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PETITIONER: KANWAL LAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 28/09/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA IMAM, SYED JAFFER MUDHOLKAR, J.R.

CITATION:  1963 AIR 1317            1963 SCR  Supl. (1) 479

ACT: Defamation-Accusing  a person to be  a  prostitute-Statememt made  in complaint to Panchayat  Officer-Whether  protected- Panchayat  Officer, if had authority to take  cognizance  of offence-Whether  statement  made  in  the  interest  of  the maker-Punjab  Gram Panchayat Act, 1952 (4 of 1953),  ss.  38 and  42-Indian  Penal Code, 1860 (Act XLV of 1860),  s.  500 exceptions 8, 9.

HEADNOTE: The appellant a public servant, addressed a communication to the  Panchayat Officer alleging that the complainant  was  a prostitute and that she should be removed from the house  in which  she was living.  He was prosecuted and  convicted  of the  offence  of defamation under s. 500  Penal  Code.   The appellant  contended that he was protected by  exceptions  8 and 9 to 500. Held, that exceptions 8 and 9 to s. 500 were not  applicable to  the case and that the appellant was  rightly  convicted. Exception   8  was  applicable  only  in  cases  where   the defamatory  statement  was  contained in a  complaint  to  a person who had lawful authority over the person concerned in respect   of   the  subject  matter   of   the   accusation. Prostitution was not an offence of which cognizance could be taken under the Punjab Gram Panchayat Act, 1952.  Besides s. 42 barred the Gram Panchayats from taking cognizance of  any offence in which either the complainant or the accused was a public servant. Exception  9 applied to cases where the imputation was  made in good faith for the protection of the interest of the per- son  making  it, or of any other person, or for  the  public good.   Even  assuming  good  faith,  exception  9  was  not applicable  merely on account of the imputation having  been made  in  the  interest of the appellant.   It  was  further necessary that the person to whom the communication was made must  have an interest in protecting the person  making  it. Besides the bona fides of the person making the  imputation, the  person to whom the imputation is conveyed must  have  a common interest with the person making it which is served by the communication. 480

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Harrison  v.  Bush,  (1855) 5 E. & B. 344 :  119  E.R.  509, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 106 of 1961. Appeal  by special leave from the judgment and  order  dated May 11, 1961, of the Punjab High Court in Cr.  R. No. 580 of 1961. Naunit Lal, for the appellant. Gopal Singh and P. D. Menon, for the respondent. 1962.   September  28.   The  Judgment  of  the  Court   was delivered by AYYANGAR, J.-This is an appeal by special leave against  the judgment  of  the High Court of Punjab by which  a  Criminal Revision filed against an appellate order of the  Additional Sessions   judge,   Ludhiana  confirming   the   appellant’s conviction and sentence was dismissed in limine. The  facts  giving rise to the appeal lie in a  very  narrow compass.  The appellant was prosecuted on a complaint  filed by  Mst.   Ram Rakhi of the offence of defamation  under  s. 500,   I.P.C.  The  appellant  and  Mst.   Ram  Rakhi   were neighbours.   The  defamatory  matter  was  contained  in  a communication addressed by the appellant who is a member  of the   police  force  to  the  District  Panchayat   Officer, Ludhiana.  In this "application" the appellant alleged  that the  complainant  was  a woman of loose  character  who  was having illicit connection with goondas, her paramours coming to her frequently at nights and that her immoral  activities reflected  badly  on  the locality in  which  the  appellant lived.   There is no doubt that this was grossly  defamatory of  the  complainant.  The defence of  the  appellant  subs- tantially  was that in substance the allegations  were  true and that he was entitled to make this application                             481 to  the  Panchayat in order to seek the assistance  of  that body for getting the complainant out of the locality and for this  purpose  he  relied upon the last  paragraphs  of  the application which ran :               "Petty problems like this can be easily solved               by the village Panchayat instead of  referring               the  case  to  the  Court.   It  is  therefore               requested   that  the  Panchayat  of   village               Sanghol  (P. O. Sangho) District Ludhiana  may               kindly be asked to take suitable action to end               this prostitution add after getting the  house               in which Shadi (father of the complainant,) is               residing at present, vacated from him." The learned Magistrate considered a large volume of evidence that was led as regards the plea of justification as well as of the qualified privilege’ within exceptions 8 and 9 of  s. 499,  I.P.C.,  and  rejecting  the  defence,  convicted  the appellant  of  the  offence charged  and  sentenced  him  to undergo rigorous imprisonment for six months.  The appellant filed  an  appeal  which was  dismissed  by  the  Additional Sessions judge and he recorded:               "I come to the conclusion that accused  Kanwal               Lal was rightly convicted and sentenced by the               Trial  Court.   ’the offence  against  him  is               fully established.  He deserves no mercy.   He               was  employed in the office of  the  Inspector               General Police, Punjab Chandigarh and he tried               to use his office which he was holding  simply

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             to  overawe  the  poor  complainant  and   her               parents,  just  to get the possession  of  his               house  from  them.  The  quantum  of  sentence               passed  against  the  accused  appears  to  be               correct  in  view  of his  first  offence  and               youthful age." It  was  the revision filed against this judgment  that  was dismissed in limine by the High Court. 482 There  being  no  dispute about the publication  or  of  the published  matter  being  defamatory being  of  a  character falling  within s. 499, I.P.C., the only argument  that  was addressed  before us was based upon the case falling  within Exceptions 8 and 9 to S. 499,  I.P.C.  Exception 8  runs  in these terms :               "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. 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.   If  the  District  Panchayat  Officer  or  the Panchayat  had such lawful authority, the last paragraph  of the  offending  communication would have  justified  such  a plea.   But  there is no basis at all for this  argument  in view  of the clear provisions of the Punjab  Gram  Panchayat Act,  1952,  under  which  statute  alone  Panchayats   have jurisdiction.   Chapter  IV  of  that  Act  deals  with  the Criminal  jurisdiction of the  Panchayat.  Section  38  with which that Chapter opens enacts:               "The criminal jurisdiction of a Gram Panchayat               shall  be  confined to the trial  of  offences               specified in Schedule IA." Prostitution  is not an offence under the Indian Penal  Code and  the  keeping of a disorderly or bawdy house is  not  an offence  within  Schedule 1 A to which  offences  alone  the criminal jurisdiction of Panchayats extends.  If this  were not sufficient to negative any defence based upon  Exception 8, reference may be made to s. 42 of the Gram Panchayat  Act which by its 1st sub-section enacts:                             483               "Subject  to the provisions of sub.s.  (3)  no               panchayat shall take cognizance of any offence               under  the  Indian Penal Code, 1860  in  which               either  the  complainant or the accused  is  a               public servant. So  even if the complaint should be taken to be a  complaint of  a  public-  nuisance it was  doubly  excluded  from  the jurisdiction  of  the Panchayat since the  appellant  was  a public  servant.   The  defence based on  Exception  8  must therefore fail. Nor  is  there more substance in the invocation of  the  9th exception.  That exception runs:               "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 of  the               public good." Even  if good faith be taken to have been  established,  the imputation has to be made for the protection of the interest of the person making it.  Learned Counsel suggested that the

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terms  of the provision were satisfied since  the  appellant made  the accusation to protect his own interest.   That  is certainly not the meaning of the exception.  It posits  that the person to whom the communication is made has an interest in  protecting  the person making the accusation.  In  other words,  besides  the  bona fides of the  person  making  the imputation,  the person to whom the imputation  is  conveyed must have a common interest with the person making it  which is  served  by  the communication.   This  exception  merely reproduces the principle laid down by Lord Campbell, C.  J., in Harrison v. Bush (1).               "A  communication  made  bona  fide  upon  any               subject    matter   in   which    the    party               communicating (1)  (1855) 5 E. & B. 344, 348; 119 E. R. 509, 484               has  an interest, or in reference to which  he               has a duty, is privileged, if made to a person               having  a  corresponding  interest  or   duty,               although it contains criminatory matter which,               without  this privilege, would  be  slanderous               and actionable." The point of difference between exceptions, 8 and 9 is  that whereas  in the former the person to whom the  complaint  is made  must  have lawful authority to deal with  the  subject matter  of the complaint and take proceedings  against  that person, there is no such requirement in exception 9 where it is sufficient if a communication is made to a person for the protection of one’s own interest in which the other also has an  interest.  This is clearly brought out by the  illustra- tions to the exception.  It cannot be seriously suggested that the communication now in question satisfies this test. The  appellant  was  therefore  properly  convicted  of  the offence and nothing was said about the sentence.  The appeal fails and is dismissed.                      Appeal dismissed.  485