Friday 30 July 2021

Whether the accused can seek quashing of prosecution on the ground that he made imputation for the public good?

The only contention which is sought to be canvassed

to challenge the proceedings is that the offence under

Section 499 I.P.C. is not made out inasmuch as the case is

covered under the first exception to the section which

provides that if the imputation is made for public good,

the same would not amount to defamation.

11. Defamation i.e. an injury to a person's reputation, is

both a crime and a civil wrong. In a civil action for

defamation in tort, truth is a defence, but in a criminal

action, the accused would be required to prove both the

truth of the matter and also that its publication was for

public good and no amount of truth would justify a

defamatory act unless its publication is proved to have

been made for public good. The defence of truth is not

satisfied merely by proving that the publisher honestly

believed the statement to be true, he must prove that the

statement was in fact true.

12. Truth by itself, would be not a defence to an action

for criminal defamation if other ingredients are present,

unless it can be shown that imputation in question besides

being truthful was made for the public good. As to what is

public good would be a question of fact depending upon

the facts and circumstances of the case and the onus of

proving two ingredients, namely, truth of the imputation

and the publication of the imputation for the public good,

would be on the accused.

13. The question whether or not the imputation was

made for public good would therefore be a question of fact

which would be required to be proved by the accused to

seek the benefit of the first exception to Section 499. The

defence in this regard being a question of fact, can be

decided during trial only and the benefit of the first

exception cannot be claimed at the stage of issuance of

summons.

ALLAHABAD HIGH COURT

Case :APPLICATION

U/S 482 No. 10431  of 2021

Rajesh Churiwala Vs State  of U.P. 

Hon'ble Dr. Yogendra Kumar Srivastava,J.

Dated: Order Date :14.7.2021

1. Heard Sri Birendra Prasad Shukla, learned counsel

for the applicant and Ms. Sushma Soni, learned Additional

Government Advocate appearing for the Stateopposite

party.

2. The present application under Section 482 Cr.P.C.

has been filed seeking to quash the proceedings of

Complaint Case No.10 of 2019 (Mohan Lal Saravagi Vs.

Rajesh Churiwala), under Section 500 I.P.C., pending

before the Additional Chief Judicial Magistrate, Court

No.3, Varanasi, within a stipulated time period.

3. Counsel for the applicant has also sought to assail

the order dated 18.01.2020 in terms of which the

applicant has been summoned.

4. The only contention which is sought to be canvassed

to challenge the proceedings is that the offence under

Section 499 I.P.C. is not made out inasmuch as the case is

covered under the first exception to the section which

provides that if the imputation is made for public good,

the same would not amount to defamation.

5. Learned AGA points out that the question as to

whether an imputation is made for public good or not

would be a question of fact which is to be seen in the trial

and the same cannot be taken as a ground to seek

quashing of the proceedings.

6. In order to appreciate the rival contentions, the

relevant statutory provisions relating to defamation under

Chapter XXI of the Indian Penal Code, 18601 would be

required to be referred to. Section 499 reads as follows :"

499. DefamationWhoever,

by words either spoken or

intended to be read, or by signs or by visible representations,

makes or publishes any imputation concerning any person

intending to harm, or knowing or having reason to believe

that such imputation will harm, the reputation of such

person, is said, except in the cases hereinafter expected, to

defame that person."

7. The first exception to Section 499, which is also

relevant for the purpose of the controversy at hand, is

being extracted below:

“First ExceptionImputation

of truth which public

good requires to be made or published.It

is not

defamation to impute anything which is true concerning

any person, if it be for the public good that the

imputation should be made or published. Whether or not

it is for the public good is a question of fact.”

8. Section 499 of the Penal Code states as to when an

act of imputation amounts to defamation. It contains four

explanations and ten exceptions and section 500

prescribes punishment in such cases. The ten exceptions to

Section 499 state the instances in which an imputation,

prima facie defamatory, may be excused. The first

exception corresponds to the defence which may be set up

by taking the plea of the imputation being true and for

public good. This exception recognizes the publication of

truth as a sufficient justification, if it is made for the public

good. Truth by itself would be no justification in criminal

law, unless it is proved that its publication was for the

1. Penal Code

public good.

9. The plea of defence of public good, under the first

exception to Section 499, fell for consideration in Chaman

Lal Vs. State of Punjab2, and it was held that public good

is a question of fact and the onus of proving the two

ingredients under the first exception i.e. the imputation is

true and the publication is for public good, is on the

accused. It was stated thus:

“8. Public good is a question of fact. Good faith has

also to be established as a fact.

xxx

15. In order to come within the First Exception to

section 499 of the Indian Penal Code it has to be

established that what has been imputed concerning

the respondent is true and the publication of the

imputation is for the public good. The onus of

proving these two ingredients, namely, truth of the

imputation and the publication of the imputation for

the public good is on the appellant...”

10. The provisions relating to defamation under Section

499 were again considered in the case of Subramanian

Swamy Vs. Union of India3, and in the context of the plea

for justifying the imputation by referring to the first

exception, it was observed as follows:“

179. Having dealt with the four Explanations, presently,

we may analyse the Exceptions and note certain

authorities with regard to the Exceptions. It is solely for

the purpose of appreciating how the Court has

appreciated and applied them. The First Exception

stipulates that it is not defamation to impute anything

which is true concerning any person, if it be for the

public good that the imputation should be made or

published. "Public good" has to be treated to be a fact. In

Chaman Lal v. State of Punjab : (1970) 1 SCC 590, the

Court has held that in order to come within the First

Exception to Section 499 of the Indian Penal Code it has

to be established that what has been imputed concerning

the Respondent is true and the publication of the

imputation is for the public good. The onus of proving

2. (1970) 1 SCC 590

3. (2016) 7 SCC 221


these two ingredients, namely, truth of the imputation

and the publication of the imputation for the public

good, is on the accused.

180. It is submitted by Dr. Dhawan, learned senior

Counsel for the Petitioners that if the imputation is not

true, the matter would be different. But as the Exception

postulates that imputation even if true, if it is not to

further public good then it will not be defamation, is

absolutely irrational and does not stand to reason. It is

urged that truth is the basic foundation of justice, but

this Exception does not recognize truth as a defence and,

therefore, it deserves to be struck down.

xxx

191...It is submitted that the Exceptions make the

offence more rigorous and thereby making the concept of

criminal defamation extremely unreasonable. The

criticism advanced pertain to truth being not a defence,

and unnecessary stress on 'public good'. The counter

argument is that if a truthful statement is not made for

any kind of public good but only to malign a person, it is

a correct principle in law that the statement or writing

can amount to defamation. Dr. Singhvi, learned senior

Counsel for some of the Respondents has given certain

examples. The examples pertain to an imputation that a

person is an alcoholic; an imputation that two family

members are involved in consensual incest; an

imputation that a person is impotent; a statement is

made in public that a particular person suffers from

AIDS; an imputation that a person is a victim of rape;

and an imputation that the child of a married couple is

not fathered by the husband but born out of an affair

with another man. We have set out the examples cited by

the learned senior Counsel only to show that there can

be occasions or situations where truth may not be sole

defence. And that is why the provision has given

emphasis on public good. Needless to say, what is public

good is a question of fact depending on the facts and

circumstances of the case. ”

11. Defamation i.e. an injury to a person's reputation, is

both a crime and a civil wrong. In a civil action for

defamation in tort, truth is a defence, but in a criminal

action, the accused would be required to prove both the

truth of the matter and also that its publication was for

public good and no amount of truth would justify a

defamatory act unless its publication is proved to have

been made for public good. The defence of truth is not

satisfied merely by proving that the publisher honestly

believed the statement to be true, he must prove that the

statement was in fact true.

12. Truth by itself, would be not a defence to an action

for criminal defamation if other ingredients are present,

unless it can be shown that imputation in question besides

being truthful was made for the public good. As to what is

public good would be a question of fact depending upon

the facts and circumstances of the case and the onus of

proving two ingredients, namely, truth of the imputation

and the publication of the imputation for the public good,

would be on the accused.

13. The question whether or not the imputation was

made for public good would therefore be a question of fact

which would be required to be proved by the accused to

seek the benefit of the first exception to Section 499. The

defence in this regard being a question of fact, can be

decided during trial only and the benefit of the first

exception cannot be claimed at the stage of issuance of

summons.

14. It is well settled that at the stage of issuing process

the Magistrate is mainly concerned with the allegations

made in the complaint or the evidence led in support of

the same and he is only to be prima facie satisfied whether

there are sufficient grounds for proceeding against the

accused. At this stage, there is no requirement to enter

into the detailed factual aspects or on the merits or

demerits of the case.

15. In the present case the applicant has sought to raise

a challenge to the order dated 18.01.2020 in terms of

which he has been summoned. At this stage, the

Magistrate is required only to be prima facie satisfied that

there are sufficient grounds for proceeding against the

accused and the defence of the accused is to be seen only

during the course of the trial. The protection of the first

exception to Section 499 of the Penal Code, which is being

relied upon on behalf of the applicant, is not to be seen at

this stage.

16. Learned counsel for the applicant does not dispute

the aforesaid legal position and states that the applicant

would appear before the court below, submit to its

jurisdiction and place his defence during the trial.

17. Having regard to the aforesaid, this Court is not

inclined to entertain the present application in exercise of

its inherent jurisdiction under Section 482 Cr.P.C.

18. The application stands accordingly dismissed.

Order Date :14.7.2021

Shahroz/Pratima

(Dr. Y.K. Srivastava,J.)


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