Sri V Sunil Kumar vs Sri Pramod Muthalik on 13 September, 2024

Karnataka High Court

Sri V Sunil Kumar vs Sri Pramod Muthalik on 13 September, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

Reserved on : 30.08.2024
Pronounced on : 13.09.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13TH DAY OF SEPTEMBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.19821 OF 2024 (GM-RES)

BETWEEN:

SRI V.SUNIL KUMAR
S/O VASUDEV
AGED ABOUT 49 YEARS
MEMBER OF LEGISLATIVE ASSEMBLY
KARKALA LEGISLATIVE CONSTITUENCY
KARKALA TALUK, UDUPI DISTRICT

ALSO AT:
NEKLAGE GUTTU
NEAR KALIKAMBA TEMPLE
KARKALA KASABA, KARKALA TALUK
UDUPI DISTRICT - 576 101.
... PETITIONER

(BY SRI VINOD KUMAR M., ADVOCATE)

AND:

SRI PRAMOD MUTHALIK
S/O HANUMANTHA RAO
AGED ABOUT 67 YEARS
RESIDING AT "PANCHAJANYA"
2

PARAPU JUNCTION, NAKRE ROAD
KUKKUNDOOR VILLAGE, KARKALA TALUK
UDUPI DISTRICT - 576 101.
... RESPONDENT

(BY SRI MANJUNATH S. HALAWAR, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO A) QUASHING THE ORDER ISSUANCE OF
PROCESS DATED 20/03/2024 PASSED BY THE 42ND ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BANGALORE, IN PCR NO
9331/2023, NOW NUMBERED AS CC NO 11709/2024, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 499 AND 500 OF IPC,
PRODUCED AT ANNEXURE D, HOLDING THAT IT IS AN ABUSE OF
PROCESS OF LAW AND ETC.,

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 30.08.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner, a Member of Legislative Assembly of Karkala

Legislative Constituency is knocking at the doors of this Court

calling in question an order dated 20-03-2024 by which the XLII

Additional Chief Metropolitan Magistrate, Bengaluru, in

P.C.R.No.9331 of 2023 takes cognizance of the offences and issues

summons for the offence under Section 499 of the IPC and
3

punishable under Section 500 of the IPC and has sought quashment

of the entire proceedings in C.C.No.11709 of 2024.

2. Facts, in brief, adumbrated are as follows:-

The issue relates to the Assembly elections that were

conducted for the Karnataka Legislative Assembly in the month of

May 2023. The respondent registers a complaint in P.C.R.No.9331

of 2023 on the score that his reputation built over 40 years has

caused a dent by the candidate contested opposite to him. The

incident is, after the election results on 13-05-2023, in a public

function arranged by the petitioner at Bandimutt bus stand, Karkala

he has with an intention to defame made false allegations against

the respondent. The allegation made publicly was that, the

respondent/complainant has committed murder of Hindus in the

name of Tiger Gang and the accused persons are still in Kalaburgi

jail. Though the complainant professes Hinduism, which one is pure

Hinduism is a doubt. On these words, the respondent/complainant

registers a private complaint before the learned Magistrate against

the petitioner on the score that the statements made by the

petitioner in public have caused a dent to the reputation of the
4

complainant. On the complaint, the concerned Court takes

cognizance of the offence, records the sworn statement and issues

process to the petitioner. Issuance of process is what has driven

the petitioner to this Court in the subject petition.

3. Heard Sri M.Vinod Kumar, learned counsel appearing for

the petitioner and Sri Manjunath S. Halawar, learned counsel

appearing for the respondent.

4. The learned counsel appearing for the petitioner submits

that the statements made during elections cannot be taken as

defamation; it was a statement made in a public rally. He would

submit that even the respondent has made several statements

against the petitioner and the petitioner has ignored all of them on

the ground that they were made during election rally. He would

seek to place reliance on the judgments of the Apex Court in the

cases of A. VIJAYAKANTH v. PUBLIC PROSECUTOR1, R.

RAJAGOPAL v. STATE OF TAMIL NADU2 and that of the High

1
(2017) 11 SCC 319
2
(1994) 6 SCC 632
5

Court of Allahabad in SALMAN KHURSHID v. STATE OF U.P.

AND ANOTHER 3.

5. Per contra, the learned counsel appearing for the

respondent/complainant would vehemently refute the submissions

to contend that the reputation of the complainant has been

damaged on account of the statements made by the petitioner.

They are all untrue. He has neither associated with the Tiger gang

nor has been jailed for any murder. Therefore, it is a matter of trial

for the petitioner to come out clean. He would submit that if the

petitioner is aggrieved by the statements made by the respondent

in the election rally, it is open to him to initiate proceedings. He has

not done so. He would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

7. Elections to the Karnataka Legislative Assembly get over

by announcement of results on 13-05-2023. Results declared the

petitioner won and the respondent who contested as an

3
2023 SCC OnLine All 52
6

independent candidate lost. At a victory rally on 14-05-2023, the

petitioner is alleged to have made a statement against the

complainant. The statement was made in a public rally while

making his speech and calling the respondent a deal master, a

congress 'B' team etc. inter alia. The clippings were widely

published in the electronic media and the print media as well.

People have witnessed the said election speech. On this score, that

the statements made have caused dent to the reputation of the

complainant, the complainant registers the complaint invoking

Section 200 of the Cr.P.C. seeking the Court to take cognizance of

the offence under Section 190A of the Cr.P.C. The entire speech

where allegations were made was made a part of the private

complaint. The paragraph that is germane for consideration of the

lis is as follows:

".... .... ....

5. It is submitted that the complainant has contested the MLA
election 2023 in Karkala Constituency as an independent
Candidate. The accused also contested in the said election
and has won the election on 13/05/2023. After the Election
Results, i.e. on 14/05/2023 in a public function arranged by
the accused's party held at Bandimutt Bus Stand, Karkala,
the accused spoken against the complainant with a malafide
intention to defame the complainant and made false
allegations against the complainant. The accused without any
proof and basis made severe malicious, unfounded
7

allegations against the complainant with an intention to take
revenge against the complainant. The contents of the false
allegations are reproduced herein below.

a) "ಪ ೕ ಮು ಾ ಕ ೇ ಹಣ ೋಸ ರ ಉತರ ಕ ಾ ಟಕದ ಂದುಗಳ ಹ ೆ!ಯನು$
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£À£ÀUÉ, CªÀgÀ£Àß G©â¹ ¥À©â¹, ¨ÉÃ½¹¢ÝÃgÀ®è.

b) ನನ ೆ ಬಹಳ ಆಶGಯ , ನHೆಂಬ' /ಂದ Hಾ ಾವರಣ ಬದ4ಾIತು. ೈಜ ಂದುತK ಅಂತ
LೇM ಒಬO 9ೕP 8ಾಸ+' ಬಂದರು ಇ ೆ 5ಾಂ ೆ Qನ R Sೕಂ ಅಂತ LೇM
ದ /ಂದಲೂ LೇTಾ ಬಂ.K. ಪ ೕ ಮು ಾ ಕ- ೆ ಾನು Lೇ½ÛÃ ೆ, ದಲ
,ಾ- ೆ Lೆಸರು ಪ Uೕಗ 8ಾಡುC2ೆ<ೕ ೆ. ಇ ೆ Vಾ5ೆ ಬಂ.- /ೕವ1. ಪ Lಾ :ೋW
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ಆIತು. ಮುಂ.ನ 4ೋಕಸ=ೆ ೆ ಎ 9ೕP ೆ LೊರS.<ೕ-. ಾನು ಹತು ,ಾ-
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kೕ ಂದ 5ೆಳ5ೆ Rೕಳ,ೇಕು. ಎಷು+ ಅ9 ಎತರ ಇ2ೆ. ಅಂತ ೊ ಾಗು ೆ. ಪರುಶು ಾಮ
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8ಾ ಾeೋಣ, ಸಭ! ೆIಂದ ಇ ೋಣ ಅಂತ LೇM.<."

The entire speech of the accused is recorded in the C.D. and
the same is produced herewith.

6. It is submitted that, These allegations made by the
accused are totally false and baseless, unfounded and
without any iota of truth of evidence or proof. The
allegations have brought disrepute, mental agony,
pain torture to the complainant. The said allegations
8

are now published in public media and in news papers
through out in India The Vijayavani news Paper
published on 15/05/2023 is produced herewith. The
Karkala Town Police against the accused. But the
police have did not take any action and issued
endorsement to the complaint The Complaint given by
the complainant and the endorsement issued by the
Police is produced herewith and the same may be read
as part of this complaint.

7. It is humbly submitted that the complainant has no nexus
with so called Tiger Gang Gokak. The complainant is not a
deal master as alleged by the accused. He never
negotiated with any body and contested the election
against the accused. The accused has made false
vexacious and reckless allegations against the
complainant out of political vengeance with a malafide
intention to harm and knowing that such imputation
will harm the reputation of the complainant. After such
allegations the people look at the complainant with
suspicion. The act of the accused lowers the credit of
the complainant. The imputation of the allegation is
hurtfull, which also hurt the feelings of the followers
of the complainant."

(Emphasis added)

The concerned Court takes cognizance of the offence against the

petitioner by a detailed order dated 10.01.2024. The order reads

as follows:

"01. This Private Complaint is filed by the Complainant under
section 200 of Code of Criminal Procedure ('Cr.P.C.' for short)
against the Accused praying for an order to take cognizance of
the offence under section 499 and 500 of IPC and to issue
process to the Accused.

02. In the complaint, it is stated that he is the Founder and
National President of Shri Rama Sena. The Complainant has
9

earned substantial reputation for his impeccable work for Hindu
Movement and as a Social Worker. He was member of Rashtriya
Svayam Sevaka Sangha and he was in charge of Four Southern
States of India as a heard Bhajarang Dal which is ailed
association of R.S.S. and Vishva Hindu Parishad. He served for
Hinduthva since Forty Years.

03. It is further stated that the Accused is a Member of State
Legislative and Former Minister of Government of Karnataka.
Every statement of the Accused must be based on some
evidentiary proof.

04. It is further stated that the Complainant has contested the
MLA Election-2023 in Karkala Constituency as a Independent
Candidate. The Accused also contested in the said election and
has won the election on 13-05-2023. After the Election Results,
i.e., on 14-05-2023 in a public function arranged by the
Accused's Party held at Bandimutt Bus Stand, Karkala, the
Accused spoken against the Complainant with a malafide
intention to defame the Complainant and made false allegations
against the Complainant. The contents of the false allegations
are reproduced herein below:

"a) ಪ ೕ ಮು ಾ ಕ ೇ ಹಣ ೋಸ ರ ಉತರ ಕ ಾ ಟಕದ ಂದುಗಳ ಹ ೆ!ಯನು$ %ೈಗ'
%ೈಗ'
ಾ!ಂ(ನ ೆಪದ ಎಷು+ ,ಾ- ಮrì. /ೕವ1. 2ಾಖ4ೆ 5ೊಡ ,ೇ5ಾ. ಆ ಹ ೆ!ಯನು$
8ಾ9ದಂತವರು ಇವCಗೂ ಸಹ ಗುಲOಗ :ೈ ನ ಇ2ಾ< ೆ. ಇ =ಾ-ೕ 5ಾಯ ಕತ ರ gÀPÀëu
Éಅಂತ
ಅಂತ LೇM. . ಾನು ಅoಕೃತHಾ( ºÉÃ¼ÉÛÃ£É, F ಹಣ ೋಸ ರ ಂದುಗಳನು$ ಹ ೆ! 8ಾ9
ದಂತಹ ಉತರ ಕ ಾ ಟಕದ ಆ %ೈಗ' - UÁåAV£À UÀAಪ1ಗಳB ಇವCಗೂ ಕೂಡ :ೈ ನ 5ಾಲ
ಕTೆಯುC2ಾ< ೆ. Vಾ5ೆ 8ಾ ಾ eೋ.4ಾ /ೕವ1. ಇವತು ಬಹಳ ಆಶGಯ ನನ ೆ, ಅವರನ$
ಉRO^ ಪRO^, ,ೇM^.<ೕರಲ. ಚು ಾವ?ೆಯ ಂ.ನ .ನ ಆ ಎ4ಾ ,ೆಂಬ
,ೆಂಬ ಗರು 5ಾಂ ೆ Q ೆ
ಮತವನು$ 5ೇTಾ ೆ. Vಾವ1ದು ೈಜ ಂದುತK Vಾವ1ದು ಭ jಾ+dಾರ ಅಂತ ಚdೆ ಆಗ,ೇಕಲ
ಇ .

b) ನನ ೆ ಬಹಳ ಆಶGಯ , ನHೆಂಬ' /ಂದ Hಾ ಾವರಣ ಬದ4ಾIತು. ೈಜ ಂದುತK ಅಂತ LೇM
ಒಬO 9ೕP 8ಾಸ+' ಬಂದರು ಇ ೆ 5ಾಂ ೆ Q+ ನ R Sೕಂ ಅಂತ LೇM ದ /ಂದಲೂ LೇTಾ
ಬಂ.K. ಪ ೕ ಮು ಾ ಕ- ೆ ಾನು Lೇ½ÛÃ ೆ, ದಲ ,ಾ- ೆ Lೆಸರು ಪ Uೕಗ
8ಾಡುC2ೆ<ೕ ೆ. ಇ ೆ Vಾ5ೆ ಬಂ.- /ೕವ1 ಪ Lಾ :ೋW XರುದY ಸZ[ೆ VಾIತು. ಅನಂ\
ಕು8ಾ' XರುದY ಸZ[ೆ ಆIತು. ಇವತು ಇ ಸZ[ೆ ಆIತು. ಮುಂ.ನ 4ೋಕಸ=ೆ ೆ ಎ 9ೕP
10

ೆ LೊರS.<ೕ-. ಾ
ಾನು
ನು ಹತು ,ಾ- LೇಳB ೇ ೆ ಪ ೕ ಮು ಾ ] ಒಬO 9ೕP 8ಾಸ+', ಹಣ
^ಗು ೆ ಅಂ ಾದ ೆ, ಏನು ,ೇ5ಾದರೂ 8ಾಡಬಲರು. ಹಣ ^ಗು ೆ ಅಂ ಾದ ೇ ಅ`ವೃ.Yಯ ಬ ೆb
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ಶು ಾಮ
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ಅ ೊ$ೕದು ೊ ಾಗು ೆ. ಬ-ೕ /ೕ-ಲ ಅಂತ LೇM f 5ೆg ಆ9ದು< ಅjೆ+ ಅಲ. ಅ ಂದ kೕ ಂದ
5ೆಳ5ೆ Rೕಳ,ೇಕು, ಎಷು+ ಅ9 ಎತರ ಇ2ೆ. ಅಂತ ೊ ಾಗು ೆ. ಪರುಶು ಾಮ lೕಂ mಾಕು ಇ ಯ
ತನಕ ಾನು ZÀZÉðUÀ¼ÀÄ £Á£ÀÄ ¨Á¬Ä Rಡ ಲ ೋeೋಣ ಸಭ! ೆIಂದ 8ಾ ಾeೋಣ,
ಸಭ! ೆIಂದ ಇ ೋಣ ಅಂತ LೇM.<".

05. It is further stated that these allegations made by the
Accused are totally false and baseless, unfounded and without
any iota of truth of evidence or proof. The allegations have
brought disrepute, mental agony, pain torture to the
Complainant. The said allegations are now published in Public
Media and in Newspapers through out in India.

06. It is further stated that the Complainant has no nexus with
so called Tiger Gang Gokak. The Complainant is not a deal
master as alleged by the Accused. He never negotiated
with any boy and contested the election against the
Accused. The Accused has made false vexacious and
reckless allegations against the Complainant out of
political vengeance with a malafide intention to harm and
that knowing that such imputation will harm the
reputation of the Complainant. After such allegations, the
people look at the Complainant with suspicion.

07. It is further stated that the Accused with out any
basis declared that the Complainant is a deal master and
murderer. Such malicious, unsubstantiated, unfounded
and reckless imputations have deeply hurt the public
standing and reputation of the Complainant who has
spent decades in public life and service and thereby built
an immense reputation for himself in the eyes of the
public, which has been severely impaired by the acts of
the Accused. Hence, on these allegations, the
Complainant prayed to take cognizance of the offence
under section 499 and 500 of IPC against the Accused.
11

08. Along with this Private Complaint, the Complainant has also
produced the documents i.e., Vijayavani Kannada Daily
Newspaper, C.D with Speech of the Accused dated:14-05-2023
at Bandimutt Bus Stand, Karkala, copy of the Complaint given
by the Complainant against the Accused before the Karkala
Town Police with acknowledgment, endorsement issued by the
Police, copy of the Complaint given by the Complainant against
the Accused before the Karkala Town Police with
acknowledgment, endorsement issued by the Police, certified
copy of the entire order sheet of the Learned Civil Judge and
JMFC at Karkala Original Private Complaint which is returned by
the Learned Civil Judge ad JMFC at Karkala and list of witnesses.

09. After having heard the arguments of the Lrd. Counsel for the
Complainant and also on perusal of the averments made in the
complaint and the documents produced, I am satisfied that
the Complainant has made out a prima-facie case to take
cognizance of the offence under section 499 and 500 of
IPC and to proceed further. Accordingly, I proceed to pass
the following:-

ORDER

Cognizance is taken of the offence under section 499 and
500 of I.P.C against Accused.

The case is posted for Sworn Statement of the
Complainant and witness if any, by: 07-02-2024.”

(Emphasis added)

The concerned Court records that the speech that was made in

which the complainant was allegedly defamed had no nexus to a

gang called a Tiger gang at Gokak and he is not deal master as is

alleged. This was not only the allegation, the entire speech is

reproduced in the order of taking cognizance. The speech, I mean
12

the duration of the speech that contained defamatory statements

made against the complainant. The sworn statement of the

complainant and statement of witnesses were recorded by the

concerned Court. On 20-03-2024, the concerned Court registers a

criminal case and issues summons to the petitioner. The order

reads as follows:

“… …. ….

07. After having heard the arguments of the Lrd. Counsel
for the Complainant and also on perusal of the averments made
in the complaint coupled with the Sworn Statement of the
Complainant and his Witnesses and also the documents, the
following point arise for my consideration:

1) Whether the Complainant has made out grounds
to register a Criminal Case against the Accused for
the alleged offence and proceed against him as
sought for?

2) What order?

08. My answer to the above points is as hereunder:

Point No:1:- In the Affirmative,

Point No.2: As per final order for the following:

REASONS

09. Point No.1:- It is the case of the Complainant that
he is a person with great reputation in the society and the
Accused with the intention of defaming the reputation of the
Complainant has given a false statement against the
Complainant and the said statement given by the Accused is
13

published in various New papers having wide publication all over
India.

10. The Complainant in the complaint and also in his
Sworn Statement has stated that the Accused has made a
defamatory statement against him. As already stated, the
Complainant has alleged the commission of the offence under
section 499 of I.PC., which is punishable under section 500 of
I.P.C. On going through the complaint averments and the Sworn
Statement of the Complainant, prima-facie, it goes to show that
the Complainant is defamed.

11. In support of the said Sworn Statement, the
Complainant has produced Kannada Daily Newspaper
“Udayavani” dated 15-05-2023, which is marked as Ex.C.01, the
relevant portion of Udayavani Paper which is marked as
Ex.C.02(a), C.D., which is marked as Ex.C.02, certificate under
as section 65-B of Indian Evidence Act, by way of Affidavit is
marked as Ex.C.03, copies of the complaints given by the
Complainant against the Accused before the Karkala Town Police
Station with acknowledgement, which are marked as Ex.C.04 to
06 and endorsement issued by the Karkala Town PS, Udupi,
which is marked as Ex.C.07. On going through the contents of
the said documents, it is found that they prima-facie support the
version of the Complainant. Moreover, the Complainant has
examined Three Witnesses on his behalf as CW-2 to 4. They
have also deposed in the lines of the Sworn Statement of the
Complainant.

12. The offence of defamation is defined under section
499 of I.P.C., which reads as under:

“499. Defamation.- 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 cases hereinafter
expected, to defame that person.

Explanation 1.- It may amount to
defamation to impute anything to a deceased
person, if the imputation would harm the
14

reputation of that person if living, and is intended
to be hurtful to the feelings of his family or her
near relatives

Explanation 2. It may amount to defamation
to make an imputation concerning a company or
an association or collection of persons as such.

Explanation 3.- An imputation in the form of
an alternative or expressed ironically, may amount
to defamation.

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 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”.

13. A meaningful reading of the above provisions, along
with the complaint averments, Sworn Statement of the
Complainant and his Witnesses and the documents produced, at
this stage, this Court is of the opinion that the complaint
discloses the ingredients of the offences alleged to have been
committed by the Accused and that the material brought on
record as a result of inquiry under section 200 of Cr.P.C., prima-
facie constitutes valid evidence which, if believed and un-
rebutted at the trial would result in conviction.

14. It is well settled principle of law that before
ordering for issuance of process against the Accused, the
Court has to decide whether prima facie case is made out
or not on the basis of the materials placed before it.
Before exercising power under section 204 Cr.P.C., it is
the duty of the court to see that whether the Complainant
has made out sufficient grounds for issuance of process.
In the decision reported in – AIR 2010 S.C. 2261″

(Shivjee Sing -Vs- Narendra Tiwari), the Hon’ble Supreme
Court held that the expression “sufficient ground” used in
section 203, 204 and 209 of Cr.P.C., means satisfaction
that, a prima-facie case is made out against the person
15

Accused of committing an offence and not sufficient
ground for the purpose of conviction.

15. In another decision reported in AIR 2014 S.C.
957 (Fiona Shrikhande -Vs- State of Maharashtra), it is
observed that at the complaint stage, the Magistrate is
merely concerned with the allegations made out in the
complaint and has only to prima-facie satisfy whether
there are sufficient grounds to proceed against the
Accused and it is not the province of the Magistrate of
esquire into a detailed discussion on the merits or
demerits of the case.

16. Thus, in the light of the rulings referred supra,
on an overall appreciation of the facts of the case,
material placed The before the court and also law
applicable, this court is of the considered opinion that
the complainant has made out sufficient grounds for
proceeding against the Accused for the offence under
section 499 of I.P.C., which is punishable under section
500 of I.P.C and thereby made out the grounds for
issuance of summons for attendance of the Accused
before this court. In the result, I answer Point No.1 in the
AFFIRMATIVE.

17. Point No.2:- For the reasons assigned and the
findings given on Point No.1, I proceed to pass the following:

ORDER

Office to register Criminal case against the Accused for
the offence under section 499 of I.P.C., punishable under
section 500 of I.P.C., in Register No.III and issue summons to
the Accused through Jurisdictional Police, if Sub-section 3 and 4
of section 204 of Cr.P.C. are complied.”

(Emphasis added)
16

8. The issue now would be, whether the statements made by

the petitioner would attract the ingredients of Sections 499 and 500

of the IPC. What would attract the ingredients of Sections 499 and

500 of the IPC need not detain this Court for long or delve deep into

the matter. The Apex Court in plethora of judgments considers this

issue. The Apex Court in the case of M.A.RUMUGAM v. KITTU

ALIAS KRISHNAMOORTHY4 has held as follows:

“…. …. ….

13. Section 499 of the Penal Code reads, thus:

“499. Defamation.–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 cases hereinafter excepted, to defame that
person.”

14. Eighth and Ninth Exceptions to Section 499, to which
reliance has been placed by the learned counsel, read as under:

“Eighth Exception.–Accusation preferred in good faith to
authorised person.–It is not defamation to prefer in good faith
an accusation against any person to any of those who have
lawful authority over that person with respect to the subject-
matter of accusation.

***
Ninth Exception.–Imputation made in good faith by
person for protection of his or other’s interests.–It is not
defamation to make an imputation on the character of another
provided that the imputation be made in good faith for the

4
(2009) 1 SCC 101
17

protection of the interest of the person making it, or of any
other person, or for the public good.”

15. The word “good faith” has been defined in Section 52
of the Penal Code to mean:

“52. ‘Good faith’.–Nothing is said to be done or believed
in ‘good faith’ which is done or believed without due care and
attention.”

16. The complaint petition filed by the respondent herein
contained a statement that he was implicated allegedly on the
basis of an information received by the appellant from one
Namasivayam, son of Rajagopal and Kaliappan, son of Ramu of
Naluvedapathi Village that they had damaged nine coconut trees
by pouring acid mixed kerosene on the respondent’s advice. The
aforementioned allegation against the respondent was published
in various newspapers viz. Maalai Murusu, Maalai Malar, Dhina
Boomi, Dhina Karan, Dhina Malar as well as in some weeklies.

17. On the aforementioned backdrop, he alleged to have
been defamed as thereby, “false propaganda among the village
people and implication of his name in the complaint against the
enemies Kakliappan and Namasivayam besides publishing the
same in the dailies and weeklies” was made against him. It was
furthermore stated:

“Since there was no basic evidence in the complaint, it
was given with the sole intention of defaming the petitioner
herein and the complainant did not cooperate for the
investigation, the case registered in Thalaignayiru Police Station
in Crime No. 360 of 2003 could not be proceeded further and
the charge-sheet could not be filed. Therefore, the case on the
file of the Judicial Magistrate, Tiruthuraipoondi was closed on 7-
4-2005. Because of the illegal activities of the respondent, the
petitioner complainant herein is unable to make his foreign trips
and suffered heavy financial loss and lost his status among his
relatives and the people of the village and suffered enormous
mental agony.”

18. Allegations made in the said complaint petition,
thus, in our opinion, make out a case for proceeding
against the appellant under Section 500 of the Penal Code
as thereby imputation concerning the respondent had
18

been made intending to harm or knowing or having
reason to believe that such imputation would harm his
reputation.

19. For the purpose of bringing his case within the
purview of the Eighth and the Ninth Exception appended to
Section 499 of the Penal Code, it would be necessary for the
appellant to prove good faith for the protection of the interests
of the person making it or of any other person or for the public
good.

20. It is now a well-settled principle of law that those
who plead exception must prove it. The burden of proof that his
action was bona fide would, thus, be on the appellant alone.

21. At this stage, in our opinion, it would have been
premature for the High Court to consider the materials
placed by the appellant before it so as to arrive at a
definite conclusion that there was no element of bad faith
on the part of the appellant in making the said complaint
before the police authorities.

22. The respondent was furthermore discharged by the
learned Magistrate in exercise of its jurisdiction under Section
167(5) of the Code of Criminal Procedure stating that the police
authorities could not complete the investigation within a period
of six months.”

(emphasis supplied)

The Apex Court in JEFFREY J. DIERMEIER v. STATE OF WEST

BENGAL5 has held as follows:

                             "....          ....           ....




5
    (2010) 6 SCC 243
                              19

28. “Defamation” is defined under Section 499 IPC. It
reads as under:

“499. Defamation.–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 cases hereinafter excepted, to defame that
person.”

29. To constitute “defamation” under Section 499 IPC,
there must be an imputation and such imputation must have
been made with the intention of harming or knowing or having
reason to believe that it will harm the reputation of the person
about whom it is made. In essence, the offence of defamation is
the harm caused to the reputation of a person. It would be
sufficient to show that the accused intended or knew or
had reason to believe that the imputation made by him
would harm the reputation of the complainant,
irrespective of whether the complainant actually suffered
directly or indirectly from the imputation alleged.

30. However, as per Explanation 4 to the section, no
imputation is said to harm a person’s reputation, unless
that imputation directly or indirectly lowers the moral or
intellectual character 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, in the
estimation of others 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.

31. As stated above, the thrust of the argument of the
learned counsel for the appellants was that since the “Word of
Caution” was issued in “good faith” for the benefit of those who
were planning to acquire the CFA certificate, and the same
being for the “public good”, the case falls within the ambit of the
Tenth Exception to Section 499 IPC and, therefore, the
appellants cannot be held liable for defamation.

32. The Tenth Exception to Section 499 IPC reads as
follows:

“Tenth Exception.–Caution intended for good of person
to whom conveyed or for public good.–It is not defamation to
convey a caution, in good faith, to one person against another,
provided that such caution be intended for the good of the
person to whom it is conveyed, or of some person in whom that
person is interested, or for the public good.”

It is plain that in order to bring a case within the scope of the
Tenth Exception, it must be proved that the
statement/publication was intended in “good faith” to convey a
caution to one person against another; that such caution was
intended for the good of the person to whom it was conveyed,
or of such person in whom that person was interested, or for the
“public good”.

33. Before dealing with the question whether or not the
Tenth Exception would be attracted in the instant case, it would
be appropriate at this juncture, to deal with the objection raised
by the learned Senior Counsel appearing for Respondent 2, that
no plea regarding applicability of the Tenth Exception having
been urged before the High Court, the appellants are estopped
from raising such a plea at this stage.

34. Ground IV in the petition before the High Court was
in the following terms:

“Ground IV–For that the publication dated 12-2-2007
was essential and in public interest and thus made to protect
the interest of the general public who might otherwise have
been induced to join the course offered by the
complainant/Opposite Party 2 in the belief that it was entitled
to conduct the same. The language of the publication is a fact
and there is no question of there being any defamation involved
in the same.”

It is clear from the above that in their defence, the appellants
had pressed into service the Tenth Exception to Section 499
IPC. It was their case that the publication in question was in
public interest as it was made to protect the interests of those
who were planning to join the CFA course announced by the
University. In our view, the appellants are not seeking to raise a
new ground and, therefore, the respondents’ objection on that
account deserves to be rejected.

35. Now, reverting back to the main issue, as
aforestated, the appellants issued the offending “Word of
Caution” ostensibly in order to warn those who were either
planning to hire an investment professional or to obtain a CFA
designation that there was an interim injunction against
Respondent 2 from using their aforenoted trade marks. It is
claimed by the appellants that the said notice was aimed at that
group of people who were interested in acquiring a definitive
standard for professional competence or for those who wanted
to hire such professionals and not for the general public as such.
According to them, this is clear from the text of the “Word of
Caution”, which says that “If you are planning to either hire an
investment professional or obtain a designation, you need to
make informed decisions that benefit your future.”

36. However, it cannot be denied that while the
publication refers to the interim order passed by the Delhi High
Court, it omits to mention that the said injunction will not come
into effect till the end of current academic session of the CFA
programme, which, according to Respondent 2, was to conclude
in May 2009, and that the order would not mean expression of
final opinion on the matter. According to Respondent 2, the
omission of the last two sentences of the interim order was a
conscious and deliberate suppression to somehow
project ICFAI in a bad light in order to harm its reputation in the
eyes of the professional community and, therefore, the
offending publication was neither in “good faith” nor in “public
interest”.

37. It is trite that where to the charge of defamation
under Section 500 IPC the accused invokes the aid of Tenth
Exception to Section 499 IPC, “good faith” and “public good”

have both to be established by him. The mere plea that the
accused believed that what he had stated was in “good faith” is
not sufficient to accept his defence and he must justify the same
by adducing evidence. However, he is not required to discharge
that burden by leading evidence to prove his case beyond a
reasonable doubt.

38. It is well settled that the degree and the character of
proof which an accused is expected to furnish in support of his
plea cannot be equated with the degree of proof expected from
22

the prosecution in a criminal trial. The moment the accused
succeeds in proving a preponderance of probability, onus which
lies on him in this behalf stands discharged. Therefore, it is
neither feasible nor possible to lay down a rigid test for deciding
whether an accused person acted in “good faith” and for “public
good” under the said Exception.

39. The question has to be considered on the facts and
circumstances of each case, having regard to the nature of
imputation made; the circumstances on which it came to be
made and the status of the person who makes the imputation as
also the status of the person against whom the imputation is
allegedly made. These and a host of other considerations would
be relevant and required to be considered for deciding the
appellants’ plea of “good faith” and “public interest”.
Unfortunately, all these are questions of fact and matters for
evidence.

40. In the instant case, the stage for recording of
evidence had not been reached and, therefore, in the
absence of any evidence on record, we find it difficult to
return a finding whether or not the appellants have
satisfied the requirements of “good faith” and “public
good” so as to fall within the ambit of the Tenth
Exception to Section 499 IPC. Similarly, it will neither be
possible nor appropriate for this Court to comment on the
allegations levelled by Respondent 2 and record a final
opinion whether these allegations do constitute
defamation. Reading the complaint as a whole, we find it
difficult to hold that a case for quashing of the complaint
under Section 482 of the Code has been made out. At this
juncture, we say no more lest it may cause prejudice to
either of the parties.

41. For the aforegoing reasons, we are of the opinion that
the High Court was right in refusing to quash the complaint
under Section 500 IPC. The appeal, being devoid of any merit, is
dismissed accordingly. Nothing said by the High Court or by us
hereinabove shall be construed as expression of final opinion on
the merits of the complaint.”

(Emphasis supplied)
23

After the aforesaid judgments, the Apex Court in the case of

SUBRAMANIAN SWAMY v. UNION OF INDIA6 has held as

follows:

“…. …. …

23.Meaning of the term “defamation”

23.1.Salmond & Heuston on the Law of Torts, 20th Edn.
[Bata India Ltd. v. A.M. Turaz, (2013) 53 PTC 586 : 2012 SCC
OnLine Del 5387; Pandey Surendra Nath Sinha v. Bageshwari
Pd., AIR 1961 Pat 164 : 1960 SCC OnLine Pat 116] define a
“defamatory statement” as under:

“A defamatory statement is one which has a
tendency to injure the reputation of the person to whom
it refers; which tends, that is to say, to lower him in the
estimation of right thinking members of society generally
and in particular to cause him to be regarded with
feelings of hatred, contempt, ridicule, fear, dislike, or
disesteem. The statement is judged by the standard of
an ordinary, right thinking member of society….”

23.2.Halsburys Laws of England, 4th Edn., Vol. 28,
defines “defamatory statement” as under :

“10. Defamatory statement.–A defamatory
statement is a statement which tends to lower a person
in the estimation of right thinking members of society
generally or to cause him to be shunned or avoided or to
expose him to hatred, contempt or ridicule, or to convey
an imputation on him disparaging or injurious to him in
his office, profession, calling, trade or business.”

23.3. The definition of the term has been given by Cave,
J. in Scott v. Sampson [Scott v. Sampson, (1882) LR 8 QBD 491
(DC)] as a “false statement about a man to his discredit”.

23.4. “Defamation”, according to Chambers Twentieth
Century Dictionary, means to take away or destroy the good
6
(2016) 7 SCC 221
24

fame or reputation; to speak evil of; to charge falsely or to
asperse. According to Salmond:

“The wrong of defamation, consists in the publication of
a false and defamatory statement concerning another person
without lawful justification. The wrong has always been
regarded as one in which the court should have the advantage
of the personal presence of the parties if justice is to be done.
Hence, not only does an action of defamation not survive for or
against the estate of a deceased person, but a statement about
a deceased person is not actionable at the suit of his relative.”

[Gatley’s Libel and Slander (6th Edn., 1960) also Odger’s Libel
and Slander (6th Edn., 1929)]

23.5.Winfield & Jolowicz on Torts [ (Sweet and Maxwell,
17th Edn., 2006).] defines “defamation” thus :

“Defamation is the publication of a statement
which tends to lower a person in the estimation of right
thinking members of society generally; or which tends to
make them shun or avoid that person.”

23.6. In the book The Law of Defamation [ Richard O’
Sullivan, QC and Roland Brown] , the term “defamation” has
been defined as below :

“Defamation may be broadly defined as a false
statement of which the tendency is to disparage the
good name or reputation of another person.”

23.7. In Parmiter v. Coupland [Parmiter v. Coupland,
(1840) 6 M&W 105 : 151 ER 340] , “defamation” has been
described as : (ER p. 342)

“… A publication, without justification or lawful excuse,
which is calculated to injure the reputation of another, by
exposing him to hatred, contempt, or ridicule….”

23.8. The definition of “defamation” by Fraser was
approved by McCardie, J. in Myroft v. Sleight [Myroft v. Sleight,
(1921) 90 LJ KB 883 : 37 TLR 646] . It says :

“a defamatory statement is a statement
concerning any person which exposes him to hatred,
ridicule or contempt or which causes him to be shunned
25

or avoided or which has a tendency to injure him in his
office, profession or trade.”

23.9.Carter Ruck on Libel and Slander [Manisha
Koirala v. Shashilal Nair, 2002 SCC OnLine Bom 827 : (2003) 2
Bom CR 136] has carved out some of the tests as under :

(Manisha Koirala case [Manisha Koirala v. Shashilal Nair, 2002
SCC OnLine Bom 827 : (2003) 2 Bom CR 136] , SCC OnLine
Bom para 23)

“(1) A statement concerning any person which
exposes him to hatred, ridicule, or contempt, or which
causes him to be shunned or avoided, or which has a
tendency to injure him in his office, profession or trade.

(2) A false statement about a man to his discredit.

(3) Would the words tend to lower the plaintiff in
the estimation of right thinking members of society
generally?”

… … …

30. While speaking about reputation, William Hazlitt had to
say:

“A man’s reputation is not in his own keeping, but lies at
the mercy of the profligacy of others. Calumny requires no
proof. The throwing out of malicious imputations against any
character leaves a stain, which no after-refutation can wipe out.
To create an unfavourable impression, it is not necessary that
certain things should be true, but that they have been said. The
imagination is of so delicate a texture that even words wound
it.”

… … ..

80. The decision in Peerless General Finance and
Investment Co. Ltd. [RBI v. Peerless General Finance and
Investment Co. Ltd., (1987) 1 SCC 424] relates to the principles
to be adopted for understanding the statute. In K. Bhagirathi [K.
Bhagirathi G. Shenoy v. K.P. Ballakuraya, (1999) 4 SCC 135] ,
the Court has referred to the principle having regard to the
statutory context. We have already referred to the decision
in Hospital Mazdoor Sabha [State of Bombay v. Hospital
Mazdoor Sabha, AIR 1960 SC 610: (1960) 2 SCR 866] wherein
it has been ruled that the principle of noscitur a sociis is merely
a rule of construction and it cannot be allowed to prevail in a
26

case where it is clear that wider words have been deliberately
used in order to make the scope of the defined word
correspondingly wider. The term “defamation” as used in Article
19(2) should not be narrowly construed. The conferment of a
narrow meaning on the word would defeat the very purpose that
the Founding Fathers intended to convey and further we do not
find any justifiable reason to constrict the application. The word
“defamation” as used in Article 19(2) has to be conferred an
independent meaning, for it is incomprehensible to reason that
it should be read with the other words and expressions, namely,
“security of the State”, “friendly relations with foreign States”,
“public order, decency or morality”. The submission is based on
the premise that “defamation” is meant to serve private interest
of an individual and not the larger public interest. Both the
aspects of the said submission are interconnected and
interrelated. Defamation has been regarded as a crime in IPC
which is a pre-constitutional law. It is urged that such kind of
legal right is unconnected with the fundamental right conceived
of under Article 19(1)(a) of the Constitution. Additionally, it is
canvassed that reputation which has been held to be a facet of
Article 21 in Dilipkumar Raghavendranath Nadkarni [Port of
Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1
SCC 124 : 1983 SCC (L&S) 61] , Mehmood Nayyar
Azam [Mehmood Nayyar Azam v. State of Chhattisgarh, (2012)
8 SCC 1 : (2012) 4 SCC (Civ) 34 : (2012) 3 SCC (Cri) 733:
(2012) 2 SCC (L&S) 449] and Umesh Kumar [Umesh
Kumar v. State of A.P., (2013) 10 SCC 591: (2014) 1 SCC (Cri)
338 : (2014) 2 SCC (L&S) 237] , is against the backdrop where
the State has affected the dignity and reputation of an
individual. This aspect of the submission needs apposite
understanding. Individuals constitute the collective. Law is
enacted to protect the societal interest. The law relating
to defamation protects the reputation of each individual
in the perception of the public at large. It matters to an
individual in the eyes of the society. Protection of
individual right is imperative for social stability in a body
polity and that is why the State makes laws relating to
crimes. A crime affects the society. It causes harm and
creates a dent in social harmony. When we talk of
society, it is not an abstract idea or a thought in
abstraction. There is a link and connect between
individual rights and the society; and this connection
gives rise to community interest at large. It is a concrete
27

and visible phenomenon. Therefore, when harm is caused
to an individual, the society as a whole is affected and the
danger is perceived.

… … …

170. Having dwelt upon the ingredients, it is necessary to
appreciate the Explanations appropriately. There are four
Explanations to the main provision and an Explanation has been
appended to the Fourth Exception. Explanation 4 needs to be
explained first. It is because the said Explanation provides the
expanse and the inherent control wherein what imputation has
been regarded as harm to a person’s reputation and that an
imputation can only be treated as harm of a person’s reputation
if it 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 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. It is submitted by Dr
Dhavan, learned Senior Counsel, that Explanation 4 has many a
distinction and covers a number of criteria which can be used
widely. He has commended us to a passage from State of
J&K v. Triloki Nath Khosa [State of J&K v. Triloki Nath Khosa,
(1974) 1 SCC 19] solely for the purpose that Explanation 4
engulfs micro-distinctions which is impermissible. To appreciate
manifold submissions urged by the learned counsel for the
petitioners, it is seemly to refer to how these Explanations have
been understood by the Court. We are conscious that we are
dealing with the constitutional validity of the provision and the
decisions relate to interpretation. But the purpose is to
appreciate how the Explanations have been understood by this
Court.

171. Explanation 1 stipulates that an imputation
would amount to defamation if it is done to a deceased
person if the imputation would harm the reputation of
that person if he is living and is intended to be harmful to
the feelings of his family or other near relatives. It is
submitted by the learned counsel for the petitioners that
the width of the Explanation is absolutely excessive as it
enables the family members to prosecute a criminal
action whereas they are debarred to initiate civil action
for damages. According to the learned counsel for the
28

petitioners, Explanation 1 is anomalous and creates a
piquant situation which can effortlessly be called
unreasonable, for when a civil suit cannot be entertained
or allowed to be prosecuted by the legal heirs or the legal
representatives, how could they prosecute criminal
offence by filing a complaint. On a first blush, the
aforesaid submission looks quite attractive, but on a
keener scrutiny, it loses its significance.

… … …

Exceptions and understanding of the same

179. Having dealt with the four Explanations,
presently, we may analyse the Exceptions and note
certain authorities with regard to the Exceptions. It is
solely for the purpose of appreciating how the Court has
appreciated and applied them. The First Exception
stipulates that 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.

“Public good” has to be treated to be a fact. In Chaman
Lal v. State of Punjab [Chaman Lal v. State of Punjab,
(1970) 1 SCC 590 : 1970 SCC (Cri) 253] , the Court has
held that in order to come within the First Exception to
Section 499 of the Penal Code it has to be established
that what has been imputed concerning the respondent is
true and the publication of the imputation is for the
public good. The onus of proving these two ingredients,
namely, truth of the imputation and the publication of the
imputation for the public good, is on the accused.

180. It is submitted by Dr Dhavan, learned Senior
Counsel for the petitioners that if the imputation is not true, the
matter would be different. But as the Exception postulates that
imputation even if true, if it is not to further public good then it
will not be defamation, is absolutely irrational and does not
stand to reason. It is urged that truth is the basic foundation of
justice, but this Exception does not recognise truth as a defence
and, therefore, it deserves to be struck down.

181. It has been canvassed by Mr Rao, learned Senior
Counsel, that the term “public good” is a vague concept and to
bolster the said submission, he has placed reliance
29

upon Harakchand Ratanchand Banthia v. Union of
India [Harakchand Ratanchand Banthia v. Union of India, (1969)
2 SCC 166] to highlight that in the said case, it has been held
that “public interest” does not provide any objective standard or
norm. The context in which the said decision was rendered has
to be appreciated. In the said case, the Court was dealing with
the constitutional validity of the Gold Control Act, 1968. Section
27 of the said Act related to licensing of dealers. It was
contended that the conditions imposed by sub-section (6) of the
Act for grant or renewal of licences were uncertain, vague,
unintelligible and consequently wide and unfettered power was
conferred upon the statutory authorities in the matter of grant
or renewal of licence. The Court expressed the view that the
contention was well founded. Further analysing, the Court
expressed that : (SCC p. 183, para 21)

“21. … The expression “anticipated demand” is a vague
expression which is not capable of objective assessment and is
bound to lead to a great deal of uncertainty. Similarly the
expressions “suitability of the applicant” in Section 27(6)(e)
and “public interest” in Section 27(6)(g) do not provide any
objective standard or norm or guidance. For these reasons it
must be held that clauses (a), (d), (e) and (g) of Section 27(6)
impose unreasonable restrictions on the fundamental right of
the petitioner to carry on business and are constitutionally
invalid.”

182. As we perceive, the factual score and the provision
under challenge was totally different. It has been stated in the
backdrop of the power conferred on an administrative authority
for the purpose of renewal of licence, and in that context, the
Court opined that the criterion of “public interest” did not
provide objective standard. The Court, on analysis of the
provision from a manifold angle, opined that the provision
proposed unreasonable restriction. The context and the
conferment of power makes a gulf of difference and, therefore,
the said authority has to be considered on its own facts. It
cannot be ruled that it lays down as a principle that “public
interest” is always without any norm or guidance or has no
objective interest. Ergo, the said decision is distinguishable.

183. In Arundhati Roy, In re [Arundhati Roy, In re,
(2002) 3 SCC 343] , this Court, referring to Second Exception,
30

observed that even a person claiming the benefit of the
Second Exception to Section 499 of the Penal Code, is
required to show that the opinion expressed by him was
in good faith which related to the conduct of a public
servant in the discharge of his public functions or
respecting his character so far as his character appears in
that conduct. The Third Exception states about conduct of
any person touching any public question and stipulates
that 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.
The said Exception uses the words “good faith” and
particularises conduct of any person relating to any public
question and the Exception, as is perceptible, gives stress on
good faith. The Third Exception comes into play when
some defamatory remark is made in good faith as held
in Sahib Singh Mehra [Sahib Singh Mehra v. State of U.P.,
AIR 1965 SC 1451 : (1965) 2 Cri LJ 434 : (1965) 2 SCR
823]. The Court has clarified that if defamatory remarks
are made after due care and attention, it will be regarded
as made in good faith. In the said case, the Court also
adverted to the Ninth Exception which gives protection to
imputation 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.

184. A three-Judge Bench in Harbhajan Singh v. State of
Punjab [Harbhajan Singh v. State of Punjab, AIR 1966 SC 97:

1966 Cri LJ 82] has opined that where the accused invokes the
Ninth Exception to Section 499 IPC, good faith and public good
are both to be satisfied and the failure of the appellant to prove
good faith would exclude the application of the Ninth Exception
in favour of the accused even if requirement of public good is
satisfied. The Court has referred to Section 52 IPC which defines
“good faith” that requires the element of honesty. It is
necessary to note here that the three-Judge Bench has drawn a
distinction between the First Exception and the Ninth Exception
to opine that the proof of truth which is one of the ingredients of
the First Exception is not an ingredient of the Ninth Exception
and what the Ninth Exception requires an accused person to
prove is that he made the statement in good faith. Proceeding
further, the Court has stated that in dealing with the claim of
31

the accused under the Ninth Exception, it is not necessary and,
in a way, immaterial, to consider whether he has strictly proved
the truth of the allegations made by him.

185. In Sukra Mahto v. Basdeo Kumar Mahto [Sukra
Mahto v. Basdeo Kumar Mahto, (1971) 1 SCC 885: 1971 SCC
(Cri) 372] the Court has opined that : (SCC p. 887, para 8)

“8. The ingredients of the Ninth Exception are first that
the imputation must be made in good faith; secondly, the
imputation must be for protection of the interest of the person
making it or of any other person or for the public good.”

The Court further opined that good faith and public good are
questions of fact and emphasis has been laid on making enquiry
in good faith and due care and attention for making the
imputation.

186. In Jatish Chandra Ghosh v. Hari Sadhan
Mukherjee [Jatish Chandra Ghosh v. Hari Sadhan Mukherjee,
(1961) 3 SCR 486: AIR 1961 SC 613 : (1961) 1 Cri LJ 743], the
Constitution Bench dealt with the appellant’s claim of absolute
privilege as a Member of the West Bengal Legislative Assembly
which was not accepted by the High Court of Judicature at
Calcutta [Jatish Chandra Ghosh v. Harisadhan Mukherjee, 1956
SCC OnLine Cal 230: AIR 1956 Cal 433]. The appellant therein
was facing a prosecution under Section 500 IPC. The larger
Bench referred to Section 499 IPC and observed that: (AIR pp.
616-17, para 7)

“7. In this connection, it is also relevant to note that we
are concerned in this case with a criminal prosecution for
defamation. The law of defamation has been dealt with in
Sections 499 and 500 of the Penal Code, 1860. Section 499
contains a number of Exceptions. Those specified Exceptions
lay down what is not defamation. The Fourth Exception says
that it is not defamation to publish a substantially true report of
the proceedings of a court of justice, but does not make any
such concession in respect of proceedings of a House of
Legislature or Parliament. The question naturally arises how far
the rule in Wason case [Wason v. Walter, (1868) LR 4 QB 73]
can be applied to criminal prosecutions in India, but as this
aspect of the controversy was not canvassed at the Bar, we
32

need not say anything about it, as it is not necessary for the
decision of this case.”

After so stating, the Court further opined that the proceedings
did not deserve to be quashed as there was no such absolute
privilege in the facts of the case. Being of this view, the Court
opined that the appellant-accused must take his trial and enter
upon his defence such as he may have. We have referred to the
said decision only to highlight that the Court has clarified
publishing of substantial true report of proceedings of a court of
justice.

187. The Fifth Exception stipulates that it is not
defamation to express in good faith any opinion whatever
respecting the merits of any case, civil or criminal which has
been decided by a court of justice, or respecting the conduct of
any person as a party, witness or agent. The further stipulation
is that the said opinion must relate to the character of the said
person, as far as his character appears in that conduct.
In Kanwal Lal v. State of Punjab [Kanwal Lal v. State of Punjab,
1963 Supp (1) SCR 479 : AIR 1963 SC 1317 : (1963) 2 Cri LJ
345] the Court, while dealing with the Eighth Exception, has
opined that in order to establish a defence under this Exception
the accused would have to prove that the person to whom the
complaint was made had lawful authority over the person
complained against, in respect of the subject-matter of the
accusation.

188. Again in M.C. Verghese v. T.J. Poonan [M.C.
Verghese v. T.J. Poonan, (1969) 1 SCC 37] , it has been ruled
that a person making libellous statements in his complaint filed
in court is not absolutely protected in a criminal proceeding for
defamation, for under the Eighth Exception and the illustration
to Section 499 the statements are privileged only when they are
made in good faith. There is, therefore, authority for the
proposition that in determining the criminality of an act under
the Penal Code, 1860 the courts will not extend the scope of
special exceptions by resorting to the rule peculiar to English
Common Law that the husband and wife are regarded as one.
In Chaman Lal [Chaman Lal v. State of Punjab, (1970) 1 SCC
590 : 1970 SCC (Cri) 253] this Court has opined that the Eighth
Exception to Section 499 of the Penal Code indicates that
accusation in good faith against the person to any of those who
33

have lawful authority over that person is not defamation.
In Rajendra Kumar Sitaram Pande v. Uttam [Rajendra Kumar
Sitaram Pande v. Uttam, (1999) 3 SCC 134 : 1999 SCC (Cri)
393] , it has been observed that Exception 8 to Section 499 IPC
clearly indicates that it is not a defamation to prefer in good
faith an accusation against any person to any of those who have
lawful authority over that person with regard to the subject-
matter of accusation. In the said case the report of the Treasury
Officer clearly indicated that pursuant to the report made by the
accused persons against the complainant, a departmental
enquiry had been initiated and the complainant was found to be
guilty. Under such circumstances the fact that the accused
persons had made a report to the superior officer of the
complainant alleging that he had abused the Treasury Officer in
a drunken state which was the gravamen of the complaint,
would be covered by Exception 8 to Section 499 of the Penal
Code.

189. In Chaman Lal [Chaman Lal v. State of Punjab,
(1970) 1 SCC 590 : 1970 SCC (Cri) 253] the Court has opined
that good faith requires care and caution and prudence in the
background of context and circumstances. The position of the
persons making the imputation will regulate the standard of
care and caution. In Sukra Mahto [Sukra Mahto v. Basdeo
Kumar Mahto, (1971) 1 SCC 885 : 1971 SCC (Cri) 372] ,
emphasis has been laid on protection of the interest of the
person making it or of any other person or for the public good.
Reference has been made to Harbhajan Singh case [Harbhajan
Singh v. State of Punjab, AIR 1966 SC 97 : 1966 Cri LJ 82] to
stress on due care and attention. In Sewakram Sobhani v. R.K.
Karanjia [Sewakram Sobhani v. R.K. Karanjia, (1981) 3 SCC
208 : 1981 SCC (Cri) 698] , it has been observed that the
ingredients of the Ninth Exception are that (1) the imputation
must be made in good faith, and (2) the imputation must be for
the protection of the interests of the person making it or of any
other person or for the public good, and the imputation made
must be in good faith for the public good. In M.A.
Rumugam v. Kittu [M.A. Rumugam v. Kittu, (2009) 1 SCC 101 :

(2009) 1 SCC (Civ) 35 : (2009) 1 SCC (Cri) 245] , it has been
held that for the purpose of bringing the case within the purview
of the Eighth and the Ninth Exceptions appended to Section 499
of the Penal Code, it would be necessary for the accused to
34

prove good faith for the protection of the interests of the person
making it or of any other person or for the public good.

190. This Court, in Jeffrey J. Diermeier [Jeffrey J.
Diermeier v. State of W.B., (2010) 6 SCC 243 : (2010) 2 SCC
(Civ) 656 : (2010) 3 SCC (Cri) 138] , has observed thus : (SCC
p. 256, paras 37-38)

“37. It is trite that where to the charge of defamation
under Section 500 IPC the accused invokes the aid of Tenth
Exception to Section 499 IPC, “good faith” and “public good”

have both to be established by him. The mere plea that the
accused believed that what he had stated was in “good faith” is
not sufficient to accept his defence and he must justify the
same by adducing evidence. However, he is not required to
discharge that burden by leading evidence to prove his case
beyond a reasonable doubt.

38. It is well settled that the degree and the character of
proof which an accused is expected to furnish in support of his
plea cannot be equated with the degree of proof expected from
the prosecution in a criminal trial. The moment the accused
succeeds in proving a preponderance of probability, onus which
lies on him in this behalf stands discharged. Therefore, it is
neither feasible nor possible to lay down a rigid test for deciding
whether an accused person acted in “good faith” and for “public
good” under the said Exception.”

191. The detailed discussion made hereinabove does
clearly reveal that neither the main provision nor the
Explanation nor the Exceptions remotely indicate any
vagueness. It is submitted that the Exceptions make the offence
more rigorous and thereby making the concept of criminal
defamation extremely unreasonable. The criticism advanced
pertains to truth being not a defence, and unnecessary stress on
“public good”. The counter-argument is that if a truthful
statement is not made for any kind of public good but only to
malign a person, it is a correct principle in law that the
statement or writing can amount to defamation. Dr Singhvi,
learned Senior Counsel for some of the respondents has given
certain examples. The examples pertain to an imputation that a
person is an alcoholic; an imputation that two family members
are involved in consensual incest; an imputation that a person is
impotent; a statement is made in public that a particular person
35

suffers from AIDS; an imputation that a person is a victim of
rape; and an imputation that the child of a married couple is not
fathered by the husband but born out of an affair with another
man. We have set out the examples cited by the learned Senior
Counsel only to show that there can be occasions or situations
where truth may not be sole defence. And that is why the
provision has given emphasis on public good. Needless to say,
what is public good is a question of fact depending on the facts
and circumstances of the case.

192. From the analysis we have made it is clear as
day that the provision along with Explanations and
Exceptions cannot be called unreasonable, for they are
neither vague nor excessive nor arbitrary. There can be
no doubt that Court can strike down a provision, if it is
excessive, unreasonable or disproportionate, but the
Court cannot strike down if it thinks that the provision is
unnecessary or unwarranted. Be it noted that it has also
been argued that the provision is defeated by doctrine of
proportionality. It has been argued that existence of
criminal defamation on the statute book and the manner
in which the provision is engrafted suffers from
disproportionality because it has room for such
restriction which is disproportionate. In Om
Kumar v. Union of India [Om Kumar v. Union of India,
(2001) 2 SCC 386 : 2001 SCC (L&S) 1039] , the Court has
observed that while regulating the exercise of
fundamental rights it is to be seen whether the
legislature while exercising its choice has infringed the
right excessively. “

(emphasis supplied)

If the speech made by the petitioner; the complaint so registered

against him and the order of taking of cognizance are considered on

the bedrock of the principles so laid down by the Apex Court in the

afore-quoted judgments, what would unmistakably emerge is that,
36

it becomes a matter of trial. This Court exercising its jurisdiction

would not entertain a petition seeking quashment of proceedings in

the teeth of the aforesaid statement and the judgments of the Apex

Court.

9. The submission of the learned counsel for the petitioner is

that, during election rallies the contesting candidates should

become deaf for such statements or become thick skinned. They

should not get touchy about the statements uttered during election

rallies. The judgments so relied on by the learned counsel for the

petitioner were all rendered on the facts obtaining in those cases.

In the case of R. RAJAGOPAL (supra), the learned counsel for the

petitioner places reliance upon a paragraph where the Apex Court

holds that in a democratic society those who hold office in the

Government and who are responsible for public administration must

always be open to criticism. The said judgment would be of no aid

to the petitioner. The other judgment of the High Court of Allahabad

again was rendered on the facts obtaining in the case therein.

Therefore, it would not become applicable to the facts of the case at

hand. The judgments that are quoted hereinabove to sustain the
37

order of taking of cognizance are all so overwhelming over the

judgments relied on by the petitioner referred to supra. It is no

doubt true that dissent is the essence of democracy. But that

would not mean that the maker of a statement could get away of

any statement in the garb of it being made during an election rally

or in the post election rally. Making a speech in public is a speech

made against the said person which would come to be known to

each and every one. In this digital age anything spoken does not

remain with the person who speaks it. It is circulated within no

time. In the garb of dissent being the essence of democracy, the

speeches should not malign the character of any person unless it is

borne out by facts. The subject crime has to be tried, and trial is

inevitable.

10. For the aforesaid reasons, the following:

ORDER

a. The Writ Petition is rejected.

b. It is made clear that the observations made in the course

of the order are only for the purpose of consideration of

the case of petitioner under Section 482 of Cr.P.C. and the
38

same shall not bind or influence the proceedings pending

against him in any other fora .

Sd/-

(M. NAGAPRASANNA)
JUDGE

nvj
CT:SS

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Sri V Sunil Kumar vs Sri Pramod Muthalik on 13 September, 2024

Karnataka High Court