http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18  

PETITIONER: HARBHAJAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 02/03/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) DAYAL, RAGHUBAR RAMASWAMI, V.

CITATION:  1966 AIR   97            1965 SCR  (3) 235  CITATOR INFO :  RF         1966 SC 595  (24)  R          1966 SC1762  (4)  RF         1969 SC 381  (2)  R          1971 SC1567  (7)  R          1977 SC 170  (6)  RF         1981 SC1514  (10,16)  RF         1990 SC1459  (31)

ACT: Indian  Penal Code (Act 45 of 1860) s. 499, Exception  Nine- Scope of.

HEADNOTE:     The  Government of Punjab issued a   press note  stating that  certain  dailies in the States were  publishing  false reports  alleging  the  complicity of a  Minister’s  son  in smuggling,  that  the allegations were made with a  view  to malign the Government, and, that the name the son should  be openly   mentioned.  In  response  to  that  challenge   the appellant, who was a public worker, published a statement in the press, naming the Chief Minister’s son as the leader  of the smugglers, and as also responsible for a large number of crimes. He also requested that the Government should appoint a  committee  of  independent Judges  to  inquire  into  the matter.  The Chief Minister’s son then filed a complaint  of defamation against the appellant. After the complainant  and his witnesses were examined, the appellant filed a  detailed written  statement in answer to the questions under s.  342, Criminal Procedure Code, ten months after he was  questioned under  that  section. He claimed therein the  protection  of both the First and Ninth Exceptions to s. 449 of the  Indian Penal   Code,  1860.  At  the  very  commencement   of   the proceedings, he gave a list of 328 witnesses. to be examined on  his  behalf.  He  was allowed  to  summon  only  35  and eventually  he  examined  20  defence  witnesses.  He   also produced  several documents. After considering the oral  and documentary   evidence,  the  trial  Court   convicted   the appellant. In his appeal to the High Court, he claimed  only the  protection  of  the Ninth Exception that  is,  that  he published  the statement in good faith and for public  good. The High Court dismissed the appeal, with a modification  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18  

the sentence.     In  his  appeal to this Court, the  appellant  contended that, in appreciating his evidence in respect of good faith, the High Court had misdirected itself.     HELD:  A  broad  survey  of  the  evidence  led  by  the appellant and the background in which the impugned statement was  made, show that the High Court was in error in  holding that the appellant had failed to show that he acted in  good faith when he published the statement. [253 B-C]     (ii)  The High Court had misdirected itself  in  dealing with the question about the nature and scope of the onus  of proof  which the appellant had to discharge in  seeking  the protection of the Ninth Exception, because, it held that  in discharging  the  onus,  the plea should be  proved  by  the appellant  as  strictly  as  if  the  complaints  was  being prosecuted  for  the offence. Where the burden of  an  issue lies  upon the accused under s. 105 of the Evidence Act,  he is not required to discharge the burden by leading  evidence to  prove  his  case  beyond  a  reasonable  doubt.   It  is sufficient  if  he succeeds in proving  a  preponderance  of probability,  for  then,  the  burden  is  shifted’  to  the prosecution  which has still to discharge its original  onus that  never shifts, that is, to establish on the whole  case the guilt beyond a reasonable doubt. [240 H; 241 C-G;  243A- B] R.V. Carr-Braint,, [1943] 2 All. E.R. 156, referred     (ii)  While  dealing  with  the  appellant’s  claim  for protection  under  the Ninth Exception, the High  Court  had confused the requirements 236 of  the First Exception with those of the Ninth. It was  not necessary  to  consider whether the appellant  had  strictly proved  the  truth of the allegation made by  him,  because, proof  of truth of the impugned statement is not an  element of the Ninth Exception as it is of the First. What the Ninth Exception  requires  an accused person to prove is  that  he made  the  statement in good faith.  The  question   as   to whether the accused acted in good faith would depend on  the facts and circumstances of each case, What is the nature  of the  imputation made; under what circumstances did it  co.me to  be made; what is the status of the person who makes  the imputation;  was there any malice in his mind when  he  made the imputation; did he make any ,enquiry before he made  it; are  there reasons to accept his: story that he  acted  with due care and attention and was satisfied that the imputation was  true;   these,   and  other   considerations  would  be relevant in deciding the question. [243 B-E; 244 G-H]     (iii)  The  High Court also erred in  holding  that  the appellant’s  written  statement  should  not  be   seriously considered, as he did not make out his case of good faith at the early stage of the trial, and that the written statement was  likely to have been influenced by legal advice. If  the written  statement filed after a long delay contained  pleas which  could  otherwise   be   legitimately   regarded    as matters  of after-thought, that no doubt, would  affect  the value of the pleas taken in the written statement. But,  the fact  that at the very commencement of the proceedings,  the appellant  called  for  a  large  number  of  witnesses  and documents, and the evidence led by him as well as the nature of   the  cross-examination  to  which  he   subjected   the complainant  and his witnesses, make it difficult to  reject his  plea  of  good faith, on the ground  that  the  written statement  was  filed very late and the pleas  taken  in  it might be an after-thought. [245 H. B-C: 246 E-F] Tilkeshwar  Singh and others v. State of Bhar, A.I.R.  1956.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18  

S. C.239 explaired

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  53 of 1951.            Appeal  by  special leave from the  judgment  and order  dated November 25, 1960 of the Punjab High  Court  in Criminal Appeal No. 86-D of 1959.     T.R. Bhasin, S.C. Malik, Sushma Malik and Rant Behja Lal Malik, for the appellant. R.N. Sachthey, for respondent No. 1.        Ram Lal Anand, Ajit Singh Johar, S.K. Mehta, and K.L. Mehta, for respondent No. 2. The, Judgment of the Court was delivered by  Gajendragadkar,C. J.,By this appeal, which has been brought to   this   Court   by   special   leave,   the    appellant Harbhajan Singh challenges the correctness of his conviction for  an offence under S. 500 07 the Indian Penal  Code,  and the  sentence  imposed  on him for  the  said  offence.  The criminal proceedings against the appellant were started on a complaint  filed by Surinder Singh Kairon, son of S.  Partap Singh  Kairon,  who  was  at the  relevant  time  the  Chief Minister  of  the  State of Punjab. In  his  complaint,  the complainant  Surinder Singh alleged that the  appellant  had published  in  the Press a statement against him  which  was highly  defamatory of him. The said statement was  published in the "Blitz",    237 which is a weekly magazine of Bombay, on July 23, 1957, and extracts  from  it  were given publicity in  the  "Times  of India"   and  certain  other  papers.  According   to   the, complaint,  the defamatory statement was, absolutely  untrue and  by  publishing it, the appellant had  rendered  himself liable to be punished under s. 500, I.P.C.     It  appears  that  on  July  2,2/23,  1957,  the  punjab Government issued a Press note in which it was averred  that certain  Urdu  Dailies  from  Jullundur  were  indulging  in mischief  and  false propaganda, alleging  complicity  of  a Minister’s  son in smuggling on the border. The  Press  note alleged  that  this  was  done with a  view  to  malign  the Government and to cause suspicion in the mind of public. The Punjab Government categorically denied the said  allegation. The  Press note added that the papers which were  publishing the said false reports should come out openly with the  name of the son of the Minister instead of repeatedly  publishing things in a vague and indirect manner, and that they  should not  take shelter behind anonymity and should net be  afraid of the consequences of the publication of these allegations. The Press note concluded with the statement that the  Punjab Government  had  already taken steps to curb  smuggling  and they were determined to put it down with a firm hand.     It  was in response to the challenge thus issued by  the Punjab  Government  in  its Press note  that  the  appellant published impugned statement which reads:                      "My  attention  has  been  drawn  to  a               Punjab  Government  Press  Note  categorically               denying the complicity of a Minister’s son  in               smuggling.  That  Press  Note  also  throws  a               challenge  to some Urdu Dailies "to  come  out               openly  with  the  name  of  the  son  of  the               Minister"  and then base the  consequences.  I                             don’t  know  whether the  newspapers concerned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18  

             will  take up this is challenge of the  Punjab               Government  or  not, but as one of  those  who               have  been         naming  that  son  of   the               Minister   as  one  of  the  leaders  of   the               smugglers from Public platform, I hereby  name               that  so, as Surinder Singh Kairon son  of  S.               Partap singh Kairon, Chief Minister. And I  do               so determined to faceless consequences of  the               charge  being openly levied by me.  I  further               allege  that the son of our Chief Minister  is               not   only  a  leader  of  smugglers  but   is               responsible for a large number of crimes being               committed  in  the  Punjab.  But  because  the               culprit happens to be Chief Minister’s son the               cases are always shelved up.                  If  the  Punjab  Government  accepts   this               challenge,  it should do so by  appointing  an               independent committee of impartial Judges from               outside the Punjab and then let us see who has               to  face  the  consequences.  If  the   Punjab               Government  dare not do so, I would  not  mind               serving  a  term in Jail for  having  had  the               courage to come out with the               238               truth. May I bring it to the notice of  Punjab               Government that Chief Minister’s son is  being               discussed  in almost every Punjabi house.  but               people  are  afraid of talking  about  him  in               public lest they be punished for that."  It  is this statement  which has given rise to the  present criminal proceedings.     After  this  statement was published, Mr.  Ajaib  Singh, Senior   Superintendent  of  Police,  Amritsar,   issued   a statement on the 25th July, 1957, which was published in the "Tribune"  on  the 26th July. By this statement,  Mr.  Ajaib Singh assured the people that persons concerned in smuggling cases  had been interrogated and he was satisfied  that  the allegation   that  some  Minister’s  son  was  involved   in smuggling  was false and inaccurate. To this statement,  the appelLant  issued a rejoinder which was published   in   the "Hind  Samachar",  which is an Urdu Daily of  Jullundur,  on July 27, 1957. Then, followed the complaint which was  filed by the complainant on August 17, 1957. That, shortly stated, is the background of the present criminal proceedings.     The complaint was filed in the court of the  Magistrate, First  Class,  Tar, Taran. Thereafter, the  appellant  moved this  Court under s. 527 of the Criminal Procedure Code  for the  transfer  of  the  said case  from  the  court  of  the Magistrate  where it had been tiled. This Court directed  on October  4,  1957,  that  the case  in  question  should  be remitted  to  the  Punjab High Court so that  it  should  be transferred  by  the said High Court from the court  of  the Magistrate  at Tarn Taran to a court of Sessions  in  Delhi. That  is  how the case was transferred to the court  of  the Additional Sessions Judge, Delhi, and was tried by him.     In  support of his complaint, the  complainant  examined himself  and  led  evidence of three  other  witnesses.  The purport  of the oral evidence led by the complainant was  to show  that the complainant was a person of status  and  good reputation,  was  carrying on business and had  suffered  in reputation   and  character  by  the  defamatory   statement published by the appellant.     When the appellant was examined under s. 342, Cr.  P.C., he  told  the learned Judge that he would prefer to  file  a detailed  written statement. Later, he did file his  written

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18  

statement and made several pleas against the charge levelled against  him  by the complainant. In substance,  he  alleged that  the allegations made by him in his impugned  statement were  true and he had published the said allegations in  the interest  of  public good. In other words,  he  claimed  the protection  of the First Exception to s. 499, IPC.  He  also pleaded  that the imputation which he had made  against  the complainant had been made in good faith and for public good. Thus, he also claimed the protection of the Ninth  Exception to s. 499, IPC.     In support of his defence the appellant wanted to summon 328  witnesses  and a large number of documents.  The  trial court allowed  239 him  to  summon  35  witnesses in  all,  but  eventually  he examined only 20 defence witnesses. He also produced several documents.     After  considering  the oral  and  documentary  evidence produced  before  him, the learned trial Judge came  to  the conclusion  that  the  words used by the  appellant  in  his statement,   which  was  published  in  the   Papers,   were defamatory per se, and he held that the appellant had failed to make out a case either under the First Exception or under the  Ninth  Exception.  In  the  result,  he  convicted  the appellant   and   sentenced  him  to   one   year’s   simple imprisonment.     The appellant then preferred an appeal before the Punjab High Court, challenging the correctness and propriety of the order  of conviction and sentence passed against him by  the learned  trial  Judge.  Before  the  appellate  Court,   the appellant claimed the protection of the Ninth Exception only and  did  not  press his case that he was  entitled  to  the protection  of  the First Exception as well. He  also  urged that he had been materially prejudiced inasmuch as the trial Judge  had  not given him a fair and proper  opportunity  to lead  his  evidence both oral and documentary.  The  learned single Judge, who heard his appeal, considered the arguments urged before him on behalf of the appellant and came to  the conclusion that the appellant had failed to prove his  claim that  the  impugned statement fell within the scope  of  the Ninth  Exception to s. 499, IPC. He took the view  that  the appellant had "completely failed to substantiate the plea of good  faith." The material which had been placed before  the trial  Judge  in  support  of defence  of  good  faith  was, according to the High Court, of a very flimsy character  and could  not sustain the plea. It may be pointed out  at  this stage  that the High Court found that in case the  appellant had proved good faith, it would not have felt any difficulty in  coming  to the conclusion that the  publication  of  the impugned  statement  was  for the public  good.  But  since, according to the High Court, good faith had not been proved, the  appellant was not entitled to claim the  protection  of the Ninth Exception. Then, as regards the grievance made  by the  appellant  that  he had not  been  given  a  reasonable opportunity  to lead his evidence, the High Court held  that the said grievance was not well-founded. In that connection, the  High Court referred to the fact that though  the  trial Judge had allowed the appellant to examine 35 witnesses, the appellant  examined only 20 witnesses, and it observed  that the  large  mass  of documentary  evidence  which  had  been produced  by  the  appellant did not  serve  any  useful  or material purpose even for the defence of the appellant;  and so  the contention that prejudice had been caused to him  by the  failure  of  the  learned trial Judge  to  give  him  a reasonable opportunity to lead evidence was rejected by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18  

High  Court.  In the result, the High  Court  confirmed  the order  of  conviction passed against the  appellant  by  the trial  Judge,  but ordered that instead  of  undergoing  one year’s  simple  imprisonment, the  appellant  shall  undergo three  months’  simple imprisonment and pay a  fine  of  Rs. 2,000. In default of payment of fine, he was directed to 240 undergo  three  months’ simple imprisonment. It  is  against this  order  that the appellant has come to  this  Court  by special leave.     Norma1ly. we would not have examined the correctness  of the  finding  recorded by the High Court in respect  of  the appellant’s  plea of good faith. because that is  a  finding made by the High. Court on appreciating oral and documentary evidence  and as it happens. the said finding  confirms  the view  taken by the trial Judge himself. Whether or not  good faith  has been proved by an accused person who.  pleads  in his  defence the Ninth Exception to a charge  of  defamation under  s. 500. IPC. would be a question of fact and even  if it is assumed to be a mixed question of fact and law, if the courts  below make a concurrent finding on such a  question. this  Court  generally does not re-examine  the  matter  for itself  while exercising its jurisdiction under Art. 136  of the Constitution. But in the present case. we cannot  accept the  finding of the High Court. because it is plain that  in dealing  with the question of good faith the High Court  has misdirected itself materially on point of law.     Section  499  of  the Code  defines  defamation.  It  is unnecessary  to set out the said definition. because  it  is common  ground that the impugned statement published by  the appellant is per se defamatory.  and  so.  we must   proceed to   deal  with  the  present appeal on the basis  that  the said statement would harm the reputation of the complainant. Exception 9 to s. 499 provides that it is not defamation  to make an imputation on the character of another. provided the imputation  be made in good faith for the protection of  the interest  of the person making it. or for any other  person. or for the public good. In the present case. the  ingredient of  public  good is satisfied. and the only  question  which arose  for  decision  in the court below  and  which  arises before  us.  is whether the imputation can be said  to  have been  made  in  good  faith. There  is  no  doubt  that  the requirements  of good faith and public good have both to  be satisfied.  and  so. the failure of the appellant  to  prove good  faith  would  exclude the  application  of  the  Ninth Exception  in his favour cven if the requirement  of  public good is satisfied. This position is not disputed by Mr. T.R. Bhasin who appears for the appellant.     Mr.  Bhasin, however. contends that in appreciating  the evidence  of the appellant and his arguments in  respect  of his  good  faith.  the High Court  has  clearly  misdirected itself.   because   it  has  expressly  observed   that   in discharging  the  onus  of  providing  good  faith.  it   is necessary  to remember that the pica of good faith  must  be proved  "as strictly as if the complainant were being  tried for  the offenses imputed to him." The High Court has  added that  the accused pleading justification  virtually  becomes the  accuser. and that is why the burden has been placed  by law upon him both in England and in India. The learned Judge of  the  High Court made his point still  clearer  with  the observation that in cases of criminal defamation. an accused has not only to justify the whole of his libel. but the plea taken has to be proved as strictly as if the complainant   241 was being prosecuted for the offence. The same  observations

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18  

have been repeated by the learned Judge in several places in his  judgment. Mr. Bhasin contends that the  approach  which the  learned  Judge  has adopted in dealing  with  the  plea raised  by  the  appellant  under  Exception  9  is  clearly erroneous. In cur opinion, Mr. Bhasin is right.     It is true that under s. 105 of the Evidence Act, if  an accused person claims the benefit of Exceptions, the  burden of proving his plea that his case falls under the Exceptions is  on the accused. But the question which often arises  and has  been  frequently considered by  judicial  decisions  is whether the nature and extent of the onus of proof placed on an  accused  person who claims the benefit an  exception  is exactly the same as the nature and extent of the onus placed on  the  prosecution  in  a  criminal  case;  and  there  is consensus  of  judicial opinion in favour of the  view  that where  the burden of an issue lies upon the accused,  he  is not  required to discharge  that burden by leading  evidence to  prove his case beyond     a reasonable doubt.  That.  no doubt.  is  the test prescribed while deciding  whether  the prosecution  has discharged its onus to prove the  guilt  of the accused; but that is not a test which can be applied  to an accused person who seeks to prove substantially his claim that  his  case falls under an Exception. Where  an  accused person is called upon to prove that his case falls under  an Exception, law treats the onus as discharged if the  accused person succeeds "in proving a preponderance of probability." As  soon as the preponderance of probability is proved,  the burden  shifts  to  the  prosecution  which  has  still   to discharge  its  original onus. It must  be  remembered  that basically,   the   original  onus  never  shifts   and   the prosecution  has  at all stages of the case,  to  prove  the guilt  of the accused beyond a reasonable doubt. As  Phipson has  observed,  when  the burden of an  issue  is  upon  the accused, he is not. in general, called on to prove it beyond a  reasonable  doubt  or in default to incur  a  verdict  of guilty;  it  is  sufficient  if he  succeeds  in  proving  a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus  that never shifts, i.e., that of establishing, on  the whole case, guilt beyond a reasonable doubt. It  will be recalled that it was with a view to  emphasising the  fundamental doctrine of criminal law that the  onus  to prove its case lies on the prosecution, that Viscount Sankey in   Woolmington  v.  Director  of  Public   Prosecutions(1) observed that "no matter what the charge or where the trial, the  principle that the prosecution must prove the guilt  of the  prisoner  is part of the common law of England  and  no attempt  to  whittle  it  down  can  be  entertained."  This principle  of  common law is a part of the criminal  law  in this  country.  That is not to say that if an  Exception  is pleaded by an accused person, he is not required to  justify his  plea; but the degree and character of proof  which  the accused is expected 242     furnish  in support of his plea, cannot be equated  with the  degree  and  character  of  proof  expected  from   the prosecution which is required to prove its case.     In  this connection, it may be relevant to refer to  the observations  made by Humphreys J. in  R.v.  Carr-Braint(1): "Lord  Hailsham,  L.C., [in Sodeman v.R. [1936] 2  All  E.R. 1138] was in agreement with the decision of the majority  of the Supreme Court of Canada, in R.v. Clark [(1921) 61 S.C.R. 608] where Duff J. in the course of his judgment,  expressed the view that the necessity for excluding doubt contained in the  rule as to the onus upon the prosecution  in  criminal.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18  

cases  might  be  regarded  as  an  exception  rounded  upon considerations   of   public  policy.  There   can   be   no consideration   of   public  policy  calling   for   similar stringency  in the case of an accused person endeavoring  to displace a rebuttable presumption." In R.v.  Corr-Braint(1), a somewhat similar question arose before the Court. In  that case,  the  appellant  was  charged  with  the  offence   of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to show, or as a  reward for  showing, favour to him. This charge was laid under  the Prevention of Corruption Act, 1916, and in respect of such a charge, s. 2 of the Prevention of Corruption Act, 1916,  had provided  that a consideration shall be deemed to  be  given corruptly unless the contrary is proved. The question  which arose before the Court was; what is the accused required  to prove if he wants to claim the benefit of the exception?  At the trial, the Judge had directed the jury that the onus  of proving his innocence lay on the accused and that the burden of proof resting on him to negative corruption was as  heavy as  that  ordinarily resting on the  prosecution.  In  other words, the Judge in substance told the jury that the accused had  to prove his innocence beyond a reasonable  doubt.  The Court  of Criminal Appeal held that this direction  did  not correctly  represent the true position in law. According  to the  Court  of Appeal, the onus on the accused was  only  to satisfy  the  jury of the probability of that which  he  was called upon to establish, and if he satisfied the jury  that the  probability was that the gift was made innocently,  the statutory  presumption  was rebutted and he was entitled  to be acquitted.     What  the  Court  of  Criminal  Appeal  held  about  the appellant  in the said case before it is substantially  true about  the appellant before us. If it can be shown that  the appellant  has  led evidence to show that he acted  in  good faith, and by the test of probabilities that evidence proves his  case,  he  will be entitled to  claim  the  benefit  of Exception  Nine.  In  other words, the onus  on  an  accused person may well be compared to the onus on a party in  civil proceedings.  and  just as in civil  proceedings  the  court trying  an issue makes its decision by adopting the test  of probabilities,  so must a criminal court hold that the  plea made by the accused is proved if a pre- 1 [1943] 2 All. E.R 156.   243 ponderance of probability is established by the evidence led by  him.  We are, therefore, satisfied that  Mr.  Bhasin  is entitled  to contend that the learned Judge has  misdirected himself in law in dealing with the question about the nature and scope of the onus    of proof which the appellant had to discharge in seeking protection of Exception Nine.  There  is  another infirmity in the judgment  of  the  High Court, and that arises from the fact that while dealing with the  appellant’s  claim  for  protection  under  the   Ninth Exception, the learned. Judge has inadvertently confused the requirements of Exception One with those of Exception  Nine. The  First  Exception to s. 499 is available to  an  accused person if it is shown by him that the impugned statement was true and had been made public for the public good. In  other words, the two requirements of the First Exception are  that the impugned statement must be shown to be true and that its publication  must be shown to be for public good. The  proof of  truth  which  is one of the  ingredients  of  the  First Exception is not an ingredient of the Ninth Exception.  What the  Ninth Exception requires an accused person to prove  is that he made the statement in good faith. We will  presently

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18  

consider what this requirement means. But at this stage,  it is  enough  to  point out that the proof  of  truth  of  the impugned statement is not an element of the Ninth  Exception as  it  is  of  the First; and  yet,  in  dealing  with  the appellant’s  case  under the Ninth  Exception,  the  learned Judge  in several places, has emphasised the fact  that  the evidence  led by the accused did not prove the truth of  the allegations  which  he made in his impugned  statement.  The learned  Judge has expressly stated at the  commencement  of his  judgment that the appellant had not pressed before  him his plea under the First Exception, and yet he proceeded  to examine  whether  the  evidence  adduced  by  the  appellant established  the  truth  of  the  allegations  made  in  his impugned  statement  as  though the  appellant  was  arguing before  him his case under the First Exception.  In  dealing with  the claim of the appellant under the Ninth  Exception, it  was  not  necessary, and indeed it  was  immaterial,  to consider whether the appellant strictly proved the truth  of the allegations made by him. That takes us to the question as to what the requirement  of good  faith  means.  Good faith is defined by s. 52  of  the Code. Nothing, says s. 52, is said to be done or believed in ’good  faith which is done or believed without due care  and attention.  It  will  be recalled  that  under  the  General Clauses  Act,  "A thing shall be deemed to be done  in  good faith  where it is in fact done honestly whether it is  done negligently  or  not."  The  element  of  honesty  which  is introduced  by  the  definition prescribed  by  the  General Clauses Act is not introduced by the definition of the Code; and we governed by the definition prescribed by s. 52 of the Code.  So,  in considering the question as  to  whether  the appellant  acted  in good faith in publishing  his  impugned statement, we have to enquire whether he acted with due care and attention. There is /B(N)3SCI--3 244 no  doubt that the mere plea that the accused believed  that what     he stated was true by itself, will not sustain  his case of good faith under the Ninth Exception. Simple  belief or actual belief by itself is not enough. The appellant must show  that  the  belief  in his  impugned  statement  had  a rational basis and was not just a blind simple belief.  That is  where  the element of due care and  attention  plays  an important  role.  If  it  appears  that  before  making  the statement  the accused did not show due care and  attention, that  would  defeat his plea of good faith. But it  must  be remembered   that  good  faith  does  not  require   logical infallibility. As has held by the Calcutta High Court in the matter of the Petition of Shibo Prosad Pandah(1), in dealing with  the  question of good faith, the proper  point  to  be decided  is not whether the allegations put forward  by  the accused in support of the defamation are in. substance true, but  whether he was informed and had good. reason after  due care  and  attention to believe that such  allegations  were true.  Another  aspect  of  this  requirement  has  been   pithily expressed by the Bombay High Court in the case of Emperor v. Abdool  Wadood  A htned(2). "Good faith",  it  was  observed "requires not indeed logical infallibility, but due care and attention.  But how far erroneous actions or statements  are to be imputed to want of due care and caution must, in  each case,   be   considered  with  reference  to   the   general circumstances  and  the  capacity and  intelligence  of  the person  whose  conduct is in question."  "It is only  to  be expected",  says the judgment, "that the honest  conclusions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18  

of  a  calm and philosophical mind may differ  very  largely from the honest conclusions of a person excited by sectarian zeal  and untrained to habits of precise reasoning.  At  the same time, it must be borne in mind that good faith in   the formation  or  expression  .of an  opinion,  can  afford  no protection  to  an imputation which does not purport  to  be based  on  that which is the legitimate  subject  of  public comment."  Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it  is not possible to lay down any rigid rule or test. It would be a  question to be considered on the facts and  circumstances of  each  case what is the nature of  the  imputation  made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did  he make  any  enquiry before he made it; are there  reasons  to accept  his story that he acted with due care and  attention and  was satisfied that the imputation was true?  These  and other considerations would be relevant in deciding the  plea of  good  faith  made by an accused person  who  claims  the benefit of the Ninth Exception. Unfortu- (1) I.L.R. 4 Cal. 124. (2) I.L.R. 31 Born. 293.   245 nately,  the  learned  Judge has rejected the  plea  of  the appellant  that  he  acted in good faith,  at  least  partly because he was persuaded to take the view that the  evidence led  by  him  did  not tend to  show  that  the  allegations contained   in  his  impugned  statement  were  true.   This naturally has, to some extent, vitiated the validity of  his finding.     It  also appears that the learned Judge was inclined  to take the view that the elaborate written statement filed  by the  appellant nearly ten months after he had been  examined under  s. 342, should not be seriously considered, and  that the  appellant failed to make out his case of good faith  at the early stage of the trial. Indeed. the learned Judge  has passed severe strictures against the contents of the written statement  and has blamed the appellant’s lawyer for  having advised  him  to make these contentions. In support  of  his finding  that  written  statements of this  kind  should  be discouraged and cannot be seriously taken into account,  the learned  Judge had referred to two decisions of this  Court. One is the case of Tilkeshwar Singh and others v. The  State of  Bihar(1), where this Court was called upon  to  consider the validity of the argument urged before it that there  had not  been  a proper examination of the appellants  under  s. 342,  and  so,  their  conviction  should  be  quashed.   In rejecting  this argument, this Court pointed out  that  when the  appellants were examined under s. 342, they  said  they would.  file  written  statements,  and  in  the  statements subsequently  tiled by them, they gave elaborate answers  on all  the points raised m the prosecution evidence.  That  is why  this Court observed that the appellants had not at  all been prejudiced by reason of the fact that all the necessary questions  were not put to them under s. 342. It is in  this connection  that this Court incidentally, observed  that  s. 342 contemplates an examination in court and the practice of filing  statements  is to be deprecated. But that is  not  a ground for interference unless prejudice is established. The learned  Judge  has read this observation as laying  down  a general principle that the filing of a written statement  by an accused person should be deprecated and the plea made  by him  in  such a written statement need  not,  therefore,  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18  

seriously considered, because they are generally the  result of legal advice and are no better than afterthoughts. We  do not  think that the observation on which the  learned  Judge has  based  himself in making this criticism  justifies  his view. In many cases, the accused person would prefer to file a  written  statement  and give a connected  answer  to  the questions  raised by the prosecution  evidence.  Indeed,  s. 256(2)of  the Cr. P.C., provides that if an  accused  person puts  in a written statement, the magistrate shall  file  it with  the record. If the written statement is filed after  a long  delay  and  contains  pleas  which  can  otherwise  be legitimately  regarded as matters of after-thought, that  no doubt would affect the value of the pleas taken in the (1) [1955] 2 S.C.R. 1043. 246 written  statement.  But we do not think that  it  would  be possible  to  lay  down  a general  rule  that  the  written statement filed by an accused person should not receive  the attention  of  the court because it is likely to  have  been influenced by legal advice. In our opinion, such a  distrust of legal advice would be entirely unjustified.     The other decision the learned Judge has referred to  is in the case of Sidheswar Ganguly v. State of West  BengalC). In  that  case,  this Court has observed that  there  is  no provision  in the Code of Criminal Procedure for  a  written statement of the accused being filed at the Sessions  stage, and  it  is in respect of written statements  filed  at  the Sessions stage that it has made the further cornmeal that in a case tried by the learned Sessions Judge with the help  of the  Jury, if such a statement is allowed to be used by  the Jury,  it  may  throw  the  door  open  to  irrelevant   and inadmissible  matter and thus throw an additional burden  on the presiding Judge to extricate matter which was admissible from  a mass of inadmissible statements which may have  been introduced in the written statement. In the present case, we are not dealing with a statement filed at the Sessions trial properly  so called, and so, we need not pause  to  consider the effect of these observations.     In  the  present  case,  the  written  statement  is  an elaborate document and it gives the version of the appellant in  great detail. In considering the question as to  whether the  allegations  made  in the written  statement  could  be dismissed as no more than an afterthought, we cannot  ignore the  fact that at the very commencement of the  proceedings, the appellant gave a list of 328 witnesses and called for  a large  number of documents, and as we will  presently  point out the witnesses whom he examined and some of the documents which  he had produced, tend to show that the appellant  had received  information at the relevant time  which  supported his  plea that the allegations which he was  making  against the complainant appeared to him to be true; otherwise, it is not easy to understand how the appellant could have given  a list  of witnesses and called for documents to  show  either that  the allegations made by him were true, or that in  any event. in making the said allegations he acted in good faith and  for  the  public  good. If  the  evidence  led  by  the appellant  as well as the nature of the cross-.  examination to which he subjected the complainant and his witnesses  are taken  into  account,  it would be difficult.  we  think  to reject his plea of good faith on the ground that the written statement was filed very late and the pleas taken in it  are an after-thought. It is because of these infirmities in  the judgement under appeal that we allowed Mr. Bhasin to take us through the evidence in this case. We ought to add that  Mr. Anand,  who  appeared for the complainant,  fairly  conceded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18  

that  having regard to the fact that the learned  Judge  had misdirected himself in law, the appellant would be  entitled to  request  this Court to examine the evidence  for  itself before  it accepted the conclusion of the learned  Judge  on the question of appellant’s good faith. (1)[1958] S.C.R. 749.  247     Before we proceed to refer to the broad features of  the evidence,  it  would be relevant to mention  one  fact.  The appellant  was at the  relevant time the State Secretary  of the Punjab Praja Socialist Party. He is a public worker  and belongs  to  an active political  party.   He   had   stated that   there   was  no  animns    in his  mind  against  the complainant  and  his  father, and  that  is  not  seriously disputed.   Malice  in  that  sense  must,   therefore.   be eliminated in dealing with the appellant’s plea. It is quite true that even if the appellant was not actuated by  malice, it  would not be possible to sustain his plea of good  faith merely  because he made the impugned statement as  a  public worker and he can claim that he was not actuated by personal malice  against the complainant. Absence of personal  malice may be a relevant fact in dealing with the appellant’s  plea of good faith, but its significance or importance cannot  be exaggerated.  Even in the absence of personal  malice.   the appellant will have to show that he acted with due care  and attention.     There is another fact which must also be borne in  mind. The statement which the accused published was in response to the challenge issued by the Government of Punjab. It is  not early  to  understand why the Punjab Government  thought  it necessary   to  issue  a  Press  statement  in   regard   to allegations  which  were made by the Urdu papers  against  a Minister’s  son. But the Punjab Government appears  to  have entered  the arena and issued a challenge to the  newspapers in  question, and it was in response to this challenge  that the  appellant  published the impugned  statement.  In  this statement, the appellant requested the Punjab Government  to appoint  an  independent Committee of  impartial  Judges  to investigate the matter, and he undertook to prove the  truth of his charge if an independent committee was appointed.  In that  connections. he stated that he wished to bring  it  to the   notice  of  the  Punjab  Government  that  the   Chief Minister’s  son is being discussed in almost  every  Punjabi house, but people were afraid of talking about him in public lest  they be punished for that. That is the genesis of  the impugned statement.     The    two   defamatory   statements   made    by    the appellant  are  that the complainant is the  person  against whom  the allegations are made in the Press, and that he  is not  only  a "leader of smugglers but is responsible  for  a large  number of crimes being committed in the Punjab."  The statement added that "because the culprit happens to be  the Chief Minister’s son, the cases are always shelved up."  The question which calls for our decision is: has the  appellant shown  that  he  acted  in  good  faith  when  he  made   an imputation  against  the   complainant   that   he   was the leader  of  the smugglers and was responsible  for  a  large number  of  crimes being committed in Punjab’?   In  dealing with  this question, we ought to take a broad survey of  the evidence  led by the appellant and the background  in  which the  impugned  statement came to be made.  It  appears  that before the impugned state- 248 ment  was  made,  newspapers  had  been  publishing  reports against a Minister’s son without naming him. Some Members of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18  

the  Punjab  Legislative  Assembly  had  also  made  similar statements on the floor of the House.    The appellant examined some witnesses. Jagat Narain,  who is  an  M.L.A. was one of them. He stated that in  the  year 1956,gold smuggling had increased on the Amritsar border and that  he derived his knowledge from the newspapers. He  said he  had received complaints orally and in writing about  the gold  smuggling  on  the  border  and  these  suggested  the complicity  of  a Minister’s son in smuggling. When  he  was asked  whether he could name the informants, he stated  that he would not like to name them lest they get into trouble. Sajjan Singh is another witness whom the appellant examined He  was the Parliamentary Secretary of the  Praja  Socialist Party.  He  stated that the appellant had  visited  Amritsar area  in 1957 and he had told the appellant about the  large scale  smuggling  in the border area. He had also  told  him that  Hazara  Singh, Shinghara Singh, Budha Singh  and  Tara Pandit  were  smugglers  and  some of  the  Members  of  the Legislative Assembly were helping the smugglers and that the police did not take any action against Hazara Singh  because of his connection with the complainant This witness had seen Hazara   Singh  and  the  complainant  moving  together   in connection with the election     campaigns of 1952 and 1957. The  election  of  1957  took  place         some  time   in February,1957; and sO, the evidence of this witness    shows that  he had given the information about  the  complainant’s conduct  in  respect of Hazara Singh and  other  matters  in about February, 1957. That  takes  us to the evidence of Kulwant  Rai  of  village Sirhali, District Amritsar. Against this witness, cases were pending  under  s. 8(1) of the Foreign  Exchange  Regulation Act,  s. 5(3) of the Land Customs Act and s. 19 of  the  Sea Customs  Act. It has also been alleged against him that  140 to las of smuggled gold had been found in his possession. He was  also  prosecuted by Mr. Dhir, Magistrate,  Tarn  Taran, under the Indian Arms Act. ,red prosecution under the Indian Opium Act was also pending against him. It appears that  two cases  against  him were withdrawn because  a  communication dated  May 18, 1957, was addressed by the Home Secretary  to the  Punjab Government to the District Magistrate  Amritsar, directing him to withdraw the two cases pending against him. The  letter required the District Magist:ate to take  action in  that  behalf  immediately.  It  is  remarkable  that  an affidavit  was  filed  by Kulwant Rai dated  May  21,  1957, wherein  he  stated that the Chief Minister  had  passed  an order  on  May  7, 1957, for the  withdrawal  of  the  cases against  him  and that the Government order in  that  behalf would  be received by the court very soon. This  means  that Kulwant Rai knew about the decision of  the  Government   to withdraw  cases  against  him  even before the said decision was communicated to the District Magis-   249 trate  and  then  to  the  trial  Magistrate.  It  is   also significant that on June 9, 1957, when the proceedings under s. 514 Cr. P.C., were fixed for hearing against Kulwant Rai, he was absent from court and a telegram was received by  the Magistrate  that Kulwant Rai was ill and his absence  should be excused. This telegram was sent not by Kulwant Rai but by the complainant. The complainant no doubt denied that he had sent  such a telegram, but the High Court has found that  in all   probability,  the  telegram  had  been  sent  by   the complainant. The complainant also did not admit that he  was a friend of Kulwant Rai. There again, the High Court was not prepared to accept the complainant’s version.     On  this evidence, it seems plain that the   complainant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18  

knew  Kulwant  Rai  very well and did not  stop   short   of helping him actively by sending a telegram to the Magistrate to  excuse Kulwant Rai’s absence on the date of  hearing  of the case against him. From the evidence of Kulwant Rai  whom the  appellant  had to examine to support his plea  of  good faith.  it is not difficult to infer  that Kulwant  Rai  was charge-sheeted  in  respect  of  several  offences,  and  an allegation  had been made against him that he was  connected with  gold  smuggling.  If  the  appellant  knew  that   the complainant was friendly with such a character, would he  be justified  in  claiming  that in giving  expression  to  his belief  that the complainant was hand in glove with  Kulwant Rai, a gold smuggler, he was acting in good faith’? That  is the question which has to be answered in the present case.     In  dealing with this aspect of the matter, the  learned Judge  no  doubt found that the material on the  record  was enough  to justify the conclusion that there was  friendship between  Kulwant  Rai  and the  complainant  and’  that  the complainant had sent a telegram to the Magistrate on Kulwant Rai’s behalf, but he thought it had not been proved that  in fact,  Kulwant  Rai had been engaged in gold  smuggling.  No doubt, a case was pending against him  for  gold  smuggling; but  the  learned  Judge  held that  the   pendency   of   a criminal  case  does not necessarily prove that  the  charge levelled  against Kulwant Rai was in fact true. It  is  this approach which is substantially responsible for the  learned Judge’s conclusion that good faith is not proved in  respect of   the  allegations  made  by  the  appellant   that   the complainant was a friend and leader of  gold smugglers.  The learned Judge overlooked the fact that in dealing with  this aspect  of  the  matter,  the  pertinent  enquiry   is   not whether,  in  fact, the charge of gold  smuggling  had  been proved   against  Kulwant  Rai  and  whether  it  is   shown satisfactorily  that  the complainant was assisting  him  in that  behalf.  What  is  pertinent to  enquire  is,  if  the appellant  knew about this  evidence  at the  relevant  time and  he believed that the complainant was assisting  Kulwant Rai in respect of his gold smuggling activities, could he be said to have acted in good faith or not when  he   published the statement in that behalf? We may incidentally point out that we cannot overlook the 250 fact  that  the  appellant experienced  some  difficulty  in proving  his  case  in  the  present  proceedings,   because witnesses  were not willing to come out and  give  evidence, though  they  may  have  given   that  information  to   the appellant  before he made his statement. Take for  instance, the  case of Hardin Singh of village Patti. It appears  that this witness was arrested by the police on June 19, 1959  as a  suspect  smuggler and he was kept in  the   lock-up  from June  19  to  June  25, 1959 and  was  thereafter  let  off. According  to  him,  he was arrested  because  he  had  been summoned as a defence witness in the present case.     Let  us then consider the case of Hazara Singh  and  the association of the complainant with him.  Hazara Singh comes from the same village to which the family of the complainant belongs, and yet, he was not prepared even to admit that  he knew  the  complainant  or his  family.  The  learned  Judge realised  that  Hazara Singh was not prepared to  speak  the truth  at least on some points, and so, he observed that  he was  willing  to  accept  the  appellant’s  case  that   the complainant,  Sadhu Singh  and Major Naurang  Singh,  Senior Superintendent  of  Police  were  on  friendly  terms..  He, however, thought that it was not clearly shown on the record whether  Hazara  Singh  was entered as a  badminton  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18  

police  registers  and  that there was  also  no  convincing evidence  on  record to show that Hazara Singh  was  a  gold smuggler.  The learned Judge referred to the evidence  which showed  that  the complainant and Hazara Singh  were  moving together  during the election days and  were  friendly  with each  other; but that. according to the learned  Judge,  did not prove the truth of the statement that Hazara Singh was a gold smuggler and that the complainant was his friend.  This approach  again     is partly based upon importing into  the discussion   the  consideration  about  the  truth  of   the statement which would be relevant under the First  Exception but which is not material under the Ninth Exception. In    connection with Hazara Singh, and Kulwant  Rai,  there are two documents to which our attention has been invited by Mr.  Bhasin.  These  documents show  that  Kulwant  Rai  was treated  on  the Police record as a notorious  smuggler  and habitual  offender,  and Hazara Singh was treated as  a  bad character   and his name was borne on register No.  10,  and his history sheet was opened at No. 110 A Basra Alif.  There has been some argument before us at the Bar on the  question as  to whether these two documents are duly proved. Mr.  Art and  for  the  complainant has  strongly  urged  that  these documents are not proved. and in any event. no reliance  was placed  on them in the courts below. This latter  contention is  undoubtedly true; but the contention that the  documents were  not proved in the present case strikes us as none  too strong,  because these documents have been included  in  the paper book after  the lists made by the respective advocates for  the  parties were exchanged and the index  was  finally settled  with their approval in the Punjab High  Court.  The learned  Advocate for the State or the  complainant did  not object to the inclusion of these two documents in    251 the  record, and this showed that they were treated as  duly forming  part of the record. It does appear that Mr.   Dhir, the  Resident Magistrate, Kaithal (D.W. 27) has produced the whole  file of the case in respect of the proceedings  taken under  s.5/4. Cr. P.C., and Mr. Bhasin contends  that  along with  the file, the two documents in respect of Kulwant  Rat were received. Mr. Anand no doubt suggested that it was  not shown  under what statutory provisions. these documents  are kept;  but since the admissibility of these  documents  does not  appear to have been challenged in the courts below,  we think oil is too late to raise this technical  point at this stage. However. in dealing with the appeal. we are  prepared to  exclude  from our consideration  evidence  furnished  by these   two  documents. Even without them. there  is  enough evidence  to  show that the complainant  was  friendly  with Kulwant  Rat  and  Hazara Singh, and on the  whole.  we  are inclined  to take the view that if the appellant knew  about the  complainant’s  friendship and active  association  with these  two  persons  and had  other  information  about  the activities  of these two persons. it cannot be said that  he did not act in good faith when, in response to the challenge issued  by  the  Punjab  Government. he  came  up  with  the impugned statement and sent it for publication in the Press.     Then,  in  regard  to  the  other  allegation  that  the complainant was concerned with the commission of offences in Punjab, we may refer to the evidence led by the appellant to show that in making this charge, he acted in good faith. The witness  to  whose evidence reference has been made  by  Mr. Bhasin  in  respect  of this part of the case  is  Mr.  K.K. Dewett,  who  was  the Principal of  the  Punjab  University College,  Hoshiarpur, between  June, 1952 and  April,  1958. The  incident to which this witness deposed’ took  place  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18  

1953. At this time. the complainant had left the college  at Hoshiarpur.  On January 19, he went to that college  to  get his  certificate  Principal Dewett in his evidence  did  not support the appellant in his suggestion that the complainant had behaved in a criminal way and had threatened to  assault the  students  in  the college on  that  occasion.  But  the confidential report made by him on January 22 shows that  in the  witness-box Principal Dewett hesitated to disclose  the whole  truth. This report unambiguously indicates  that  the complainant threatened several students with a stick. and it speaks  of  two  or three incidents that  took  place  which created  a considerable excitement and commotion  among  the student  community  in   the college. In  this  report,  the Principal,  in fact, describes the situation as  very  ugly. and  he refers to the fact that the students went on  strike and  passed resolutions, demanding the  rustication  of  the complainant from the University and also protesting  against inaction  and  partiality  of the  Principal  himself.  This confidential  report  was  further inquired  into,  and  the documents in respect of this enquiry are also on the record. The  students  seem to have demanded  that  the  complainant should  be   arrested. because  they were  afraid’  that  he would  collect  his  friends and  cause  mischief  to  them. ’Ultimately,  the  Vice-Chancellor  made  a  report  to  the Chancellor 252 that  having examined the matter, he came to the  conclusion that  the  complainant was "a bit bumptious and  throws  his weight   about   in  a  way   which   fellow-students   find irritating".  He added "How one wishes that the sons of  men holding  exalted offices in the State would behave in a  way consistent  with the dignity of their parents". The  learned Judge  does  not  appear to have taken  into  account  these reports,  but has substantially relied on the oral  evidence of  the  Principal  himself. Even so, he  has  recorded  his conclusion that the evidence shows juvenile indiscretion  on the part of the complainant but no juvenile delinquency  and certainly no "crime in the sense of the libelous  imputation made".  In dealing with this part of the  imputation  again, the learned Judge should have asked himself the question  as to  whether  on the material of the kind  disclosed  by  the confidential report made by the Principal, would a person of ordinary  prudence  acting  bonafide in good  faith  be  not justified  in coming to the conclusion that the  complainant was  not  only  throwing  his weight  about,  but  was  also threatening  assaults in the college, because he thought  he would  be  immune  from   legal process  by  virtue  of  his position?  The  fact that the appellant called  for  several documents and gave a list of witnesses as soon as he entered on his defence, shows what he knew at the relevant time, and his plea that he acted in good faith has to be judged on the basis  that he made the imputations because he had  material of this kind in his possession.     It is true that the appellant has stated in his  written statement  that  several persons came and  reported  to  him against the complainant, and amongst them were included some high police officials as well; but having regard to the fact that  the complainant’s father occupied the position of  the Chief  Minister  of Punjab. they were not  willing  to  come forward and_ give evidence in court. In fact, the  appellant had   requested  the  Punjab  Government  in  his   impugned statement to appoint a commission of inquiry and had  stated that  if  a commission of inquiry was  appointed,  he  would prove   his  charges against the complainant. It is  in  the light of these circumstances, that we have to decide whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18  

the appellant has proved that he acted in good faith or not. In dealing with this question. we cannot overlook or  ignore the  probabilities  on  which  the  appellant  relies,   the surrounding  circumstances to which he has referred and  the actual evidence which he has led.     Incidentally,  we  may mention two  other  documents  on which  Mr.  Bhasin  has relied. On February  20,  1957.  the complainant  wrote a letter to ’Major Sahib’ (SSP). In  that letter,  he  told   the Major Sahib to  grant  leave  to  S. Gurdial  Singh No. 1725 posted at Chowki Khosa Burj, and  he added  that  it  was very urgent, and asked  him  to  do  it immediately.  Similarly, on  June 3, 1956,  the  complainant wrote  a  letter to the Executive Officer, Taran  Taran,  in which he stated "our 10/12 trucks loaded with wood will   be reaching Taran Taran one or two daily. Therefore, you please instruct your  Moharrir  on the  Jandiala-Amritsar road that he  253. should  not  create any obstruction  regarding  octroi".  It would be noticed that the complainant had been  writing   to Government  servants  in respect of matters  falling  within their authority as such servants; and that shows,  according to Mr. Bhasin. that the complainant was throwing his  weight about  even  in matters with which he had no  connection  at all.     We  have carefully considered the  evidence   to   which our attention was drawn by Mr. Bhasin as well as Mr.  Anand, and  we have come to the conclusion that the High Court  was in  error in holding that the appellant had failed  to  show that  he acted in good faith when he published the  impugned statement.  As we have already stated, it has been found  by the  High  Court and it is not disputed before us  that  the publication  of  the impugned statement was for  the  public good;  and  so,  our conclusion is  that  the  appellant  is entitled to claim the protection of the Ninth Exception.     Before  we part with this appeal, we ought to  add  that this  matter came before this Court for hearing on  the  1st September,   1964,  and  an  interlocutory   judgment    was delivered   by  which certain documents were called for.  On that occasion, Mr. Bhasin had pressed before this Court  his contention that the trial Judge was in error in not  calling for certain documents which the appellant wanted to rely on, and in upholding the plea of privilege made by  State  Govt. in  respect  of  certain  other   documents.  We  wanted  to satisfy ourselves whether the documents on which Mr.  Bhasin wanted  to  rely  were relevant and whether  the   plea   of privilege claimed by the State was justified. Some of  these documents  have been received by this Court in pursuance  of our interlocutory judgment. But we do not think it necessary to  consider  this matter, because the documents  which  Mr. Bhasin  wanted  to be produced or proved might at  best.  if they  are  admitted,  be of help to him  to  show  that  the allegations  made by the appellant are true. to him  however is  a plea which fails under the First Exception  and  since the appellant did not claim the benefit of that Exception in the  High  Court, we do not think it would be  open  to  the appellant  to  press  his point that we should  examine  the question as to whether the trial Judge erred in not allowing the  appellant to bring these documents on the record.  That is  why  we did’ not look at these documents  and  have  not considered  the  question raised by Mr. Bhasin at  the  time when the interlocutory judgment was delivered in this  case. In  other words, the appellant is not allowed to  raise  his plea  that  the  allegations made by  him  in  the  impugned statement are true.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18  

   Even  so. in view of our conclusion that  the  appellant has  succeeded  in  showing  that  he  is  entitled  to  the protection of the Ninth Exception to s. 499, the appeal must be  allowed  and  the  order  of  conviction  and   sentence passed .against the appellant set aside.the fine imposed  on the  appellant  has  been paid by him, the  same  should  be refunded to him. Appeal allowed. 254