Karnataka High Court
Ganesh Narayan Hegde vs S. Bangarappa And Others on 10 October, 1999
Equivalent citations: ILR1999KAR3480, 2000(4)KARLJ133
Author: B.K. Sangalad
Bench: B.K. Sangalad
JUDGMENT
1. Being aggrieved by the Judgment and Order dated 5-1-1996 passed by the learned JMFC, II Court, in C.C. No. 1514 of 1987 acquitting the respondents 1 to 3 for the offence punishable under Section 500 of the Indian Penal Code, the appellant has preferred this appeal challenging the legality and correctness of the same.
2. The appellant is the complainant and the respondents are accused 1, 2 and 3. While narrating the facts, the ranks of the parties shall be followed as in the Lower Court.
3. According to the complainant he belongs to a famous and well known family of Doddamane Hegde of Siddapur and their family enjoys the distinction of having participated in independence movement. The members of the family of the appellant are engaged in agriculture and sericulture and some members run a rice mill also. The appellant is the founder President of S.S.P. Samithi, Siddapur and has close association with (1) Samaja Shikshana Vishwast Samithi, (2) Modern Education Society and (3) Sarvodaya Vakkalutana Prathamika Bank etc. The appellant has served the society in many capacities. He has acquired the status and position in the society by rendering selfless service. The then Chief Minister of Karnataka -- Sri Ramakrishna Hegde and the appellant are cousin brothers.
4. The respondent 1 is a politician calling himself as the then President of Kranthiranga. He aspired for occupying the position of Chief Minister of Karnataka and was disappointed as Sri Ramakrishna Hegde became the Chief Minister. He was frustrated and was waiting for an opportunity to mar the image of Sri Ramakrishna Hegde and the members of his family. Sri Ramakrishna Hegde contested to the Legislative Assembly from Kanakapura constituency and the respondent 1 had also fielded his candidate to oppose Sri Ramakrishna Hegde. During the time of the said election, the respondent 1 in order to achieve his object, invited the reporters and correspondents of all the newspapers and the said press conference was attended by reporters and correspondents including respondents 2 and 3. At the said conference, the respondent 1 made scandalous and false imputation concerning complainant and requested the correspondents to publish his statement in the newspapers. The said statement was printed and published in Samyuktha Karnataka Daily, Hubli, which is being printed and published by respondents 2 and 3. The said newspaper is circulated widely in Karnataka. In the said statement the respondent has made allegations that the appellant is involved in smuggling of rice and the officials are not taking action. The appellant states that the above imputations were made and published with full knowledge of falsity and also with the knowledge that it would defame and harm the reputation of the complainant. Knowing fully well that these imputations are false, deliberately and intentionally has hurled false charges that the appellant was smuggling the rice.
5. The appellant has also stated that the reputation and the status of his family known for its honesty, integrity and social service for over a century has been erased from the mind of the public. As the newspapers are widely circulated on publication of said imputation, several persons from various walks of life approached the complainant and made enquiries. The said imputation is defamatory, contemptuous and harmful to the reputation and it has degraded the morale and intellectual character of appellant both as a businessman and as a prominent social worker. On account of such defamatory statement, the status of the complainant and the members of his family is lowered in the estimation of the members of the public and Government. After the publication, the appellant got issued a legal notice calling upon the respondent 1 to tender unconditional apology. The respondent 1 replied to the notice refusing to tender an apology. Hence, the complaint was filed.
6. For the prosecution, P.Ws. 1 to 8 are examined and Exs. P-1 to P-12 are marked. For the defence, no witness is examined but Exs. D-1 to D-10 are marked.
7. The learned JMFC has acquitted the accused on the ground that the imputation made by respondent 1 comes within the Exception 9 of Section 499 of the Indian Penal Code. Since respondent 1 was coming within this exception, consequently no case was made against respondents 2 and 3. As such, they were also acquitted. Being aggrieved by this, the present appeal arises.
8. Mr. B.V. Acharya, learned Senior Counsel for the appellant relying upon the judgment in the case of Harbhajan Singh v State of Punjab and Another (from Punjab ) submitted that the respondent 1, did not make this statement in good faith and for the public good. Unless the statement is made for the public good and in good faith, Exception 9 cannot be invoked. He submitted that the respondent 1 has been the staunch enemy of Sri Ramakrishna Hegde, the then Chief Minister. Since he lost the chance of becoming the Chief Minister of Karnataka State, he was just waiting for any opportunity, come what may, to assassinate the character of Sri Ramakrishna Hegde. He also submitted that this statement was made just to prejudice the supporters and mar the prospects of Sri Ramakrishna Hegde to succeed in the election from the Kanakapura constituency. On the other hand, Mr. C.V. Nagesh, refuted all these submissions. He also relied upon the same decision. It is submitted by him that imputation that is made by respondent 1 squarely fits in under Exception 9 of Section 499, Indian Penal Code and also submitted that the statement is not correctly reported by the press.
9. It is to be noted that the respondent 1 admits that he called the press conference and made this statement. His only contention is that the imputations that he has made are covered under Exception 9 of Section 499, Indian Penal Code. When all the matters are admitted, the only point for consideration is whether respondent 1 can be brought within Exception 9 of Section 499 of the Indian Penal Code. The alleged imputation is as follows.-
10. Both sides have relied upon the same decision in the case of Harbhajan Singh's case, supra, wherein it is stated as follows.-
"(a) Indian Penal Code, 1860, Section 499, Exception 9 and Section 52 -- Good faith -- Proof of -- It is question of fact --Concurrent finding 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 Section 499 to a charge of defamation under Section 500 of the Indian Penal Code is a question of fact. Even if it is assumed to be a mixed question of law and fact, where the Courts below give a concurrent finding on such a question, the Supreme Court does not generally re-examine the matter for itself when exercising its jurisdiction under Article 136 of the Constitution.
Held, however, in the present case that in dealing with the question of good faith the High Court has misdirected itself materially on points of law, and that, therefore, its finding could not be accepted.
(b) Indian Penal Code, 1860, Section 499, Exception 9 -- Good faith and public good have both to be satisfied.
Where to the charge of defamation under Section 500 of the Indian Penal Code, the accused invokes the aid of Exception 9 to Section 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) Indian Penal Code, 1860, Section 499, Exception 9 --Evidence and proof -- Evidence Act, 1872, Section 105 -- Charge of defamation -- Accused taking exception to charge under Exception 9 -- Degree of proof that has to be offered by accused --Harbhajan Singh v State of Punjab and Another, , reversed.
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 shall 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 -- Woolmington v Director of Public Prosecutions, 1935 AC 462, rel. on.
Where an accused person pleads an exception he must justify his plea, but the degree and character of proof which the accused person is expected to furnish in support of his plea, cannot be equated with the degree and 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, and just as in civil proceedings the Court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved - if a preponderance of probability is established by the evidence led by him -- R v Clark, (1921)61 SCR 608 and Sodeman v R, (1936)2 All ER 1138 and R v Carr-Braint, (1943)2 All ER 156, rel. on and Harbhajan Singh's case, supra, reversed.
(d) Indian Penal Code, i860, Section 499, Exception 9 --Nature and scope of onus of proof whicb accused has to discharge -- Held accused was protected by Exception 9 to Section 499 --Harbhajan Singh's case, supra, reversed.
The nature and scope of the onus of proof which the accused has to discharge in seeking the protection of Exception 9 to Section 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;
(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 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 a statement the accused did not show due care and attention (See Section 52), that would defeat his plea of good faith, but it must be remembered that good faith does not require logical infallibility --Emperor v Abdool Wadood Ahmed, ILR 1907(31) Bom. 293 and in re Shibo Prasad Pandah, ILR 1879(4) Gal. 124 : 3 Cal. L.R. 122, rel. on;
(iv) 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 the facts and circumstances of each case, what is the nature of the imputation made, under what circumstances did it come to he made, what is the status of the person who makes the imputation; was there any malice in his mind when 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 conditions would be relevant in deciding the plea of good faith under the Ninth Exception;
(v) Absence of personal malice may be a relevant factor 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 has committed an error in holding that the accused had failed to show that he acted in good faith when he published the defamatory statement:
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 Section 499 -- Harbhajan Singh's case, supra, reversed.
(e) Indian Penal Code, 1860, Section 52 and Section 499, Exception 9 -- Good faith -- Element of honesty is not introduced in Section 52.
The term "Good faith" is defined in Section 52 of the Indian Penal Code, as also in Section 3(22) of the General Clauses Act, 1897. In the definition in the Indian Penal Code the element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced.
(f) Criminal Procedure Code, 1898, Section 342 and Section 256(2) -- Filing of written statement by accused person need not always to be deprecated.
The view that the filing of a written statement by an accused person should be deprecated and the pleas made by him in such a statement need not be seriously considered, because they are generally the result of legal advice and are no better than afterthoughts is not supported by the observations in Tilkeshwar Singh v State of Bihar. The accused person would prefer to file a written statement and give a connected answer to the questions raised by the prosecution evidence. Section 256(2) of the Criminal Procedure Code indeed provides that if an accused person puts in a written statement, the Magistrate shall file it with the record. If it is filed, after a long delay and contains pleas which can otherwise be legitimately regarded as matters of afterthought, that, no doubt, would affect the value of the pleas taken therein. But it cannot be laid down as a general rule that the written statement filed by an accused should not receive the attention of the Court on the ground that it is likely to have been influenced by legal advice. Such a distrust of legal advice would be entirely unjustified -- Sidheswar Ganguly v State of West Bengal, , distinguished".
11. P.W. 1 is the complainant himself. P.W. 2 is the Editor of Samyuktha Karnataka who has produced Ex. P-6 as per the order of the learned JMFC. P.Ws. 3 and 4 are the friends of the complainant who enquired the complainant after seeing the news item in Samyuktha Karnataka, P.W. 5 is the PTI correspondent who has actually attended the press conference held by respondent 1. P.W. 6 is the correspondent of Samyuktha Karnataka newspaper, Bangalore who had attended the press conference. P.W. 7 is the Editor of Prajavani newspaper who has produced the copy of the paper at Ex. P-10 and P.W. 8 is the Editor of Deccan Herald who has produced the copy of the Deccan Herald as per Ex. P-11 as per the order of the Court. The report as per Ex. P-6 is as follows.-
12. It is admitted fact that respondent 1 called the press conference at Bangalore on 28-4-1983 to highlight the public grievances and he had received the complaints from various quarters. One of the topics on that day was about the various allegations made by the public of Siddapura with regard to smuggling of rice from that place to other places especially to Goa forcing the people to pay higher price for rice.
13. The respondent 1 was in receipt of Ex. D-8 which reads as follows.-
14. The copies of this letter were also sent to one Sri Gopala Kanade, MLA of Siddapur and Sri Veerappa Moily, Opposition Leader, Bangalore. Hence according to Mr. C.V. Nagesh, the source for making the statement is Ex. D-8. The respondent 1 also had given a representation to Sri Ramakrishna Hegde, the then Chief Minister of Karnataka. He was pleased to appoint a House Committee to probe into the matter under the Chairmanship of Sri H. Gangadharan who submitted the report as per Ex. P-4. Of course the report that has been submitted does not disclose the complicity of the complainant. The complainant got issued the notice to respondent 1 who sent his reply.
15. Mr. B.V. Acharya, learned Senior Counsel submitted that there is some variance as far as the dates are concerned. In the statement, the respondent 1 states that on 9-2-1983 he had given confidential letter to the Chief Minister along with the copy and the acknowledgment has been produced. The learned JMFC has also accepted the statement. It is also further observed that during the course of trial, the respondent 1 called for the said letter from the office of the Chief Minister. But the Secretary to the Chief Minister has given a letter stating that the said letter was not traceable in the office. So the accused has chosen to produce the xerox copy of the said memorandum. Mr. Acharya, learned Senior Counsel has strenuously submitted that this could not have been allowed. 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. This has been amply elicited in para 14 of the said judgment. The learned JMFC has also approached the case in proper perspective. He has examined the ingredients of Exception 9 of Section 499 of the Indian Penal Code and also he has examined what is good faith referring to Section 52 of the Indian Penal Code, and Section 3(22) of General Clauses Act. In my opinion his approach cannot be said to be erroneous.
16. Now it is to be seen whether the respondent 1 has made this statement for the public good, with due care and caution. According to the decision cited above, the requirement of good faith and the public good have both to be satisfied.
17. More often, the politicians make attempts to highlight the lacunae in the administration, favouritism and other aspects. No political party is free from it. The respondent 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. Respondent 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 were put to great hardship as they were unable to get rice even for Rs. 3,500 per quintal. Merely he was a rival candidate for the Chief Ministership does not mean that necessarily, he was bound to go out of the way and cross the Lakshmana Rekha and resort to character assassination. The statement made at the press conference was only in pursuance of the receipt of Ex. D-8. Since he is a public man he might have thought it 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, dated 15-4-1983. On the basis of this, if at all the respondent 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. In the cited decision, in para 20 it is stated as follows.-
"(20) Another aspect of this requirement has been pithily expressed by the Bombay High Court in the case of Emperor, supra, "Good faith", it was observed.-
"Requires not indeed logical infallibility but due care and attention. But how far erroneous actions or statements are to be imputated to want of due care and caution must, in each case be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question". "It is only to be expected", says the judgment, "that the honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning. At the same time, it must be borne in mind that good faith in the formation or expression of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate subject of public comment".
18. The rational thinking from man to man differs. When the relation is strained, even good suggestion becomes a poison; when relation is cordial, poison becomes nectar. There are pulls and pushes in politics and some politicians play their cards well. It is also often 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 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 per cent 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 rigid rule or test in deciding whether an accused person has acted in good faith under the 9th Exception. It is elicited in the cross-examination of P.W. 5 that the respondent 1 is a public representative and in the interest of the public at large, he called the press conference in order to bring good administration in the Government. It is also further elicited that he attended the press conference in which the respondent 1 made the statement in the interest of public. It is further elicited from this witness that sometimes the statements are not properly published. Sometimes they are half truth. It is further elicited that under some circumstances, it could not be said whether it was half false or half truth. It is elicited from P.W. 6 that respondent 1 was calling the press conference to highlight the complaints given by the public. Moreover, he states in the examination in chief itself that he went to the press conference held on 28-4-1983 but before he reached the venue, the respondent 1 had already made the statement. Basing upon this evidence, the learned Counsel for R1 submitted that he was not acquainted with the real statement. In view of this admission, it appears that there is some force in the submission of the learned Counsel for R1. It is also difficult to expect the same kind of report in all the papers as correspondents would highlight the statement in accordance with their own perceptions. In my opinion the evidence that has been led by the complainant does not pointedly clinch the issue that the respondent 1 did not make this statement for the public good and in good faith. The statement in good faith should be free from any negligence and recklessness and it must be made with due care and caution. In my opinion, the approach by the learned JMFC does not call for any interference. It is also pertinent to note that the lower Court has got the advantage of observing demeanor of witnesses and it has already given the benefit to the respondents. Unless there are convincing grounds and patent illegality, it cannot be interfered with.
In the result, the appeal stands dismissed.