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PETITIONER: SEWAKRAM SOBHANI

       Vs.

RESPONDENT: R.K. KARANJIA, CHIEF EDITOR, WEEKLY BLITZ & ORS.

DATE OF JUDGMENT01/05/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1514            1981 SCR  (3) 627  1981 SCC  (3) 208        1981 SCALE  (1)851

ACT:      Penal  Code-Section   499-Ninth   exception-Scope   of- Respondent made imputations regarding character of appellant in an  article published  in his  journal purporting  to  be based on  confidential report  of a  high official  of State Government-Government claimed privilege in regard to report- Magistrate proceeded  to  record  plea  of  accused  without seeing report-Government waived privilege before High Court- In revision  High Court  held the news item justified on the basis of  report-High Court,  whether competent to quash the order of Magistrate.

HEADNOTE:      A news  item published in the Blitz weekly of which the respondent was the Editor, stated that the appellant enticed a female  detenu who  alongwith him,  was  detained  in  the Central Jail  under the Maintenance of Internal Security Act and that  she had  conceived through him and that on getting released on  parole she had the pregnancy terminated. It was further stated  that a  confidential enquiry  conducted by a senior officer  of the  Home Department revealed that it was the  appellant   who  was   responsible  for   the  detenu’s pregnancy.      On release  from jail  the appellant  lodged a criminal complaint against  the respondent. Before the Magistrate the respondent prayed  that the report of the Enquiry Officer be sent for.  But the  report could not be obtained because the State  Government  claimed  privilege  in  respect  of  that report. When  the Magistrate proceeded to record the plea of the accused  under section  251  of  the  Code  of  Criminal Procedure,  the   respondent  requested  that  his  plea  be recorded only after the enquiry report was produced; but the Magistrate rejected the request.      The respondent  thereupon filed  a revision  before the High Court  for setting  aside the  order of the Magistrate. Waiving privilege  the State  Government produced  a copy of the enquiry report before the High Court.      A  single   Judge  of   the  High   Court  quashed  the proceedings on  the view  that the respondent’s case clearly fell within the ambit of the ninth exception to section 499, I.P.C. because,  according to  him, the publication had been

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made honestly  in the  belief of  its truth  and  also  upon reasonable ground  for such  belief, after  the exercise  of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances.      On the  question whether  the High  Court was  right in quashing the  order of the Magistrate, remanding the case to the Magistrate. 628      (Per majority:  Chinnappa Reddy and A.P. Sen JJ-Baharul Islam J dissenting) ^      HELD: The  order passed by the High Court should be set aside. The  Magistrate should record the plea of the accused under section  251 Cr.  P.C. and thereafter proceed with the trial according to law.      (Per Chinnappa Reddy, J.)      To attract  the ninth  exception to section 499, I.P.C. the imputations  must be shown to have been made (1) in good faith and  (2) for the protection of the person making it or of any  other person  or for the public good. The insistence of the  section  is  upon  the  exercise  of  due  care  and attention. The standard of care and attention must depend on the circumstances  of an  individual  case,  the  nature  of imputation, the  need and  the opportunity  for verification and so  on. In  every case  it is  a question  of fact to be decided on its particular facts and circumstances. [631 A-B]      Harbhajan Singh  v. State of Punjab, [1965] 3 SCR 232 @ 244, Chaman  Lal v.  The State  of Punjab [1970] 3 SCR 913 @ 916 and 918.      Several questions may arise for consideration depending on the  stand taken  by the accused at the trial and how the complainant proposed to demolish the defence. In the instant case the  stage for deciding these questions had not arrived yet. Answers  to such questions, even before the plea of the accused was  recorded, could  only be  a priori conclusions. [632 H]      The respondent’s  prayer before  the High  Court was to quash the  Magistrate’s order and not to quash the complaint itself as  the High  Court has  done. But  that was  only  a technical defect  which need  not be  taken seriously  in an appeal under Article 136 of the Constitution where the Court is concerned  with substantial  justice and  not with shadow puppetry. [630 G] (Per A.P. Sen J.)      The order  of the  High Court  quashing the prosecution under section  482 of  the Code  of  Criminal  Procedure  is wholly perverse  and had resulted in manifest miscarriage of justice. The  High Court  has  pre-judged  the  whole  issue without a  trial of  the accused  persons. The matter was at the state  of recording  the  pleas  of  the  accused  under section 251  Cr. P.C.  The circumstances brought out clearly showed  that  the  respondent  was  prima  facie  guilty  of defamation punishable  under section 500 of the Indian Penal Code unless  covered by one of the exceptions of section 499 Indian Penal Code. [635 E-F]      The burden to prove that his case would come within the ninth exception  to section 499, namely, that the imputation was in  good  faith  and  was  for  the  protection  of  the interests of  the person making it or of any other person or for the  public good  was on  the respondent.  All that  the respondent prayed  for was  that the  Magistrate should  not proceed to  record his  plea  under  section  251  Cr.  P.C. without  perusing   the  enquiry   report.  There   was   no application for quashing the prosecution itself. [636 F; 637 C]

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629      The enquiry  report in  respect of which the Government claimed privilege  had by  itself no  evidentiary value. The contents of  that report could not be made use of unless the facts were  proved by evidence aliunde. The report being per se defamatory,  it was  for the  accused to  plead the ninth exception in  defence and  discharge the  burden of  proving good faith  which implies  the  exercise  of  due  care  and caution and  to show that the attack on the character of the appellant was for the public good. [637 E; G; H]      Sukro Mahto v. Basdeo Kumar Mahto and Anr. [1971] Supp. SCR 329  at 332, Harbhajan Singh v. State of Punjab [1965] 3 SCR 235,  Chaman Lal  v. State  of Punjab  [1970] 3 SCR 913, referred to.      The  High  Court  appears  to  be  labouring  under  an impression that  journalists enjoyed  some kind  of  special privilege. Journalists  are in  no better  position than any other person.  Even the  truth of  an  allegation  does  not permit a  justification under  the first exception unless it is proved  to be in the public good. The question whether or not it  was for  public good  is a question of fact like any other relevant  fact in  issue. If  they make  assertions of facts as  opposed to  comments on  them,  they  must  either justify these  assertions or  in the limited cases specified in  the  ninth  exception,  show  that  the  attack  on  the character of  another was for the public good or that it was made in good faith. [638 G-H]      Dr. N.B.  Khare v.  M.R. Masani and Ors., ILR 1943 Nag. 347, Arnold v. King Emperor LR (1913-14) 41 Ind. App. 149 at 169, referred to. (Per Baharul Islam J.)      The Court  did not  commit any  error in  quashing  the appellant’s complaint. [646 E]      The  High   Court’s  judgment   justifies  the  factual submission of  the respondents  that their  application  was under section  482 as  well as under sections 397 and 401 of Cr. P.C.  and that they claimed and canvassed the protection under  the  ninth  exception  to  section  499,  I.P.C.  The omission in  the prayer  portion of a petition, particularly in a  criminal case,  is not  fatal. The  High Court, in its revisional jurisdiction,  can always  grant suitable  relief justified by  law as  well as  facts and  circumstances of a particular case. [641 H; 642 D]      The definition  of "good  faith" which  is  couched  in negative terms  indicates that  lack of  good faith has been made a  part of  the offence  which the  prosecution has  to establish beyond  reasonable doubt. On the other hand, proof by the  accused of the report to be an authentic document is enough. It  would create a doubt in the mind of the Court as to the lack of "good faith" on the part of the accused. [644 F-G]      If on  a complaint made by a citizen alleging laxity in the observance  of jail  rules, if the report submitted by a high  Government   official  on  the  basis  of  an  enquiry conducted by  him was for public good and if the respondents had reasons  to believe  its contents to the true, they will be protected under the ninth exception even if the burden of proof of  good faith  is on the accused. Good faith need not be proved beyond reasonable doubt. [645 B]      The report  of  the  enquiry  officer  was  exhaustive, reasoned and  was based on evidence. The report leads one to believe the imputations. If that be so, it 630 cannot be  said that the respondents published the report or its summary without due care and attention. This establishes

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good  faith  under  the  ninth  exception  to  section  499. Therefore, the  publication obviously  was for  public good. [646 B-C]      In the  instant case even if the findings of the report be proved  to be  false, the respondents would be protected. Sending back the case to the Magistrate would be an exercise in futility  and abuse  of the process of the criminal court as the High Court has pointed out. [646 D-E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 543-545 of 1979.      Appeals by  special leave  from the  judgment and order dated the  15th April, 1978 of the Madhya Pradesh High Court in  Criminal   Revision  No.   701/77,   105/78   &   103/78 respectively.      H.K. Puri for the Appellant.      R.K.  Garg,   Sunil  Kumar   Jain  and   V.J.  Era  for Respondents Nos. 1, 2, 5 & 6.      S.K. Gambhir and Vijay Mansaria for the State.      The following Judgments were delivered      CHINNAPPA REDDY,  J. I  agree with  my brother A.P. Sen that the  order passed by the High Court should be set aside and that  the Magistrate  should be  directed to  record the plea of  the accused  under Sec. 251 Criminal Procedure Code and thereafter,  to proceed with the trial according to law. The facts  leading to  these appeals have been stated in the judgments of both my brethren A.P. Sen and Baharul Islam and it is unnecessary for me to state them over again.      The prayer in the application before the High Court was merely to  quash the  order dated  November 30,  1977 of the learned Chief  Judicial Magistrate,  Bhopal and not to quash the complaint  itself as  the High Court has done. But, that was only  a technical  defect and  we do  not  take  serious notice of it in an appeal under Art. 136 of the Constitution where we  are  very  naturally  concerned  with  substantial justice and  not with  shadow puppetry.  The position now is this: The  news item  in the  Blitz under  the caption ’MISA Rape  in   Bhopal  Jail’   undoubtedly   contained   serious imputations  against   the  character  and  conduct  of  the complainant. In  order to  attract the 9th Exception to Sec. 499 of  the Indian Penal Code, the imputations must be shown to have been made (1) in good 631 faith, and (2) for the protection of the person making it or of any  other person or for the public good. ’Good Faith’ is defined, in a negative fashion, by Sec. 52 Indian Penal Code as follows: "Nothing is said to be done or believed in ’Good faith’ which  is done  or  believed  without  due  care  and attention". The  insistence is upon the exercise of due care and attention.  Recklessness and negligence are ruled out by the very  nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the  nature  of  the  imputation,  the  need  and  the opportunity for  verification, the  situation and context in which the  imputation was  made, the  position of the person making the  imputation, and a variety of other factors. Good faith, therefore  is a matter for evidence. It is a question of  fact   to  be   decided  on  the  particular  facts  and circumstances of  each case.  So too the question whether an imputation was  made for  the public  good. In  fact the 1st Exception of  Sec. 499  Indian Penal  Code expressly  states "Whether or  not it  is for the public good is a question of

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fact". ’Public  Good’ like  ’Good faith’  is  a  matter  for evidence and not conjecture.      In Harbhajan  Singh v.  State  of  Punjab,  this  Court observed (at p. 244):           "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".      Again in  Chaman Lal  v. The State of Punjab this Court said (at p. 916): 632           "In order to establish good faith and bona fide it      has to  be seen  first the circumstance under which the      letter was  written or  words were  uttered;  secondly,      whether there  was any  malice;  thirdly,  whether  the      appellant  made   any  enquiry   before  he   made  the      allegations; fourthly,  whether there  are  reasons  to      accept the  version that he acted with care and caution      and  finally   whether  there   is   preponderance   of      probability that the appellant acted in good faith". Later the Court said (at p. 918):           "Good faith requires care and caution and prudence      in the  background of  context and  circumstances.  The      position of  the  person  making  the  imputation  will      regulate  the   standard  of   the  person  making  the      imputation will  regulate  the  standard  of  care  and      caution".      Several questions  arise for consideration if the Ninth Exception is to be applied to the facts of the present case. Was the  Article published  after exercising  due  care  and attention? Did  the author  of the  article satisfy  himself that there  were reasonable  grounds  to  believe  that  the imputations  made   by  him  were  true?  Did  he  act  with reasonable care and a sense of responsibility and propriety? Was the  article based  entirely on the report of the Deputy Secretary or was there any other material before the author? What steps  did the author take to satisfy himself about the authenticity of  the  report  and  its  contents?  Were  the imputations made rashly without any attempt at verification? Was the  imputation the  result of  any personal ill will or malice which the author bore towards the complainant? Was it the result  of any  ill will or malice which the author bore towards  the   political  group  to  which  the  complainant belonged? Was  the article  merely intended  to  malign  and scandalise  the   complainant  or  the  party  to  which  he belonged? Was  the article intended to expose the rottenness of  a   jail  administration  which  permitted  free  sexual approaches between  male and female detenus? Was the article intended to  expose the  despicable character of persons who were passing  off as saintly leaders? Was the article merely intended to  provide salacious  reading material for readers who had  a peculiar  taste for  scandals? These  and several other questions  may arise  for consideration,  depending on

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the stand  taken by  the accused  at the  trial and  how the complainant proposes  to demolish  the defence.  Surely  the stage for  deciding these  questions has  not  arrived  yet. Answers to  these questions  at this  stage, even before the plea of the 633 accused is  recorded can only be a priori conclusions. ’Good faith’ ’public  good’ are, as we said, questions of fact and matters for evidence. So, the trial must go on.      SEN, J.  This appeal,  by special  leave,  is  directed against an  order of  the Madhya  Pradesh High  Court  dated April 15,  1978 quashing  the prosecution of the respondent, R.K. Karanjiya, Chief Editor, Blitz, for an offence under s. 500 of  the Indian Penal Code for publication of a news-item in that  paper which  was per  se defamatory,  on the ground that he was protected under Ninth Exception to s. 499 of the Code.      During the  period of Emergency the appellant, who is a senior  lawyer   practising  at  Bhopal,  was  placed  under detention under  s.3 (1)  (a) (ii)  of  the  Maintenance  of Internal Security  Act, 1971  and was  lodged in the Central Jail, Bhopal.  There were several other detenus belonging to the opposition  parties lodged  along with  him in  the same jail, including  three lady  detenus, viz., Smt. Uma Shukla, Smt. Ramkali  Misra, Advocate and Smt. Savitha Bajpai, later State Minister, Public Works Department. The husband of Smt. Uma  Shukla,  a  practising  advocate  at  Bhopal,  was  not detained. Smt.  Shukla was  released on  parole for  a  week between June  10 and  18, 1976. On her return to the jail it was found  that she  had conceived. She was examined on July 30, 1976,  by a lady doctor, Dr. (Mrs) N.C. Srivstava, Woman Asst. Surgeon and the pregnancy was reported to be six weeks old. Smt.  Shukla was  again released on parole in the month of August 1976 and on August 24, 1976, she got the pregnancy terminated by  Dr. (Mrs)  Upadhayay at  the  Zanana  Hamidia Hospital, Bhopal  with the  written consent  of her  husband under s.3  of the  Medical (Termination  of Pregnancy)  Act, 1976.      While the order of detention of the appellant was still in operation,  there was  an ex  parte confidential  enquiry held by  Shri S.R.  Sharma, I.A.S.  Deputy Secretary  (Home) Government of Madhya Pradesh, into the circumstances leading to the  pregnancy of Smt. Shukla. The Enquiry Officer by his report dated  November 3,  1976, apparently  held  that  the pregnancy was due to illicit relations between the appellant and Smt. Shukla, during their detention in the Central Jail. On December  25, 1976,  the Blitz,  in its three editions in English, Hindi  and Urdu simultaneously flashed a summary of the report and the story as given out was that (i) there was a mixing  of male  and female  detenus in  the Central Jail, Bhopal, (ii) the appellant had the opportunity and access to mix with  Smt. Shukla  freely, and  (iii) Smt. Shukla became pregnant through the 634 appellant. The  news-item  was  per  se  defamatory.  It  is somewhat surprising  that the  Enquiry Report,  which was  a document of  highly confidential  nature, should  have found its way to the Press.      With the  revocation of  Emergency, the appellant along with  the   other  political   detenus  was   released  from detention. On  his release,  the appellant lodged a criminal complaint  for   defamation  against  the  respondent,  R.K. Karanjia.  The   respondent,   on   appearing   before   the Magistrate, moved  an application under s. 91 of the Code of the Criminal Procedure, 1973, praying that the report of the

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Enquiry Officer  be sent  for as it was likely to be lost or destroyed. On August 23, 1976 the learned Magistrate allowed the application  and  directed  that  the  report  with  the concerned file  be produced.  The State Government, however, did not  comply with  the direction  and by  an  application dated December 31, 1977, claimed privilege in respect of the Enquiry Report which still awaited consideration. On October 29, 1977  when the  case was fixed for recording the plea of the accused  under s.  251 of the Code, the respondent moved an application stating that the plea should be recorded only after  the   Enquiry  Report   was  produced.   The  learned Magistrate by  his order  dated November  30, 1977, rejected the said  application of  the respondent as to the summoning of the records and directed the accused persons to appear in person  or  through  counsel  for  explaining  to  them  the substance of  the accusation  and also  for recording  their pleas.      Thereafter, the  respondent filed a revision before the High Court  under s.  397 of  the Code for setting aside the order of  the learned  Magistrate and alternatively under s. 482 of  the Code,  if it  were held  to be  an interlocutory order. The  revision was heard by a learned Single Judge and it appears  that the  Government Advocate  made available  a copy of  the Enquiry  Report for  the perusal of the learned Judge. The  learned Judge by his order dated April 15, 1978, quashed the  proceedings on the ground that the respondent’s case "clearly  falls within  the ambit  of  exception  9  of section 499  of the  Indian Penal  Code". In  reaching  that conclusion, he  observed that  "it would  be  abuse  of  the process of  the court  if the  trial is  allowed to  proceed which  ultimately   would  turn   out  to   be  a  vexatious proceeding". The reasoning advanced by him was as follows:           The real  question to  ask is,  did the applicants      publish the  report for public good, in public interest      and in  good faith? My answer is in the affirmative. It      was a publication 635      of a  report for  the welfare  of the society. A public      institution like  prison had  to be maintained in rigid      discipline; the  rules did  not permit  mixing of  male      prisoners with female prisoners and yet the report said      the prison  authorities connived  at such  a  thing,  a      matter  which   was  bound  to  arouse  resentment  and      condemnation. The  balance of public benefit lay in its      publicity rather  than in hushing up the whole episode.      Further, there  was good  faith in the publication. The      source on  which the  publishers acted  was the  proper      source on  which they were entitled to act and they did      so with  care and  circumspection. The  report  further      shows that  the publication  had been  honestly made in      the belief of its truth and also upon reasonable ground      for such  a belief, after the exercise of such means to      verify its truth as would be taken by a man of ordinary      prudence under like circumstances.                                             (emphasis added) It is  somewhat strange  that the  learned Judge should have made public  the contents  of a document in respect of which the State Government claimed privilege.      The order  recorded by  the  High  Court  quashing  the prosecution under  s. 482 of the Code is wholly perverse and has resulted  in manifest  miscarriage of  justice. The High Court has  pre-judged the whole issue without a trial of the accused persons.  The matter  was at  the stage of recording the plea  of the  accused persons  under s. 251 of the Code. The requirements  of s.  251 are  still to be complied with.

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The  learned   Magistrate  had   to  ascertain  whether  the respondent pleads  guilty to  the charge  or demands  to  be tried. The  circumstances brought  out clearly show that the respondent was  prima facie  guilty of defamation punishable under s.  500 of  the Code  unless  he  pleads  one  of  the exceptions to  s. 499  of the  Code. The  offending  article which is per se defamatory, is as follows:      MISA RAPE IN BHOPAL JAIL (By Blitz Correspondent).           Blitz: A  shocking sex scandal involving a top RSS      leader of M.P. was discussed at a secret meeting of Jan      Sangh MLAs and MPs here recently. The alleged escapades      of 55  years old Sewakram Sobhani, a close confidant of      RSS Chief  Bhausaheb Devras,  with the  young  wife  of      another RSS  man in the Bhopal Central Jail, where both      were detained  under MISA,  have rocked  RSS Jan  Sangh      circles of the State. 636           According to  a  report  submitted  to  the  State      Government by a Deputy Secretary in the Home Deptt. who      inquired into the grisly affair, Sobhani was reportedly      responsible for  making Mrs.  Uma Shukla,  22 year  old      wife of a lawyer Yogesh Shukla, pregnant.      Abortion?           When this  was discovered she was quietly released      on parole  and, at  her own request, taken for abortion      to the  Sultania Zanana  Hospital. After  discharge she      refused to  rejoin her  husband but  stayed during  the      remaining period  of her  parole in the hide-out of the      ’total-revolutionaries’ in  the Professor’s Colony. She      returned to  jail later  and  was  transferred  to  the      Hoshangabad Jail,  while Sobhani was sent to the Raipur      Central Jail.           The Official  report throws  light on  how Sobhani      allegedly enticed  Mrs. Shukla  with the help of a high      official of  the Bhopal  Central Jail  despite a ban on      contacts between  male and  female  detenus.  The  jail      official,  himself  a  close  sympathiser  of  the  RSS      allowed Sobhani  to meet  her frequently  in his office      and their  love sessions  were in  his anteroom. Yogesh      Shukla  has   made  a   representation  to   the  State      Government alleging that Sobhani had committed adultery      with his  wife and  demanded action  against  the  jail      authorities for permitting a "rape" of his wife. It is  for the  respondent to  plead that  he was  protected under Ninth  Exception to  s. 499  of the  Code. The burden, such as it is, to prove that his case would come within that exception is  on him. 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 any other person or for the public good.      We are  completely at  a loss to understand the reasons which impelled  the High Court to quash the proceedings. The respondent, in  his revision  directed against  the order of the learned  Magistrate dated November 30, 1977, asserted in paragraph 5  that the  case pre-eminently  a  fit  case  for quashing  the   impugned  order  either  in  the  revisional jurisdiction of  the High  Court or  in the  exercise of its inherent powers  under s.  482 of  the Code  to prevent  the abuse of 637 the process  of law  and to  secure the ends of justice. The prayer made in the revision was in these terms:           The applicants  pray that  the impugned  order  be      quashed and  the  learned  Magistrate  be  directed  to

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    persue the  report which  he has sent for under section      91,  Criminal   Pro.  Code  and  pass  suitable  orders      according to law. All that  the respondent  wanted is  that learned Magistrate should not proceed to record the plea of the accused persons under s. 251 of the Code without perusing the Enquiry Report under s.  91 of  the Code.  There was  no  application  made before the  High Court under s. 482 of the Code for quashing the prosecution  itself. The averment contained in paragraph 4 that  the Blitz  only published a concise summary from the findings reached  by the Deputy Secretary (Home) who was the Enquiry Officer  appointed by the Government and, therefore, it was the duty of the learned Magistrate, to go through the report for himself and hold that no accusation had been made and the  question of  explaining it  to the  accused did not arise and  the proceedings were liable to be dropped because no ingredients  constituting an  offence under s. 500 of the Code had  been made  out, must  be read  in conjunction with paragraph 5  and in  support of  the limited  prayer made in revision. This  cannot be  construed as  invoking  the  High Court’s powers  under s.  482 of  the Code  for quashing the whole proceedings.      We have  considerable doubt  about the propriety of the High Court  making use  of the  Enquiry Report  which has no evidentiary value  and in  respect of  which the  Government claimed privilege.  The application  made by  the Government claiming privilege  still awaited  consideration. While  the Government claimed  privilege at  one stage,  it appears  to have waived  the claim  and produced  the Enquiry Report and made the contents public. There was no factual basis for the observations made by the High Court underlined by me, except the Enquiry  Report. The  contents  of  the  Enquiry  Report cannot be  made use  of  unless  the  facts  are  proved  by evidence aliunde.  There is  also nothing  on record to show that the  accused persons made any enquiry of their own into the truth  or other-wise of the allegations or exercised due care and  caution for  bringing the  case  under  the  Ninth Exception. The  Enquiry Report  cannot by itself fill in the lacunae.      A bare  perusal of the offending article in Blitz shows that it is per se defamatory. There can be no doubt that the imputation 638 made would  lower the appellant in the estimation of others. It suggested  that he was a man devoid of character and gave vent to  his unbridled  passion. It is equally defamatory of Smt. Shukla  in that  she was  alleged to  be a lady of easy virtue. We  need not dilate on the matter any further. It is for the  accused to  plead Ninth  Exception in  defence  and discharge the  burden to  prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good.      In Sukro  Mahto v.  Basdeo Kumar Mahto & Anr this Court observed:           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. Good  faith is  a question of      fact. So  is protection  of the  interest of the person      making it. Public good is also a question of fact. After referring  to the  two earlier  decisions in Harbhajan Singh v.  State of  Punjab and Chaman Lal v. State of Punjab the Court  held that there must be evidence showing that the accused  acted  with  due  care  and  caution.  "He  has  to

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establish as  a fact that he made enquiry before he made the imputation and  he has to give reasons and facts to indicate that he  acted with due care and attention and was satisfied that the  imputation was  correct. The proof of the truth of the statement is not an element of the Ninth Exception as of the First  Exception to  s. 499.  In the Ninth Exception the person making  the imputation  has to  substantiate that his enquiry was  attended with due care and attention and he was thus satisfied that the imputation was true."      The  High  Court  appears  to  be  labouring  under  an impression that  journalists enjoyed  some kind  of  special privilege, and  have greater freedom than others to make any imputations  or   allegations,  sufficient   to   ruin   the reputation of  a citizen.  We hasten to add that journalists are in  no better  position than  any other person. Even the truth of an allegation does not permit a justification under First Exception  unless it  is proved  to be  in the  public good. The question 639 whether or  not it was for public good is a question of fact like  any  other  relevant  fact  in  issue.  If  they  make assertions of  facts as  opposed to  comments on  them, they must either  justify these  assertions or,  in  the  limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was  made in  good faith: per Vivian Bose, J. in Dr. N.B. Khare v. M.R. Masani and Ors.      As the  matter is of great public importance, it would, perhaps, be  better to  quote the well-known passage of Lord Shaw in Arnold v. King Emperor (2)           The freedom  of the journalist is an ordinary part      of the  freedom of the subject, and to whatever lengths      the  subject  in  general  may  go,  so  also  may  the      journalist, but,  apart from statute law, his privilege      is no  other and  no higher. The responsibilities which      attach to  this power  in the  dissemination of printed      matter  may,   and  in  the  case  of  a  conscientious      journalist do,  make him more careful: but the range of      his assertions,  his criticisms, or his comments, is as      wide as,  and no wider than, that of any other subject.      No privilege attaches to his position.      For these  reasons, we  must set aside the order passed by the  High Court  and direct  the Magistrate to record the plea of  the accused  persons under  s. 251  of the Criminal Procedure Code,  1973 and  thereafter, to  proceed with  the trial according to law.      BAHARUL  ISLAM,   J.  Had   there  been  no  subsequent development after the impugned judgment of the High Court, I could have  persuaded myself  to agree to the order proposed by my Brother Sen, J., but after the Inquiry Report has been released by  the Government and placed before us I regret my inability to  agree to the order of sending back the case to the Magistrate  as proposed  by my  Brother, and  proceed to give my own judgment.      2. The  facts material  for the  purpose of disposal of these appeals  may be  stated thus:  During  the  period  of Emergency between  June 1975  and March  1976 the appellant, Shri Sewakram  Sobhani, an  advocate, was one of the detenus under the Main- 640 tenance of  Internal Security Act, 1976 (hereinafter ’MISA’) and lodged in the Bhopal Central Jail. There were also three women detenus  including Smt.  Uma Shukla  and Smt.  Ramkali Mishra, Advocate.  The husband  of Smt.  Uma  Shukla  was  a practising advocate at Bhopal. He was not a detenu. Smt. Uma

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Shukla became  pregnant while  in detention in the aforesaid Central Jail  and abortion  was carried  out in the month of August, 1976 in the Zanana Hamidi Hospital to relieve her of the pregnancy.  This circumstance  created an  uproar and an inquiry into the affairs had to be held by Shri S.R. Sharma, Dy.  Secretary   (Home),  Government   of  Madhya   Pradesh, (hereinafter  ’Sharma’)   who  submitted  his  report  dated 7.10.1976 to the Government.      3. Respondent  No. 1  is the  Chief Editor of the Blitz and respondent  No. 5  was, at  the  relevant  time,  Bhopal Correspondent of  the Blitz.  Respondents 2,  3  and  4  are persons connected  with the  Blitz Weekly  publication.  The Blitz weekly is published in three languages, viz., English, Hindi and  Urdu. The Blitz weekly dated 25.12.76 published a news item  purported to be a summary of the report submitted by Sharma in its Urdu and Hindi editions. The appellant took exception to  the publication  and filed a criminal case for defamation against  the respondents  under Sections  500 and 501 of  the Penal  Code. The  Magistrate issued processes to the  respondents.   The  respondents   appeared  before  the Magistrate and  made an application on 23.8.77 under Section 91 of  the Code  of Criminal Procedure, 1973 (hereafter ’the Code’) requesting the court, before arriving at a conclusion whether it  should proceed  further with the case or not, to call for (a) the original Enquiry Report submitted by Sharma on 7.10.76;  (b) the  statement  of  witnesses  recorded  by Sharma, (c) the original complaint; and (d) documents of the jail Department including letters from the Government to the Department (Vide  para 4  of Annexure D to the Special Leave Petition). The  Magistrate called  for the  original Inquiry Report dated  7.10.76 submitted by Sharma to the Government, and then  posted the case for production of the said records by the Government and recording the plea of the respondents. The Government  failed to  produce the inquiry report before the Magistrate  whereupon the  Magistrate issued a notice to the Government  to show cause as to why contempt proceedings should  not  be  initiated  against  them.  The  Magistrate, however, did  not wait  for the  receipt of  the report  and wanted to record the plea of respondents. 641      The respondents  then filed  an application  before the High Court of Madhya Pradesh under Section 397/401 read with Section 482  of the  Code. It was alleged by the respondents that the  Deputy Home  Secretary in  his report  came to the following conclusions :      (1) There  was free mixing of male and female prisoners           in the Bhopal Central Jail ;      (2)  Shri Sewakram  Sobhani had  opportunity  and  also           availed of  the opportunity  and mixed very freely           with Smt. Uma Shukla; and      (3)  Smt. Uma Shukla became pregnant through Shri Sewak           Ram Sobhani.      4. It  may be  mentioned that  the Government  later on produced the  inquiry  report  before  the  High  Court  but claimed privilege. The learned High Court presumably perused the report before passing the impugned order. It may also be mentioned that  although the Government claimed privilege in respect of  the  report  at  that  time,  it  appears,  they subsequently, after  the impugned  order of  the High Court, waived the  claim of  privilege, and  released  the  inquiry report; for,  in fact, a copy of the report has been annexed and is  available in  the paper book of these appeals before us as Annexure ‘A’.      5.  The  submission  of  the  appellants  is  that  the impugned order  of the  High Court  is beyond its revisional

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jurisdiction. The  submission is that the respondents prayed for quashing  the order  of  the  Magistrate  proceeding  to record their  plea before the inquiry report was produced by the Government,  but the  High Court has wrongly quashed the complaint itself.  On  the  other  hand  the  reply  of  the respondent is  that although there was no specific prayer in the petition,  the petition  was also  made for quashing the criminal case  under  Section  500/501  of  the  Penal  Code pending before  the Magistrate.  The respondents’ submission is that  they are not guilty for the impugned publication in view of Exception 9 to Section 499 of the Penal Code.      6. A  perusal of  the respondents’  petition before the High Court  and its  impugned judgment justifies the factual submission  of   the   respondents,   namely,   that   their application before the High 642 Court (Copy  Annexure C)  was under  Section 482  as well as Sections 397  and 401  of the Code, and that the respondents claimed  and   canvassed  the  protection  under  the  Ninth Exception of  Section 499  of the Penal Code. For, para 6 of the Judgment of the High Court reads :           "The applicants  feeling aggrieved  have  come  to      this Court  for  quashing  the  complaint,  since  they      contend that the publication would squarely fall within      exception 9  of Section  499 of  the Indian Penal Code.      The applicants  further contend  that the report of the      Deputy Secretary (Home) is the document on the basis of      which the  reporting was  done and  unless that  is got      produced and  inspected, the  defence  of  exception  9      cannot be made out......                                             (Emphasis added)      7. The  omission in the prayer portion of a petition of a part of the claim, particularly in a criminal case, is not fatal. The  High Court  in its  revisional jurisdiction  can always grant  suitable relief  justified by  law as  well as facts and circumstances of a particular case.      That a  part, Article  136 of the Constitution of India gives wide  powers to  the Supreme  Court to  grant  special leave to  appeal from  any judgment,  decree, determination, sentence or  order in  any cause or matter passed or made by any court  or tribunal  in the territory of India. The power is discretionary  and therefore  to be  sparingly exercised. This power  is to  be exercised  to meet ends of justice, to enhance justice  and remove  miscarriage  of  justice  in  a particular case.  It  does  not  exercise  such  powers  for academic reasons but for practical purposes.      8. The  High Court  in the impugned order has held that "it would  be abuse of the process of the court if the trial is allowed  to proceed  or alternatively  to turn  out to be vexatious proceeding"  and therefore  quashed the complaint. Such an  order would  be warranted  under Section 482 of the Code of  Criminal Procedure  if the merit of the case before the High  Court justified  it. We  have therefore to examine whether the  respondents’ case falls within the ambit of the Ninth Exception  to Section 499 of the Penal Code as held by the High Court. 643      9. The  appellant has  not submitted before us that the summary of  the report  published in  the  Blitz  is  not  a correct summary  of the  Inquiry Report.  The  copy  of  the Report, Annexure A, shows that a complaint was received from one  Shri   Krishsan  Gopal  Maheshari,  advocate,  alleging certain objectionable  activities and misconduct on the part of the  appellant and  Shrimati Uma  Shukla. Annexure A also shows that  the Inquiry  Officer  Sharma,  examined  several

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witnesses including  Shri Yogesh Shukla, husband of Smt. Uma Shukla.      Para 4 of the report reads :-      "The following points are in dispute :      (a)  whether as  alleged by  the complainant  there was           free mixing  of female  members with  male members           detained under MISA;      (b)  in case  (a) is  in the  affirmative, whether Shri           Sewakram Sobhani  had an opportunity to mix freely           with Smt. Uma Shukla;      (c)  in case  (a) and  (b) are in the affirmative when,           how and through whom Smt. Uma Shukla a MISA detenu           conceived".      His findings are      "(a) There  was  a  free  mixing  of  male  and  female           prisoners in the Bhopal Central Jail;      (b)  Shri Sewakram  Sobhani had  opportunity  and  also           availed of  opportunity and mixed very freely with           Smt. Uma Shukla;      (c)  Smt.  Uma  Shukla  became  pregnant  through  Shri           Sewakram Sobhani".      It, therefore, appears that the impugned publication is a correct  summary of  the report and no submission has been made to the contrary by the appellant before us.      10. The  only question is whether the publication falls within the Ninth Exception to Section 499 of the Penal Code, as claimed by the respondents. 644      Before we do that, we must not be oblivious of the fact that  the  Inquiry  Report  in  question  was  a  privileged document;  it  is  now  an  unprivileged  open  document  as indicated above.  The High  Court proceeded  on the  footing that if  the document  is not produced to be utilized by the accused, the benefit would go to him.      11.  Section  499   defines  ‘defamation’.   It  is  as           follows:-           "S.  499.  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 defame that person".      The Ninth Exception reads:           "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 interests      of the person making it, or of any other person, or for      the public good".      The Ninth  Exception requires,  inter  alia,  that  the imputation made must be in good faith for the public good.      12. ‘Good  faith’ has been defined in Section 52 of the Penal Code as:           "52. Nothing  is said  to be  done or  believed in      "good faith" which is done or believed without due care      and attention",      The definition is expressed in negative terms. Normally proof of  an exception lies on the person who claims it; but the definition of the expression "good faith" indicates that lack of good faith has been made a part of the offence which the prosecution has to establish beyond reasonable doubt. On the other  hand the  mere proof by the accused of the report to be  an authentic  document is  enough; it  will create  a doubt in  the mind  of the  Court as  to the  lack of  "good faith" on the part of the accused.

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    13. The  inquiry was  made and the report prepared by a highly responsible  officer and submitted to the Government. It was  in pursuance  of a  complaint made  by  one  of  the citizens pointing 645 out  laxity   in  observance   of  jail   rules  and  highly objectionable practices of some of the prisoners and seeking improvement in  jail administration.  The object  was to see improved conditions,  and maintenance of certain standard of moral conduct  by prisoners,  in jail.  If the complaint and the consequent  inquiry report  be for  public good, and the respondents had  reasons to believe its contents to be true, they will  be protected  under the  Ninth Exception. Even if the burden  of proof of ‘good faith’ be on the accused ‘good faith’ need not be proved beyond reasonable doubt. Once this is done,  whether the  publication was for public good would be a matter of inference.      14. The  Dy. Secretary  (Home) examined  Shri Bhandari, Editor of  Prach who  was a  MISA detenu  as witness  No. 1, complainant  Maheshwari  as  witness  No.  2,  Smt.  Ramkali Mishra, an  advocate, and  a member  of Jana Sangha, another MISA detenu,  as witness  No. 4, Dr. Hamid Quireshi, another MISA detenu  as witness No. 6, Shri Ramesh Chand Shrivastava an ‘independent’  witness as  witness No. 7, and Shri Yogesh Shukla, husband of Smt. Uma Shukla as witness No. 3. Most of the said witnesses, it appears, were the party colleagues of the appellant  and  his  co-MISA  detenus.  I  must  not  be understood to suggest the contents of the inquiry report are true; it  is an  exparte inquiry  report; it  might  be  the result of  political rivalry,  as alleged  by the appellant, but it  appears that  political rivalry, if any, was between the members  of the  appellant’s party  and not  between the party in power and party in opposition.      15. The  comment of  Mr.  Sharma  on  the  evidence  of witness No. 3 is as follows:           "Shri   Yogesh    Shukla   witness   No.   3   has      categorically stated that he had no connection with his      wife and that she became pregnant through Shri Sobhani,      Advocate  and  got  the  child  aborted.  It  is  worth      consideration as  to why  the husband will come up with      such an  open allegation  against his  own wife, unless      there be  no very strong reasons for such a conviction.      Normally, no  husband, even  though his  wife may  have      conceived through  somebody else  will like  to see his      name being  scandalised. Shri Yogesh Shukla witness No.      3 is  an advocate,  quite an educated person and we can      safely presume  that he  knows the  consequences of his      statement and  also their  legal and moral implications      on his  profession. Such  an open  scandalous statement      against 646      his own  wife could  not but be a result of very strong      abhoration or an outcome of utter desperation. It could      also be an expression of a naked truth."      The entire  report is exhaustive, reasoned and based on evidence.      16. A  perusal of  the report will normally lead one to believe the  imputations. If  that be  so, it cannot be said that the  respondents published  the report  or its  summary without due  care  and  attention.  This  establishes  ‘good faith’ as  required by the Ninth Exception to Section 499 of the Penal  Code.  From  what  has  been  stated  above,  the publication obviously appears to be for public good.      17.  The   appellant  submitted   that  he   wanted  an opportunity to clear himself of the imputations made against

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him by  adducing evidence before the Magistrate to establish the falsity  of the  imputations made in the publication. We are  not   concerned  with  the  truth  or  falsity  of  the imputations published. Even if the findings in the report be proved to  be false,  the  respondents  will  be  protected. Sending back  the case  to  the  Magistrate  to  record  the respondents’ plea  after the  perusal of  the Inquiry Report will, in my opinion, be an exercise in futility and abuse of the process  of the  criminal court.  The appellant may seek his remedy,  if any,  in the  Civil Court.  The learned High Court, therefore,  in  my  opinion  committed  no  error  in quashing the complaint.      18. The appeal is dismissed.                            ORDER      In view of majority judgments, the appeals are allowed. P.B.R.                                      Appeals allowed. 647