosecute criminal offence by filing a complaint. On a first blush, the aforesaid submission looks quite attractive, but on a keener scrutiny, it loses its significance.

... ... ...

Exceptions and understanding of the same

179. Having dealt with the four Explanations, presently, we may analyse the Exceptions and note certain authorities with regard to the Exceptions. It is solely for the purpose of appreciating how the Court has appreciated and applied them. The First Exception stipulates that 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.

"Public good" has to be treated to be a fact. In Chaman Lal v. State of Punjab [Chaman Lal v. State of Punjab, (1970) 1 SCC 590 : 1970 SCC (Cri) 253] , the Court has held that in order to come within the First Exception to Section 499 of the Penal Code it has to be established that what has been imputed concerning the respondent is true and the publication of the imputation is for the public good. The onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good, is on the accused.

180. It is submitted by Dr Dhavan, learned Senior Counsel for the petitioners that if the imputation is not true, the matter would be different. But as the Exception postulates that imputation even if true, if it is not to further public good then it will not be defamation, is absolutely irrational and does not stand to reason. It is urged that truth is the basic foundation of justice, but this Exception does not recognise truth as a defence and, therefore, it deserves to be struck down.

181. It has been canvassed by Mr Rao, learned Senior Counsel, that the term "public good" is a vague concept and to bolster the said submission, he has placed reliance 29 upon Harakchand Ratanchand Banthia v. Union of India [Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166] to highlight that in the said case, it has been held that "public interest" does not provide any objective standard or norm. The context in which the said decision was rendered has to be appreciated. In the said case, the Court was dealing with the constitutional validity of the Gold Control Act, 1968. Section 27 of the said Act related to licensing of dealers. It was contended that the conditions imposed by sub-section (6) of the Act for grant or renewal of licences were uncertain, vague, unintelligible and consequently wide and unfettered power was conferred upon the statutory authorities in the matter of grant or renewal of licence. The Court expressed the view that the contention was well founded. Further analysing, the Court expressed that : (SCC p. 183, para 21) "21. ... The expression "anticipated demand" is a vague expression which is not capable of objective assessment and is bound to lead to a great deal of uncertainty. Similarly the expressions "suitability of the applicant" in Section 27(6)(e) and "public interest" in Section 27(6)(g) do not provide any objective standard or norm or guidance. For these reasons it must be held that clauses (a), (d), (e) and (g) of Section 27(6) impose unreasonable restrictions on the fundamental right of the petitioner to carry on business and are constitutionally invalid."

182. As we perceive, the factual score and the provision under challenge was totally different. It has been stated in the backdrop of the power conferred on an administrative authority for the purpose of renewal of licence, and in that context, the Court opined that the criterion of "public interest" did not provide objective standard. The Court, on analysis of the provision from a manifold angle, opined that the provision proposed unreasonable restriction. The context and the conferment of power makes a gulf of difference and, therefore, the said authority has to be considered on its own facts. It cannot be ruled that it lays down as a principle that "public interest" is always without any norm or guidance or has no objective interest. Ergo, the said decision is distinguishable.

183. In Arundhati Roy, In re [Arundhati Roy, In re, (2002) 3 SCC 343] , this Court, referring to Second Exception, 30 observed that even a person claiming the benefit of the Second Exception to Section 499 of the Penal Code, is required to show that the opinion expressed by him was in good faith which related to the conduct of a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct. The Third Exception states about conduct of any person touching any public question and stipulates that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct. The said Exception uses the words "good faith" and particularises conduct of any person relating to any public question and the Exception, as is perceptible, gives stress on good faith. The Third Exception comes into play when some defamatory remark is made in good faith as held in Sahib Singh Mehra [Sahib Singh Mehra v. State of U.P., AIR 1965 SC 1451 : (1965) 2 Cri LJ 434 : (1965) 2 SCR 823]. The Court has clarified that if defamatory remarks are made after due care and attention, it will be regarded as made in good faith. In the said case, the Court also adverted to the Ninth Exception which gives protection to imputation 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.

184. A three-Judge Bench in Harbhajan Singh v. State of Punjab [Harbhajan Singh v. State of Punjab, AIR 1966 SC 97:

1966 Cri LJ 82] has opined that where the accused invokes the Ninth Exception to Section 499 IPC, good faith and public good are both to be satisfied and the failure of the appellant to prove good faith would exclude the application of the Ninth Exception in favour of the accused even if requirement of public good is satisfied. The Court has referred to Section 52 IPC which defines "good faith" that requires the element of honesty. It is necessary to note here that the three-Judge Bench has drawn a distinction between the First Exception and the Ninth Exception to opine that the proof of truth which is one of the ingredients of the First Exception is not an ingredient of the Ninth Exception and what the Ninth Exception requires an accused person to prove is that he made the statement in good faith. Proceeding further, the Court has stated that in dealing with the claim of 31 the accused under the Ninth Exception, it is not necessary and, in a way, immaterial, to consider whether he has strictly proved the truth of the allegations made by him.

185. In Sukra Mahto v. Basdeo Kumar Mahto [Sukra Mahto v. Basdeo Kumar Mahto, (1971) 1 SCC 885: 1971 SCC (Cri) 372] the Court has opined that : (SCC p. 887, para 8) "8. The ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good."

The Court further opined that good faith and public good are questions of fact and emphasis has been laid on making enquiry in good faith and due care and attention for making the imputation.

186. In Jatish Chandra Ghosh v. Hari Sadhan Mukherjee [Jatish Chandra Ghosh v. Hari Sadhan Mukherjee, (1961) 3 SCR 486: AIR 1961 SC 613 : (1961) 1 Cri LJ 743], the Constitution Bench dealt with the appellant's claim of absolute privilege as a Member of the West Bengal Legislative Assembly which was not accepted by the High Court of Judicature at Calcutta [Jatish Chandra Ghosh v. Harisadhan Mukherjee, 1956 SCC OnLine Cal 230: AIR 1956 Cal 433]. The appellant therein was facing a prosecution under Section 500 IPC. The larger Bench referred to Section 499 IPC and observed that: (AIR pp. 616-17, para 7) "7. In this connection, it is also relevant to note that we are concerned in this case with a criminal prosecution for defamation. The law of defamation has been dealt with in Sections 499 and 500 of the Penal Code, 1860. Section 499 contains a number of Exceptions. Those specified Exceptions lay down what is not defamation. The Fourth Exception says that it is not defamation to publish a substantially true report of the proceedings of a court of justice, but does not make any such concession in respect of proceedings of a House of Legislature or Parliament. The question naturally arises how far the rule in Wason case [Wason v. Walter, (1868) LR 4 QB 73] can be applied to criminal prosecutions in India, but as this aspect of the controversy was not canvassed at the Bar, we 32 need not say anything about it, as it is not necessary for the decision of this case."

After so stating, the Court further opined that the proceedings did not deserve to be quashed as there was no such absolute privilege in the facts of the case. Being of this view, the Court opined that the appellant-accused must take his trial and enter upon his defence such as he may have. We have referred to the said decision only to highlight that the Court has clarified publishing of substantial true report of proceedings of a court of justice.

187. The Fifth Exception stipulates that it is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal which has been decided by a court of justice, or respecting the conduct of any person as a party, witness or agent. The further stipulation is that the said opinion must relate to the character of the said person, as far as his character appears in that conduct. In Kanwal Lal v. State of Punjab [Kanwal Lal v. State of Punjab, 1963 Supp (1) SCR 479 : AIR 1963 SC 1317 : (1963) 2 Cri LJ 345] the Court, while dealing with the Eighth Exception, has opined that in order to establish a defence under this Exception the accused would have to prove that the person to whom the complaint was made had lawful authority over the person complained against, in respect of the subject-matter of the accusation.

188. Again in M.C. Verghese v. T.J. Poonan [M.C. Verghese v. T.J. Poonan, (1969) 1 SCC 37] , it has been ruled that a person making libellous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to Section 499 the statements are privileged only when they are made in good faith. There is, therefore, authority for the proposition that in determining the criminality of an act under the Penal Code, 1860 the courts will not extend the scope of special exceptions by resorting to the rule peculiar to English Common Law that the husband and wife are regarded as one. In Chaman Lal [Chaman Lal v. State of Punjab, (1970) 1 SCC 590 : 1970 SCC (Cri) 253] this Court has opined that the Eighth Exception to Section 499 of the Penal Code indicates that accusation in good faith against the person to any of those who 33 have lawful authority over that person is not defamation. In Rajendra Kumar Sitaram Pande v. Uttam [Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 : 1999 SCC (Cri) 393] , it has been observed that Exception 8 to Section 499 IPC clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject- matter of accusation. In the said case the report of the Treasury Officer clearly indicated that pursuant to the report made by the accused persons against the complainant, a departmental enquiry had been initiated and the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused the Treasury Officer in a drunken state which was the gravamen of the complaint, would be covered by Exception 8 to Section 499 of the Penal Code.

189. In Chaman Lal [Chaman Lal v. State of Punjab, (1970) 1 SCC 590 : 1970 SCC (Cri) 253] the Court has opined that good faith requires care and caution and prudence in the background of context and circumstances. The position of the persons making the imputation will regulate the standard of care and caution. In Sukra Mahto [Sukra Mahto v. Basdeo Kumar Mahto, (1971) 1 SCC 885 : 1971 SCC (Cri) 372] , emphasis has been laid on protection of the interest of the person making it or of any other person or for the public good. Reference has been made to Harbhajan Singh case [Harbhajan Singh v. State of Punjab, AIR 1966 SC 97 : 1966 Cri LJ 82] to stress on due care and attention. In Sewakram Sobhani v. R.K. Karanjia [Sewakram Sobhani v. R.K. Karanjia, (1981) 3 SCC 208 : 1981 SCC (Cri) 698] , it has been observed that the ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good, and the imputation made must be in good faith for the public good. In M.A. Rumugam v. Kittu [M.A. Rumugam v. Kittu, (2009) 1 SCC 101 :

(2009) 1 SCC (Civ) 35 : (2009) 1 SCC (Cri) 245] , it has been held that for the purpose of bringing the case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 of the Penal Code, it would be necessary for the accused to 34 prove good faith for the protection of the interests of the person making it or of any other person or for the public good.

190. This Court, in Jeffrey J. Diermeier [Jeffrey J. Diermeier v. State of W.B., (2010) 6 SCC 243 : (2010) 2 SCC (Civ) 656 : (2010) 3 SCC (Cri) 138] , has observed thus : (SCC p. 256, paras 37-38) "37. It is trite that where to the charge of defamation under Section 500 IPC the accused invokes the aid of Tenth Exception to Section 499 IPC, "good faith" and "public good"

have both to be established by him. The mere plea that the accused believed that what he had stated was in "good faith" is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt.

38. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with the degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in "good faith" and for "public good" under the said Exception."

191. The detailed discussion made hereinabove does clearly reveal that neither the main provision nor the Explanation nor the Exceptions remotely indicate any vagueness. It is submitted that the Exceptions make the offence more rigorous and thereby making the concept of criminal defamation extremely unreasonable. The criticism advanced pertains to truth being not a defence, and unnecessary stress on "public good". The counter-argument is that if a truthful statement is not made for any kind of public good but only to malign a person, it is a correct principle in law that the statement or writing can amount to defamation. Dr Singhvi, learned Senior Counsel for some of the respondents has given certain examples. The examples pertain to an imputation that a person is an alcoholic; an imputation that two family members are involved in consensual incest; an imputation that a person is impotent; a statement is made in public that a particular person 35 suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man. We have set out the examples cited by the learned Senior Counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good. Needless to say, what is public good is a question of fact depending on the facts and circumstances of the case.

192. From the analysis we have made it is clear as day that the provision along with Explanations and Exceptions cannot be called unreasonable, for they are neither vague nor excessive nor arbitrary. There can be no doubt that Court can strike down a provision, if it is excessive, unreasonable or disproportionate, but the Court cannot strike down if it thinks that the provision is unnecessary or unwarranted. Be it noted that it has also been argued that the provision is defeated by doctrine of proportionality. It has been argued that existence of criminal defamation on the statute book and the manner in which the provision is engrafted suffers from disproportionality because it has room for such restriction which is disproportionate. In Om Kumar v. Union of India [Om Kumar v. Union of India, (2001) 2 SCC 386 : 2001 SCC (L&S) 1039] , the Court has observed that while regulating the exercise of fundamental rights it is to be seen whether the legislature while exercising its choice has infringed the right excessively. "

(emphasis supplied) If the speech made by the petitioner; the complaint so registered against him and the order of taking of cognizance are considered on the bedrock of the principles so laid down by the Apex Court in the afore-quoted judgments, what would unmistakably emerge is that, 36 it becomes a matter of trial. This Court exercising its jurisdiction would not entertain a petition seeking quashment of proceedings in the teeth of the aforesaid statement and the judgments of the Apex Court.

9. The submission of the learned counsel for the petitioner is that, during election rallies the contesting candidates should become deaf for such statements or become thick skinned. They should not get touchy about the statements uttered during election rallies. The judgments so relied on by the learned counsel for the petitioner were all rendered on the facts obtaining in those cases.

In the case of R. RAJAGOPAL (supra), the learned counsel for the petitioner places reliance upon a paragraph where the Apex Court holds that in a democratic society those who hold office in the Government and who are responsible for public administration must always be open to criticism. The said judgment would be of no aid to the petitioner. The other judgment of the High Court of Allahabad again was rendered on the facts obtaining in the case therein.

Therefore, it would not become applicable to the facts of the case at hand. The judgments that are quoted hereinabove to sustain the 37 order of taking of cognizance are all so overwhelming over the judgments relied on by the petitioner referred to supra. It is no doubt true that dissent is the essence of democracy. But that would not mean that the maker of a statement could get away of any statement in the garb of it being made during an election rally or in the post election rally. Making a speech in public is a speech made against the said person which would come to be known to each and every one. In this digital age anything spoken does not remain with the person who speaks it. It is circulated within no time. In the garb of dissent being the essence of democracy, the speeches should not malign the character of any person unless it is borne out by facts. The subject crime has to be tried, and trial is inevitable.

10. For the aforesaid reasons, the following:

ORDER a. The Writ Petition is rejected.

b. It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the 38 same shall not bind or influence the proceedings pending against him in any other fora .

Sd/-

(M. NAGAPRASANNA) JUDGE nvj CT:SS

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Karnataka High Court