ABDURAHIMAN v. PRADEEP MENON — 1988 DIGILAW 161 (KER)

Judgment :- 1. Complainant is the appellant, He was the Volley Ball Coach of Calicut University. First accused Pradeep Menon was the Chairman, Calicut University Union and the second accused Joseph was the General Secretary of the Kerala Students Union. Third accused P.V. Chandran is the Printer and Publisher of Mathrubhoomi Daily. Prosecution was for offences under S.500 and 501(a) of the Indian Penal Code. It was in connection with a news item that came in the front page of the issue of Mathrubhoomi dated 30-9-1982 making certain defamatory imputations against the appellant and suggesting that be may be suspended. The news item was published as if it came from accused 1 and 2. The imputation is that the appellant misused his official position in attempting to secure admission for his daughter for the second group to the Pre-degree course in the Providence Women's College, Calicut under sports quota by producing bogus certificates. The Magistrate acquitted the accused on the finding that the publication is justified under exception 9 to S.499 of the Indian Penal Code. 2. The authorship of the publication is owned by accused 1 and 2 and its publication is admitted by the 3rd accused. The imputations are per se defamatory against the appellant. The plea is only that the publication will not amount to defamation on account of the applicability of exceptions 1 and 9 to S.499. 3. The sum and substance of the defamatory imputation is that misusing his position as Coach and the sports quota, be produced more than ten false certificates including one of participation in the National games at Parur in order to secure admission to his daughter Suhra who secured only the very poor mark of 239 and on the basis of these certificates, the Principal has written to the Vice Chancellor requesting for admission to Subra in sports quota. The contentions raised on behalf of the appellant are: (i) The correctness of the entire imputations including the submission of more than 10 false certificates will have to be established, and (ii) Even then the benefit of 9th exception is not available because it applies only to an expression of opinion regarding character and not to assertions of fact which are in themselves defamatory. 4. The necessary ingredients for the applicability of the first exception are the truth of the imputations and its making or publication for the public good. 4. The necessary ingredients for the applicability of the first exception are the truth of the imputations and its making or publication for the public good. Good faith for the protection of the interests of the person making it or of any other person or for the public good are the essentials of exception 9. Proof of truth which is one of the ingredients of the first exception is not an ingredient of the 9th exception. Good faith which is the essence of the 9th exception is not a component of the first exception. Going by these standards it cannot be said that exception 1 is established because each and every imputation cannot be said to be proved to be true even if it be taken to be for public good. 5. Even though the burden of proving any general or special exception is on the accused who pleads it and the Court shall presume the absence of such circumstances, the question of the accused discharging the burden will arise only when the prosecution proves its case beyond any reasonable shadow of doubt. Till then the applicability of toe general exception under the Indian Penal Code or special exceptions or provisos under the Code or any other law will notarise because the question of exception comes in only when the offence is proved. The burden cast on the accused by virtue of S.105 of the Evidence Act is not so onerous as the primary burden cast on the prosecution and he can discharge bis burden by preponderance of probabilities as in a civil case. For that purpose, he can bank on the prosecution evidence itself without adducing evidence of his own. The onus cast upon the prosecution in criminal cases is an exception founded upon considerations of public policy because of the necessity of excluding any doubt in order to avoid an innocent being convicted. No such consideration of public policy is involved calling for such stringency in the case of an accused endeavouring to displace a rebuttable presumption. 6. Since the applicability of exception 1 is excluded what has to be looked into is only whether applicability of exception 9 is established. The essential ingredient is good faith as defined in S.52 of the Indian Penal Code. That is a negative definition and the requirements are only due care and attention. 6. Since the applicability of exception 1 is excluded what has to be looked into is only whether applicability of exception 9 is established. The essential ingredient is good faith as defined in S.52 of the Indian Penal Code. That is a negative definition and the requirements are only due care and attention. The element of honesty, whether done negligently or not, introduced by the definition in the General Clauses Act is not imported in the Code. We are governed by the definition in S.52 of the Indian Penal Code alone. In order to establish due care and attention, a mere belief in truth is not sufficient. The belief must be shown to have a rational basis. A blind belief is not enough. That is where the element of due care and attention plays an important role. Absence of due care and attention before making the statement would defeat the plea of good faith. But good faith does not require logical infallibility. The question is only whether the accused was informed and he had good reason after exercise of due care and attention to believe that the allegations were true. If that standard is achieved, 'good faith' under exception 9 is attracted and the publication of the imputation ceases to be an offence if public good is established. Whether or not good faith is proved by an accused person who pleads in his defence the ninth exception to a charge of defamation would be a question of fact. Its acceptability depends upon the facts of cases. An honest belief in the truth of the allegations formed on the basis of due enquiries or on information which is honestly considered acceptable will amount to good faith. Erroneous actions or statements cannot always be imputed to want of due care and attention. The general circumstances and the capacity and intelligence of the person whose conduct is in question may be relevant factors. The honest conclusions of a calm and philosophical mind may differ largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning. At the same time good faith in the formation or expression of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate subject of public comment. 7. At the same time good faith in the formation or expression of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate subject of public comment. 7. Freedom of expression in good faith for self protection or for public good is essential in the interest of an orderly society and for its advancement. At the same time that should not pass on to the region of character assassination. A glaring example of deciding the border line in an attempt to trace 'good faith' in the defence based on exception 9 to S.499 could be found in Harbajan Singh v. State of Punjab and another (1966 Crl. L. J. 82V Press notes came connecting the son of the then Punjab Chief Minister Mr. Pratap Singh Kairon with smuggling activities. The Government felt irritated and issued press release denying the imputation and challenging anybody concerned to come up with the name of the son and reap the consequences. The accused took up the challenge and said that Surinder Singh (complainant), son of the Chief Minister is the person involved and he is one of the leaders of the smugglers. The further allegation was that be is also responsible for a large number of crimes being committed, but the cases are always shelved up because the culprit happens to be the Chief Minister's son. In the prosecution for defamation bis defence under exception 9 was rejected for rashness and want of good faith. Conviction was confirmed by the High Court though sentence was reduced. 8. In that case there was evidence to show that there were several cases against one Kulwant Rai in connection with smuggling activities. In the absence of" Kulwant Rai in Court, Surinder Singh (complainant and son of the Chief Minister) sent telegram to Court on behalf of Kulwant Rai requesting for adjournment. Two of the cases were thereafter withdrawn as per order of the Chief Minister. Kulwant Rai knew about these orders even before they reached the Court and he filed affidavits in Court. These facts were known to the accused in that case and be also knew that Kulwant Rai and Surinder Singh were friends who were moving about together. On account of the position of the complainant as son of the Chief Minister the accused had difficulties in getting evidence also. These facts were known to the accused in that case and be also knew that Kulwant Rai and Surinder Singh were friends who were moving about together. On account of the position of the complainant as son of the Chief Minister the accused had difficulties in getting evidence also. In these circumstances, the action of the accused was held by the Supreme Court to be supported by good faith and conning under exception 9. 9. E.M. Cherian and others v. D. Johnson (1969 KLT. 597) considered a defamatory imputation that the complainant was arrested in connection with a theft case. Really what happened was that the complainant was not the thief but the amount was only entrusted to him. When the police came he produced the amount. He was asked to go to the police station and he went though there was no arrest. In the circumstances of that case the imputation was held to be in good faith because of the genuine possibility of it being understood as an instance of arrest. It therefore follows that what is material is the belief based on sufficient materials gathered from information or enquiries sufficient enough to persuade a man of ordinary common sense and prudence placed on similar circumstances to believe that it is true. It is immaterial that what is believed turns out to be not true. 10. In this case good faith and public good are both there. From the wording in exception 9'imputation of the character of another' and relying on a stray sentence from the decision in Chandrasekhara Pillai v. Raman Pillai (1964 KLT. 317) it was argued that exception 9 applies only to an expression of opinion regarding character and not to an assertion of fact which is in itself defamatory. It is said that the imputation regarding the appellant is not an expression of opinion regarding character and it is only an assertion that he misused his position and filed false certificates and hence the accused cannot take shelter under exception 9. I do not think that the decision meant so. Ninth exception covers not only expressions of opinion on character, but also personal inferences from the allegations and also allegations of fact as could be proved true. The expression 'imputation on the character' in exception 9 cannot be taken to imply that all allegations of definite acts are excluded. I do not think that the decision meant so. Ninth exception covers not only expressions of opinion on character, but also personal inferences from the allegations and also allegations of fact as could be proved true. The expression 'imputation on the character' in exception 9 cannot be taken to imply that all allegations of definite acts are excluded. Allegations of definite acts amounting to imputation on the character are also covered by the exception. 11. As I have earlier stated, proof of truth of the imputations is not necessary for exception 9. Suhra was trying to get admission to Biology. But she could be admitted only to Commerce group even though the principal wanted to oblige her because of interest on the appellant. That could only be at the instance of the appellant. Exts. D5 and D6 letters sent by the Principal to the Registrar, University of Calicut show that certain certificates were produced showing participations in games, roost important being participation in the National Volley Ball Championship at Parur. Suhra came from some other school and the information of the Principal could only be what was supplied to her. Her evidence shows that she was interested in the appellant and wanted to oblige him. 12. The evidence of Dws 2 to 6 and the defence documents proved through them definitely show that Suhra never participated in the National Volley Ball at Parur and she was not a member of the team. It is clear that the Principal was bargaining with the University to get additional seats to accommodate Suhra in Biology under a wrong assumption of facts regarding eligibility of Suhra. That assumption may be with the knowledge of the true facts. It could also be on account of wrong information supplied to her supported by false certificates. Anyhow it is only reasonable to think that the impression was created at the instance of the appellant who was interested in procuring admission to his daughter somehow or other. The fact that Suhra was at first admitted in Commerce group and then given Biology in a vacancy that arose otherwise are not relevant considerations. The attempt was to get admission through unfair means and it was in public interest that such attempts are brought to light. In fact it was the intervention of the accused that resulted in an enquiry which frustrated the attempt. 13. The attempt was to get admission through unfair means and it was in public interest that such attempts are brought to light. In fact it was the intervention of the accused that resulted in an enquiry which frustrated the attempt. 13. These informations became available to accused 1 and 2 who were representatives in the University Union and Students Union. That was at a time when mark list scandals were there. There is no case that they had any personal interest or animosity in making these allegations. They had a duty in public interest to see that such malpractices are brought to light. In fact that resulted in an inquiry and the appellant was not able to succeed in his efforts through the Principal to get additional seats for accommodation though be succeeded otherwise. It is clear that accused 1 and 2 were acting in good faith for the public good. They are entitled to protection under exception 9 to S.499. There was genuine effort on their part to reach the truth. In fact the imputations are to a major extent justified by truth also even though proof in that respect is not necessary. Evidently this case involves an attempt made by the appellant through the Principal to provide admission on wrong assumptions of facts. 14. The evidence is that third accused published it in the paper only after making due enquiries in the school and ascertaining that Suhra never participated in the National Volley Ball games. The acquittal is perfectly justified. Criminal Appeal is dismissed. Dismissed.