TMI Blog1965 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it, the appellant had rendered himself liable to be punished under s. 500, I.P.C. 2. It appears that on July 22/23, 1957, the Punjab Government issued a Press note in which it was averred that certain Urdu Dailies from Jullundur were indulging in mischief and false propaganda, alleging complicity of a Minister's son in smuggling on the border. The Press note alleged that this was done with a view to malign the Government and to cause suspicion in the mind of public. The Punjab Government categorically denied the said allegation. The Press note added that the papers which were publishing the said false reports should come out openly with the name of the son of the Minister instead of repeatedly publishing things in a vague and indirect manner, and that they should not take shelter behind anonymity and should not be afraid of the consequences of the publication of these allegations. The Press note concluded with the Statement that the Punjab Government had already taken steps to curb smuggling and they were determined to put it down with a firm hand. 3. It was in response to the challenge thus issued by the Punjab Government in its Press note that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... background of the present criminal proceedings. 6. The complaint was filed in the court of the Magistrate, First Class, Tarn Taran. Thereafter, the appellant moved this Court under s. 527 of the Criminal procedure Code for the transfer of the said case from the court of the Magistrate where it had been filed. This Court directed on October 4, 1957, that the case in question should be remitted to the Punjab High Court so that it should be transferred by the said High Court from the court of the Magistrate at Tarn Taran to a court of Sessions in Delhi. That is how the case was transferred to the court of the Additional Sessions Judge, Delhi, and was tried by him. 7. In support of his complaint, the complainant examined himself and led evidence of three other witness. The purport of the oral evidence led by the complainant was to show that the complainant was a person of status and good reputation, was carrying on business and had suffered in reputation and character by the defamatory statement published by the appellant. 8. When the appellant was examined under s. 342, Cr.P.C., he told the learned Judge that he would prefer to file a detailed written state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of a very flimsy character and could not sustain the plea. It may be pointed out at this stage that the High Court found that in case the appellant had proved his good faith, it would not have felt any difficulty in coming to the conclusion that the publication of the impugned statement was for the public good. But since, according to the High Court, good faith had not been proved, the appellant was not entitled to claim the protection of the Ninth Exception. Then, as regards the grievance made by the appellant that he had not been given a reasonable opportunity to lead his evidence, the High Court held that the said grievance was not well-founded. In that connection, the High Court referred to the fact that though the trial Judge had allowed the appellant to examine 35 witnesses, the appellant examined only 20 witnesses, and it observed that the large mass of documentary evidence which had been produced by the appellant did not serve and useful or material purpose even for the defence of the appellant; and so the contention that prejudice had been caused to him by the failure of the learned trial Judge to give him a reasonable opportunity to lead evidence was rejected by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be satisfied, and so, the failure of the appellant to prove good faith would exclude the application of the Ninth Exception in his favour even if the requirement of public good is satisfied. This position is not disputed by Mr. T. R. Bhasin who appears for the appellant. 14. Mr. Bhasin, however, contends that in appreciating the evidence of the appellant and his arguments in respect of his good faith, the High Court has clearly misdirected itself, because it has expressly observed that in discharging the onus of providing good faith, it is necessary to remember that the plea of good faith must be proved as strictly as if the complainant were being tried for the offences imputed to him. The High Court has added that the accused pleading justification virtually becomes the accuser, and that is why the burden has been placed by law upon him both in England and in India. The learned Judge of the High Court made his point still clearer with the observation that in cases of criminal defamation, an accused has not only to justify the whole of his libel, but the plea taken has to be proved as strictly as if the complainant was being prosecuted for the offence. The same obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental doctrine of criminal law that the onus to prove its case lies on the prosecution, that Viscount Sankey in Woolmington v. Director of Public Prosecutions [1935] A.C. 452, observed that no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person, he is not required to justify his plea; but the degree and character of proof which the accused 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. 17. In this connection, it may be relevant to refer to the observations made by Humphreys J. in R. v. Carr-Braint [1943] 2 All..156 : Lord Hailsham, L.C., [in Sodeman v. R. [1936] 2 All .1138 was in agreement with the decision of the majority of the Supreme Court of Canada, in R. v. Clark (1921) .S.C.R. 608 where Duff J., in the course of his judgment, expressed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes 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. We are, therefore, satisfied that Mr. Bhasin is entitled to contend that the learned Judge has misdirected himself in law in dealing with the question about the nature and scope of the onus of proof which the appellant had to discharge in seeking protection of Exception Nine. 19. There is another infirmity in the judgment of the High Court, and that arises from the fact that while dealing with the appellant's claim for protection under the Ninth Exception, the learned Judge has inadvertently confused the requirements of Exception One with those of Exception Nine. The First Exception to s. 499 is available to an accused person if it is shown by him that the impugned statement was true and had been made public for the public good. In other words, the two requirements of the First Exception are that the impugned statement must be shown to be true and that its publication must be shown to be for public good. The proof of truth which is one of the ingredients o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith. But it must be remembered that good faith does not require logical infallibility. As has held by the Calcutta High Court in the matter of the Petition of Shibo Prosad Pandah I.L.R. 4 Cal. 124, in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused in support of the defamation are in substance true, but whether he was informed and had good reason after due care and attention to believe that such allegation were true. 21. Another aspect of this requirement has been pithily expressed by the Bombay High Court in the case of Emperor v. Abdool Wadood Ahmed I.L.R. 31 Bom.293. 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 imputed to want of due care and caution must, in each case, be considered with reference to the ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account, the learned Judge had referred to two decisions of this Court. One is the case of Tilkeshwar Singh and others v. The State of Bihar 1956CriLJ441 , where this Court was called upon to consider the validity of the argument urged before it that there had not been a proper examination of the appellants under s. 342, and so, their conviction should be quashed. In rejecting this argument, this Court pointed out that when the appellants were examined under s. 342, they said they would file written statements, and in the statements subsequently filed by them, they gave elaborate answers on all the points raised in the prosecution evidence. That is why this Court observed that the appellants had not at all been prejudiced by reason of the fact that all the necessary questions were not put to them under s. 342. It is in this connection that this Court incidentally observed that s. 342 contemplates an examination in court and the practice of filing statements is to be deprecated. But that is not a ground for interference unless prejudice is established. The learned Judge has read this observation as laying down a general principle that the filing of a written statement by an acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en statement could be dismissed as no more than an afterthought, we cannot ignore the fact that at the very commencement of the proceedings, the appellant gave a list of 328 witnesses and called for a large number of documents, and as we will presently point out the witnesses whom he examined and some of the documents which he had produced, tend to show that the appellant had revived information at the relevant time which supported his plea that the allegations which he was making against the complainant appeared to him to be true; otherwise, it is not easy to understand how the appellant could have given a list of witnesses and called for documents to show either that the allegations made by him were true, or that in any event, in making the said allegation he acted in good faith and for the public good. If the evidence led by the appellant as well as the nature of the cross-examination to which he subjected the complainant and his witnesses are taken into account, it would be difficult, we think to reject his plea of good faith on the ground that the written statement was filed very late and the pleas taken in it are an after-though. It is because of these infirmities in the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of the Punjab Government that the Chief Minister's son is being discussed in almost every Punjabi house, but people were afraid of talking about him in public lest they be punished for that. That is the genesis of the impugned statement. 28. The two defamatory statements made by the appellant are that the complainant is the person against whom the allegations are made in the Press, and that he is not only a leader of smugglers but is responsible for a large number of crimes being committed in the Punjab. The statement added that because the culprit happens to be the Chief Minister's son, the cases are always shelved up. The question which calls for our decision is : has the appellant shown that he acted in good faith when he made an imputation against the complainant that he was the leader of the smugglers and was responsible for a large number of crimes being committed in Punjab ? In dealing with this question, we ought to take a broad survey of the evidence led by the appellant and the background in which the impugned statement came to be made. It appears that before the impugned statement was made, newspapers had been publishing reports against a Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst him. The letter required the District Magistrate to take action in that behalf immediately. It is remarkable that an affidavit was filed by Kulwant Rai dated May 21, 1957, wherein he stated that the Chief Minister had passed an order on May 7, 1957, for the withdrawal of the cases against him and that the Government order in that behalf would be received by the court very soon. This means that Kulwant Rai knew about the decision of the Government to withdraw cases against him even before the said decision was communicated to the District Magistrate and then to the trial Magistrate. It is also significant that on June 9, 1957, when the proceedings under s. 514 Cr.P.C., were fixed for hearing against Kulwant Rai, he was absent from court and a telegram was received by the Magistrate that Kulwant Rai was ill and his absence should be excused. This telegram was sent not by Kulwant Rai but by the complainant. The complainant no doubt denied that he had sent such a telegram, but the High Court has found that in all probability, the telegram had been sent by the complaint. The complainant also did not admit that he was a friend of Kulwant Rai. There again, the High Court was not prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We may incidentally point out that we cannot overlook the fact that the appellant experienced some difficulty in proving his case in the present proceedings, because witnesses were not willing to come out and give evidence, though they may have given that information to the appellant before he made his statement. Take for instance, the case of Hardin Singh of village Patti. It appears that this witness was arrested by the police on June 19, 1959 as a suspect smuggler and he was kept in the lock-up from June 19 to June 25, 1959 and was thereafter let off. According to him, he was arrested because he had been summoned as a defence witness in the present case. 35. Let us then consider the case of Hazara Singh and the association of the complainant with him. Hazara Singh comes from the same village to which the family of the complainant belongs, and yet, he was not prepared even to admit that he knew the complainant or his family. The learned Judge realised that Hazara Singh was not prepared to speak the truth at least on some points, and so, he observed that he was willing to accept the appellant's case that the complainant, Sadhu Singh and Major Naurang Singh, Senior Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggested that it was not shown under what statutory provision these documents are kept; but since the admissibility of these documents does not appear to have been challenged in the courts below, we think it is too late to raise this technical point at this stage. However, in dealing with the appeal, we are prepared to exclude from our consideration evidence furnished by these two documents. Even without them, there is enough evidence to show that the complainant was friendly with Kulwant Rai and Hazara Singh, and on the whole, we are inclined to take the view that if the appellant knew about the complainant's friendship and active association with these two persons and had other information about the activities of these two persons, it cannot be said that he did not act in good faith when, in response to the challenge issued by the Punjab Government, he came up with the impugned statement and sent it for publication in the Press. 37. Then, in regard to the other allegation that the complainant was concerned with the commission of offences in Punjab, we may refer to the evidence led by the appellant to show that in making this charge, he acted in good faith. The witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion again, the learned Judge should have asked himself the question as to whether on the material of the kind disclosed by the confidential report made by the Principal, would a person of ordinary prudence acting bonafide in good faith be not justified in coming to the conclusion that the complainant was not only throwing his weight about, but was also threatening assaults in the college, because he thought he would be immune from legal process by virtue of his position ? The fact that the appellant called for several documents and gave a list of witnesses as soon as he entered on his defence, shows what he knew at the relevant time, and his plea that he acted in good faith has to be judged on the basis that he made the imputations because he had material of this kind in his possession. 38. It is true that the appellant has stated in his written statement that several persons came and reported to him against the complainant, and amongst them were included some high police officials as well; but having regard to the fact that the complainant's father occupied the position of the Chief Minister of Punjab, they were not willing to come forward and give evidence in court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion, Mr. Bhasin had pressed before this Court his contention that the trial Judge was in error in not calling for certain documents which the appellant wanted to rely on, and in upholding the plea of privilege made by the State Govt. in respect of certain other documents. We wanted to satisfy ourselves whether the documents on which Mr. Bhasin wanted to rely were relevant and whether the plea of privilege claimed by the State was justified. Some of these documents have been received by this Court in pursuance of our interlocutory judgment. But we do not think it necessary to consider this matter, because the documents which Mr. Bhasin wanted to be produced or proved might at best, if they are admitted, be of help to him to show that the allegations made by the appellant are true. That however is a plea which falls under the First Exception and since the appellant did not claim the benefit of that Exception in the High Court, we do not think it would be open to the appellant to press his point that we should examine the question as to whether the trial Judge erred in not allowing the appellant to bring these documents on the record. That is why we did not look at these documents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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