Orissa High Court
Dr. Radhanath Rath And Anr. vs Biraja Prasad Ray on 16 April, 1991
Equivalent citations: 1992CRILJ938, 1991(II)OLR492
JUDGMENT S.C. Mohapatra, J.
1. Both accused persons convicted Under Section 501, IPC and sentenced to pay a fine of Rs, 50/- each are petitioners in this revision.
2. On 12-12-1978, a news item was published in the Oriya Daily Newspaper 'the Samaj' of which petitioner No. 1 is the Editor and petitioner No. 2 is the Publisher. In the news it was stated that complainant was arrested and brought to Court in handcuff on account of which the arresting Officer was transferred within 24 hours, a security proceeding Under Section 110, Cr. P. C, in which 139 persons were examined was forwarded to Court of Sub-divisional Judicial Magistrate,, Cuttack against the petitioner on 4-11-1978 for initiating a proceeding and complaint gave shelter to some of the dacoits at his Jobra residence who were connected with four incidents those took place in Badambari colony.
3. Alleging that the aforesaid printing and publication is defamatory against complainant, he filed the complaint on 20th December, 1978, After enquiry Under Section 202, Cr. P. C. cognisance was taken by the learned Sub-divisional Judicial Magistrate on 28-3-1979.
4. Complainant examined three witnesses and proved six documents marked as Exts. 1 to 6 to bring home guilt of the accused' persons. In defence, three witnesses were examined and such a news in another newspaper published on 17th February, 1978 was proved and marked as Ext. A. Considering the materials on record, trial Court having held that accused persons have committed the offence Under Section 501 IPC this revision has been filed.
5. Section 501, IPC reads as follows :
"501. Printing or engraving matter known to be defamatory:__ Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both".
It is to be examined whether a new item published in the newspaper was printed by the two accused persons or any of them in the newspaper having knowledge or good reason to believe that it is defamatory to complainant.
6. What statements or publications are defamatory have been exhaustively provided for in Section 499, IPC. Since defamation is an offence, the ingredients are to be proved beyond reasonable doubt to bring home guilt of the persons accused. Some explanations and exceptions are provided in the said provision. Where a statement published is per se defamatory, person accused can bring circumstances to record to explain that such publication comes within any of the exceptions.
7. From the facts proved, it is clear that once upon a time complainant was a member of Legislative Assembly and at the time of publication he did not hold such an elected office. Complainant had taken part in freedom struggle of India. He is an assessee under the Income Tax Act and the Sales Tax Act which indicates that he carries on business including sale and purchase of goods. He is a social worker and is connected with various Educational and Charitable Institutions. Accused persons are Editor and Publisher of a reputed Oriya Newspaper. In 1977. several prosecutions registered as G R. Case Nos 2962, 2963 and 2964 of 1977 were initiated against the complainant. A proceeding Under Section 110 Cr. P. C. was also initiated against him. In all these G. R Cases final report was submitted closing the prosecution against accused on 22-7-1978 and proceeding Under Section 110, Cr. P. C. was dropped on 28-10-1978. Publication was made in the newspaper on 12-12-1978. Thus, it is clear that by the time publication was made, there was no such prosecution or proceeding Under Section 110 Cr. P. C. pending against complainant. It is to be examined whether defamation as is provided Under Section 499, IPC has been made out by the complainant.
8 Material portion of Section 499 IPC reads as follows :
"499. Defemations _ 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 hiving 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.
Explanation 1:_ xxx xxx
Explanation 2:_ xxx xxx
Explanation 3:__ xxx xxx
Explanation 4 :- xxx xxx
First Exception:-_ xxx xxx
Second Exception : Public conduct of public servants :_lt is not
defamation to express in good faith any opinion whatever respecting the
conduct of a public servant in the discharge of his public functions,
or respecting his character, so far as his character appears in that
conduct, and no further.
Third Exception :__ xxx xxx
Forth Exception :_ xxx xxx
Fifth Exception ;_. xxx xxx
Sixth Exception :__ xxx xxx
Seventh Exception:__ xxx xxx
Eighth Exception:__ xxx xxx
Ninth Exception : Imputation made in good faith by person for
protection of his or other's interests :_lt 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.
Tenth Exception:_ xxx xxx"
9. In connection with the prosecution of journalists connected with newspapers there is a general notion that newspapers and journalists being the fourth pillor of our democracy, have the freedom to disseminate any news and views in colour of freedom of press. In facts, protection has been given to the press and any attack on its freedom when alleged has become subject-matter of adjudication by a forum created for the purpose In spite of it while examining prosecution of the Chief Editor of. 'Blitz' for publication of a news item in that paper Supreme Court in the decision reported in AIR 1981 SC 1514 (Sewakram Sobhani v. R. K. Karanjiya, Chief Editor, Weekly Blitz and Ors.) observed that journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification as provided in first Exceptidn of Section 499 IPC unless it is proved to be in the public good. Whether a publication is for public good would be a question of fact like any other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or. in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the Public good, or that it was made in good faith : Observation of Vivian Boss, J. in AIR 1942 Nag. 117 (Dr. N. B. Khare v. M. R. Masani) was approved by the Supreme Court in the majority view explaining position of journalists. Supreme Court observed by quoting the well known passage of Lord Shaw in AIR 1914 PC 116 (Arnold v. King Emperor) which is to be following effect:
"The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to this power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful, but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position."
These observations are always to be kept in mind while examining accusation of defamation against journalists.
10. It is also to be remembered that with march of time our citizens are gradually giving up the fear complex. However, in some persons, this boldness has been exhibited in irresponsible manner. Either in colour of fair comment or being intolerant of a situation, without probe, general comments are made and half truths are disseminated which have adverse effect on the society. People in general giving respect to individuals and institutions who keep the persons expressing, in high esteem believe them and lose confidence on the individuals or institutions having some contributions to existence and development of our democracy. Innocent persons who in that process lose confidence avoid the. individuals or institutions unless they have no other alternative Some saints of past have depicted actions to be immature by identifying marks of maturity, According to them, mature is he who is patient who is willing to give up immediate pleasure in favour of long term gain; mature is he who has the ability to settle difference without resentment and anger; mature is he who does not complain that rose bush has thorns but rejoices that it bears roses; mature is he who preserves despite set backs; mature is he who has the capacity to face disappointments and adversity without becoming bitter.
11. As regards persons who condemn politicians and the politicians who bear it. Supreme Court had occasion to examine the question in 1956 SCR 476 : (Kartar Singh and Ors. v. State of Punjab) while accepting that slogans given by persons against Transport Minister and Chief Minister to be defamatory against them, it was observed :
"...Indecent and vulgar though these slogans were as directed against the Transport Minister and the Chief Minister of the Punjab Government, the utterance thereof by the appellants who were the members of the procession protesting against the scheme of nationalised motor transport was hardly calculated to undermine decency or morality the strata of society from which the appellants came being habituated to indulge freely in such vulgar abuses without any slightest effect on the persons hearing the same.
.....So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy. "Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observation would be made upon public men which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time" (Per Cockburn C J. in Seymour v. Butterworth (1862) 3 F. 382 (376, 377) and see the dicta of the Judges in R. v. Sir R. Garden (1879) 5 QBDI, who- ever fills a public position renders himself open thereto. He must accept an attack as a necessary though unpleasant appendage to his office" (Per Bramwel, B., in Kelley v. Sherlock (1866) I: Q.B. 686 (689). Public men in such positions may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give importance to the same by prosecuting the persons responsible for the same".
12. Keeping the aforesaid. observations in mind it is to be examined whether accused persons have committed the offence. Reading the news as published in its totality, there can be no doubt that a person who reads it would have the feeling that the complainant is not a goodman in the society and would doubt his integrity and honesty as a political office holder at the time he held it, his selfless social work, participation in freedom struggle or even his present business. The same would affect his reputation in the society. The news if would have been correct when published is no doubt one for public good since those who indulge in such activities would not be permitted by the people to hold political offices, to be connected with social work and also become cautious of their business activities. They would always keep in mind that a person who was a saint at one time might have changed his activities of a saint to become a sinner in the present.
13. A newspaper can be used to expose bad character- of the so-called good persons who not only betray the society but damage the character of future of the society by injecting germs which destroy the good qualities of human beings. But the same cannot be used to destroy image and reputation of a good man by news which are either untruthful, half-truth or concocted. A past cannot be presented as the present when such past has not been proved to be correct. Those who are responsible for printing and publishing a newspaper should act with care and caution in this regard. If, in spite of such care and caution, a wrong news having tendency of affecting reputation of another has been published, there should be no hesitation to declare in the same newspaper at the same place where it was published in the past that the news published was not correct. Although after a slap, it is meaningless to express 'sorry' yet to some extent the pain of slap gets reduced.
14. As has been noted by Supreme Court, persons who hold political offices should not attach any importance to defamatory statements against them. In their service to humanity as politicians, they have built up their reputation. It may be tarnished for some time by such defamatory, statement in estimation of those who do not know him but it will have no effect on persons who know him or who would have occasion to know him in future What is stated in respect of political office holders is also correct in respect of others who have been placed by people in high offices. They should be cautious in their conduct so that even the person having ill-will shall not venture to speak ill of them. One can create his own air around him by his conduct.
15. Coming to the facts of this case, I have no hesitation to come to the conclusion that the publication was defamatory in respect complainant when it was published. Repetition of the same by another newspaper sometime after or before would not absolve the petitioners if an offence is committed. All statements which damage reputation of another do not constitute offence of defamation Under Section 501 IPC knowledge or good reason to believe that such matter is defamatory is essential prerequisite to constitute an offence. Whether a person had knowledge or good reason to believe, is to be Inferred from proved facts and circumstances. In this case, the news was printed and published being supplied by a person who was trusted by petitioners. At the time it was published, there was no reason to disbelieve the person who furnished the news would send a false news. No doubt, it would have been better if the petitioners before publication of it, would have got it verified from the complainant who was available to them near at hand at Jobra only. In adjudicatory process, any comment against a person without an opportunity to him to explain about the allegation against him, is thrown out as being violative of principle of natural justice. o Even under the commission of Inquiry Act, provision has been made to that effect where there is likelihood of adverse comment against a person. I have no doubt that in future, petitioners shall adopt this procedure. However, I am inclined to hold in this case, in absence of any proof of ill-will of petitioners against the complainant that the incorrectness of the news was known to petitioners and they had no good reason to believe that it was wrong since it was furnished by a person whom they trusted. Their knowledge of bad conduct of the person to whom they trusted has not been proved. Added to it, petitioners have been fair enough to publish at the same place where the news was published that it is not a correct dissemination of news and they have expressed regret for such publication. In the circumstances, I am inclined to hold that the incriminating news was not published knowing or having good reason to believe that such matter is defamatory of the complainant.
16. In the result, this revision is allowed Conviction and sentence of accused persons are set aside.