TaxTMI 
TaxTMI 
1960 (11) TMI 141
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....mes of India' and in some other papers. A press-note dated 22nd/23rd of July, 1957, (Ex. P. D.) was issued by the Punjab Government and is reproduced below: "Certain Urdu dailies from Jullundur are indulging in a deliberately mischievous and false propaganda alleging complicity of a Minister's son in smuggling on the border. This is evidently done with a view to malign Government and cause suspicion in the mind of the public. The Punjab Government categorically deny the allegation. These papers should have the courage to come out openly with the name of the son of the Minister instead of repeatedly publishing things in a vague and indirect manner. They should not take shelter behind anonymity and should not be afraid of the consequences of the publication of these allegations. The Punjab Government have already taken steps to curb smuggling and they are determined to put it down with a firm hand." 2. In response to the above press-note the accused issued a statement (Ex. P. A.) which runs as under: "Sardar Harbhajan Singh, State Secretary, Punjab Praja Socialist Party, has issued the following statement to the Press: 'My attention has been ....
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....in smuggling and that he had named Sardar Surrinder Singh Kairon, the son of the Chief Minister of the Punjab after having carefully thought over the matter and after having realised his responsibility. He had stated that Sardar Surrinder Singh Kairon was not only the leader of smugglers but there were also other grave allegations against him. 5. On 17th of August, 1957, the complainant filed his complaint in the Court of Magistrate First Class, Tarn Taran, stating that he is the son of Sardar Pratap Singh Kairon, Chief Minister, Punjab, and that he passed the Master of Arts examination in Political Science from the Punjab University in the year 1953 and was a lecturer in the Government College, Ludhiana, for about eight months when he resigned. Later on he became the Managing Director of the Amritsar Co-operative Cold Storage and was drawing Rs. 500/- per mensem. He stated that he enjoyed good reputation amongst his friends and relatives and also amongst those who came into contact with him. On 24th of July, 1957, when he was at his village Kairon, he was shown the news item, in question, published in the 'Times of India' on reading which, he found it defamatory of h....
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....o 12. In this written statement the accused admitted having issued the press statement in question. He said that he never had any occasion to deal with members of the family of Sardar Pratap Singh Kairon, most of whom were not even known to him and that he had no animus against the person of the Chief Minister or his son. He said that he had no hesitation in admitting that he had issued the impugned statement. In the statement he further alleged that Sardar Pratap Singh Kairon had contested the second general election from Sinhali constituency adjoining the Indo-Pakistan border and that during the course of that election all kinds of vehicles were moving freely, ostensibly for Congress electioneering but in fact laden with smuggled gold; that smuggling in this area and elsewhere on the border was rampant and was carried on openly with the active connivance and assistance of high police officers and political high-ups and that it became a veritable scandal in the State. In the press, and elsewhere, in private talks, one of the persons freely mentioned, and broadly hinted, for complicity in smuggling, was Shri Surrinder Singh Kairon sou of Sardar Pratap Singh Kairon, the Chief Min....
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.... illegally, fraudulently and with the illegal influence and authority of his father; how he defrauded the municipalities by committing thefts of tolls and other taxes; how he concocted, fabricated and forged palpably false accounts of the cold storage; how he was associated with his real first cousin, Shri Jagjit Singh Kairon, in the Mukerian dacoity case; how he managed the postings and transfers of police officials with the help of Shri Naurang Singh, the Senior Superintendent of Police during the hey days of smuggling in Amritsar in order to facilitate the Smuggling of gold by his gang-men; how he prevailed Upon Shri Naurang Singh and another associate Shri Sadhu Singh to appear as defence witnesses to save another smuggling associate, Hazara Singh. Gill, from the gallows for being involved in a murder case; how he prevailed upon Shri Naurang Singh to help Hazara Singh Gill to obtain a border defence scheme rifle which the said Hazara Singh Gill would never have otherwise got because of police record; how he interceded with a magistrate to let go Kalwant Rai who was being prosecuted in a smuggling case and when the Magistrate did not oblige got the case withdrawn by his father, ....
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....cter of that person, or lowers the character of that person in respect of his caste or of 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." The first and ninth exceptions to Section 499 are in these terms: "First Exception: It is not defamation to impute anything which is true concerning 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. Ninth Exception: 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." 12. Section 52 of the Indian-Penal Code defines 'good faith' in the following terms: "Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention." 13. In the trial Court the accused had advanced two pleas covered by the first and ninth exceptions to Section 499 but in thi....
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....an other property, vide Dixon v. Holden (1869) 7 Eq 488 . It is not denied that the impugned words are defamatory per se as they are not susceptible of any innocent interpretation and even unaided by any extrinsic facts, they are obviously defamatory. 18. AT common law the accused in n criminal prosecution was not permitted to prove the truth of the statement and this gave rise to the celebrated dictum of Lord Mansfield; 'The greater the truth, the greater the libel'; the supposition being the greater the appearance of truth in a criminal libel, the more likely would it tend to a stir up the victim to revenge himself end lend to a breach of the peace. 19. Criminal libel formerly used to be prosecuted in England not for the purpose of redressing an injury done to an individual but for the reason that it intended to provoke animosity and violence and disturb the public tranquility and repose. 20. After the passing of Lord Campbell's Act, 1843, the accused was permitted to prove the truth of his assertions provided they were to be for the public benefit. This provision corresponds to the first exception to Section 499 of our Penal Code. 21. At this stage refere....
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.... has been placed on the record with a view to show that the complainant was hand in glove with known smugglers and bad characters with whom he associated, and the accused also relied upon certain circumstantial evidence. This is with respect to the imputation of smuggling. Certain material has also been placed in support of the second imputation relating to other crimes committed in the State in which the complainant has been held responsible by the accused. 26. (After referring to certain speeches made in the Punjab Vidhan Sabha and certain news items his Lordship proceeded:) Section 81 of the Indian Evidence Act lays down that the Court shall presume genuineness as to gazettes, newspapers etc., if such a document is produced from proper custody. The presumption of genuineness attached under this section to a newspaper cannot be treated as proof of the facts reported therein as a statement of a fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence., in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. A reference to the Newspapers and to the proceedings in the Vidhan Sabha has been ....
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....eaning of these words is that a large number of crimes are being committed in the Punjab for which Surrinder Singh Kairon is responsible and these cases are shelved in view of his being the son of the Chief Minister. The primary sense of this imputation appears to be the moral accountability of the complainant for a large number of crimes which are being committed in the State. This suggests the idea of crimes being committed by others but with his abetment. He may be an accessory, before the fact Or after the fact, as on account of his being the son of the Chief Minister the cases are not proceeded with. Such evidence, to which my attention has been drawn on behalf of the accused in respect of this imputation, relates to the personal conduct of the complainant with regard to certain incidents to be examined presently. 32. (After discussion of evidence his Lordship proceeded:) The arguments raised in defence of the second imputation have been confined to the college incident, the alleged irregularities committed in obtaining cement and timber when the cold storage was being constructed and the letter, reportedly written by the complainant, referring to the octroi barrier. In ....
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....rimes in the State, or when, and under what circumstances, he came to know about It. There is no material to show that any information beyond the press reports and the Assembly Debates was in his possession when the statement was published. In such a situation the accuses cannot claim the protection of the ninth exception as was said by a Bench of the Calcutta High Court in the case of, to which reference has been made earlier. There is no proo(sic) of any kind that the accused had investigated the truth of the charge. He has not even alleged having made such an investigation. 34. The facts of this case and the argument! addressed at the bar raise important questions of law which may be examined at this stage. In this Court the counsel for the accused-appellant has not relied upon the provisions of the first exception on the plea that his client was never giver fair opportunity by the trial Court to produce the necessary material. 35. The ingredients of the ninth exception on which the entire arguments of the appellant have pivoted are, that the imputation on the character of another should be made in good faith, for the protection of the interest of the person making it, ....
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....#39;Good faith' contemplates an honest effort to ascertain the facts upon which exercise of the power must rest. It must, therefore, be summed as 'an honest determination from ascertained facts.' 'Good faith' precludes pretence or deceit and also negligence and recklessness. A lack of diligence, which an honest man of ordinary prudence is accustomed to exercise, is, in law, a want of good faith. Once this is shown, good faith does not require a sound judgment. 38. In the context of the law of defamation, the requirement of good faith, in publishing an article derogatory to the character of the complainant is not satisfied, by merely showing a belief on the part of the publisher in the truth of the publication. It has to be shown that the publication had been honestly made in the belief of its truth, and also, upon reasonable grounds for such a belief, after the exercise of such means to verify its truth, as would be taken by a man of ordinary prudence, under like circumstances. On this question the following observations of Mitchell, J,, in Alien v. Pioneer Press Co., Minnesota Supreme Court (1889) 3 LRA 532, may he cited: "The next question is, whet....
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.... British Justice", defaming-Mr. Andrew, a district Magistrate, In a rape case of a girl aged about 11 years-one Captain McCormick was prosecuted. The District Magistrate was of the view that the charge was false and he had discharged Captain McCormick under section 209 of the Criminal Procedure Code. The allegation against the District Magistrate was, that he had by wrongly discharging the accused "committed the basic breach of trust and was unworthy of the position he had." The jury returned a unanimous verdict of guilty and the Chief Judge sentenced the appellant to one year's simple imprisonment, expressing the view that in, his opinion no grosser, more unwarranted or mischievous libel could have been published, and that the offence had been aggravated by the conduct of the defence as the advocates not only reiterated but added to vituperation contained in the articles, and there was no expression of apology or sorrow for the injury caused to the complainant, even up to the end of the case, and Lord Shaw said- "While the plea of ventas was not openly or plainly made, their Lordships regret to observe that surreptitiously it did appear and reappear in the case by ....
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.... the public. Thus, although the true issue in the case was as to his own bona fides and the care and attention which would verify that, Mr. Arnold's action when charged gave no help to the Court and must to some extent have embarrassed even his own defence." (pages 1057, 1058 (of ILR Cal): (at p. 122, of AIR)). (42) As to the conduct of the defence, Lord Shaw said:-- "Their Lordships make every allowance for the heat of advocacy which as noted by the Chief Judge, seems to have been in this case great. But when a gross mistake of that kind on a matter of fact -- the truth of which when exposed would have ruined any administrative or judicial officer's career --was discovered, the libel should not have been adhered to for a moment. The mistake should have been acknowledged and an apology tendered. This was not done, but upon the contrary the case was conducted to its close upon the footing that an unstated defence was the real and good defence, namely, that the libels and all the libels were true. Nobody is to be blamed in these circumstances for thinking that the plea of good faith on the part of Mr. Arnold had sustained a serious shock." (pages 1081, 1062 (of....
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....charge, as an ordinary man should be expected to exercise.'' Referring to the plea that there was a strong suspicion in the mind of the accused of the impugned conduct of the complainant, Straight J. said: "But this was not enough, and he should have exercised greater care and attention in making himself sure of his facts before committing his accusations on this point to writing. As to the residue of matters mentioned in the six earlier heads of charge, it is clear to my mind from the evidence and his own statement before the Magistrate that the appellant acted upon mere rumours that were flying about Pilibhit, and as they referred to the cases of other persons, in which he had no direct interest, more stringent tests must be applied in determining the question of his good faith. Even if proof of such rumours was admissible, of which I am by no means clear, it was his duty, before committing them to writing as direct charges against Badrul Hasan, to satisfy himself by all reasonable means at his command that they were well founded in fact, and if he failed in this respect, he published them at his peril, and must take the responsibility for them that the law im....
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....at the time or subsequently at the earliest opportunity." 49. Every re-publication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him. The publisher of a libel is strictly responsible, irrespective of the fact whether he is the originator of the libel or is merely repeating it. But as pointed out already, in this case, no question of repeating of a libel arises, because the defamatory statement has originated with the impugned statement of the accused. 50. An absolute immunity attaches to the speeches made on the floor of the Vidhan Sabha. The members of the Legislative Assembly and of the Parliament are absolutely privileged and they can make with impunity libellous statements while participating in the deliberation of the House and the Court has no jurisdiction to entertain an action in respect of defamatory utterances by them as the Members, under the law, are not amenable to civil or criminal action, despite the fact that the statements are grossly defamatory and deliberately false. This privilege, however, does not extend to a statement published by a member outside the House even though it may....
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..... It follows, that it is perilous, to repeat in public a libellous statement, even if its first publication in a House of Legislature is privileged. Each repetition is a fresh defamation and the reason, who has made the words of another his own, is liable to the same extent as if he had originated the story. It is equally well-settled that previous libellous publication by another, of the same defamatory words, is neither an evidence of the truth I nor proof of the exercise of due care and caution. 53. The accused should have realised that there was no mention of the name of the complainant even in the speeches of those members of the Assembly who were known critics and opponents of the Chief Minister. In this connection reference has already been made to the statements of D. W. 18, Shri Jagat Narain, M.L.A., and D. W. 34, Shri Probodh Chander, M.L.A. Neither of them has said that he had received complaints against Surrinder Singh regarding gold smuggling. The appellant before rushing to the press should have, as a man of ordinary prudence, paused and pondered, that even those members oGBP the Vidhan Sabha who were open antagonists of the complainant's father had not said....
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.... reports cannot protect the defamer against the outcome of his ill advised and hasty conduct. A wrong cannot be justified or excused by a wrong. The endorser of a lie is in no better position than its drawer; and the tale-bearer has no advantage over the tale-maker. He who circulates a libel, is liable, equally, with the originator. It is not open to a person in the position of the accused-appellant to adopt as true the untrue statements made by others and then come out with the defence of good faith. 56. Cave J., in Scott v. Sampson (1882) 8 Q.B.D. 491 said:-- "To admit evidence of rumours and suspicions is to give any one who knows nothing whatever of the plaintiff, or who may even have a grudge against him, an opportunity of spreading, through the means of the publicity attending judicial proceedings, what he may have picked from the most disreputable sources, and what no man of sens who knows the plaintiff's character would for moment believe in." 57. It will not be inappropriate to analyse what is understood by the terms "character" 'reputation' and 'rumour' as these are prone to be confused. "Character" is what a person actually is and &#....
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....under the first head, but that he ought not to have such a reputation." 60. The decision in 1929 2 KB 1 was followed in Speidel v. Plato Films, Ltd. (1960) 2 All ER 521. The Court of Appeal observed:-- "What is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not. Further, the inquiry must be limited to general reputation. If under the guise of investigating what sort of reputation a man bears, one were to investigate whether he was thought or said to have committed specific acts, the inquiry would soon degenerate into an inquiry about what a man had actually done in his past life as ascertained by rumour and not by fact. All this is laid down in (1882) 8 QBD 491 and 1929 2 KB 1, particularly per Scrutron, L. J. Scrutton, L. J., says clearly that one cannot prove in chief specific instances of misconduct, as distinguished from general reputation, whether involved in the libel or not, in order to mitigate damages.'' It was also said at p. 526: "The bad reputation which is pleaded in mitigation of damages must bear some relation to the libel that is complained of. You cannot, for example, mitigate the fa....
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....78 Lord Denman, C. J., in summing up said: "The first plea of the defendants is a plea of justification of so much of the libel as imputes the crime of bigamy to the plaintiff; and I think-that on this plea of justification, you should have the same strictness of proof as on a trial for bigamy." 67. Applying the above principle, a Court is entitled to expect from the accused, without discharging the onus placed upon him, of proving any defence mentioned in the exception -- that he should adduce facts which would show due care and attention justifying honest belief in the truth of the allegations. 68. The counsel for the appellant said, that his client had not the resources to be in a position to have access to the authentic records which might prove the truth of the imputations and, therefore, had to depend on circumstances and what other people had said. While advancing this argument the counsel for the accused unwittingly disclosed the weak foundations on which the case of his client was rested. This argument of his, is destructive of the plea of good faith. If the accused had no authentic information he was not under any inevitable constraint, or, indispensable co....
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....ld admit that the charge was unfounded, made without proper information and express regrets for its publication. But the appellant has either not chosen to, or, has not been advised to make amends for the injury caused. On the other hand, he has, by his conduct during the trial, added to his offence. The written statement which was filed by him more than 10 months after his oral statement under Section 342 has been ill-advised in the extreme and whoever advised him to adopt that course of conduct has not helped him but has harmed him. At the late stage at which the written statement was filed the accused, as well as his counsel, should have been fully aware of the facts of the case and the legal merits of the pleas taken in this behalf. The long passage from the written statement which has been reproduced in the earlier part of this judgment shows, that by submitting written statement, the opportunity was utilised for further defaming the complainant and his father in a manner which was wanton and indefensible by any test. Instead of explaining the two imputations made in the light of the defences taken, the accused not only, persisted in reiterating the imputations already made....
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.... this country. The written statement is evolved out of the brains of the counsel, helped by the friends of the accused and the practice has been uniformly deprecated. In this case the accused, when he was being orally examined under Section 342, replied to all questions, except one, by saying 'I will file a written statement.' It cannot, therefore, be said that the written statement represented the mind of the accused or the facts as were known to him. This view is amply supported by the following among other cases: 1. Emperor v. Dwijendra Chandra Mukherjee 19 CWN 1043: AIR 1916 Cal 6330; 2. Deputy Legal Remembrancer, Bihar and Orissa v. Matukdhari Singh 20 C WN 128 : AIR 1917 Cal 687; 3. Dwarka Singh v. Emperor 4. Mohammad Anis v. Emperor AIR 1938 Oudh 405; 5. Samarendra Singh v. Emperor AIR 1948 Oudh 99; (6) Tilkeshwar Singh v. The State of Bihar, (S) and 7. Sidheswar Ganguly v. State of West Bengal. 73. It was submitted at the Bar and also stated in the written statement, that the accused had no animus against the complainant or his father, and they were not even known to him, and in the absence of any enm....
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....ess of the above order of the Additional Sessions Judge in granting privilege under the law but what is said is that the accused should have been acquitted if the privilege was granted. The learned counsel for the accused has cited two American cases in support of his contention -- viz.; Clinton E. Jencks v. United States of America 353 US 657 and Roviaro v. United States 353 US 53. The decision in these cases cannot be of any avail to the accused-appellant because they rest on particular law prevailing in that country, which is obviously different from the law in India. According to the law in the United States of America it is within the power of a Court to overrule the claim of privilege on the ground that the disclosure is essential for determination of the defence of the accused and where Government insists on claiming privilege the Court can, if it so deems fit, acquit the accused. The law in this country is contained in Ss. 123, 124 and 162 of the Indian Evidence Act and it does not even suggest that an accused is entitled to acquittal when privilege has been claimed with respect to unpublished official records relating to any affairs of State. The contention of the learn....