P.S. Narayana, J.@mdashJanab Sultan Salahuddin Owaisi, complainant in C.C. No. 249/94 on the file of II Metropolitan Magistrate at Hyderabad aggrieved by the acquittal recorded by the learned Magistrate as against A-2/Syed Viqaruddin under Sections 500 and 501 IPC had preferred the present Criminal Appeal.
2. The case of the appellant/complainant is that he is a resident of Hyderabad, had been a Member of A.P.State Legislative Assembly and had been a Member of Parliament too. A-1/Shahid Siddiqui is the Editor of Urdu Weekly Nayee Duniya published from New Delhi and A-2/Syed Viqaruddin is the Editor of Urdu Daily Rahnuma-e-Deccan published from Hyderabad. It is also the case of the appellant/complainant that the 1st respondent in this Appeal/A-2 is his opponent. It is also stated that A-1 published its issue of Nayee Duniya on 26-7-1994 and published an article alleging that the appellant/complainant, President of All India Babri Masjid Action Committee entered into criminal conspiracy in the year 1986 along with Imam and Deputy Imam of Jama-E-Masjid, Delhi, Javid Habeeb and Chandra Swamy for reconstruction of Babri Masjid at some other place after its demolition and a new Mosque Akberi Masjid at Delhi and it was also alleged that the appellant/complainant appreciated the alleged move and also had a talk with Kumara Mangalam etc. Certain other facts also had been narrated in the said article published in Nayee Duniya on 26-7-1994. Though Nayee Duniya itself is having large circulation at Hyderabad, the 1st respondent/A-2 with a view to defame the appellant/complainant further published the same in its issue of Rahnuma-e-Deccan dated 26-7-1994. In the said article published it was stated that there was a game since 1986 and a show organization All India Babri Mosque Committee and that there was a conspiracy among the members of the Committee including the appellant/complainant and under the conspiracy they colluded with P.R.Kumara Mangalam which led to the demolition of Babri Mosque in December 1992. It is also stated that the issue of demolition of Babri Mosque and reconstruction being a burning topic of the Nation, the accused utilized the same for his political ends. The appellant/complainant specifically denied the alleged conspiracy and the other allegations and had stated that these false allegations were made only with a view to lower his prestige and honour among the Indian masses in general including the masses of the old city of Hyderabad and the said allegations are defamatory. Hence the complaint was filed under Sections 500 and 501 IPC which was taken on file.
3. The accused pleaded not guilty. On 21-4-1997 the appellant/complainant filed an application u/s 257 Cr.P.C. praying for permission to withdraw the case as against A-1 and the said application was allowed and respondent No.1 herein/A-2 alone was tried. PW-1, PW-2 and DW-1 were examined. Exs.P-1 to P-7 and Exs.D-1 to D-12 were marked. The learned Magistrate after recording findings ultimately recorded acquittal and aggrieved by the same, the present Criminal Appeal is preferred.
4. Sri Praveen Kumar, the learned Counsel representing the appellant/complainant would submit that the acquittal recorded cannot be sustained inasmuch as in the light of the evidence available on record, it is clear that the publication of defamatory article had been well proved and when such defamatory article had been published the burden would be on the 1st respondent/A-2 to prove that he would fall under any of the Exceptions. The learned Counsel also would contend that the learned Magistrate erred in arriving at a conclusion that an adverse inference may have to be drawn on the non-production of the material witnesses. The Counsel also would contend that the learned Magistrate was wrong in holding that Ex.P-3 is not per se defamatory. The Counsel also would contend that the 1st respondent/A-2 merely copied the apology letter of A-1 subsequently in Ex.P-4 which would not amount to tendering any apology. The very fact that an application was moved u/s 257 Cr.P.C. praying for permission to withdraw the case as against A-1 and the said application having been allowed the same would not enure to the benefit of A-2 inasmuch as A-2 is not inclined to tender any apology at all. The learned Counsel also had taken this Court through the ingredients of Section 499 IPC and also had drawn the attention of this Court to Sections 500 and 501 IPC. Strong reliance was placed on
5. The learned Additional Public Prosecutor Mr.Mohd.Osman Shaheed would contend that as per the material available on record the statements made in the article appear to be defamatory and in the facts and circumstances of the case, especially in view of the fact that A-1 already had tendered apology, it would be advisable and suggestible if the 1st respondent herein/A-2 also tenders such apology in a case of this nature.
6. Sri Bal Reddy, the learned Senior Counsel representing the 1st respondent/A-2 would contend that the present question in controversy would fall under Exception 3 of Section 499 IPC and not Exception 9 as contended by the learned Counsel for the appellant. The learned Senior Counsel also would submit that this is a matter concerned with public question and in good faith an opinion was expressed and with courtesy the opinion expressed by A-1 in his Nayee Duniya weekly had been just reproduced by A-2 in his news paper Rahnuma-e-Deccan and this article is not the brain-child of A-2 and inasmuch as it is only a reproduction of the article which had been published by A-1, the requisite mens rea, intention or knowledge to satisfy the ingredients of defamation are definitely lacking and even otherwise it being a matter of public question, in good faith the 1st respondent/A-2 had reproduced the article in his paper which was originally published by A-1. The learned Senior Counsel also would point out that A-2 also had reproduced the apology by publishing the same in his paper and hence what had been done by A-2 had been done only in public interest in relation to a public question which is bona fide and absolutely A-2 is not having any requisite intention either to defame the appellant/complainant or to cause disrepute to him in any way whatsoever. The learned Senior Counsel also had taken this Court through the findings recorded by the learned Magistrate and would contend that this is an Appeal as against an order of acquittal and the reasons recorded by the learned Magistrate are clear, categorical and convincing and hence this Court should be slow in interfering with such findings of the learned Magistrate while recording an order of acquittal.
7. Heard the Counsel representing the appellant/complainant, the learned Additional Public Prosecutor and also the Senior Counsel representing the 1st respondent/A-2.
8. The factual controversy between the parties appears to be very limited. The only question which may have to be dealt with by this Court is that whether in the facts and circumstances can it be said that article Ex.P-3 would constitute defamation and whether the 1st respondent/A-2 is liable to be punished under Sections 500 and 501 IPC.
9. The article in question was published by A-1, the Editor of Nayee Duniya weekly, published from Delhi in Urdu Ex.P-1, and Ex.P-2 is the translation of Ex.P-1. The 1st respondent herein/A-2 is the Editor of Rahnuma-e-Deccan published in Urdu at Hyderabad and the article published in Ex.P-1 was reproduced in Rahnuma-e-Deccan i.e., Ex.P-3 with courtesy and it is no doubt true that A-2 contested an Assembly Seat and was defeated at the hands of party candidate of PW-1. In view of the apology tendered by A-1 by publishing another article which made PW-1 to withdraw the complaint against A-1, but however in view of the fact that A-2 had not tendered any apology the prosecution was further proceeded with. Ex.P-4 is the xerox copy of the apology. Ex.P-5 is the true translation of Ex.P-4. Ex.P-6 is the draft of compromise sent by complainant. Ex.P-7 is the signature of witness on Ex.P-6. Ex.D-1, D-2 and D-3 are articles in Rahnuma-e-Deccan. Ex.D-4 is the translation of the main article. Ex.D-5 is the article published in Rahnuma-e-Deccan and Ex.D-6 is the true translation of Exs.D-5. Ex.D-7 is the rebuttal statement of Nayee Duniya published in Rahnuma-e-Deccan. Ex.D-8 is the translation of Ex.D-7. Ex.D-9 is the article in Hindu daily, Ex.D-10 is the advertisement published in Rahnuma-e-Deccan dated 17-7-1997. Ex.D-11 is the true translation of the publication dated 3-11-1997 in Rahnuma-e-Deccan, Ex.D-12 is the original of Ex.D-11. As already referred supra PW-1, PW-2 and DW-1 were examined. PW-1 deposed that on 26-7-1994 an article Ex.P-1 imputing that PW-1 and other religious and political leaders conspired to subserve demolition of Babri Masjid and this was published by A-1. It was stated that all these conspired among themselves to build an air conditioned Masjid at Delhi as an alternative to Babri Masjid after its demolition and in implementing the conspiracy PW-1 contacted Kumara Mangalam, the then Parliamentary affairs Minister and one Chandraswamy. The stand of PW-1 is that this article is not only false but also defaming and the same was published only to lower his image in the eyes of the public. A-2 reproduced the article (Ex.P-3) by courtesy and the main article Ex.P-1 was published in Nayee Duniya. It is not in controversy that the demolition of Babri Masjid was a sudden incident. PW-1 also deposed in cross-examination that P.V.Narasimha Rao was the cause for the demolition of Babri Masjid and there was no mention in the article that PW-1 was personally responsible for demolition of Babri Masjid. In cross-examination of PW-1, there are certain admissions made by PW-1 to the effect that even after publication of Ex.P-3 by A-2 there was no decrease of his stature in the society and contributions from people to run the hospital were being received even after the publication of Ex.P-3 as usual and even as per the version of PW-1 his stature was left unaffected despite the publication of Ex.P-3 in the estimation of the public. Apart from the evidence of PW-1, the evidence of PW-2 also is available on record who simply deposed that he saw a big gathering at a hotel discussing about the defamatory article published by A-2 regarding PW-1 and he immediately took the paper to the party''s office and handed over to the Secretary and this witness also deposed that quite often A-2 would be resorting to publication of such defamatory articles in relation to Salar, the popular name of PW-1.
10. As can be seen from the findings recorded by the learned Magistrate, the defence appears to be that the action is protected by Explanation 4. Section 499 IPC dealing with Defamation, and Explanation 4, specify :
"Whoever, by words either spoken or intended to be read, or by signs or by visible representations, 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, is said, except in the case hereinafter excepted, to defame that person."
Explanation 4 : No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
11. Submissions at length were made by both the Counsel. The Counsel representing the appellant placed reliance on Exception 9 of Section 499 IPC and contending that the same is not attracted and on the contrary the learned Counsel representing A-2 placing reliance on Exception 3 of Section 499 IPC. Exception 1 of Section 499 dealing with imputation of truth which public good requires to be made or published, reads :
"It is not defamation to impute anything which is true considering any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact."
Explanation 3 dealing with Conduct of any person touching any public question reads :
"It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration : It is not defamation on A to express in good faith on any opinion whatever respecting Z''s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting informing or joining any society which invites the public support in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested."
Exception 9 dealing with Imputation made in good faith by person for protection of his or other''s interests, reads :
"It is not defamation to make an imputation on the character of another provided that the imputation can 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.
Illustrations :
(a) A, a shopkeeper, says to B, who manages his business - "Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty". A is within the exception, if he has made this imputation of Z in good faith, for the protection of his own interests.
(b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith and for the public good, A is within the exception."
12. There is no serious factual controversy as far as the publication of the article by A-1 and the reproduction thereof by A-2 is concerned. The reproduction made by A-2 is said to have been made by courtesy. It is also not in serious controversy that A-1 apologized for the publication since it is the brain child of A-1 but however for reproduction specific apology was not tendered by A-2 It is pertinent to note that Ex.P-4, the apology tendered by A-1, also was published by A-2 just like reproduction of the article published by A-1. In the decision referred (2) supra, while dealing with Exceptions (3) and (9) of Section 499 IPC and Section 500 IPC it was held :
"The press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is proved to have made defamatory comments with an ulterior motive and without the least justification motivated by self interest, he deserves a deterrent sentence."
13. In the decision referred (4) supra, while dealing with good faith and bona fide and proof in relation thereto in defamation it was held :
"In order to establish good faith and bona fide it has to be seen first the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the accused made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the accused acted in good faith".
In the decision referred (1) supra, the Apex Court in its majority view, observed at paras 11 and 12 as hereunder :
"The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. We hasten to add that journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under First Exception unless it is proved to be in public good. The question whether or not it was for public good is a question of fact like any other relevant facts in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions, or in the limited case, specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith : per Vivian Bose,J in
As the matter is of great public importance, it would, perhaps, be better to quote the well-known passage of Lord Shaw in Arnold V. King Emperor LR (1913) 41 I A 149 : (AIR 1914 PC 116 ):
The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to this power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position."
14. Strong reliance was placed on the decisions referred (3) and also on
"....Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code or within any special exception (example S.499, Penal Code) or proviso contained in any other part of the Code, is upon him and the Court shall presume the absence of such circumstances. The burden that is cast on the accused in a criminal case by virtue of Section 105, no doubt, is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt. It is sufficient if the accused who pleads an exception satisfies the Court of the probability of what he has been called upon to establish and if on the evidence it appears probable that the defence set up is true he is entitled to a decision in his favour even though he may not have succeeded in proving the truth of his version beyond reasonable doubt..."
15. In EMPEROR v. J.M. CHATTERJI, AIR 1933 Allahabad 434 the Division Bench held that before any editor publishes matter which is clearly defamatory on the face of it, he should certainly take steps to have an inquiry made by some member of his staff or some reliable person on the spot and he should only publish the matter if he considers that he has sufficient evidence available to bring himself within the provisions of the exceptions to Section 500 IPC. In BHAGWAN DAS v. EMPEROR, AIR 1927 Allahabad 116 the Division Bench of Allahabad High Court held that allegations on the ground of fair comment cannot be justified the moment it is shown that the criticism is based upon a mis-statement of facts.
16. As per the evidence available on record both PW-1 and A-2 are politicians. Apart from this aspect of the matter, incidentally A-2 also is a journalist. In
"It is true that u/s 105 of the Evidence Act, if an accused person claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exception is on the accused. But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shifts to the prosecution which still has to discharge its original onus. It may be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts i.e., that of establishing on the whole case, guilt beyond a reasonable doubt.
It will be recalled that it was with a view to emphasizing the fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution, that Viscound Sankey in Woolmington v. Director of Public Prosecutions 1935 AC 462, 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. Publishers, Editors, Journalists and Reporters forming part and parcel of freedom of speech and expression, which no doubt includes freedom of press as well, are entitled to ventilate the views only within the permissible limits, permissible by law and not beyond thereto. They are expected to be careful and cautious while proceeding with publication of the matter and they cannot claim any special privilege as far as the law relating to defamation is concerned. It may be part of their lawful duties, but at the same time they also owe a duty to be careful and diligent in verifying such statements with care and caution before publishing them. Negligent and reckless allegations constituting defamatory statements can never be protected under the guise of any of the Exceptions. At the same time, proof of Exceptions and discharge of burden in relation thereto and the standard of proof required cannot be weighed in golden scales and the discharge of burden in such a case just cannot be equated with that of discharge of burden on the part of the prosecution. It is no doubt true that even in the case of reproduction of article by yet another newspaper, care should be taken to scrutinize the same. But however, in the present case though specific findings had not been recorded by the learned Magistrate in relation to the defence taken by A-2 that this case would fall under Exception 3, it is not in controversy that the episode of Babri Masjid is one of general importance concerned with the religious groups and a public question. It is also pertinent to note that A-2 had only reproduced the article with courtesy which was published by A-1 and A-1 tendered apology and the same was published under Ex.P-4. The only grievance ventilated by the appellant/complainant/PW-1 appears to be that specific apology had not been tendered by A-2 also just like A-1. On a careful reading of the commencing portion of Section 499 IPC it is clear that to satisfy the ingredients, the requisite mens rea also would be essential. It is pertinent to note that the article is not the brain-child of A-2 but the brain-child of A-1 and the same was reproduced with courtesy and again apology tendered by A-1 also had been reiterated. In the facts and circumstances and also in the light of ratio laid down by the three Judge bench referred (10) supra, this Court is of the opinion that the learned Magistrate was well justified in arriving at a particular conclusion after recording reasons especially in view of the fact that two views are possible, one in favour of the accused and another to the contra, it is needless to say that benefit always to go in favour of the accused and not in favour of the prosecution and in the light of the limitations in interfering with an order of acquittal recorded by the Court below and the interference in relation thereto by the appellate Court, especially in the peculiar facts and circumstances of the case, this Court is satisfied that this case would fall under Exception 3 of Section 499 IPC involving a public question and especially in the light of the fact that Ex.P-3 is only a reproduction and the apology tendered also had been published by way of Ex.P-4, the findings recorded by the learned Magistrate cannot be fount fault and accordingly they are hereby confirmed and the benefit as usual is given to A-2 and accordingly the acquittal is hereby confirmed.
18. The Criminal Appeal shall stand dismissed.
