Mustafa Shahidul Islam vs Md. Safar Siddique

IN Judgements Database | 03/08/2018




Crl. Revn. Petn. No. 116 of 2013

Decided On: 16.07.2013

Appellants: Mustafa Shahidul Islam and Jalaluddin Ahmed


Respondent: Md. Safar Siddique and The State of Assam




Hon'ble Judges/Coram:

Tinlianthang Vaiphei, J.




Tinlianthang Vaiphei, J.


1. In this criminal petition filed under Section 482, Cr.P.C., the petitioners are seeking the intervention of this Court to quash C.R. Case No. 518 of 2012 U/s. 500/34 IPC pending against them before the learned Additional Chief Judicial Magistrate, Morigaon, Assam and the processes issued against them in connection therewith. The brief facts of the case, as pleaded by the petitioners, are that in the year 2011, the selection committee of Moirabari Senior Madrassa, Morigaon District ["Madrassa" for short] had initiated the selection process for appointment to the posts of, among others, additional teacher for Social Science and accordingly issued the advertisement dated 6-1-2011 for those posts. The Selection Committee thereafter prepared wherein one Md. Badrul Islam secured first position with the grand total marks of 193.64 while the respondent 1 secured a grand total marks of 193.08. It turned out that for various reasons, no candidate was appointed for the post. However, the authorities contemplated to initiate a fresh selection process for the said post. The respondent 1 somehow managed to know that he secured second position in the selection process and started blaming the Selection Committee and the school authorities for his fate. On 25-9-2011, a news item was published in the local newspaper, "Janasadharan" on the basis of the information given by the respondent 1 alleging, inter alia, that the petitioner No. 1, who is the Superintendent of the Madrassa cum Member of the Selection Committee, had demanded a bribe of ` 2 lakhs from the respondent No. 1 for appointment to the said post and that candidates were selected by unfair means. That apart, on 13-2-2012, on the basis of the information given by the respondent 1, another news item was published in "Gana Adhikar", a local newspaper, alleging, inter alia, that the petitioner No. 2 had misappropriated money for the uniforms of the students, infrastructural fund, the funds released under Sarva Shiksa Scheme for mid-day meal and construction of buildings, etc. and that ` 11,02,200/- was released in the joint account of the petitioner No. 1, who is the President of the Madrassa, and the petitioner No. 2, but no uniform was distributed to the students till then. It was further alleged by the respondent No. 1 that the petitioner No. 1 was partial to the said Badrul Islam and made him the No. 1 candidate for the post of Additional Teacher of Social Science.


2. Aggrieved by the aforesaid news items, the petitioner No. 2 lodged a written complaint to the Chairman, Press Council of India, New Delhi against the news reporters, namely, Mehbub Hussain Mukter and Muzashhir for publishing those false and misleading news in Janasadharan in its issued dated 25-9-2011. After publication of the two mischievous news items, numerous queries and controversies started circulation in a disturbing manner from many news reporters of print media and visual media and local public. As a result, the petitioners thought it appropriate to satisfy all the concerned public by means of issuing clarificatory 6-3-2012 news in the local daily, namely, "Gana Adhikar" in its issue dated 6-3-2012 explaining the manner in which Badrul Islam came to be selected and why the respondent 1 could not be selected for the post. It was stated in the news so published that the selection committee consisting of (i) the representative nominated by the Deputy Commissioner, Morigaon, (ii) the subject expert nominated by the Inspector of Schools, Morigaon (petitioner No. 1), (iii) the President of the Madrassa and (iv) the Member-Secretary of the Committee (petitioner No. 2) had suspected that the respondent 1 might have obtained marks in the examination by unfair means as he could not reasonably fare well in the viva voce test.


3. The aforesaid reply given by the petitioners prompted the respondent 1 to file a complaint before the learned Chief Judicial Magistrate, Morigaon against the petitioners for commission of the offence punishable U/s. 500/34 IPC by claiming that he had been defamed by the reply appearing in the news item. On 18-4-2012, the respondent No. 1 examined two witnesses, who are his father and brother, in support of his complaint. The learned Judicial Magistrate Ist Class, Morigaon thereafter issued notices upon the petitioners to appear before him on 13-9-2012. The petitioners accordingly entered their appearance before the learned Magistrate, who thereafter fixed 21-3-2013 as the next date for further proceeding of the case. At this stage, I may note that there is nothing in the notice at Annexure-9 to indicate that cognizance was taken by the learned Magistrate before calling upon the petitioners to appear before him on 13-9-2012. The effect of this exercise will be discussed later. It is aggrieved by this notice that this criminal petition is filed by the petitioners.


4. The case of the petitioners is that the allegations made in the complaint are false, imaginary and baseless, which are made to harass and humiliate the petitioners by abuse of process of Court, and no offence of Section 500 IPC has been made out from the allegations contained in the complaint. The petitioner No. 1 is the President of the SMV of the Madrassa, had been an MLA for two terms from 83, Dhing Assembly Constituency, and has the reputation for his contributions to the society. The petitioner No. 2 is the Superintendent of the Madrassa, has dedicated his life in the field of education, and was awarded the "National Award of Teachers" by the President of India for his contribution in the educational field. The complaint filed by the respondent 1 has tarnished their image and harmed their reputation in the society. On 4-6-2012, a group of respected local people submitted a representation to the Deputy Commissioner, Morigaon and the Director of Madrassa Education, Assam apprising them that the allegations made against the petitioners are not correct. The petitioners, therefore, submits that the criminal proceedings against them are without any foundation and are thus liable to be quashed.


5. Mr. AM Barbhuiya, the learned counsel for the petitioners, contends that the allegations made by the petitioners in the news item dated 6-3-2012 have been made by them in good faith for protection of their interest: they were published by the petitioners to clarify the correct position as to the manner in which the respondent No. 1 was not found fit for the selection. Such publication, according to the learned counsel, is protected by the Ninth Exception to Section 499 IPC. It is the submission of the learned counsel that as the publication in question is protected by the Ninth Exception to Section 499, IPC, the learned Magistrate has grossly erred in issuing process against the petitioners. To fortify his submissions, the learned counsel for the petitioners relies on the following decisions: (i) Mangana Nand v. State of UP & anr., MANU/UC/0015/2006 : 2006 Cri. L.J. 3344, (ii) Kalyanam v. Ramesh, MANU/TN/0078/2003 : 2003 Cri. L.J. 3390 and (iii) S. Bangarappa v. Ganesh Narayan Hegade & ors., MANU/KA/0105/1992 : 1992 Cri. L.J. 3788 (1). The impugned proceeding is, however, supported by Mr. S.N. Tamuli, the learned counsel for the respondent 1, who contends that the learned Magistrate has correctly issued the process against the petitioners as the publication made by them in the said news item are, ex facie, defamatory. He further submits that the imputations made by the petitioners in the news item in question can by, no stretch of imagination, be regarded as one made in good faith for the protection of the interests of the petitioners or for public good. Having reckless allegations without reasonable cause, submits the learned counsel, the petitioners cannot claim the protection of the Ninth Exception to Section 499, IPC. He strongly relies on the decision of the Himachal Pradesh High court in Vijay Sing Mankotia v. Nehar Singh & anr., MANU/HP/0065/1999 : 2000 Cri. L.J. 1159 in support of his submissions. He, therefore, strenuously urges this Court to dismiss the criminal petition and direct the trial court to proceed with and dispose of the case without further loss of time.


6. The offence of defamation is defined in Section 499, IPC, while the penal section is provided for in Section 500, IPC. The offence of defamation consists of three essential ingredients, namely, (i) making or publishing any imputation concerning any person, (ii) such imputations must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) the said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the concerned. Therefore, the intention to cause harm is the sine qua non to prove the offence of Section 499. Ten exceptions are carved out from the purview of the offence of defamation, which postulate that it is not defamation to impute anything specified therein. In other words, every defamatory statement not coming within any of the exceptions is punishable under Section 500, IPC. Since the bone of contention between the rival parties in the instant case is on the applicability or otherwise of the Ninth Exception to Section 499, IPC, I shall straightaway reproduce this provision hereunder:

Ninth Exception Imputation made in good faith by person for protection of his or other's interests.- It is not defamation to make an amputation 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.


(a) A, a shopkeeper, says to B, who manages his business "Sell nothing to Z unless he pays you ready, for I have no opinion of his honesty". A is within the exception, if he has made this imputation on 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 amputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.


7. Exception 9 to Section 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 making it, or any other person, or for the public good. In other words, the above exception protects, under certain circumstances, imputations concerning the character of another. It relates to communication which a person makes, in good faith, for the protection of his own interests or of any other person, or for the public good. What is the standard of proof expected of an accused claiming the protection of Exception 9 to Section 499, IPC and whether strict proof of truth of the allegations made by an accused is necessary to claim protection under this Exception and as to what the requirement of good faith means, came up for consideration before a three-Judge Bench of the Apex Court in Harbhajan Singh v. State of Punjab, MANU/SC/0074/1965 : (1965) 2 SCR 235. The relevant observations of the Apex Court are found at paras 17, 18, 19 and 21 of the judgment, which read thus:


17. What the Court of Criminal Appeal held about the appellant in the said case before it, is substantially true about the appellant before us. If it can be shown that the appellant has led evidence to show that he acted in good faith, and by the test of probabilities that evidence proves his case, he will be entitled to claim the benefit of Exception Nine. In other words, the onus on an accused may as well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him. We are, therefore, satisfied that Mr. Bhasin is entitled to contend that the learned Judge has misdirected himself in law in dealing with the question about the nature and scope of the onus of proof which the appellant had to discharge in seeking protection of Exception Nine.


18. There is another infirmity in the judgment of the High Court, and that arises from the fact that while dealing with the appellant's claim for protection under the Ninth Exception, the learned Judge has inadvertently confused the requirements of Exception One with those of Exception Nine. The First Exception to Section 499 is available to an accused person if it is shown by him that the impugned statement was true and had been made public for public good. In other words, the two requirements of the First Exception are that the impugned statement must be shown to be true and that its publication must be shown to be for public good. The proof of truth which is one of the ingredients of the First Exception is not an ingredient of the Ninth Exception. What the Ninth Exception requires an accused person to prove is that he made the statement in good faith. We will presently consider what this requirement means. But at this stage, it is enough to point out that the proof of the truth of the impugned statement is not an element of the Ninth Exception as it is of the First: and yet, in dealing with the appellant case under the Ninth Exception, the learned Judge in several places, has emphasised the fact that the evidence led by the accused did not prove the truth of the allegations which he made in his impugned statement. The learned Judge has expressly stated at the commencement of his judgment that the appellant had not pressed before him his plea under the First Exception, and yet he proceeded to examine whether the evidence adduced by the appellant established the truth of the allegations made in his impugned statement as though the appellant was arguing before him his case under the First Exception. In dealing with the claim of the appellant under the Ninth Exception, it was not necessary, and indeed it was immaterial, to consider whether the appellant had strictly proved the truth of the allegations made by him.


19. That takes us to the question as to what the requirement of good faith means. Good faith is defined by Section 52 of the Code. Nothing, says Section 52, is said to be done or believed in "good faith" which is done or believed without due care and attention. It will be recalled that under the General Clauses Act, "A thing shall be done in good faith where it is in fact is done honestly whether it is done negligently or not." The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Code; and we are governed by the definition prescribed Section 52 of the Code. So, in considering the question as to whether the appellant acted in good faith in publishing his impugned statement, we have to enquire whether he acted with due care and attention. There is no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not a just blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith. But it must be remembered that good faith does not require logical infallibility. As was held by the Calcutta High Court in the matter of the Petition of Shibo Prasad Pandah ILR 4 Cal 124 in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused in support of the defamation are in substance true, but whether he was informed and had good reason after due care and attention to believe that such allegations were true.


* * *

21. Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case what is the nature of the imputation made: under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception. Unfortunately, the learned Judge has rejected the plea of the appellant that he acted in good faith, at least partly because he was persuaded to take the view that the evidence led by him did not tend to show that the allegations contained in his impugned statement were true. This naturally has to some extent, vitiated the validity of his finding.

[Underlined by me for emphasis]


8. For better appreciation of the controversy, it may be apposite to reproduce below the impugned statements, which are found in the middle paragraph of the news item:

On the other hand, the candidate who was placed in 1st position in viva voce, has performed well in viva voce before the selection committee. Moreover, being a son of retired teacher, he is legally entitled within 10% reserved quota. On the other hand, the candidate who was No. 1 as per academic marks, could not answer any question in viva voce for which the selection committee suspected that this candidate may had applied unfair means in the examination to get higher marks. Moreover, the conduct of the said candidate was not found to be satisfactory. It can be mentioned that the selection committee for appointment of teachers consists of (i) representative nominated by the Deputy Commissioner, (ii) the subject expert nominated by the Inspector of Schools, Morigaon, (iii) the President of the SMC and (iv) the Member Secretary of the Committee. In that regard any secret understanding and transaction of likely nature and allegation of corruption in appointment is totally aggressive and baseless. As per the allegation, no such reaction/rumour was created among people of Moirabari area, even it is noticed that the correspondent of this news along with some broker people are unsuccessfully trying to create rumour among people to mislead them.


9. The question to be considered is whether the inherent power of this Court under Section 482, Cr.P.C. can be invoked at this stage to quash the criminal proceeding against the petitioners. The parameters for exercising the power to quash a criminal proceeding are no longer res integras. Two of the settled parameters for quashing a criminal proceeding is (i) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (ii) whether it is expedient and in the interest of justice to permit a prosecution to continue. A bare reading of the impugned statements extracted above unmistakably conveys the impression that the complainant-respondent is an unmeritorious and unworthy candidate and might have applied unfair means in the examination to get higher marks thereby clearly suggesting that he is a dishonest, unscrupulous and unethical candidate. Therefore, the impugned statements are per se defamatory. There can be no doubt that the imputation made therein would lower him in the estimation of others. As the petitioners plead the Ninth Exception, it is for them to discharge the burden to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the respondent 1 was for protection of their interest and for the public good. For example, the respondent 1 could not answer any question in viva voce and whether there evidence to suspect that he might have applied unfair means in the examination to get higher marks are matters of evidence to be established by the petitioners by preponderance of probabilities, though they are not required to prove the same beyond reasonable doubt as in criminal trial. Good faith is, after all, a matter of evidence and is to be decided on the particular facts and circumstances of each. Perhaps, the best illustrations for understanding a case of this nature are broadly found, with due respect, from the questions raised by Hon'ble Chinappa Reddy, J., in para 18 of his concurring judgment in Sewakram Sobhani v. R.K. Karanjia, MANU/SC/0219/1981 : (1981) 3 SCC 208, which are as follows:

Several questions arise for consideration if the Ninth Exception is to be applied to the facts of the present case. Was the article published after exercising due care and attention? Did the author of the article satisfy himself that there were reasonable grounds to believe that the imputations made by him were true? Did he act with reasonable care and a sense of responsibility and propriety? Was the article based entirely on the report of the Deputy Secretary or was there any other material before the author? What steps did the author take to satisfy himself about the authenticity of the report and its contents? Were the imputations made rashly without any attempt at verification? Was the imputation the result of any personal ill will or malice which the author bore towards the complainant? Was it the result of any ill will or malice which the author bore towards the political group to which the complainant belonged? Was the article merely intended to malign and scandalise the complainant or the party to which he belonged? Was the article intended to expose the rottenness of the jail administration which permitted free sexual approaches between male and female detenus? Was the article intended to expose the despicable character of persons who were passing off as saintly leaders? Was the article merely intended to provide salacious reading material for readers who has particular taste for scandals? These and several other questions may arise for consideration, depending on the stand taken by the accused at the trial and how the complainant proposes to demolish the defence. Surely the stage for deciding these questions has not arrived yet. Answers to these questions at this stage, even before the plea of the accused is recorded can only be a priori conclusions. 'Good faith' and 'public good' are, as we said, questions of fact and matters for evidence. So, the trial must go on.

The result of the foregoing discussion is that the petitioners are not able to make out at this stage any case for the interference of this court. The criminal petition, being premature, is hereby dismissed. The trial court must proceed with the case without any delay and dispose of the same in accordance with law. No costs.


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