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PETITIONER: SUKRA   MAHTO

       Vs.

RESPONDENT: BASDEO KUMAR MAHTO &. ANR.

DATE OF JUDGMENT02/04/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. VAIDYIALINGAM, C.A.

CITATION:  1971 AIR 1567            1971 SCR  329  1971 SCC  (1) 885  CITATOR INFO :  RF         1981 SC1514  (10)

ACT: Indian   Penal  Code,  s.  499  Ninth  Exception-Charge   of defamation To come within Ninth Exception accused must prove that he made statement in good faith or in protection of his own interest or someone else’s interest--Ingredients of good faith.

HEADNOTE: There  was  a  proceeding  under  s.  144  of  the  Criminal Procedure  Code  between the respondents and  the  appellant regarding  some  agricultural land in Bihar.  The  land  was recorded  in  the names of the two brothers Karma  Ahir  and Faizu  Ahir.  The appellant was the grandson of the  former. The  first  respondent and his brother claimed the  land  as sons  of  Faizu Ahir by his second wife.  Both  the  parties were  called upon to show cause.  The appellant  in  showing cause  described  the first respondent and  his  brother  as illegitimate  sons  of  Faizu Ahir having  been  born  of  a concubine.  A complaint was filed against the appellant  for having  made the above defamatory statement.  The  appellant pleaded  not  guilty.  The trial magistrate  held  that  the statement in question was false and defamatory and convicted the  appellant under s. 500 of the Indian Penal  Code.   The Additional Judicial Commissioner upheld the conviction.  The Patna  High  Court dismissed the appellants  application  in revision.  In appeal before this Court by special leave, the question  for consideration was whether the appellant  could claim  the benefit of the Ninth Exception to s. 499  of  the Indian Penal Code. HELD:     The  ingredients of the Ninth Exception are  first that  the  imputation must be in good  faith,  secondly  the imputation must be for protection of the person making it or of  any other person or for the public good.  These are  all questions of fact. [332D] The  person alleging good faith has to 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 true.  The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception  to

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s.  499.   In  the Ninth Exception  the  person  making  the imputation  has to  substantiate that his  enquiry  was  a attended  with  due  care  and attention  and  he  was  thus satisfied  that the imputation was true.  The accent  is  on the   enquiry,  care  and  objective  and   not   subjective satisfaction. [332F-G] Harbhajan Singh v. State of Punjab, [1965] 3 S.C.R. 235  and Chaman Lal     v.  State of Punjab, A.I.R. 1970  S.C.  1372, relied on. In  the  present  case there was no evidence  to  show  that before making the   imputation   the  appellant   made   any enquiry in good faith.  The appellant had not shown due care and  attention before making the imputation.  By  reason  of the  findings  of fact that the appellant did not  act  with -are  and  caution  and secondly  that  the  appellant  was related  to the respondent :and thirdly that no enquiry  was made  by the appellant, the appellant could not  claim  good faith. [333C] 330 Just because a proceeding is pending it Will not be open  to a  person  to  impute the statements of the  nature  in  the present  case.   There was no question  of  title  involved. Even if title is involved that by itself will not entitle  a person to make a defamatory statement and then take the plea that  it was for the protection of interest.  Protection  of interest  of  person making the imputation will have  to  be established  by showing that the imputation was  itself  the protection  of  interest of the person making  it.   In  the present case the question was who was in possession of land. It  would  not  be  open  to a  person  to  deny  or  resist possession  in  proceeding  under s.  144  of  the  Criminal Procedure  Code  by hurling defamatory invectives  and  then claim the benefit of protection of interest. [333G] The appeal must accordingly fail.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53  of 1968. Appeal  by special leave from the judgment and  order  dated October  30,  1967  of  the Patna  High  Court  in  Criminal Revision No; 1734 of 1967. Ganpat Rai, for the appellant. D.   Goburdhun and Ram Das Chadha, for respondent No.1. D.   Goburdhun, for the respondent No. 2. The Judgment of the Court was delivered Ray, J.-This is an appeal by special leave from the Judgment and  order  of the Patna High Court dated 30  October,  1967 dismissing   an  application  in  the  criminal   revisional jurisdiction  against the judgment of the  First  Additional Judicial Commissioner, Ranchi dated 31 July, 1967  upholding the   conviction  and  sentence  passed  by   the   Judicial Magistrate,   First  Class,  Ranchi.   The   appellant   was convicted  under  section 500 of the Indian Penal  Code  and sentenced to pay a fine of Rs. 500 and in default to  suffer simple imprisonment for three months. There  was  a proceeding under section-144 of  the  Criminal Procedure  Code  between the respondents and  the  appellant regarding some land in the village Hatma in the district  of Ranchi in the State of Bihar.  The land was recorded in  the names  of  two  brothers Karma Ahir  and  Faizu  Ahir.   The appellant is the grandson of Karma Ahir.  Faizu Ahir had two sons  by  his  first wife.  Both of  them  died  during  his lifetime.   The  respondent  and his  brother  Sahdeo  Mahto

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claimed  the land as sons of Faizu Ahir by his second  wife. This  led  to a dispute between the parties.   There  was  a proceeding under section 144 of the Criminal Procedure Code. Both the parties were called upon to show cause.  The 331 appellant  in showing cause described Basdeo Mahto  and  his brother  Sahdeo  Mahto as illegitimate sons  of  Faizu  Ahir having been born of concubine. The  prosecution case was that the complainant’s  brother-in law  was present in the court of the Sub-Divisional  Officer in  the month of November, 1965 when the appellant’s  lawyer submitted  before  the  Sub  Divisional  Officer  that   the respondent  and his brother were illegitimate sons of  Faizu Ahir  having been born of concubine.  The  complainant  then obtained a certified copy of the written statement field  by the   appellant.   Thereafter  the  complainant  filed   the complaint.  The case of the complainant was that Faizu  Ahir had married Mst.  Sauni, who was a widow, in Sagai form more than  40 years ago according to the custom  prevalent  among the Yadav community.  She was living with Faizu Ahir as  his wedded  wife and was treated as such by the community.   The appellant and his brother were born long after the  marriage and were the legitimate sons of Faizu Ahir.  The complainant alleged  that the appellant made the statements with a  view to humilating and defaming the appellant and his brother. The  appellant pleaded not guity.  His defence was that  the statements  made in the written statements were  true.   The appellant further said that he had to disclose this fact  as the  respondent  and  his brother  dishonestly  claimed  the property to which they had no right. The findings of fact are these.  Faizu Ahir married Sauni in Sagai form.  The respondent was the legitimate son of  Faizu Ahir.   On  these  findings the  Magistrate  held  that  the statements   in  the  written  statement  were   false   and defamatory.   The appellant was convicted under section  500 of the Indian Penal Code. The First Additional Judicial Commissioner of Chota  Nagpur, Ranchi  heard  the  appeal preferred by  the  appellant  and upheld  the  conviction  and confirmed  the  sentence.   The Additional Judicial Commissioner held that the appellant did not  lead  any oral evidence to show that he acted  in  good faith.   The  appellant relied on a certified  copy  of  the deposition of the respondent in case No. GR. 775/65.   There the  respondent  was  asked a question in that  case  as  to whether  Faizu Ahir had kept a concubine and whether he  was the  son of that concubine.  The respondent replied that  he did  not know that Faizu Ahir kept a concubine and  that  he was  the  son  of the concubine.  On this  evidence  of  the respondent in case No. GR. 775/65 it was argued on behalf of the  appellant  before the Judicial  Commissioner  that  the respondent  did not categorically deny the  suggestion  that Faizu  Ahir had kept a concubine and that he was the son  of the concubine, and, therefore, the appellant did not act out of malice.  The Judicial Commissioner held 332 that the entire evidence of the respondent in that case  was that Puran and, Jitu were his step, brothers and the answers were  sufficient  to  show that there was a  denial  of  the suggestion that he was the son of the concubine.  The answer that  the  respondent did not know would not  mean  that  he accepted or did not deny the suggestion. The  relevant  provision in the present case is  the  Ninth Exception to section 499 of the Indian Penal Code.   Section 499   deals   with  defamation.   Section   500   prescribes punishment  for  defamation.  There are nine  exceptions  to

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section  499. These nine exceptions are the cases  in  which there  is  no defamation.  The Ninth  Exception  covers  the present case and is as follows :-               "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  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.  This Court is Harbhajan Singh  v. State  of Punjab(1) in dealing with the Ninth  Exception  to section 499 of the Indian Penal Code said that it would have to  be found out whether a person acted with due  care,  and attention.   This Court said there "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".  The person alleging good faith has to 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  true.   The  proof  of  the  truth  of  the statement is not an element of the Ninth Exception as of the First Exception to section 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 accent  is on  the  enquiry,  care and  objective  and  not  subjective satisfaction. This Court in Chaman Lal v. State of Punjab(2) dealing with good  faith  in the Ninth Exception said that "in  order  to establish (1) [1965] 3 S. C. R. 235. (2) A. I. R. 1970 S. C. 1372. 333 good  faith  and  bonafide it has- to  be  seen  first,  the circumstances 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". Judged by these tests laid down in the rulings of this Court the findings of act in the present case are that there is no evidence  to  show  that before making  the  imputation  the appellant  had  made  any  enquiry in  good  faith  and  the appellant had not shown due care and attention before making the  imputation.  By reason of the findings of act that  the appellant  did  not act with care and caution  and  secondly that the appellant was related to the respondent and thirdly that  no  enquiry was made by the appellant,  the  appellant could not claim good faith. The  second  ingredient in the Ninth Exception is  that  the imputation is to be made for the protection of the interest. The  protection  of  interest  contemplated  in  the   Ninth Exception is that communication must be made bonafide upon a subject in which the person making the communication has  an

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interest or duty and the person to whom the communication is made has a corresponding interest or duty.  The illustration (a) to the Ninth Exception typifies that idea :               "A,  a shopkeeper, says to B, who manages  his               business-"Sell nothing to Z unless he pays you               ready  money,  for I have no  opinion  of  his               honesty".   A is within the exception,  if  he               has  made this imputation on Z in  good  faith               for the protection of his own interests". There  was  a proceeding under section 144 of  the  Criminal Procedure  Code.   Just because a proceeding is  pending  it will not be open to a person to impute the statements of the nature in the present case.  There was no question of  title involved.  Even if title is involved that by itself will not entitle a person to make a dafamtory statement and then take the  plea  that  it  was for  the  protection  of  interest. Protection  of interest of the person making the  imputation will  have to be established by showing that the  imputation was  itself the protection of interest of the person  making it.   In  the  present case, the question  was  who  was  in possession of the land.  It would not be open to a person to deny or resist possession in proceeding under section 144 of the Criminal 334 procedure  Code  by hurling defamatory invectives  and  then claim the benefit of protection of interest. The  High  Court was justified in  dismissing  the  revision application and not interfering with the judgment and  order of  the  Judicial  Commissioner.  The appeal  fails  and  is dismissed. G.C.                               Appeal dismissed. 335