GULABCHAND BHUDARBHAI SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision application arises out of a complaint for the offence punishable under sec. 500 Indian Penal Code which was filed by the opponent No. 2 herein named Prabhudas Bhogilal Dudhwala in the Court of the Judicial Magistrate First Class 7 Court Baroda which was registered as Criminal Case No. 77 of 1966. The complainant opponents case is that the accused who is the applicant herein was staying as a tenant in his house. The accused had on September 10 1965 made an application against the complainant before the Sub-Divisional Magistrate under sec. 107 of the Code of Criminal Procedure 1898 (V) of 1898 for taking out chapter proceedings against him. The case was registered as Chapter Case No. 632 of 1965. In that application made in Gujarati several wild and reckless defamatory imputations were made against the complainant with the intention to harm the reputation of the complainant. It stated inter alia that the present complainant Prabhudas Bhogilal who was the landlord of the premises which the present accused Gulabchand was occupying as a tenant with a view to obtain possession of the said premises in order to realise higher rent was making frantic intrigues *** against him. The application further stated that on the night of June 10 1965 while the applicant therein (present accused) was sitting in his house and mending mangoes the opponent therein (present complainant) entered his house and committed criminal trespass; that he gave wild abuses and gave a kick on his back; that he took out a knife from his pocket opened it raised it at him and menacingly demanded of him the withdrawal and settlement of his application (complaint) made against the complainant accusing him of having committed murder of his son or else he would meet the same fate as did the son. After narrating the other facts relating to the incident in the pen-ultimate paragraph of the application it was stated that the opponent was a rich influential frenzied type man and a leader of a gang of miscreants and he (present accused) had apprehension that any time he (present complainant) might cause harm to his person and property. In his examination on-oath recorded below his application Ex. 15 the accused had inter alia stated that the complainant was a dangerous `goonda. These imputations made in the pen-ultimate paragraph of the present accuseds application and in the examination on oath below it are the defamatory imputations of which the present complainant has made grievance in his complaint in Criminal Case No. 77 of 1966 out of which this revision application arises. It may here be stated that the accused had not proceeded with his application Ex. 15 which was dismissed because of default of his appearance on the date of hearing. At the trial the accused had pleaded protection under Exception 8 to sec. 499 I. P. Code. However he had led no evidence whatsoever to show that he had exercised good faith in making these imputations. Both the Courts below have taken the view that the said imputations are defamatory to the complainant and were made with the intention of harming or with the knowledge that they would harm the reputation of the complainant. Both the Courts have also held that the accused did not prove good faith in making the imputations and therefore was not entitled to the protection of Exception 8 to sec. 499 I. P. Code. The learned Judicial Magistrate had convicted the accused for the offence under sec. 500 I. P. Code and sentenced him to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 100/in default rigorous imprisonment for one month. The order of conviction and sentence has been upheld by the learned Additional Sessions Judge Baroda in Criminal Appeal No. 137 of 1966. The present revision application is directed against the said order dismissing the appeal of the accused.

(2.) Mr. A. M. Joshi learned Advocate appearing on behalf of the applicant-accused has not contested the finding of the lower Court that the imputations made were defamatory. He has however contested the finding that the applicant was not entitled to the protection of Exception 8 to sec. 499 I. P. Code. Further he has contended that the accused was also entitled to the benefit of Exception 9. Now Exception 9 to sec. 499 provides that it is not defamation to make an imputation on the character of another provided the imputation be made in good faith for the protection of the interest of the person making it or for any other person or for the public good. In the present case the ingredient of public good is not available to the accused and that is not the case as urged by Mr. Joshi whose contention was that the imputations were made for the protection of the interest of the accused who made them. This Exception relates to private communications which a person makes in good faith for the protection of his own interests etc. This Exception appears to be mere reproduction of the guiding principle which was stated by Lord Campbell C.J. in Harrison v. Bush (1855) 5 E. & B. 344 348 namely:- A communication made bona fide upon any subject-matter in which the party communicating has an interest or in reference to which he has a duty is privileged if made to a person having a corresponding interest or duty although it contains criminatory matter which without this privilege would be slanderous and actionable. The requirements of good faith and public good have both to be satisfied. Having regard to the admitted fact that the imputations did not relate to private communications and to public good the Exception cannot be invoked in this case. But even when and if the Exception is available in a case the accused has necessarily to prove that he made them in good faith.

(3.) Exception 8 to sec. 499 provides that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. To avail of the benefit of this Exception the accused must prove that:- (i) the accusations were made to a person in authority over the party accused and (ii) the accusation must be preferred in good faith. This exception does not formulate according to the decision of the Special Bench of the Calcutta High Court in Satish Chandra Chakravarti v. Ram Doyal De I.L.R. 48 Cal. 388 which has been followed by the Full Bench of the Bombay High Court in Bai Shanta v. Umrao Amir Malek 28 Bom.L.R. 1 any rule of absolute privilege. The Exception introduces a qualified privilege. The accused must therefore show that the accusations were preferred in good faith. The expression good faith has been defined in sec. 52 of I.P.Code. It provides that Nothing is said to be done or believed in good faith which is done or believed without due care and attention. This is a negative definition but it indicates that an act is said to be done in good faith when it is done with due care and attention. Indeed it does not require logical infallibility. The plea of good faith may be negatived on the ground of recklessness indicative of want of due care and attention if the imputations in question as in the instant case have been made as categorical statements of facts. Apart from that there is no doubt that the accused must substantiate his plea of good faith to be entitled to the protection of the Exception. Of course the degree of proof that is to be offered by the accused for the purpose is not the same as is expected of the prosecution which is required to prove its case beyond reasonable doubt but is as in civil proceedings. In Harbhajan Singh v. State of Punjab and another A.I.R. 1965 S.C. 97 Gajendragadkar C. J. speaking for the Court has in this connection observed at page 101:-