TMI Blog1981 (5) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. But, that was only a technical defect and we do not take serious notice of it in an appeal under Article 136 of the Constitution where we are very naturally concerned with substantial justice and not with shadow puppetry. The position now is this : The news item in the Blitz under the caption 'MISA Rape in Bhopal Jail undoubtedly contained serious imputations against the character and conduct of the complainant. In order to attract the 9th Exception to Section 499 of the Indian Penal Code, the imputations must be shown to have been made (1) in good faith, and (2) for the protection of the person making it or of any other person or for the public good. 'Good Faith' is defined, in a negative fashion, by Section 52 Indian Penal Code as follows: Nothing is said to be done or believed in 'Good faith' which is done or believed without due care and attention . The insistence is upon the exercise of due care and attention. Recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral questions arise for consideration if the Ninth Exception is to be applied to the facts of the present case. Was the Article published after exercising due care and attention? Did the author of the Article satisfy himself that there were reasonable grounds to believe that the imputations made by him were true? Did he act with reasonable care and a sense of responsibility and propriety? Was the article based entirely on the report of the Deputy Secretary or was there any other material before the author? What steps did the author take to satisfy himself about the authenticity of the report and its contents? Were the imputations made rashly without any attempt at verification? Was the imputation the result of any personal ill will or malice which the author bore towards the complainant? Was it the result of any ill will or malice which the author bore towards the political group to which the complainant belonged? Was the article merely intended to malign and scandalise the complainant or the party to which he belonged? Was the article intended to expose the rottenness of a jail administration which permitted free sexual approaches between male and female detenus? Was the article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was still in operation, there was an ex parte confidential enquiry held by Shri S.R. Sharma, I.A.S. Deputy Secretary (Home) Government of Madhya Pradesh, into the circumstances leading to the pregnancy of Smt. Shukla. The Enquiry Officer by his report dated November 3, 1976, apparently held that the pregnancy was due to illicit relations between the appellant and Smt. Shukla, during their detention in the Central Jail. On December 25, 1976, the Blitz, in its three editions in English, Hindi and Urdu simultaneously flashed a summary of the report and the story as given out was that (i) there was a mixing of male and female detenus in the Central Jail, Bhopal, (ii) the appellant had the opportunity and access to mix with Smt. Shukla freely, and (iii) Smt. Shukla became pregnant through the appellant. The news-item was per se defamatory. It is somewhat surprising that the Enquiry Report, which was a document of highly confidential nature, should have found its way to the Press. 9. With the revocation of Emergency, the appellant along with the other political detenus was released from detention. On his release, the appellant lodged a criminal complaint for defamation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and yet the report said the prison authorities connived at such a thing, a matter which was bound to arouse resentment and condemnation. The balance of public benefit lay in its publicity rather than in hushing up the whole episode. Further, there was good faith in the publication. The source on which the publishers acted was the proper source on which they were entitled to act and they did so with care and circumspection. The report further shows that the publication had been honestly made in the belief of its truth and also upon reasonable ground for such a belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances. (emphasis added) It is somewhat strange that the learned Judge should have made public the contents of a document in respect of which the State Government claimed privilege. 11. The order recorded by the High Court quashing the prosecution under Section 482 of the Code is wholly perverse and has resulted in manifest miscarriage of justice. The High Court has pre-judged the whole issue without a trial of the accused persons. The matter was at the stage of recording t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The burden, such as it is, to prove that his case would come within that exception is on him. 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 any other person or for the public good. 12. We are completely at a loss to understand the reasons which impelled the High Court to quash the proceedings. The respondent, in his revision directed against the order of the learned Magistrate dated November 30, 1977, asserted in paragraph 5 that the case pre-eminently a fit case for quashing the impugned order either in the revisional jurisdiction of the High Court or in the exercise of its inherent powers under Section 482 of the Code to prevent the abuse of the process of law and to secure the ends of justice. The prayer made in the revision was in these terms: The applicants pray that the impugned order be quashed and the learned Magistrate be directed to pursue the report which he has sent for under Section 91, Criminal Pro. Code and pass suitable orders according to law. All that the respondent wanted is that learned Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the matter any further. It is for the accused to plead Ninth Exception in defence and discharge the burden to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good. 15. In Sukro Mahto v. Basdeo Kumar Mahto and Anr. this Court observed: 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. After referring to the two earlier decisions in Harbhajan Singh v. State of Punjab 1966CriLJ82 and Chaman Lal v. State of Punjab 1970CriLJ1266 the Court held that there must be evidence showing that the accused acted with due care and caution. He 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 correct. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, I could have persuaded myself to agree to the order proposed by my Brother Sen, J., but after the Inquiry Report bas been released by the Government and placed before us I regret my inability to agree to the order of sending back the case to the Magistrate as proposed by my Brother, and proceed to give my own judgment. 20. The facts material for the purpose of disposal of these appeals may be stated thus: During the period of Emergency between June 1975 and March 1976 the appellant, Shri Sewakram Sobhani, an advocate, was one of the detenus under the Maintenance of Internal Security Act, 1976 (hereinafter 'MISA') and lodged in the Bhopal Central Jail. There were also three women detenus including Smt. Uma Shukla and Smt. Ramkali Mishra, Advocate. The husband of Smt. Uma Shukla was a practising advocate at Bhopal. He was not a detenu. Smt. Uma Shukla became pregnant while in detention in the aforesaid Central Jail and abortion was carried out in the month of August, 1976 in the Zanana Hamidi Hospital to relieve her of the pregnancy. This circumstance created an uproar and an inquiry into the affairs had to be held by Shri S.R. Sharma, Dy. Secretary (Hom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (3) Smt. Uma Shukla became pregnant through Shri Sewak Ram Sobhani. 22. It may be mentioned that the Government later on produced the inquiry report before the High Court but claimed privilege. The learned High Court presumably perused the report before passing the impugned order. It may also be mentioned that although the Government claimed privilege in respect of the report at that time, it appears, they subsequently, after the impugned order of the High Court, waived the claim of privilege, and released the inquiry report; for, in fact, a copy of the report has been annexed and is available in the paper book of these appeals before us as Annexure 'A'. 23. The submission of the appellants is that the impugned order of the High Court is beyond its revisional jurisdiction. The submission is that the respondents prayed for quashing the order of the Magistrate proceeding to record their plea before the inquiry report was produced by the Government, but the High Court has wrongly quashed the complaint itself. On the other hand the reply of the respondent is that although there was no specific prayer in the petition, the petition was also made fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it. We have therefore to examine whether the respondents' case falls within the ambit of the Ninth Exception to Section 499 of the Penal Code as held by the High Court. 27. The appellant has not submitted before us that the summary of the report published in the Blitz is not a correct summary of the Inquiry Report. The copy of the Report, Annexure A, shows that a complaint was received from one Shri Krishnan Gopal Maheshari, advocate, alleging certain objectionable activities and misconduct on the part of the appellant and Shrimati Uma Shukla. Annexure A also shows that the Inquiry Officer Sharma, examined several witnesses including Shri Yogesh Shukla, husband of Smt. Uma Shukla. Para 4 of the report reads : The following points are in dispute : (a) whether as alleged by the complainant there was free mixing of female members with male members detained under MISA; (b) in case (a) is in the affirmative, whether Shri Sewakram Sobhani had an opportunity to mix freely with Smt. Uma Shukla; (c) in case (a) and (b) are in the affirmative when, how and through whom Smt. Uma Shukla a MISA detenu conceived. His finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh; it will create a doubt in the mind of the Court as to the lack of good faith on the part of the accused. 31. The inquiry was made and the report prepared by a highly responsible officer and submitted to the Government. It was in pursuance of a complaint made by one of the citizens pointing out laxity in observance of jail rules and highly objectionable practices of some of the prisoners and seeking improvement in jail administration. The object was to see improved conditions, and maintenance of certain standard of moral conduct by prisoners, in jail. If the complaint and the consequent inquiry report be for public good, and the respondents had reasons to believe its contents to be true, they will be protected under the Ninth Exception. Even if the burden of proof of 'good faith' be on the accused 'good faith' need not be proved beyond reasonable doubt. Once this is done, whether the publication was for public good would be a matter of inference. 32. The Dy. Secretary (Home) examined Shri Bhandari, Editor of Prach who was a MISA detenu as witness No. 1, complainant Maheshwari as witness No. 2, Smt. Ramkali Mishra, an advocate, and a member of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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