K KELU NAIR Vs. TSTHIRUMAMPU

JUDGEMENT

(1.) This case arises out of a complaint filed by the petitioner one Kelu Nair charging the first and the second accused with an offence punishable under Section 500, Indian Penal Code and the third accused with an offence punishable under Section 501, Indian Penal Code. The second accused is the publisher and the third accused is the printer of a Malayalam newspaper called "Deshabimani" printed and published at Calicut. The first accused is the writer of an article published in that paper in its issue dated 25 March, 1945, under the caption," Panathadai village of Kasargad Taluk--The dancing ground of repression." The petitioner alleged that the said article contained defamatory matter consisting of imputations which would harm his reputation. To the charge as framed by the Additional First Class Magistrate, South Kanara, on this complaint was appended an extract from the said article of five passages. These passages, according to the Petitioner, maliciously and falsely made scurrilous attacks against him in the discharge of his duties as the Patal of Panathady. The Magistrate acquitted all the accused of the offences with which they were charged on the ground that the article was written and published in circumstances which would bring it within the ninth exception of Section 499, Indian Penal Code. The complainant seeks to revise this order of acquittal.

(2.) Undoubtedly the article in question contained matter defamatory of the petitioner. Inter alia it alleged that he as patal was guilty of acts of oppression against the villagers in discharging his duties and in particular in the matter of procurement of grain. It was also alleged in the article that the petitioner had been taking bribes. The sole question therefore is whether the accused are entitled to the benefit of any of the exceptions to Section 499 of the Indian Penal Code. The Magistrate considered that the ninth exception applied to the case. In revision learned advocate for the petitioner Mr. P. Govinda Menon suggested that the second exception, if any, was the more appropriate to the facts of the case. This exception enacts that: It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public 4. functions, or respecting his character so far as his character appears in that conduct, and no further. The ninth exception on the other hand enacts that: 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 interest of the person making it, or of any other person, or for the public good. The article which is fairly lengthy in form appears to be a descriptive account of a tour undertaken by the writer, that is the first accused, to Panathady. The article describes the plight of the villagers and in several places gives an apparently verbatim reproduction of the complaints made to the writer by some of the villagers who were the victims of the petitioner's oppression. After giving an account of what the villagers told him, the writer winds up by saying that the poor people could not file a complaint in a Court of law and seek justice and that he has written to the Collector asking him to conduct an enquiry into the state of affairs existing in the village and to punish the persons guilty of oppression. There is very little in the article which can be described as the opinion of the writer, respecting the conduct of the petitioner. The incidents related need no comment if true. I do not think it however very material in this case to decide which of the two exceptions, whether the second or the ninth is the more appropriate. The only material question which falls for decision is whether the expression of opinion or the making of the imputation by the accused was "in good faith". If it was, the lower Court was certainly right in acquitting the accused.

(3.) The learned advocate for the petitioner contended that the writer could not be said to have acted "in good faith" because on the 17 March, 1945, he had sent up a petition to the Collector of South Kanara containing almost the same allegations as in the article and without waiting for a reply from the Collector he proceeded to publish the article on the 25 March, 1945. It was also urged by him that ultimately the Collector, after an enquiry, came to the conclusion that the allegations made by the first accused against the petitioner were false. The order of the Collector on the petition of the first accused is dated the 28 May, 1945, long after the date of the article in question. In determining the question of bona fides it was contended that the opinion of the superior Government officer who dealt with the allegations made by the first accused and who made an enquiry should be a decisive factor. I do not agree. The fact that the Collector, on such enquiry as he chose to make, came to the conclusion that the allegations had not been proved does not mean that the allegations were not made " in good faith ", i.e., that they were made without due care and attention. It is for the Court to determine whether the first accused acted without due care and attention in making the allegations against the petitioner in his article. Nor do I think the fact, that the first accused did not wait till he received a reply from the Collector, negatives good faith. In matters like this a strong public opinion is as effective as departmental action.