Tripura High Court
Md. Ayub Khan vs The Editor on 7 March, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RFA 09 of 2013
Md. Ayub Khan, IFS (Rtd.)
son of late Nasibullah Khan,
Ex. Principal Chief Conservator of
Forest, Government of Tripura,
presently residing at 66, Prakash Vihar,
Dharampur, Dehradun, Uttaranchal
............Plaintiff-Appellant
- Vs -
1. The Editor,
Dainik Sambad,
Bengali Daily published from
11, Jagannathbari Road, Agartala,
District : Tripura West
2. Bhupendra Chandra Datta Bhowmik Trust,
Proprietor and Publishers, Dainik Sambad,
represented by Sri Pradip Datta Bhowmik,
11, Jagannathbari Road, Agartala
District : Tripura West
............ Defendant Respondents
3. The State of Tripura, represented by the Chief Secretary to the Government of Tripura (in-Charge Forest Department), Agartala, Tripura ............Proforma-Defendant-Respondent BEFORE THE HON‟BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. D.R. Choudhury, Advocate Mr. D. Deb, Advocate Mr. S. Sarkar, Advocate For the respondents : Mr. A.K. Bhowmik, Sr. Advocate Mr. S. Chakraborty, Addl. G.A. Mr. R. Datta, Advocate Date of hearing : 29.11.2017 Page 1 of 24 RFA 09 of 2013 Date of delivery of : 07.03.2018 Judgment and Order Whether fit for reporting : YES Judgment and Order This is an appeal under section 96 of the CPC from the judgment dated 28.01.2013 delivered in T.S. 27 of 2005 by the Civil Judge, Senior Division, Court No.1, Agartala. The appellant instituted the suit and as such, hereinafter, the appellant would be referred to as the plaintiff. The suit was instituted for realizing the damages suffered by the plaintiff for publication of news item in the defendants‟ newspaper namely "Dainik Sambad".
2. On a reading of the plaint, it appears that the said newspaper had published some reports imputing the conduct of the petitioner in its several issues from 29.04.2005 to 14.06.2005 without any foundation but with full of defamatory and derogatory comments for tarnishing the image and reputation of the plaintiffs. The plaintiff has assessed the damage at Rs.10,00,000/- (Rupees ten lakhs) and sought for a decree for realizing the said amount. The plaintiff has stated in the plaint that after successfully serving the Government of Tripura as the Principal Chief Conservator of Forests, the PCCF, in short, he retired on superannuation of 30.04.2005. The plaintiff has given a short list of his achievements and awards that he was conferred on.
3. The plaintiff had introduced, according to him, various projects and good practices for development of Forest in Tripura, for Page 2 of 24 RFA 09 of 2013 which the State Government had appreciated his service and recognized his contribution to the Forest and Environmental Areas. After his retirement, in the said newspaper, some defamatory materials were published denigrating him in the estimation of the public. In the news item published on 29.04.2005 under caption "Bana Daptarer Vidayi Kartar Biruddhe Kotitaker Kelenkerir Abhiyog" (allegation of scam of crores of rupees against the retiring departmental Chief of Forest Department). The plaintiff has asserted that the said report was based on unfounded allegations. Moreover, the presentation of the said news item was made in a deplorable language. He started receiving telephone calls from various quarters, but they were not named in the plaint. The callers are very important persons whom the plaintiff in whose estimation the plaintiffs‟ reputation might have fallen down did not recognize. In reaction to the said news item, the plaintiff had sent a rejoinder to the said newspaper and that rejoinder was published in a brief form. The said newspaper continued to publish such defamatory and derogatory allegations against the petitioner on succeeding days viz. 30.4.2005, 01.05.2005, 11.05.2005, 01.06.2005, 04.06.3005, 06.06.2005 and 14.06.2005. The defendants No. 1 and 2 were under obligation to verify the contents before those were published. Since, the allegations were unfounded, no such attempt was made by the defendants No. 1 and 2. Consequent thereupon, publication of those news item, the plaintiff served a notice stating that the news as published in the defendants‟ newspaper was full of unverified, unfounded and defamatory materials. The plaintiff had stated that the said newspaper published a rejoinder apologetically. The allegations Page 3 of 24 RFA 09 of 2013 those were broadly made in the said newspaper may briefly be summarized as so made in the plaint :
"(a) The plaintiff as P.C.C.F. encouraged illegal extractions of forest produce to benefit a group of contractors.
(b) Even though, collection of the Stone Boulders from reserve forest is not permitted except in accordance with the approval of the Central Government. But the plaintiff as P.C.C.F. allowed permits to a number of persons. As a result, Boulders worth of Rs.10.00 Crores were extracted and carried out from Manu forest division to outside of the state.
In the departmental inquiry the plaintiff as P.C.C.F. has found responsible for such irregularities.
(c) After the plaintiff took over the charges as PCCF he did not circulate the important orders of the Supreme Court as a result of which other subordinate officers were found serious problems. The Indian Forest Service Association and the State Forest Service Association demanded an inquiry into the matter.
(d) The plaintiff threatened the Subordinate Officers to spoil their ACRs. In this perspective, the petitioner was removed from the said post of the PCCF and the senior most IFS officer was given the charge of the PCCF.
(e) The PCCF can issue permits from the thirty trees from the private land but the plaintiff had allowed removal of 1800 trees at a time and during the inquiry, it was found that such trees were actually removed from the Government forest. When such improper activities were observed, the Inspecting officers were threatened of spoiling their ACRs.
(f) When the plaintiff retired as per tradition, he was not given „Farewell‟.
(g) Under the signature of one Sri P. Biswas, General Secretary of the Indian Forest Association, a demand was raised to enquire against the plaintiff by their letter dated 06.02.2005 .
(h) The plaintiff allowed permission for illegal transit of the bamboos in the unauthorized manner."
4. Even though the Indian Forest Service Association raised the demand of inquiry by their letter dated 06.02.2005, but they were not made the defendant in the suit. In the plaint, the plaintiff has asserted that the association had full knowledge of the real state of affairs but they distorted those facts. The plaintiff came to know from Page 4 of 24 RFA 09 of 2013 the letter of the Commissioner and Secretary of Public Works Department, Government of Tripura about the allegations of felling trees and disposal of timber from Jeolchera Forest. The plaintiff has submitted that there was no attempt to verify the information that the newspaper published in the form a news item but for such publication the plaintiff‟s reputation was grossly damaged and hence, he filed the suit. According to the plaintiff, the cause of action arose on 30.5.2005 when the news as published by the defendants had been circulated.
5. The respondents No. 1 and 2 by filing their written statement has categorically stated in Para-8 of their written statement as under :
"........... whatever news the answering Defendants published in their newspaper „Dainik Sambad‟ concerning illegalities, irregularities and corrupt practices in the forest Department and also concerning the Plaintiff were all based on facts and publications of opinions respecting the conduct of the public servant in the discharge of his public functions and respecting his character so far as his character appeared in that conduct were made in good faith and the publications were based on truth which public good required to be published and the Defendants made the publications for public good and public interest without any intention to harm the Plaintiff in any way and consequently there is no cause of action for filing the instant suit for damage."
The defendants had taken resort to publication on good faith and in the public interest. Even the letter of protest as sent by the plaintiff was printed so that his version could be made available to the readers of the newspaper. Even after the letter of protest, the defendants continued to publish defamatory and derogatory allegations.
6. The respondents [the defendants] on the face of such pleadings have replied that the plaintiff had sent a notice on Page 5 of 24 RFA 09 of 2013 21.05.2005 only to the defendant No.1 without making claim against the defendant No.2 and as such, no relief can be granted against the defendant No.2. The defendants have further asserted in their written statement that the allegations against the plaintiff were under investigation and inquiry and the plaintiff had no right to claim damage against the defendants No.1 and 2 inasmuch as those news items were published on the material information. The suit has been instituted only against the defendants‟ newspaper but the similar news items were published by other two newspapers namely "Ajker Fariyad" and "Ajkal", but they were not arraigned as the defendant in the suit for purpose of recovery of damage.
7. The trial court for purpose of adjudicating the suit framed the following issues :
"1. Whether the suit is maintainable in its present form and nature;
2. Whether the Plaintiff has any cause of action to file the suit;
3. Whether the defendants No. 1 & 2 published the news item in respect of the Plaintiff in the Dainik Sambad, daily circulated Newspaper on various dates starting from 29.04.2005 onward without any basis with malafide intention ;
4. Whether the defendants No. 1 & 2 published the said news item in good faith;
5. Whether Plaintiff is entitled to decree, as prayed for ."
8. In order to prove the pleaded case, the plaintiff adduce him as the witness (PW-1) and introduced 21 (twenty one) documentary evidence (Exbts.1 to 21) on admission by the parties, including the news clippings of Dainik Sambad dated 29.04.2005 (Exbt.1), the news clippings of Daily Desher Katha dated 30.04.2005 (Exbt.2), the news clippings of Dainik Sambad dated 30.04.2005 Page 6 of 24 RFA 09 of 2013 (Exbt.3), the news clippings of Dainik Sambad dated 01.05.2005 (Exbt.4) and the news clippings of Dainik Sambad dated 11.5.2005 (Exbt. 5). From the side of the defendants, one Pradip Datta Bhowmik (DW-1) was adduced and examined. The defendants introduced 4 (four) documentary evidence (Exbts. A to D) on admission by the parties.
9. Having appreciated the evidence, the trial court by the judgment dated 28.01.2013 has dismissed the suit even though issues No.1 and 2 were decided in favour of the plaintiff. It is evident from the said very judgment that during the cross examination, PW-1 admitted that during his tenure there were some illegal felling of trees, mal- practice and corruption in the Forest Department. The plaintiff has further admitted that against him, two departmental proceedings were drawn up during his service tenure. PW-1 has acceded in his statement in the course of his cross examination that regarding felling of trees the Supreme Court imposed some restrictions. DW-1 has submitted that for non-impleadment of the association whose written demand for investigation against the plaintiff was the source of the news, the suit cannot be decided against the tale-bearer inasmuch as the newspaper items as alleged to have been published to defame the plaintiff had reflected whatever was there in the said complaint.
10. There are several exceptions which provide leeway to a newspaper viz. fair comment, justifiable truth and public conduct of public officers in discharge of their public function. The trial court has observed as under :
Page 7 of 24
RFA 09 of 2013 "During his tenure he faced several corruption charges and also at times departmental proceedings were also drawn up against him due to which he lost his pensioner benefits. The news items were published just before a day of his superannuation. It is evident from the record that the career of the plaintiff as a public servant was not unblemished. It is also evident from the record that the TFS and the IFS officers hold meetings and resolved that the matter of several allegations of corruptions and malpractices against the plaintiff should be taken up to the highest Authority and accordingly the matter was informed to the CM of Tripura. Thus, it cannot be said that due to the publication of the news items the image of the plaintiff was tarnished in the eyes of the right thinking people of the society as this is the test of proving defamation. Because at the time of publication of those news items the image of the plaintiff in his society and office were not clean already. Also he admitted that due to this libel he has not suffered any loss or damage like deprivation of post-retirement benefits or any other damage of like nature. In a case of defamation it is the burden of the plaintiff to prove that how his image in the society has been blackened due to the libel of the defendant."
Further, it has been observed in the judgment as challenged in this appeal, that it cannot be said that the defendants published the news items with any malafide intention.
11. Mr. D.R. Choudhury, learned counsel appearing for the plaintiff-appellant has submitted that the trial court has failed to appreciate the evidence as recorded in the course of the trial and as a result, it has landed up in the findings which are not consistent to the evidence available in the records. But no illustration in the form of the ground of objection has been incorporated in the memorandum of appeal. It has been urged by him that it is the onus of the publisher to prove that the publication as made was made on the foundation of records and tenable evidence. Mr. Chowdhury, learned counsel has further submitted that even the trial court has erroneously observed that the plaintiff had lost pensionary benefits for drawing up of disciplinary proceedings. The defendants, even though, adduce evidence but they did not adduce any evidence according to Mr. Page 8 of 24 RFA 09 of 2013 Chowdhury, learned counsel which would provide justification for publication of such news items. Even the letter of the IFS Association has not been introduced in the record of evidence, however, from one letter dated 24.04.2012 it can be gathered that the plaintiff was proceeded departmentally. In a nutshell, Mr. Chowdhury, learned counsel appearing for the petitioner has contended that the trial court perversely appreciated the evidence both oral and documentary inasmuch as the plaintiff as PW-1 has laid down the substantive evidence and he has categorically deposed that he had suffered serious mental agony and stress. He has referred with emphasis the following part of the testimony of the plaintiff :
"20. That as a result of this vilifying publication without any source of reliability and without confirmation has caused serious mental agonies, stress and on that I have been lowered in the esteem of people in spite of my achievements of rare fame, appreciations and honour not only the State level, but also in the National level. I have also suffered certain stringent actions by the Government against me as a result of such defamatory false publications. I have not been paid my retiral benefits i.e., pension and the retirement gratuity till date. On all those accounts I demand and deserve to be compensated to the extent of Rs.10.00 lac."
12. Mr. Choudhury, learned counsel has reiterated that it is apparent on the face of the evidence that the plaintiff lost his reputation on the basis of the publication made by the defendants No.1 and 2. That apart, Mr. Choudhury, learned counsel has submitted that some disgruntled elements had conspired against the plaintiff as the plaintiff had occasion to take stern action against them for their unbecoming act as the officer of the Forest Department.
13. Mr. A.K. Bhowmik, learned senior counsel and Mr. R. Dutta, learned counsel appearing for the defendants No.1 and 2 have Page 9 of 24 RFA 09 of 2013 clearly submitted that there is no evidence at all that the plaintiff lost his reputation. Except the plaintiff, no other witness came forward to testify that in his or her estimation the reputation of the plaintiff was degraded for publication of those news items. According to Mr. Bhowmik, learned senior counsel that the plaintiff has himself admitted that against him there was departmental proceeding for mis-conduct on the basis of a charge memo. That apart, in the examination in chief, the plaintiff has unambiguously stated that :
"The said news also describes that the IFS Association by letter dated 06.02.2005 issued under signature of Shri P. Biswas, General Secretary of the Association has demanded enquiry against me. They demanded enquiry into the illegal collection of timber and Stone Boulders from Kanchanpur to Manu Division and its transportation outside the State. I have come across the said letter signed by Shri P. Biswas. But the letter does not contain the text reflected in the news. Manipulation by the Defendants is thus willful."
14. Mr. Dutta, learned counsel has relied on a decision in Krishnarao Jagoba Parkhi versus Firm Radhakisan Ramsahai and Another reported in (1956) Nagpur 264 : AIR V 43 C NOV. In that report, it has been observed as under :
"6. On the first point, it is clear that the contention of the appellant-defendant is well founded. A claim for damages for malicious prosecution is quite a separate species of tort from a claim for damages for defamation. The plaint allegations only make out a case for malicious prosecution and not one for defamation.
We may point out that in a suit for damages for defamation the law requires that the plaint ought to allege the publication of the defamatory statement, set out the actual words used and also state that they were published or spoken to some named individuals and specify the time and place when and where they were published (vide „Frijlal Prasad v. Mahant laldas‟, 1940 Nag 125 (AIR V 27)(A). Nothing of the kind is to be found in the plaint. Under the circumstances we hold that no case of defamation has been made out by the plaintiff No.1."Page 10 of 24
RFA 09 of 2013
15. What further Mr. Datta, learned counsel has proceeded to highlight before this court is of paramount ramification on the fate of the case. Mr. Dutta, learned counsel has categorically stated that if a comparison of the pleaded case in the plaint is made with the deposition made on oath by the plaintiff (PW-1), it would be apparent that there is fundamental and substantive departure from the pleaded case and those are not mere in-significant expansion. Mr. Datta, learned counsel has submitted that a new case has been set up by the plaintiff beyond the pleadings. In the plaint, there is no pleading setting out the actual words used in the news items which harmed the exalted reputation of the plaintiff and as such, the trial ought not have conducted any longer as for damages for defamation, the law requires that the plaintiff ought to allege the publication of the defamatory statement, set out the actual words used and also state that they were published or spoken to some individuals.
16. Mr. Chowdhury, learned counsel appearing for the petitioner in his rejoinder has made a desperate attempt to repel the contentions advanced by the learned counsel for the defendants No. 1 and 2. But Mr. Chowdhury, learned counsel in his usual fairness has acceded that the defamatory contents have not been set out in actual words in the plaint but broadly stated having regard to the specific news items which were published on diverse dates. Those imputation have been catalogued in Para-9 of the plaint which this court has already referred to. To bolster the submission, Mr. Chowdhury, learned counsel has relied on some reports to persuade this court that the findings returned by the trial court is entirely perverse. The plaintiff has discharged his burden in proving that he has been defamed by the Page 11 of 24 RFA 09 of 2013 defendants No. 1 and 2 by publishing of those news items and his reputation has greatly suffered for which he is entitled to damage.
17. In Balraj Khanna and Others versus Moti Ram reported in (1971) 3 SCC 399, the apex court has observed as under:
"26. After a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499 I. P. C. it will be highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore it is to his interest to get a proper adjudication from, the court that as far as possible the words spoken or the statements actually made and which he alleges to be defamatory are before the court. But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint. From the point of view of accused also it is necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet."
[Emphasis added]
18. Mr. Chowdhury, learned counsel has relied on another decision of the apex court in Sukra Mahto versus Basudeo Kumar Mahto and Another reported in (1971) 1 SCC 885 where the apex court has observed as under :
Page 12 of 24
RFA 09 of 2013 "7. The relevant provision in the present case is the Ninth Exception to section 499 of the Indian Penal Code. Section 499 deals with defamation. Section 500 prescribes punishment for defamation. There are nine exceptions to section 499. These nine exceptions are the cases in which there is no defamation. The Ninth Exception covers the present case and is as follows :-
"It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good".
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. Good faith is a question of fact. So is protection of the interest of the person making it. Public good is also a question of fact. This Court is Harbhajan Singh v. State of Punjab(1) in dealing with the Ninth Exception to section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due care, and attention. This Court said there "Simple, belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to section 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not subjective satisfaction."
[Emphasis added]
19. Mr. Chowdhury, learned counsel has referred to K.M. Mathew versus K.A. Abraham and Others reported in (2002) 6 SCC 670 but the said report does not have any relevance in the present context.
20. The report that has been placed by Mr. Chowdhury, learned counsel in John Thomas versus Dr. K. Jagadeesan reported in AIR (2001) SC 2651 again has hardly any relevance in the case in Page 13 of 24 RFA 09 of 2013 hand. This court would make the similar observation in respect of the report as placed by Mr. Chowdhury, learned counsel in K.M. Mathew versus State of Kerala and Another reported in (1992) 1 SCC 217 where the apex court had occasion to observe as to the criminal liability in respect of a chief editor of the newspaper.
21. Mr. Chowdhury, learned counsel has further relied on Sewakram Sobhani versus R.K. Karanjia, Chief Editor, Weekly Blitz and Others reported in (1981) 3 SCC 208 as under :
"11. The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. We hasten to add that journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under First Exception unless it is proved to be in the public good. The question whether or not it was for public good is 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: per Vivian Bose, J. in Dr. N.B. Khare v. M.R. Masani and Ors.
12. As the matter is of great public importance, it would, perhaps, be better to quote the well-known passage of Lord Shaw in Arnold v. King Emperor :
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."
Relying on the said report, Mr. Chowdhury, learned counsel has submitted that if the defendants intended to screen them behind the shield of public good, they must justify this assertion to establish Page 14 of 24 RFA 09 of 2013 that the attack on the character of another was for public good. The defendants No. 1 and 2 have failed in this respect.
22. On the last lap of his submission Mr. Chowdhury, learned counsel has placed his reliance on Harbhajan Singh versus The State of Punjab and Another reported in AIR 1961 Punjab 215 where the high court of Punjab as it then was has expounded the law as under :
"67. Applying the above principle, a Court is entitled to expect from the accused, without discharging the onus placed upon him, of proving any defence mentioned in the exception- that he should adduce facts which would show due care and attention justifying honest belief in the truth of the allegations."
23. Further, Mr. Chowdhury, learned counsel has referred to this court, a decision of the Calcutta High Court in Asoke Kumar Sarkar and Another versus Radha kanto Pandey and Others reported in AIR 1967 Cal 178 where the Calcutta High Court had observed as under :
"21. Naturally there are certain obvious common features between a civil action for damages for defamation and a criminal complaint for defamation under Section 500 of the Indian Penal Code. The essence of the cause of action in the civil suit for damages is the tortious liability for compensation for the damage to or loss in reputation suffered by the aggrieved party. Naturally, damages in a civil action for defamation, with of course a few exceptions, are always much heavier than fine in a criminal proceeding in contempt under Section 500 of the Indian Penal Code. Harm to the reputation is also the main ground in a criminal defamation under Section 499 of the Indian Penal Code just as much as harm to the reputation is the essence of the cause of action in a civil suit for damages. Harm to the reputation is therefore a common ground. Punishment of course in the criminal proceeding is provided in Section 500 I. P. C. which means a sentence of imprisonment which may extend to two years or with fine or with both. Conviction and sentence of imprisonment therefore, are the essential features of the criminal defamation and not a civil defamation, The exceptions to the criminal defamation provided in Section 499 of the Page 15 of 24 RFA 09 of 2013 Indian Penal Code are also indicative of the test of civil and criminal defamation. Truth necessarily is the defence both in civil and criminal defamation, but the first exception to Section 499 I. P. C. insists that in addition to truth, the imputation must be shown to have been made for public good. Public good therefore is an overriding relevant consideration in a criminal defamation which is concerned with the protection of the society unlike a private suit for damages for defamation. Again, in a criminal defamation public conduct of a public servant is a defence within limits so long as it is in good faith and respecting only public conduct and no further. Again, in the third exception, conduct of any person touching any public question, is a defence in a criminal defamation within its, so long as the imputation or opinion touches public character and conduct and is made in good faith. The public test in a criminal defamation can be traced in other exceptions like 4th, 5th, 6th, 7th, 8th, 9th and 10th, exceptions. Public test as such is hardly a defence for a civil suit for damages in a private action. No doubt the normal public test in a civil suit that the reputation must be lowered has to be satisfied. It will not be necessary to pursue this matter any further except to say that in the imputations challenged in the publication in this case do concern public interest. We are purposely refraining from any discussion of the words or imputations here as they are sub Judice both at the criminal Court and in the civil suit."
24. Mr. Chowdhury, learned counsel has summed up his submission by stating that that the defendants No.1 and 2 have failed to prove that the imputation as shown to have been made by those news items have been made for public good. In the case in hand, the element of public good cannot override the case of the plaintiff.
25. From a mere perusal of the written statement filed by the defendants No.1 and 2 it would be apparent that those defendants have taken a categorical defence that not only the defendants No.1 and 2 but other newspapers including one "Daily Desher Katha"
published the similar news-item on 24.05.1993 in respect of a scam involving the plaintiff in the period when the plaintiff was the Conservator of Forest, Northern circle. On the basis of that news items, the Government directed an inquiry and the inquiry report was submitted by Dr. V.K. Bahugana Conservator of Forest, Northern Circle Page 16 of 24 RFA 09 of 2013 on 20.07.1994. In the said report, it had been categorically observed that the plaintiff was responsible for illicit felling and disposal of the timber causing a loss of Rs.282.56 lakhs. The defendants have further stated in their written statement that disciplinary proceeding against the plaintiff under Rule 8 of All India Services (Discipline and Appeal) Rules was launched on 20.12.1996 by the Government of Tripura on four articles of charge. Even there was contemplation of placing the plaintiff under suspension, the defendants have also stated categorically that :
"It would be abundantly clear that the plaintiff was continuously having a blemished character and was not in good book of the government as falsely claimed by him."
It has been stated succinctly that as the immediate impact of the news items published by the defendants, the Government had immediately ordered an inquiry as would be evident from the reply by the minister in charge of the General Administration (AR) Department, Government of Tripura to an admitted un-starred question No. 836 of Sri Prakash Chandra Das, MLA. In the statement, it has been clearly laid that inquiries have been ordered in respect of two allegations made by TFS and IFS Associations in respect of allegations that the plaintiff had disposed of „trees‟ of several lakhs to one contractor at low price at Goalchara in April 2004 and issued permit to collect and sell stone boulders from the reserved forest area in violation of the direction given by the apex court. The defendants have further submitted that on receipt of the plaintiff‟s protest letter the same was published observing the Journalistic ethics. The subsequent news items were published as sequels and those news items were based on the Page 17 of 24 RFA 09 of 2013 information which appeared reliable. Such content was published in good faith on the basis of the materials and in the public interest.
26. The defendants in their written statement has further asserted that in the very first news item published on 29.4.2005, it had been clearly mentioned that IFS and TFS Association in their meeting decided to demand an enquiry against the plaintiff on several allegations of corruption. The letter dated 06.02.2005 sent by the IFS Association to the Chief Minister was known to the defendants that the first news item was published on the basis of the said letter dated 06.02.2005. Despite that, neither the IFS Association nor the signatory of the said letter was impleaded as the party. Thus, the allegation that the news items were published without foundation falls apart. From reading of the news items, it appears that the allegations made in the letter sent by the IFS Association was referred and highlighted. There were bonafide reasons to believe that there was fire in the smoke and in the public interest that should be brought in the public domain. The defendants have further stated that the defence structured by the plaintiff is de hors the records. The defendants have stated that "the admission of the plaintiff on the basis of his reliance upon the news clippings of other news paper namely "Ajker Fariyad" and "Ajkal" would clearly show that the news item published by those defendants were based on facts and were wholly justified." It clearly records that all such allegations were in the public domain. The damage as alleged is imaginary inasmuch as there is no pleading how the plaintiff estimated the damage or what are the evidentiary materials he has relied for this purpose.
Page 18 of 24
RFA 09 of 2013
27. The defendants have relied the following documents :
a) Letter dated 6th February 2005 issued by the General Secretary, IFS Association, Tripura Unit addressed to the Hon‟ble Chief Minister of Tripura.
b) Copy of the letter dated 3.5.05 issued by the General Secretary, IFS Association addressed to the Hon‟ble Chief Minister along with copy of the Resolution of the meeting held on 23rd April. 2005.
c) Letter dated 7.2.05 issued by the Secretary, Tripura Forest State Service Officers Association, addressed to the Chief Minister, Tripura.
d) Memo dated 20th December, 1998 issued by the Government of Tripura, Administrative Reforms Deptt. Drawing proceeding against the Plaintiff.
e) Copy of the letter dated 9th February, 1998 issued by the Director, ICAT, Govt. of Tripura addressed to Joint Secretary, Administrative Reforms Deptt.
f) Enquiry report dated 20th July, 1994 issued by Dr. V.K. Bahuguna, Conservator of Forests, Northern Circle, Kumarghat.
g) Reply dated 01.06.05 to the admitted un-starred question No.836 of Tripura Legislative Assembly.
28. The documents those are relied by the plaintiff and the defendants are available in the records of evidence being marked as Exbt.1 to Exbt.21 and Exbt. A to Exbt. D [on the body of the document namely the original copy of the "Dainik Sambad" dated 14.06.2005, no mark identifying the document is available but in the impugned judgment the said document has been referred by the trial Judge as Exbt.21.].
29. From appreciation of the impugned judgment and the records of evidence three pertinent questions surface in this appeal for response , viz.
a) whether there is any pleading in respect of imputation of character causing damage of reputation or in respect of loss of fame or reputation and Page 19 of 24 RFA 09 of 2013
b) whether the defendants had enquired about the allegation before publication of those news items or the publication was made bonafide and in the public interest.
c) whether without impleading the IFS Association or the signatory letter dated 03.05.2005 or the Tripura Forest State Service Officers Association or the signatory of the letter dated 07.02.2005 any liability can be shifted to the defendants No. 1 and 2 as the tale-bearer?
30. It is apparent on the face of the records that in the plaint there is no basic pleading having referred to the imputing part of the news items. There is no specific pleading as to the news items which according to the plaintiff imputed his reputation. However, some broad pleadings are in the plaint in respect of the damage caused by the said news items. There is no material in the pleadings or in the evidence how the plaintiff estimated the damage that according to him has been caused to his reputation for publication of those news items.
31. The defendants have categorically pleaded in the written statement that the plaintiff was a member of the IFS Association when the complaint was made against him by the IFS Association. The defendants No.1 and 2 have "published the fact of making such allegations concerning the conduct of the plaintiff in the discharge of his public function as revealed from the allegations made by the aforesaid association." The defendants have further stated that when the suit was instituted those allegations were under investigation and no final decision was taken. Thus, the plaintiff did not have any cause on the day of institution of the suit. The suit is speculative and without any foundation. The plaintiff has picked up only the defendants No.1 and 2, though admittedly the similar news items were published in other newspapers namely "Ajker Fariyad" and "Ajkal" or "Daily Desher Katha". There was no malafide intention against the plaintiff Page 20 of 24 RFA 09 of 2013 but it is in the public interest to expose that how the state resources were transacted causing huge damage.
32. The defendants have emphatically stated that not a single witness came forward to testify in the trial to state that in their estimation the reputation of the plaintiff got lowered for publication of the said news items. It is essentially required that some evidence must be led to show that the damage to the reputation of the plaintiff has occasioned and it was actuated by the said publication. Else, mere statement by the person who claimed to have suffered damage to his reputation would not suffice. Consequently, in absence of such evidence the damage cannot be held to have been occasioned.
33. The non-impleadment of the said associations or the signatories of the letters will have a serious impact on the suit inasmuch as the plaintiff has not only admitted existence of the said letters but also brought both the letters dated 03.05.2005 and 07.02.2005 in the records. Even the plaintiff has failed to show that the content that has been published in the news items is incorrect reflection of the content of those letters or the defendants No.1 and 2 added additional contents which are not supported by the documents or evidence of the other characters. In this regard it would be worthwhile to mention that from the side of the defendants one witness (DW-1) was examined. The said witness has specifically stated that :
"We had only published the fact of making such allegation concerning the conduct of the plaintiff in the discharge of his public function as revealed from the allegations made by the aforesaid associations. I say that admittedly allegations against the plaintiff were under investigation and enquiry by the government Page 21 of 24 RFA 09 of 2013 and it would appear that the allegations were related to corrupt practices concerning huge public property and public money and the government of Tripura had also initiated disciplinary proceedings against the plaintiff."
34. Further, DW-1 has testified as under :
"That I say that as back as on 24th May, 1993 a news item was published in one of the prominent Bengali newspapers named „Daily Desher Katha‟ relating to Jampui Timber Scandal concerning the Plaintiff who was the then Conservator of Forests, Northern Circle. I say that the Government on the basis of the said news item ordered an inquiry and the inquiry report was submitted by Dr. V.K. Bahugana, Conservator of Forests, Northern Circle on 20th July, 1994 wherein it appears that the Plaintiff was responsible for illicit felling and disposal of timber causing a loss of Rupees 282.56 lacs. I further say that a disciplinary proceeding was initiated against the plaintiff under Rule 8 of the All India Services Discipline and Appeal Rules against the plaintiff on 20th December, 1996 by the Government of Tripura, Administrative Reforms Department on 4 Articles of charges. It would also appear from a letter dated 7th February, 1997 issued by the Director of ICAT, Government of Tripura that there was a contemplation of placing the plaintiff under suspension.
I say that it would be abundantly clear that the Plaintiff was continuously having a blemished character and was not in the good book of government as falsely claimed by him."
Thus, the defendants have asserted that the news items published by them were so published bonafide and in the interest of public.
35. In respect of non-impleadment as narrated in the question No.(c) this court is of the view that even without impleadment, the plaintiff would have succeeded if the plaintiff could have established that the defendants No.1 and 2 having knowledge that the allegations floated in the letters dated 07.02.2005 and 03.05.2005 were all unfounded and despite that based on the said allegations, news items were published. But in this case, no evidence has been adduced to show the content in Page 22 of 24 RFA 09 of 2013 those letters were grossly unfounded. There can be further analogy that it is the fundamental duty of that person who authored the letters dated 07.02.2005 and 03.05.2005 to establish the correctness of the contents. Neither those persons were not arraigned as the party in the suit nor were they adduced as the witness in the trial to ascertain that the letters are not genuine or that the contents thereof had been tweaked by the defendants in order to publish the news items malafide.
36. The law is well settled that the mere fact that the defendants believed that what they stated was true by itself will not sustain the case of good faith as simple belief or actual belief by itself is not enough. It must be the belief rested in the rational basis and not to be just a rational belief. That apart, to come under such exception the defendants had to plead the fact relating to good faith and the burden to prove in this regard is to be discharged. It means that the exercise of due care and caution is essential to show that the imputation whatever is available in the news items is made bonafide or in the public good. Whenever, in a greater interest of public, a news item is published with criticism, such criticism shall not always be on a fine scale. If the foundation appears to have been made on the relevant papers, then, the onus for the news items if related to the public interest is on the defendants to reveal the foundation on which such news item was published.
37. Having scrutinized the written statements and the evidence as led by the defendants this court is of the view that the Page 23 of 24 RFA 09 of 2013 defendants have discharged their onus and on the contrary, the plaintiff has failed on multiple scores viz. (a) there is no specific pleading in respect of the imputation which damaged the reputation of the plaintiff having reference to the particular news item. (b) There is no evidence of damage of reputation preceded by the pleading and (c) non impleadment of the authors of those letters dated 02.07.2005 and 03.05.2005 impeded the court to hold absolute liability of the defendants No.1 and 2.
38. Having observed thus, this court is of the view that there is no infirmity in the finding returned by the trial court. In the result, the appeal fails and accordingly, the same is dismissed.
Draw the decree accordingly.
Send the LCRs thereafter.
JUDGE Sabyasachi. B Page 24 of 24 RFA 09 of 2013