The High Court of Madras
(1971) ILR 2 Mad 41
Media Involved: Weekly Periodical
Decided On: 18.09.1970
A.S. Venkatachala Moorthy, J.
1. This appeal is against the conviction and sentence for one year (S. I.) with a fine of Rs. 2000 imposed upon the Appellant by the learned Chief Presidency Magistrate, Egmore, Madras. The charge was one of defamation and the prosecution was under Section 500 I.P.C.
2. The Appellant is the Editor, printer and publisher of a Tamil weekly journal called 'Nathigam' which is printed and published in the 'Periyar Press' at Madras. The first Respondent herein was the Editor of a Tamil dally sailed "Murasoli" in the year 1967. He was also the Treasurer of the Dravida Munnatra Kazhagam, a political party in this States. He was a member of the Madras Legislative Assembly and in it he was the Deputy Leader of the Opposition. He was a partner in "Mekhala Pictures", a concern engaged in the production of films. He was also an incometax Assessee.
3. Sometime is the month of Jane 1966, there was a conference of the Dravida Munnetra Kazahagam at Tiruchirapalli. This political party had also collected fends for the General Elections held in February 1967.
On the 24th of June 1966, the Appellant published an article, with the Photograph of Thiru Karunanidhi, the first Respondent herein making certain defamatory allegations against him. Tali was made under the caption "Conference funds Rs. 30,000 Collected-fraud (sic). Aabil, Became and Villain to Karunanidhi" The English Translation of this article is as below:
The funds collected openly for the election as election fund and the funds received surreptitiously from the Swatentra party and kept as black money in secret accounts, were taken and spent by Thiru Karunanidhi for the film "Marakka Mudiyuma" which was under production by Mekhala Pictures, of which he is the owner. Not even a naya paisa of the funds, collected as such is now with aim. When that is the case, how can he hand over the entire amount to the Committee of three persons?
Stating that these allegations were false and were published, actuated by malice, in utter lack of good faith, with intent to harm his reputation, the first Respondent filed a complaint in court under Section 500 I.P.C, This complaint was taken on file and process was issued, the Appellant appeared. The complainant as P.W. 1 deposed to his case. P.W. 2, Shanmugham, the clerk-cum- accountant in the D.M.K. office, proved, with reference to cash books, ledgers and other vouchers, that every item collected and received was entered in the accounts and deposited in banks. P.W. 4, an advocate at Madurai, who had read the impugned article, stated that many of his friends asked him about the integrity and honesty of the complainant, in dealing with the election funds P.Ws. 6 and 7 also deposed to this effect.
4. When the questioned in court, the Appellant admitted, that it was he who published the article, but stated that the accounts produced in court were forged and manufactured by the then General Secretary, Thiru C.N. Annadurai, in connivance with the other leaders of his party. He further asserted that the amounts were spent by P.W. 1 for the "Mekhala pictures" and that there was a later adjustment of the funds, after the picture "Marakka Mudiyuma". D.W. 1 deposed that he attended the conference at Tiruchirapalli and that some persons talked about the misappropriation and utilisation of the election funds by P.W. 1. D.W. 2, the Sub Editor of the Nathigam paper, stated that he visited Tiruchirapalli on 9th June 1966, that he gathered some news, that he learnt utilisation of the election funds and that it was he who wrote the article.
5. Observing that the allegations in question are per se defamatory and holding that they were published by the Appellant, out of malice and without good faith, for defaming the complainant, the learned Chief Presidency Magistrate convicted him under Section 500 I.P.C. and sentenced him to suffer simple imprisonment for one year and to pay a fine of 2000, in default to suffer three months. These are the facts:
Four contentions are advanced by Mr. C.K. Venkatanarasimham, learned Counsel, who appears for the Appellant. They are (1) the allegations refer to the utilisation of the funds collected for election, and as such the offence, if any, would fall within the purview of Section 171-G of the I.P.C.; for which, a complaint by the State Government would be necessary ; (2) The article in question was written by D.W. 2 the Sub Editor, during the absence of the Appellant and so there can be no conviction of the Appellant for the alleged defamation, (3) The Publication was made in good faith for the public good (4) The sentence is in any event severe and excessive.
6. Under Section 171-G I. P. Code, whoever, with intent to affect the result of an election, makes or publishes any statement, purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, shall be punished with fine. Under Section 196 Code of Criminal Procedure, no court can take cognisance of this offence, unless upon a complaint made by order of or under the authority from the State Government or some other officer empowered in this behalf. Daring the trial such a contention was not advanced by the Appellant, and it is now sought to be raised by way of an additional ground. This was allowed. The publication was made in June 1966. There is no evidence that the complainant was a candidate for any election at the time when it was made. There was not even a suggestion to the complainant, when he was in the box, that he was at least a prospective candidate for the General Elections which were held in February 1967. Such a statement was also not made by the Appellant when he was questioned under Section 342 Code of Criminal Procedure. "When a question arises as to whether a person has become a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate, so that it can be said of him that he held himself out, as a prospective candidate. The mere fact that he had formed an intention to stand for election, is not sufficient to make him a prospective candidate. It is only when a person communicates his intention to the outside world by a declaration or conduct, he could be regarded to have held himself out as a prospective candidate". Vide Khader Sheriff v. Munuswami, A.I.R. 1955 S.C. 775 and Sangappa Andanapapa v. Shivamuthiswami AIR. 1961 Mys l06 at 122. There is no such evidence in this case. Even otherwise, there can be no bar for initiating proceedings under Section 500 I.P.C., "The offences under Section 500 and Section 171-G, I.P.C. are separate and distinct. The ingredients of Section 499 are not the same as the ingredients of Section 171-G only when two offences are of the same category and the ingredients of one are found in the other, then the question of obtaining sanction for the offences for which it is necessary, would arise. Section 500 I.P.C. provides a more deterrent sentence than what is provided under Section 171-G. The complainant will have the option of preferring a complaint under this section, though the facts of the said complaint may disclose an offence for which sanction is necessary and in respect of which a lesser punishment is provided." It has been so held in S.C.C. Anthony Pillai v. V.R. Nedunchezeian 1970 M.L.J. Cri. 231. Thus Section 171-G. does not apply to defamatory statements about persons who are not candidates, and it cannot therefore be insisted that the complainant should proceed against the accused in respect of the offences under Section 171-G and not under Section 499(3). Vide Bhageblal v. Emperor, A.I.R. 1940 Nag. 249 and Narayanaswami v. Devaraja, 1935 M.W.N. Crl. 204. In Narayana Ayyar v. Veerappa Filial, 1950 M.W.N. Crl. 282, it has been held by a Full Bench of this Court that where as alleged offence falls both under Section 193 and under Section 500 I.P.C., a complaint to the court under Section 195(1) Code of Criminal Procedure is not necessary to enable the Magistrate to take cognisance of a complaint under Section 500 alone. Therefore, the contention, that there should be a complaint by the State Government or any person authorised by it for as offence under Section 171-G, I.P.C. is not sustainable.
7. On behalf of the Appellant, it is next urged that he was absent on the date of the alleged publication, that the article was written and published by D.W. 2 and that as such there could be no conviction of the Appellant for any defamation. In Ramaswami v. Lokanada, 9 Mad, 387 at 391, it has been held that it would be a sufficient answer to the charge if the accused shows that he entrusted, in good faith, the temporary management of the newspaper to a competent person during his absence and that the libel was published without his authority, knowledge or consent, What all this decision says is that the presumptive liability of the declared printer could be displaced by a proper disclosure of the identity of the real author and by establishing a temporary entrustment of the management, Under the Press and Registration of Books Act (Act XXXV of 1867), the declaration by the person would prima facie be evidence of publication by him, and as pointed out in Ramaswami v. Lokanada, 9 Mad, 387 at 391, if no contrary evidence is produced, or if the contrary evidence produced by him is not true, the declaration becomes conclusive, so as to sustain the conviction. Ex facie, the impugned article in this case does not disclose the name of the author. There was no suggestion at any stage to any of the witnesses examined on the side of the prosecution to the effect that this Appellant is not the author. On the other hand, when questioned under Section 342 Code of Criminal Procedure, the Appellant has admitted that the publication was made by him on 24th June, 1966. This implies that he was present. There is no whisper even in his statement that D.W. 2 was the real author of this article. Therefore, the evidence of D.W. 2 the Sub-Editor to the effect that he wrote this article, could not be believed. Obviously, this defence is a belated invention and it is without any substance.
Next it is urged that the article in question was published in good faith, for the public good. Exception IX to Section 469 I.P.C. reads thus:
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.
Section 52 I.P.C. states that nothing is said to be done or believed in good faith, which is done or believed without due care and attention. The burden of showing that he had reasonable grounds for believing the defamatory imputations to be true, and was actuated la publishing such a statement, net by malicious reasons, but by an intelligent zeal and desire for public interest, lies on the parson who publishes such an imputation. When comments are made on the allegation of facts which do not exist, the very foundation of the plea disappears. Herschel L.C. in Davis and Sons v. Shepstone (1886) 2 A.C. 187 at 190 observed as below:
There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be tee clearly borne in mind between comment or criticism, and allegations of fact such as that disgraceful acts have been committed, or disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.
8. In Campbell v. Spottiswood (1863) 122 E.R. 288, the libel was that the Editor of a paper collected subscriptions and funds under some pretext and pocketed those fends. The libeller contended that as a public writer he was entitled to make comments upon the scheme publicly and that he was privileged in imputing improper motives to the other parson. Cockburn, C.J. in laying the law, said "While hostile criticism could be privileged, a line must be drawn between criticism open public conduct and the imputation of motive by which that conduct may be supposed to be activated. One man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid and wicked motives, unless there is so much ground for the imputation that a jury shall find not only that he had a honest belief in the truth of the statement, but that his belief was not without foundation. It is said that it is for the interests of the society that the public conduct of men should be criticised without any other limit, than that, the writer should have a honest belief that what he writes is true. But, it seems to me that the public have an equal interest in the maintenance of the public character of public men, and public affairs would be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation. I think, the fair position in which the law may be settled is this: Where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall saythat the criticism was not only honest but also well-founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.
Thus, the plea of fair comment would not be sustained unless facts were proved which made it reasonable to make such a suggestion. Where base and sordid motives, which are net warranted by the facts, are imputed to a person, the defence that the punisher bona fide believed that he is publishing what is true, will not be a defence in point of time. "Good faith'' means good faith and also the exercise of due ears and attention. "Due care and attention" means that the libeller should show that he has taken particular steps to investigate the truth and has satisfied himself from his enquiry as a reasonable man that he had come to a true conclusion. Mere subjective belief, without any objective basis, is not a dependable criterion for substantiating the publicities, on the ground that it was made in good faith and for the public good.
9. The evidence in the ease establishes beyond all doubt that the allegations in Ex. P. 1 (a) are false. The Appellant has stated in the article that the complainant had misappropriated the election funds, by utilising it for the picture produced by the "Mekhala Pictures" owned by him, The further allegation is that on that date he had not even a naya paisa of these funds with him. The complainant was a treasurer of the D.M.K. party, in possession of the election funds. He as P.W. 1 has sworn that prior to the publication of the article in Ex. P. 1 as, there was an amount of Rs. 1,74,000 outstanding in the election funds, in the Indian Bank at Royapuram. He has further stated that on no occasion could the moneys be drawn without the prior sanction of the General Secretary. The Treasurer has to act within the ambits of the bye-laws and regulations framed by the party. He has sworn that he sever utilised any such funds for the production of the picture. He has further said that Rs. 50,000 from the election fund, was deposited as fixed deposit in the Indian Overseas Bank, besides Rs. 50,000 in the Indian Bank. Shanmagham (P.W. 2) the clerk-cum-accountant, has proved this with reference to the case book Ex. P. 2, the ledger 1970 (Crl.)-35 Ex. P. 3, the statement of account from 16th March, 1966 to 10th June, 1966 Ex. P. 4, deposit receipts Ex. P. 5 and P. 6, and the cheque book Ex. P. 7. Entries are made in the relevant books, as and when amounts are collected. There has also been a publication in their paper "Nam Nads", showing these collections. Ex. P. 9, series are these publications, for the period from 15th February, 1966 to 7th June, 1966. Prior to the ThiruchirappalliConference i.e. prior to 10th June, 1966, the fund was Rs. 1,73,147 and odd as per the ledger Rs. 1,00,000 has been deposited in the Banks in fixed deposits, and deducting the amount spent, as evidenced by the vouchers, the balance has been put in the current account. The General Secretary will have to give written directions to the treasurer for incurring any expenditure. Ex. P. 11 series are some such letters written by him. There has been no attempt on the part of the Appellant to show that the allegations are true. On the other hand, by documentary evidence. P.W. 1 has shown that there has been no diversion of the funds collected for the election, to the production of any film as stated by the Appellant Therefore, it follows that the allegations are without any basis and are false. There is hardly any ground for showing that the complainant had misappropriated any funds which were entrusted to him in his capacity as treasurer. The reader of the article gains the impression that the P.W. 1 is such a dishonest person, that his public life is not honest, that he utilises funds collected for the party for his private purposes and that he is a fraud and cheat. These allegations which are false and highly tendentious, are per se defamatory any they indicate that the writer had a crude and biased mind, a coarse and provocative expression, and a malicious and vindictive interest. Same allowance can be made for the use of intemperate language, but not for a language that transgresses all bounds of decency, which attributes a corrupt and dehorns character to a person and which makes imputations, for which there is no basis, what so-ever. The conduct of the Appellant not only lacks good faith, but appears to be clearly malicious. He is not entitled to the protection afforded by Exception 9 to Section 499, I.P.C.
10. Learned Counsel appearing for the Appellant contends that the sentence is excessive. The Appellant is not a novice to journalism. He is sufficiently held in the field. The article bears witness to his possession of great inventive and declamatory powers, serious allegations are made and those allegations are adhered to, till the end. In the decision reported in Channing Arnold v. King Emperor, A.I.R. 1914 P.C. 116, the Editor of a journal had published an article under the caption "Mockery of British Justice'' making certain allegations against certain officials. While confirming the conviction and sentence of imprisonment, their Lordships of the Privy Council observed-
The freedom of the journalist is an ordinary part of the subject and to whatever length the subject in general may go, so also the journalist. But, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his 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.
In Ram Kumar Shukala v. State, (1962) 1 Cri. L, J. 122, the Editor had made certain defamatory allegations against another editor, to the effect that the latter had misappropriated certain funds which came into his possession in his capacity as the Honorary Secretary of an Anti-Tuberculosis Association. While confirming the conviction and sentence of imprisonment and fine, Justice Mulls observed as below:
The character and reputation of a person is no less important than his body, and if those who cause severe injuries to his body are normally sent to prison, there is no reason why those who maliciously cast grave aspersions against his character and reputation, should be treated differently and merely fined A journalist who wantonly indulges in besmirching the character and reputation of honest persons and institutions, in order to increase the sale of his paper deserves no sympathy. A sentence of fine really amounts to no punishment in the case of a journalist who owns a press, because he immediately makes up to loss by the sale proceeds of a second scurrilous publication. It merely encourages him to continue this type of offence, as it enlarges the tale of the rag which he owns.
In Sahib Singh Mihra v. State of Utter Pradesh A.I.R. 1965 S.C. 145, the Editor had published an article containing defamatory allegations against the Public Prosecutor at Aligarh to the effect that they were corrupt. While confirming the conviction and sentence of imprisonment and fine, their Lordships of the Supreme Court have observed that the press has get great power is 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 lends to harm the reputation of a person and that reckless things should 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. On the basis of the above decisions, the learned Public Prosecutor contends that there is no case for interference with the sentence. The article, on which the prosecution is brought, is undoubtedly libelous and it imputes to the complainant, that in dealing with public funds he has been dishonest by converting them for his own use. These are serious imputations upon his moral as well as public character, and these allegations have been made without any basis or foundation. He has adhered to them till the end and there are no extenuating circumstances justifying an interference with the sentence imposed by the learned Chief Presidency Magistrate. Both the conviction and sentence are confirmed.
11. The appeal fails and is dismissed.