MRS S K BURKE Vs. TCWSKIPP

JUDGEMENT

(1.) In this case the appellant was charged under Section 500 I.P.C. with having defamed the respondent. The alleged defamation falls under two heads which have been called in this case Ex. A (1) and Ex. B. In the Complaint, Ex. B. or the material portions thereof are more or less stated in detail in paragraph 4. As regards Ex. A. (1) it is said that the complaint is defective in that there is no specific reference to Ex. A (1) in it. Paragraph 3 of the complaint runs, "That the accused on learning of the said marriage " (i.e., the second marriage of the complainant) "acted maliciously in spreading caluminous reports regarding the complainant's character with intent to defame, him and ruin his standing and position." Several auhorities were cited to induce us to hold that, as Ex. A (1) was not specifically referred to in the complaint, there, was no complaint at all as regards that defamation and that, therefore, the whole proceedings with regard to that item are null and void. I have carefully considered the cases edited, namely, Empress of India V/s. Kallu I.L.R. 5 A 233 Queen Empress V/s. Deokinandan I.L.R. 10 A. 39 and In re Pedda Anjinigadu (1921) M.W.N. 514, and I think that they have no bearing on the present case. All that Section 198 of the Criminal Procedure Code requires is that no Court shall take cognizance of an offence falling under...Chapter XXI of the Indian Penal Code...except upon a complaint made by borne person aggrieved by such an offence. In Chidambaram Pillai V/s. Emperor (1908) I.L.R. 32 M. 3 it was held that it was at most an irregularity if, in a complaint of sedition, the seditious speeches and words were not set out. The charge in the present case is quite specific and contains the words alleged to be defamatory ii Ex. A (1). I am of opinion that this objection fails.

(2.) A great deal of our time and a great deal of the time and the ingenuity of the learned Vakils who appeared before us were wasted on account of the manner in which these proceedings had been conducted in the lower Court. The alleged libels themselves were apparently filed in the District Court in Bangalore in connection with a suit which the daughter of the accused had brought against the complainant in the present case for breach of promise of marriage and seduction. As we hear, judgment went against the complainant in that case for a considerable sum and he appealed to the Hon ble the Resident from that judgment. Considerable time was occupied in a discussion as to whether or not the originals were actually in the lower Court when this case was heard. The complainant has sworn to an affidavit in which he says that the originals were in Court and he gave his deposition with reference to them. In his deposition, however, which he signed as correct, the reference is with a single exception "to certified copies and not the originals. It strikes me as an extraordinary way to proceed with either a criminal matter in defamation or a civil action without the alleged libels in original being not only not produced but closely scrutinised by the Court and placed before the witnesses. The learned Vakils on either side could be of no assistance in this respect as neither of them appeared in the Court below. Mr. Jayarama Iyer for the respondent in this appeal argued that a further opportunity should be given to the prosecution to produce the originals, but for the reasons, I am about to give, it seems to me that such a course would not only be unfair to the accused in the appeal in its" present state, but, further, that points for consideration here can be disposed of without reference to this point.

(3.) I may perhaps usefully make some general remarks with regard to charges of defamation before I come to the particular matters charged in the present case. It seems to me to be undoubted that the law in India demands publication, i.e., that the defamatory matter was read by at least one other person than the defamer and the defamed. The words of Section, 499, I.P.C. are, "makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person etc." To my mind a person who makes an imputation intending to harm is not guilty of an offence if he either makes such imputation and, for instance, locks it away in his safe or otherwise prevents it from getting to the knowledge of anybody except himself. The intention to harm can only be evidenced by some overt act which in this case would be publication as it is called, i.e., bringing it to the knowledge of some person other than the defamed. I think this is clear from explanation (4) to the section where it is pointed out that a person's reputation is not the estimation in which he holds him self but the estimation in which he is held by others. Thus it is impossible to harm unless these others or at least one of them have knowledge of the defamatory statement. As has been constantly pointed out, the English Criminal Law of Libel is different. There a defamatory statement made only to the person defamed may be the subject of a prosecution provided the defamation would lead to a breach of the peace. This view is supported by the Full Bench ruling in Queen Empress V/s. Taki Husain I.L.R. 7 A. 205. It is perfectly clear what the question before the Full Bench there was from the judment of Mahmood, J. at page 219 of the report. He said "the question before us is an extremely limited one, namely, whether or not a libellous communication made only to the person whose character is attacked amounts to the offence of defamation as defined in Section 499 of the Indian Penal Code," and the question is answered by the majority of the Full Bench in the negative. This being the law, it is clearly the duty of the prosecution to prove affirmatively that the accused published the libel. See Jeremiah V/s. Vas (1911) I.L.R. 36 M. 457 : 22 M.L.J. 73 and the fact that the accused has omitted to deny publication will not supply the deficiency. In that case a difference of opinion arose between Sundaram Aiyar and Phillips, JJ. on the question as to whether the conviction should be set aside or fresh evidence recorded where the Magistrate had improperly refused to take evidence which the prosecution attempted to adduce. On reference to a third Judge, (Benson, j.) additional evidence was taken. We have no evidence in the present case that the prosecution protested when the District Magistrate returned the original defamations to the Resident's Court, though it is said that the Counsel for the accused did protest against the reception of certified copies. I think the learned District Magistrate was wrong in conducting the proceedings on certified copies alone if in fact he did so; but I am willing for the purposes of this case to assume that Mr. Shipp's affidavit is correct and that he actually had the originals in his hands when he gave his evidence.