Calcutta HC: Whether plaintiff must issue legal notice before filing civil suit for recovering damages for defamation?

10. In that view of the matter Mr. Dutt's submission that a letter of demand by the Solicitor was not condition precedent before filing a civil suit for damage for defamation, is irrelevant. Normally and almost universally the practice in a civil suit for defamation is a prior Solicitor's letter demanding damage or apology or both. It is a normal, natural and conventional part of the civil law and procedure of defamation. In strict law the Solicitor's demand is not a condition precedent for a suit for defamation claiming damages, but it is only a natural and appropriate step to take to notify a person that he will be faced with a suit for damage for a particular amount unless he apologizes or unless e does certain things. In the absence of such a notice the question of motive and question of cost in a suit for damage may become important. In some of the Canadian Provinces it is a condition precedent to an action for newspaper libel that the plaintiff shall give the defendant notice in writing specifying the particular statements of which he complains. No doubt, such is not the law here in India. From that point of view it cannot be said in India that the letter of demand is a condition precedent to an action for damages for defamation in a civil suit. Rut the letter of demand in a civil suit for damages for defamation is almost a universal practice in India. In fact, Gatley on Libel and Slander, Fourth Edition at page 432 speaking of English law on the point, which is more like the law in India than Canada on the point, observed:

'No such notice is requisite under our law. It is however, always advisable to give the defendant an opportunity before writ to withdraw and apologise. Such a letter will help to show that the plaintiff's real object is to vindicate his character and not merely to make money out of the attack. Moreover, a refusal to withdraw and express regret for statements that are without foundation is a matter which the jury, may take into consideration in assessing damages. And, if the reply to the demand for an apology be a letter of abuse or reiteration of the charge, such letter will materially strengthen the plaintiffs case if malice is an issue in the action." This is the common sense justification of the universal practice of Solicitor's letter of demand before filing a civil suit for damages for defamation and its essential raison d'etre. Mr. Dutt's submission apparently was that if a notice for a suit for defamation was not necessary then to give a notice of such a character while a criminal proceeding is pending, invariably constitutes contempt of such criminal proceeding. In the view that we have taken we are unable to accept that unqualified submission. {Para 10}

 IN THE HIGH COURT OF CALCUTTA

Criminal Misc. Case Nos. 206 and 214 of 1965

Decided On: 28.02.1966

Asoke Kumar Sarkar and Ors. Vs. Radha Kanto Pandey and Ors.

Hon'ble Judges/Coram:

P.B. Mukharji and A.K. Das, JJ.

Author: P.B. Mukharji, J.

Citations: AIR1967 CAL178, 1967CRILJ455,  MANU/WB/0054/1967

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Defamation under Indian law

 Defamation under Indian law is comprehensively defined and regulated through both civil and criminal provisions, protecting individuals' reputations while balancing freedom of expression.

Legal Definition

Section 499 of the Indian Penal Code defines defamation as: "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 excepted, to defame that person."

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Cognizance by Sessions Courts: Navigating the Legal Framework Under CrPC and Special Acts

 Understanding the jurisdictional boundaries and exceptions in criminal proceedings

Introduction

The power of Sessions Courts to take cognizance forms a critical aspect of India's criminal justice system. While the Criminal Procedure Code, 1973 establishes clear procedural boundaries through Section 193, various provisions within the Code and special legislations create specific exceptions that empower Sessions Courts to exercise original jurisdiction. This article examines the intricate legal framework governing when and how Sessions Courts can take cognizance of criminal offences.

The Foundational Principle: Section 193 CrPC

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Bombay HC: Advocate Casting Aspersions On Woman's Character Upon Instructions From Client Is Discharging His Duty, Not Insulting Her Modesty

 Reliance is placed upon the decision in the case of Navin Parekh vs. Madhubala Shridhar Sharma & Ors. MANU/MH/0883/1992 : 1992 Mh.L.J. 1409, in the backdrop that the lawyer had forwarded certain letters on behalf of his client where it was alleged that he had acted in highly unprofessional and unethical manner and he was sought to be prosecuted for alleged defamation, since the words used in the letter were per se defamatory. It is in these facts, it was held that where a party on the basis of sufficient material arrives at a conclusion and states its case and the contemplated course of action in the legal correspondence, it would be wholly inappropriate to allege that an offence of defamation is committed. Justice M.F.Saldanha held that, "in the case of an Advocate where express malice is absent, a Court having due regard to public policy would be extremely cautious of depriving him of the protection of Exception 9 to Section 499 Indian Penal Code. The Trial Magistrates would be well advised to be doubly cautious while entertaining complaints against legal practitioners because the law does confer on them certain privileges which are necessary for the conduct of their professional duties. It is, therefore, only in that class of cases where those privileges have been virtually abused alone, the process should be issued. The obligation of making out a case that the accused, who is an advocate had not acted in good faith and that he had acted maliciously is, therefore, a condition precedent and in absence of this necessary ingredient, the prosecution cannot be sustained." {Para 21}

24. In any case, since we find that there was no intention on part of the Petitioner to insult her modesty, as he was only discharging his duty of defending his clients in the remand proceedings and even if he had cast aspersions upon her character, since they were based on the instructions received from his clients, which has reference in the complaint made on-line and its receipt in the police station is not denied, we deem it appropriate to extend the privilege of an Advocate to the present Petitioner and moreso, what we find is, the statement is not unconnected to the case, as it is the case of his client that by using the pressure tactics, they were being coerced to pay the money.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 3858 of 2024

Decided On: 09.12.2024

Ratnadeep Ram Patil Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre and Manjusha Ajay Deshpande, JJ.

Author: Bharati H. Dangre, J.

 Citation: 2024:BHC-AS:48668-DB, MANU/MH/7471/2024.

Read full Judgment here: Click here.

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Understanding Defamation Law and Electronic Media in India

Defamation law in India addresses the protection of an individual's reputation against false statements that could harm their dignity and social standing. With the rise of electronic media, particularly social media, the implications of defamation have become more complex, necessitating a thorough understanding of the legal framework governing such offenses.

 Defamation: Legal Framework in India

Defamation in India is defined under Section 499 of the Indian Penal Code (IPC), which states that a person is guilty of defamation if they make or publish any imputation concerning another person with the intent to harm their reputation, knowing that such imputation will cause harm. The punishment for defamation is outlined in Section 500, which can include imprisonment for up to two years, fines, or both.

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Bombay HC: Facebook Screenshots Printouts of defamatory posts not sufficient to prove that it is made from a fake account

Learned Advocate appearing for applicant vehemently submits that First Information Report has been filed by respondent No.2, who is the brother-in-law (wife's brother) of applicant. According to informant, applicant had created a fake Facebook account in the name of one Minal Basavraj Swami and Chandra Surnal and through the said fake Facebook account the applicant has defamed the informant and his family members, especially the wife of applicant. There was marital discord at that time between the applicant and his wife. If we consider the charge sheet, then it can be seen that there is absolutely no proper investigation. Only the screen shots of Facebook, of which prints have been taken, are annexed after seizure and there are statements of two witnesses. Only on the basis of said material it cannot be said that the said Facebook posts were created by the applicant. Therefore, there is absolutely no evidence against the applicant and, therefore, it would be futile exercise to ask the applicant to face the trial. {Para 3}

4. We take the present case as a classic case, which is investigated in total ignorance of provisions of law and by a person, who appears to have not undergone training of detecting cyber crime. When it was specifically alleged in the First Information Report that two Facebook accounts have been fraudulently created, then the Investigating Officer ought to have got help of an expert to see from which IP address those accounts were created, whether any such electronic device of the said IP address is with the accused. Print of screen shots of Facebook material will not at any stretch of imagination would prove that the said post was created from an alleged fake account. Even if for the sake of argument we accept that there was dispute between applicant and his wife and the alleged post had a defamatory material in respect of informant, his family members including his sister i.e. wife of applicant; still we cannot reach the conclusion without any evidence that the applicant would have been the only person behind creation of such fake Facebook account.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 2850 of 2019

Decided On: 22.10.2024

Mahesh Shivling Tilkari Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi and S.G. Chapalgaonkar, JJ.

Author: Vibha Kankanwadi, J.

Citation: MANU/MH/6841/2024.

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Defamation and Freedom of Speech: Navigating Indian Law

 To understand the relationship between defamation and freedom of speech in the Indian legal context, particularly under Section 499 of the Indian Penal Code (IPC), it is essential to explore the nuances of both concepts and their interplay as interpreted by the Indian judiciary.

 Defamation Under Indian Law

Defamation in India is defined under Section 499 of the IPC, which states that a person is guilty of defamation if they make or publish any imputation concerning another person with the intention or knowledge that such imputation will harm the reputation of that person. This provision includes both spoken (slander) and written (libel) statements. For a statement to be considered defamatory, it must be false and made with intent or reason to believe that it would cause reputational harm.

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Whether accused can be held guilty for an offence of defamation under S 499 of IPC if he had no intention to cause damage or defame?

 Under Section 499 of the Indian Penal Code (IPC), an individual can only be held guilty of defamation if they had the intention to cause damage or defame another person. The key elements that constitute the offense of defamation include making a false statement about someone, which is published with the intent to harm that person's reputation or with knowledge that it is likely to cause such harm.

 Intention in Defamation

1. Requirement of Intention: For a statement to be classified as defamatory, it must be made with a mala fide intention—meaning the accused must have intended to harm the reputation of the individual or at least have known that their statement could lead to reputational damage. If the accused did not possess such intention, they cannot be held liable under Section 499 IPC.

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Bombay HC: Accused intimidating public servant by threatening to defame him on social media site as well as engineering artificial protest falls with scope of criminal force as used in S 353 of IPC.

Mr. Thobde contends that, the allegations in the F.I.R. do not make out any case for trial and that they are inherently improbable. He submitted that, ingredients of the offences as alleged are not even prima facie made out against the Petitioner. He further argues that, raising grievances in a democratic manner by protesting against illegal action or inaction of public servant does not amount to any offence. He raises a strange ground that, the Petitioner has only acted in furtherance of fundamental right bestowed upon him and hence he urges us to quash the F.I.R. as it is sheer harassment to the Petitioner to undergo the rigors of the trial. {Para 5}

8. The present case is suggestive of an emerging trend by persons such as the Petitioner herein, who with the aid of modern-day technologies devise a modus operandi to commit such offence. Hiding behind the screen of social media, irresponsible acts are done which have the propensity to effectively intimidate and cause a person to do acts which they would not otherwise lawfully do. All this while maintaining a veil of deniability of the act. The threat to use social media sites as a platform to intimidate and threat given by the petitioner and his accomplice is real enough to scare the complainant albeit a public servant ignoring their demands only at the risk of being defamed or facing an engineered protest.

9. Section 353 of the I.P.C. makes use of criminal force to any person being a public servant in the execution of his duty or with intent to prevent or deter him from discharging his duties, an offence. The act of the Petitioner in intimidating the complainant by threatening to defame him on social media site as well as engineering artificial protest also falls within the scope and ambit of the word 'criminal force' used in the Section. Threats of using social media site to intimate is a manifestation of the intention of the Petitioner to abuse modern day technology by 'virtually' using criminal force on the complainant. The ulterior motive is to deter him from discharging his public duty. In such circumstances 'criminal force' must not be restricted to only include physical force, but must bring within its ambit 'virtual force'. Section 353 cannot be interpreted in a narrow or parochial manner and a myopic view cannot be taken of the same. Such acts do not merely threaten the victims of crime but also defeats the very purpose of the criminal justice system. As in the case at hand, a public servant is at his tether's end to find a resolution to the constant threats and demands of money by the Petitioner. Finally, he found courage enough to approach the police who set up the trap to ensnare the Petitioner.

10. It is most unfortunate that, a public servant has been threatened and intimidated by defamatory material being circulated on social media to lower his reputation in the eyes of the right-thinking members of the society. A Tehsildar in a district is a respected public officer and is expected to discharge important functions in revenue matters. He is required to command obedience from the public at large visiting his office. If the repute of his office is lowered in the environment over which he has jurisdiction, there is a probability of chaos and disruption in the discharge of his duties. The threat of spreading false narrative by way of engineered protests in present times is bound to be quite a scary proposition for a public servant such as the complainant. The intent of the Petitioner in giving the threats and cause concern to the complainant would easily amount to an obstruction of a public servant from carrying out his public duties, particularly when the threats are coupled with aggressive and menacing acts on the part of the Petitioner and his accomplice. The F.I.R. also reveals the threat given by the Petitioner of organizing a protest during the Legislative Assembly Session in Nagpur which gives the entire act of the Petitioner a political color. This is reason enough for the complainant to be disconcerted and place him in fear of injury to his person and reputation. These acts are deprecated and need to be discouraged at their very inception, justifying prosecution.

10.1. We have recorded our above observations in detail only to bring to the fore the dangers of public servants being intimated while discharging their public duty. Public faith in public servants cannot be allowed to erode. Such acts must be viewed seriously.

11. In view of the aforenoted facts, we are of the considered opinion that, the F.I.R. prima facie discloses ingredients of the offences as alleged. We are thus not inclined to allow the Petition.

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 276 of 2024

Decided On: 01.07.2024

Ajit Prabhakar Kulkarni Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.S. Gadkari and Dr. Neela Kedar Gokhale, JJ.

Author: Dr. Neela Kedar Gokhale, J.

Citation:  MANU/MH/4381/2024.

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Under which circumstances the court must give interim injunction against defamation publication?

 Under the Law of Defamation, the test of defamatory nature

of a statement is its tendency to insight an adverse opinion on

feeling of other persons towards the Plaintiff. The words must

result in the Plaintiff to be looked upon with the feeling of hatred, contempt, ridicule, dislike or to convey an imputation to him or disparaging him or his office, profession, calling, trade or

business. {Para 19}

In India, like most other common law countries the burden

is proof is on the Defendant to show that the statement is true or

the publication was not intentional.

In S. Puttaswamy vs. Union of India (2017) 10 SCC 1, a 9 Judge Bench of the Highest Court has authoritatively held that right of privacy is a fundamental right and the only permitted exception is where, there is counter veiling public interest, which in particular

circumstances is strong enough to outweigh it.

20] What the Defendant No.1 is attempting, is investigative

journalism, which is definitely not in the interest of general public

at large, as a Journalist, though he may be duty bound to appraise

the public, of the facts and data which is in their interest, it

definitely cannot be attempted at the cost of defaming the

Plaintiff. The freedom of press, which is being evolved as a species of speech, definitely will have to be balanced against a right, which an individual has to his reputation. Justification by truth is a well accepted defence, which is available to answer the action, as truth of defamatory words, is accepted as defence to an action of libel or slander, though not in a criminal trial. However, what is important is, that the Defendant must make clear, the particulars of justification and the the case which he is seeking to set up and justify.

21] In the present case, Mr. Waahiid Khan has not offered a

single justification of truth, but what is asserted by him, is the

right to give his audience an objective and fair view.

A reference is made to an interview with accused No.13

Amit Majethia, but in any case, such disclosure is merely hearsay.

In fact, in the reply filed,what is disclosed is the FIR

registered with Matunga Police Station, where the Plaintiff is one

of the accused and reference is also made to revelations by Mr.

Amit Majethia to him, where he exposed the Plaintiff as gambling

tycoon of India and disclosed that the Plaintiff was in charge of the

alleged criminal activities in Dubai and his uncle was in charge of

the same in Mumbai.

22] It is highly surprising, that a responsible Journalist,

without asserting the truthfulness of the statement, from Amit

Majethia who was interviewed by him, has thought it fit to put

the revealation on public platform and in public domain

including Shawn TV, instagram account. Though a feeble attempt

is made by Defendant No.1 to assert that he had no intention to

defame or harm the reputation of the Plaintiff, but he has

accepted to bring some important facts to light, burden is upon

him to establish that the Plaintiff is associated with criminal

activities or that he is involved in any sort of hooking. Obviously,

the Defendant has not taken a reasonable precaution of

ascertaining the truth before publication of the interview, by

casting imputations which prima facie amount to defamatory

statement.

23] The question as regards grant of interim relief in form of an

injunction restraining the Defendants from publishing the

defamatory Article on the public platform, it is a trite position of

law in India, that a mere plea of justification would not be

sufficient for denial of interim relief and the Defendant No.1 apart

from it will have to show that the statements were made bonafide

and were in public interest and reasonable precaution was taken

to ascertain the truth and the statements were based on sufficient

material which could be tested for its veracity.

24] The above position of law is well settled in India and is at

variance with the principles of law in England, where in an action for defamation once a Defendant raise a plea of justification, at interim stage, the Plaintiff is not entitled for an interlocutory injunction, but the same not being the position in India, where the Court is entitled to scrutinize the material tendered by the Defendant, so as to test its veracity and to ascertain, whether the statements are made bonafide and whether they are in public interest.

Thus, in India, even at the interlocutory stage, the Court is

very much entitled to look at the material which is alleged to be

defamatory in nature.

25] As a result of position of Law which has evolved in India,

the truth of defamatory words is a complete defence to an action

of libel and slander, but a Journalist or Reporter is not expected to transgress the limits of his right of speech and expression and

cannot claim protection by simply stating that the information,

was provided to him by someone and it is in public interest to

divulge the same, on the pretext that duty lies in giving out that

information to the public.

Investigative Journalism definitely does not enjoy any

special protection and the umbrage of public interest definitely do not permit a publication, which would amount to lowering down the reputation of any person , in any manner particularly without justifying the publication on the basis of its truthfulness. Just because, the Defendant No.1 is interested in ascertaining the

truth or is interested in going to roots of the complaint that is

filed, resulting into an FIR, do not necessarily mean that the

publication is in public interest and particularly when the

complaint is under investigation.

26] A write up which contain imputations and insinuations

against the character of the Plaintiff, particularly when they are

baseless and reckless, as in response to the Interim Application,

except stating that it is based on the First Information Report

and an interview of some third person, no justification is offered,

by the First Defendant.

A publication by a Journalist who claim to have exposed

many scams definitely do not authorize him to publish a column/

article, which may result into hatred, ridicule or contempt of the

Plaintiff and he may not escape the consequences, merely on the

pretext that it is in public interest.

If a CR is registered on a complaint and it is under

investigation, the Defendant No.1 has offered no justification for

running a story, which according to the Plaintiff tends to lower

his image in the public.

29] The position in India, being evolved to the effect that it is

open for the Court to pass a restraint order, but it shall be passed

with great caution and the Plaintiff must prove that the words

complained of, are untrue and any subsequent publication would

be malafide. The case of the Plaintiff falls within these four corners, as the defence of truth if permitted to be availed at the stage of trial, which in this country will be long wait, would have the desired effect of maligning the image of the Plaintiff and without any sufficient cause/justification being offered by any supporting material.

30] For the above reasons, I am convinced to grant the reliefs

in the Interim Application

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO.399 OF 2024

IN  SUIT (L) NO.398 OF 2024

Khanjan Jagadishkumar Thakkar Vs Waahiid Ali Khan & Ors. 

CORAM : BHARATI DANGRE, J

DATE : 2nd April, 2024.

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Whether Allegations In Complaint Made In Good Faith To Lawful Authority Attract Offence Of Defamation?

ANALYSIS:

Having heard the learned counsel appearing for the parties andhaving gone through the materials on record, the only question that falls for our consideration is whether the allegations made in the complaint addressed to the SDM make out the offence under Section 500 IPC or not?

Section 499 of the IPC reads, thus:

“499. Defamation.—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 excepted, to defame that

person.”

Eighth Exception to Section 499, to which reliance has been

placed by the learned counsel, reads as under:

“Eighth Exception.—Accusation preferred in good faith

to authorised person.—It is not defamation to prefer

in good faith an accusation against any person to any

of those who have lawful authority over that person

with respect to the subject-matter of accusation.”

The word “good faith” has been defined in Section 52 of the IPC

to mean:

“52. ‘Good faith’.—Nothing is said to be done or believed

in ‘good faith’ which is done or believed

without due care and attention.”

We are of the view that no case is made out to put the

appellant to trial for the alleged offence. There is no defamation

as such.

Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject-matter of accusation. Even otherwise by perusing the allegations made in the complaint, we are satisfied that no case for defamation has been made out.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2291 OF 2011

KISHORE BALKRISHNA NAND  Vs STATE OF MAHARASHTRA & ANR.

Citation:  2023 INSC 675 .

Dated: AUGUST 02, 2023.

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Supreme Court: Under which circumstances the court must stay conviction in defamation case?

 Insofar as grant of stay of conviction is concerned, we have considered certain factors. The sentence for an offence punishable under Section 499 of the Indian Penal Code, 1860 (for short “IPC”) is simple imprisonment for two years or fine or both. The learned Trial Judge, in the order passed by him, has awarded the maximum sentence of imprisonment for two years. Except the admonition given to the appellant by this Court in contempt proceedings [Contempt Petition (Crl) No.3/2019 in Yashwant Sinha and Others v. Central Bureau of Investigation through its Director and another, reported in (2020) 2 SCC 338] no other reason has been assigned by the learned Trial Judge while imposing the maximum sentence of two years. It is to be noted that it is only on account of the maximum sentence of two years imposed by the learned Trial Judge, the provisions of sub-section (3) of Section 8 of the Representation of the People Act, 1950 (for short, “the Act”) have come into play. Had the sentence been even a day lesser, the provisions of subsection (3) of Section 8 of the Act would not have been attracted. {Para 5}

6. Particularly, when an offence is non-cognizable, bailable and compoundable, the least that the Trial Judge was expected to do was to give some reasons as to why, in the facts and circumstances, he found it necessary to impose the maximum sentence of two years.

9. We are of the considered view that the ramification of subsection (3) of Section 8 of the Act are wide-ranging. They not only affect the right of the appellant to continue in public life but also affect the right of the electorate, who have elected him, to represent their constituency.

10. We are of the considered view, taking into consideration the aforesaid aspects and particularly that no reasons have been given by the learned Trial Judge for imposing the maximum sentence which has the effect of incurring disqualification under Section 8(3) of the Act, the order of conviction needs to be stayed, pending hearing of the present appeal.

IN THE SUPREME COURT OF INDIA

 J. Petition(s) for Special Leave to Appeal (Crl.) No(s). 8644/2023; 

RAHUL GANDHI Vs PURNESH ISHWARBHAI MODI & ANR.

Bench: B.R. GAVAI; J., PAMIDIGHANTAM SRI NARASIMHA; J., SANJAY KUMAR;

Dated: 04-08-2023.

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Supreme Court: Minister/Public Servant Can File Private Complaint Alleging Defamation; Need Not Follow Special Procedure U/Sec 199 (2) & (4) CrPC

  In Subramanian Swamy (supra), this Court was dealing with a batch of writ petitions Under Article 32 of the Constitution challenging the constitutional validity of Sections 499 and 500 Indian Penal Code and Sections 199(1) to 199(4) of the Code of 1973. The impact of Sub-section (6) on other Sub-sections of Section 199 of the Code of 1973 was indicated in paragraph 203 of the Report in Subramanian Swamy as follows:

203. Sub-section (6) gives to a public servant what every citizen has as he cannot be deprived of a right of a citizen. There can be cases where sanction may not be given by the State Government in favour of a public servant to protect his right and, in that event, he can file a case before the Magistrate.  {Para 44}

45. The above passage is relied upon by the learned Senior Counsel for the Appellants to contend that it is only in cases where the State Government refuses to give sanction for prosecution, that the individual right Under Sub-section (6) of Section 199 can be invoked. But we are afraid that such an inference does not flow out of what is observed in paragraph 203 of the decision in Subramanian Swamy (supra). To say that the provisions of Sub-section (6) of Section 199 can be invoked by the individual public servant, only in cases where the State Government does not go to his rescue, could violate the plain language of Sub-section (6). Sub-section (6) of Section 199 begins with the words "nothing in this Section shall affect the right of the person against whom the offence is alleged to have been committed". Sub-section (6) does not contain any conditions subject to which the right thereunder can be exercised.

46. The non-obstante Clause in Sub-section (2) of Section 199 will also not go to the rescue of the Appellants, as the said Clause also stands eclipsed by the words "nothing in this section" appearing in Sub-section (6). The word "nothing" appearing in Sub-section (6) will include the non-obstante Clause in Sub-section (1) also.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1791 of 2022 

Decided On: 17.10.2022

Manoj Kumar Tiwari  Vs. Manish Sisodia and Ors.

Hon'ble Judges/Coram:

S. Abdul Nazeer and V. Ramasubramanian, JJ.

Author:V. Ramasubramanian, J.

Citation: MANU/SC/1349/2022.

Read full Judgment here: Click here

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Whether Statements Like 'I Will Expose Your Scam' Against A Minister is Defamatory?

 We do not know how a statement in a tweet that the answers of Respondent No. 1 to the questions posed by the Appellant will disclose his scam, can be said to be defamatory. We are afraid that even if a person belonging to a political party had challenged a person holding public office by stating "I will expose your scam", the same may not amount to defamation. Defamatory statement should be specific and not very vague and general. The essential ingredient of Section 499 is that the imputation made by the Accused should have the potential to harm the reputation of the person against whom the imputation is made. Therefore, we are of the view that the statement made by Shri Vijender Gupta (A-5) to the effect "your answer will disclose your scam" cannot be considered to be an imputation intending to harm or knowing or having reason to believe that it will harm the reputation of Respondent No. 1. {Para 60}

62. Though the High Court prima facie examined the tweets, it upheld the summoning order passed by the Magistrate, after simply extracting Section 499. The claim made by a person involved in politics that the answers provided by his rival in public office to the questions posed by him, will expose his scam, cannot be per se stated to be intended to harm the reputation of the person holding office. The statements such as "I will expose you", "I will expose your corrupt practices" and "I will expose the scam in which you are involved, etc." are not by themselves defamatory unless there is something more.

63. In view of the above, the appeal filed by Shri Vijender Gupta (A-5) is liable to succeed on the sole ground that the statements contained in his tweets cannot be said to be defamatory within the meaning of Section 499 of the Indian Penal Code.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1791 of 2022 

Decided On: 17.10.2022

Manoj Kumar Tiwari  Vs. Manish Sisodia and Ors.

Hon'ble Judges/Coram:

S. Abdul Nazeer and V. Ramasubramanian, JJ.

Author:V. Ramasubramanian, J.

Citation: MANU/SC/1349/2022

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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

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Whether filing of civil suit for defamation amounts to violation of freedom of speech and expression?

In my view there is merit in the plea of the plaintiff's counsel. Article 19(2) is a negative covenant i.e., a bar on the restrictions imposable upon the otherwise unfettered right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution. There is no requirement or restriction in Article 19(2) that unless and until permitted by Article 19(2), no suits for defamation can be filed, as contended and in my view erroneously by the learned senior counsel for the defendant,Shri Tripathi. To accept Mr. Tripathi's plea would tantamount to rewording the Constitution. A plain reading of the Constitution makes it clear that at present there is no fetter/bar on filing of suits based on defamation and therefore the plea of theefendant under Order VII Rule 11 that the suit is barred by any law i.e., Article 19 as the Parliament has not enacted any law permitting suits for defamation is not tenable and is accordingly rejected. There is also substance in the plea of the plaitiff's counsel that Section 9 of the CPC permits the trial of all civil suits unless expressly or impliedly barred. Admittedly there is no express bar against suits for defamation. The plea of the implied bar under Section 9 by virtue of the non-enactent of a statute under Article 19(2) permitting defamation suits has already been rejected. Consequently the suit is also maintainable under Section 9 CPC.

 Delhi High Court

Ashoke Ghosh vs Urmi A. Goswami on 7 January, 2005

Bench: M Mudgal

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Whether the employer will be liable for defamation of employee if he conducts departmental enquiry against him?

 In the present case, the defendant has taken the defence of privilege. The question is whether the charge-sheet issued against the plaintiff, the enquiry report and the letter of dismissal of the plaintiff can be said to be protected by absolute privilege or qualified privilege?

37. The enquiry proceeding was initiated by the defendant by issuing the charge-sheet on the basis of information received that the matriculation certificate and mark-sheet submitted by the plaintiff at the time of his appointment were not genuine. The information was received from a reliable source and in my opinion could not be brushed aside as frivolous. If it was finally established that the information was true, that would have amounted to a criminal offence on the part of the plaintiff. Having got such information, it was incumbent upon the management of the defendant to hold an enquiry into the matter. Such enquiry was held as part of the management's duty and in larger public interest. As such, in my considered opinion, the enquiry proceedings and all publications made in connection therewith were privileged. As Lord Finlay L.C. observed in Adam vs. Ward, (1917) Appeal Cases 309, if a communication is made in pursuance of a duty, the same would be privileged. His Lordship was of the view that this privilege is qualified and may be rebutted by proof of express malice. In the present case, no case of malice has been established by the plaintiff. Hence, at least, the defence of qualified privilege would be available to the defendant.

38. The law is fairly clear that any step which is essentially a step in a judicial or quasi-judicial proceeding would be immune from liability for defamation as it gives rise to an occasion for privilege.  In O'Conor vs. Waldron, MANU/PR/0085/1934 : AIR 1935 PC 3, Lord Atkin observed that proceedings before an executive or administrative authority or a step to initiate such proceedings can only give rise to an occasion for qualified privilege. Gatley on Libel and Slander (5th Ed., page 181) states that no action will lie for defamatory statements contained in any document which is incidental to the proper initiation of judicial or quasi-judicial proceedings, information, complaint, writ or petition by which the quasi-judicial Tribunal is set in motion.

39. I have no doubt in my mind that the protection of privilege should extend to enquiry proceedings conducted by an employer against an employee. It would definitely not be desirable if an employer in spite of receiving information that an employee is allegedly committing a crime or other wrongful act detrimental to the public interest, refrains from holding an enquiry into the matter for the fear of being exposed to a defamation suit. Such a position would be extremely harmful to the interest of the public at large.

40. The question is whether such privilege should be absolute or qualified. I am of the view that the privilege should be qualified. This means that if the plaintiff is able to establish malice on the part of the defendant in conducting an enquiry proceeding against him by issuing charge-sheet, the defence of privilege will not be available to the defendant. However, in the present case, the plaintiff has been unable to establish malice on the part of the defendant in conducting the enquiry proceeding against him by issuing charge-sheet which culminated in his dismissal order. I am of the considered view that the materials complained of by the plaintiff and forming the basis of the present defamation suit are protected by qualified privilege. The fact that at a subsequent point of time due to intervention of the Hon'ble President of India, the order of dismissal was withdrawn and the plaintiff was reinstated in service, does not change the situation.

 IN THE HIGH COURT OF CALCUTTA

CS 11 of 2006

Decided On: 17.02.2017

 Manik Lal Bhowmik  Vs.  Bharat Sanchar Nigam Limited

Hon'ble Judges/Coram:

Arijit Banerjee, J.

Citation: MANU/WB/0098/2017

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Whether the court can convict wife for defamatory pleadings made by her against the husband in matrimonial proceeding?

Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition No. 152/2014, in her argument stating that the pleadings filed in a Court and the deposition given in a Court of Law are not privileged one and further stating that a pleading filed in the Court also amounts to publication, has relied upon few judgments in her support as follows.

In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in MANU/MH/0120/1990 : 1990 CRL. L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication. It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.

In the case of M.K. Prabhakaran and another Vs. T.E. Gangadharan and another reported in MANU/KE/0074/2006 : 2006 CRI. L.J. 1872, the Kerala High Court, in a matter where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court held that, once a statement has been filed in a Court of Law, that statement can be taken as published. If such a statement amounts to per se defamatory, then it is the duty of the accused to establish that, they are justified in making such a statement under any of the exceptions to Section 499 of IPC.

In the case of Sanjay Mishra Vs. Government of NCT of Delhi & another, the Delhi High Court in paragraphs 11 and 12 of its judgment was pleased to observe as below:-

"11. In Sandyal V. Bhaba Sundari Debi MANU/WB/0241/1910 : 7 Ind. Cas. 803 : 15 C.W.N. 995 : 14 C.L.J. 31 the learned Judges, following the case of Augada Ram Shaha V. Nemai Chand Shaha MANU/WB/0132/1896 : 23 C.867 : 12 Ind. Dec.(n.s.)576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege in this regard cannot be claimed in respect of such statements, unless they fall within the Exceptions to Section 499 of the Indian Penal Code. Undisputedly, the case of the petitioner was not in any of these Exceptions.

12. For criminal purposes "publication" has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved...."

In the case of Thangavelu Chettiar Vs. Ponnammal reported in MANU/TN/0132/1966 : AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.

20. In the instant case, to bring the statements made by the accused in Ex. P-4 which are contested to be defamatory as the one made with good faith and thus falling within the Ninth Exception to Section 499 of IPC, she has to show that she had made those statements with due care and attention. However, her own statement made at more than one place in her cross-examination as DW-1 that, she has stated that what she has stated in her statement of objections were the facts and they were the incidents occurred between herself and her husband i.e. the complainant. She has reiterated that they were the truth, as such, they were fact, in her further cross-examination also. Therefore, though the learned counsel for the accused contends that, she made the same in good faith, but according to accused, they were truth. If they are truth and falling under First Exception to Section 499 of IPC, then it is for her to prove that they were the facts.

Admittedly, except making those statements in her statement of objections at Ex. P-4 and reiterating it in Ex. P-1, she has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation punishable under Section 499 of IPC, which is punishable under Section 500 of IPC.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Revision Petition Nos. 152 of 2014 and 1358 of 2010

Decided On: 01.10.2020

 Sushma Rani  Vs.  H.N. Nagaraja Rao

Hon'ble Judges/Coram:

Dr. H.B. Prabhakara Sastry, J.

Citation: MANU/KA/3441/2020

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Whether any party can prosecute Advocate for defamation if he pleads on behalf of a client?

 In regard to the decision of Meredith J. in

AIR 1948 Pat 56 (Z33) It would be wholly improper for

me to canvass the correctness of this single Judge's

decision of another High Court which is not binding

upon me except to the extent that it refers to the decision

of Burn J. in 1935 Mad WN Cr 76 (A). The learned

Judge writes :

"I have been referred to the notes in Ratanlal's Penal

Code for a Madras case, 1935 Mad WN Cr 76 (A)

which, according to the learned commentator, laid down

that where the accused was charged with defamation

because his vakil put a defamatory question to the

complainant and the vakil gave evidence that he did so

on the instruction of his client, the accused, the

instructions of the accused to his vakil were inadmissible

under Section 126, Evidence Act and the accused was

not guilty of defamation committed as it were by proxy

through the mouth of his vakil. Unfortunately, the

decision is not obtainable In the library here. but the

reasoning quoted, seems to me sound."

 A lawyer is an

advocate -- one who speaks for another. Naturally

beyond what his client tells him the lawyer has no

opportunity to test the truth or falsity of the story put

forward by the client. It would therefore be unrighteous

to make the lawyer the whipping-boy for his client.

It is held that a lawyer is an advocate, one who speaks for another.

Naturally beyond what his client tells him the lawyer has no opportunity

to test the truth or falsity of the story put forward by the client. Therefore

no lawyer could ever be prosecuted for defamation in regard to any

instructions which he might have given to his lawyer, because it is the

lawyer's business to decide whether he could properly act upon the

instructions, and whatever responsibility might ensue from acting upon

those instruction would be his, and no one else's, is opposed to the entire

trend of decisions defining the scope and extent of the privilege

conferred upon the lawyer.

24. In light of above-stated legal analysis, an

advocate, who acted professionally as per instructions of

his/her client, cannot be made criminally liable for the

offence of defamation under Section 500 of the IPC unless

contrary is alleged and established.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.09.2020

CORAM: MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.Nos.4669 & 5115 of 2020 

M.L.Ganesh  Vs. CA V.Venkata Siva Kumar

Dated: 30.09.2020

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What is single publication rule for filing suit against defamatory material on the internet/facebook page?

In Khawar Butt (supra) this Court dealing with the period of limitation for filing a suit against defamatory material on the internet/facebook page held that the single publication rule was more pragmatic and appropriate. It was held:

"14. I first proceed on to determine the legal issue: Whether, the leaving of the allegedly defamatory material on the internet/facebook page gives rise to a fresh cause of action every moment the said offending material is so left on the webpage-which can be viewed by others at any time, or whether the cause of action arises only when the offending material is first posted on the webpage/internet.

38. I am of the view that the Single Publication Rule is more appropriate and pragmatic to apply, rather the Multiple Publication Rule. I find the reasoning adopted by the American Courts in this regard to be more appealing than the one adopted by the English Courts, prior to the amendment of the law by the introduction of the Defamation Act, 2013. It is the policy of the law of limitation to bar the remedy beyond the prescribed period. That legislative policy would stand defeated if the mere continued residing of the defamatory material or article on the website were to give a continuous cause of action to the plaintiff to sue for defamation/libel. Of course, if there is re-publication resorted to by the defendant-with a view to reach the different or larger section of the public in respect of the defamatory article or material, it would give rise to a fresh cause of action.

39. The alleged libelous posting on Facebook, as averred in the plaint, was posted on around 26.10.2008, 27.10.2008 and even the booklet containing the allegedly defamatory material concerning the plaintiff is said to have been circulated around 25.12.2008. In view of the same, the limitation period for the suit expired on 25.12.2009.

40. Since the suit to claim damages for libel has not been filed within the period of limitation of one year from the date when the cause of action arose, i.e. when the libel was published, the said claim is barred by limitation."

IN THE HIGH COURT OF DELHI

CS (OS) 21/2017

Decided On: 27.05.2020

 Ajai Agarwal Vs.  IBNI8 Media & Software Limited and Ors.

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