Excerpt: The decision on the question raised before us turns upon the construction that may be put on the expression “some person aggrieved” in Section 198 Cri P. C. It cannot be laid down as an inflexible rule that the expression “some person aggrieved” will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by ‘some person aggrieved’. In our opinion the expression “some person aggrieved” was not intended to be restricted to the person actually defamed. As was held in Daem Sardar v. Batu Dhali 3 Cal LJ 38, it must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense it person ‘aggrieved’ within the meaning of Section 198, Cri. P. C. In that case Mukherjee, J. as he then was, pointed out the distinction between the phraseology of Sections 198 and 199 in this respect in these words
The words used are ‘person aggrieved” and not “person defamed”. Moreover, the legislature had used the words “by some person aggrieved” and not “by the person aggrieved”. It appears to me, therefore, that so far as an offence’ of defamation is concerned the complaint may be made not only by the persons defamed but by sorne person aggrieved by such defamation.
Mr. Ghosh refers to the decision in Sajjad Hossain v. Askari Mirza , in support of his
Calcutta High Court
Mrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July, 1963
Equivalent citations: 1964 CriLJ 367Author: S NiyogiBench: S Niyogi, R Dutt
ORDER S.K. Niyogi, J.
1. The appellant Mrs. Pat Sharpe is a journalist of some repute and is in the journalistic line for-about quarter of a century. She was a columnist-and made regular contribution for about a year-to a weekly journal published from Bombav, bearing the name “Women’s Own Weekly”. She enjoyed a special status there and in fact a whole age was exclusively reserved in that journal for .her contributions and was styled as “Pat’s Page”. The page devoted her writings was sub-divided into five items, namely, ‘Epigram for the week’, “Candid comments’, ‘Laugh’, ‘Beauty scrap book’ and ‘Cookery nook’. The offending article bearing the heading ‘Bengali’ was published in the ‘Pat’s Page’ of the journal on the 13th of January, 1962, tinder the item ‘Candid comments’. The article contained a scurrilous attack on the Bengalis and the city of Calcutta, The portion of the article which has been conceded by Mr. Pankoj Kumai Ghosh, learned Advocate for the appellant, to be if highly defamatory character, is as follows:
Their proud ‘assertion’ is, I think, based on the fact that Bengal produced India’s only world-poet Tagore. (The only other Bengali ‘hero’ is .Netaji Subhas Chandra Bose, the traitor who was -a. Japanese quisling, but” who nevertheless is honoured annually on the anniversary of his death, as a martyr).
2. The meaning of the word “traitor” as given in the Oxford Dictionary is ‘one who violates his allegiance or acts disloyally (to countryking….)’. The word ‘quisling’ was coined at the time of the last World War No. II and the meaning of the word has been given in the above dictionary as ‘person co-operating with an enemy who has occupied his country’. Quisling was the ‘name of a renegade Norwegian Army Officer who actively co-operated with the invading German -army. The name of Subhas Chandra Bose is held an high esteem and reverence in this part of the -country and renowned all over India as a valiant rghter for the freedom of his country and as the founder of ‘Indian National Army’. To call such a noble son of India as a ‘traitor’ and a ‘quisling’, is the height of impudence and grossly abusive -of the great name.
3. The respondent Dwijendra Nath Bose is the son of the eldest brother of Subhas Chandra Bose. He at first brought an action against N. J. “Hamilton who was at the relevant time the editor, .publisher and printer of ‘Women’s Own Weekly’, Under Section 500 of the Indian Penal Code and process was issued against him by the Chief Presidency Magistrate, Calcutta, on the 7th of February, -1962 under the said section. Mr. Hamilton appeared and pleaded guilty. He expressed his -sincere regret for the publication and was convicted under the section and fined Rs. 200/-.
4. The petition of complaint was filed against Mrs. Pat Sharpe by the respondent Dwijendra Nath Bose on 27-2-62. He stated in his petition that the accused intended by writing the article to defame and harm the reputation of Netaji Subhas Chandra Bose and the publication of the “said malicious and wanton imputation has caused indignation, uneasiness and pain not only amongst Netaji Subhas Chandra Bose’s relations, friends and admirers but also amongst the citizens of Calcutta.”
5. At the time of her examination Under Section 34a, Cri. P. C. the appellant filed a lengthy “written defence. The substance of her defence was that she neither wrote, nor published the article “Bengali’ in the said issue of the journal ‘Women’s Own Weekly’. In course of her journalistic work she sometimes received writings in manuscript from the members of the public on various subjects to be included in her articles contributed to the ‘Women’s Own Weekly’. Some of these communications were signed and some bore no signatures. She. alleged that the portion of the article ‘Bengali’, which referred to Netaji Subbas Chandra Bose was received by her from some anonymous correspondent. She further stated, “It was my piactice to have all handwritten materials typed out for me and the manuscript of the article ‘Bengali’ which has been produced, is a typed copy of the handwritten article which I had received plus a letter on bad driving which had been partly taken from a Calcutta newspaper”. She stated that it was her intention to work up this manuscript for the article of her own to be entitled ‘Are you ciyic minded’, and in so doing she would haye certainly excluded the reference to Netaji Subhas Chandra Bose.
6. It appears from the evidence that Mrs. Pat Sharpe fell seriously ill in the month of December 1961 with an attack of cerebral abscess and menin-gities and was removed while unconscious to the Woodland’s Nursing Home on 10-12-61. She remained unconscious till 14-12-61. During the period of her illness she was under the treatment of Dr. R. E. Solberg. She was removed to her residence on 28-12-61 and was advised to remain in bed. She remained in bed till the middle of January 1962. Her further defence was that during her period of illness and absence from home, her husband, Mr. K. Sharpe, on receipt of urgent communication from Mrs. D’Suza, the editorial assistant of the above journal, for more materials for publication in the ‘Women’s Own Weekly’, went through the desk where she kept her manuscripts and through mistake took out four manuscripts, including the article ‘Bengali’, from a wrong file and despatched the same to the office of the journal at Bombay. It was stated that these articles were not meant for publication.
7. Certain questions of law relating to the maintainability of the application filed by the respondent were also raised before the learned Chief Presidency Magistrate, Those points of law were also raised here and we will deal with the same in the proper place. The learned Chief Presidency Magistrate in a well written judgment overruled the defence contention and held that the charge Under Section 500, IPC had been brought home against the accused.
8. We first of all, deal with the question whether on evidence it can be held that Mrs. Pat Sharpe was the maker of the libellous statements concerning Mr. Subhas Chandra Bose contained in the article ‘Bengali’. Even if it be true, as has been urged on the appellant’s side, that she only typed out from the written materials received by her from person or persons, who remained anonymous, and only gave shape to the article, she would still be held to be the maker of the article. The further fact, as appears from the original document sent to the Bombay Office of the Weekly, that she made corrections and insertions by her own1 hand at places of the article, would also go to show her approbation of what was written there. The learned Magistrate has, however, on an elaborated discussion of the evidence, come to the conclusion that Mrs. Fat Sharpe was alone the real author of the article. On a careful scrutiny of the evidence we are inclined to uphold the finding of the learned Magistrate in this respect.
9-21. (After discussion of evidence “His Lordship concluded:) We, therefore, see absolutely no reason to disagree with the finding of the learned Magistrate that the appellant is the “maker” of the offending article,
22. The next branch of argument of Mr. Ghosh has been that even if she may be the maker of the article ‘Bengali’, it was sent by her husband: without her knowledge and consent on the 15th of December. There is no sufficient evidence to establish that she intended the article to be published in the journal. The statement in Ext. z by Mr. Sharpe that “she had intended to send” the article was bis own conclusion and ha qualified1 his conclusion in this respect by saying, “I am not at all certain about this and can only hope etc.”
23. We agree with the further contention of Mr. Ghosh that in order to constitute an offence Under Section 500, IPC mere making an imputation concerning a person is not enough. It must at; the same time be proved that the writing of the defamatory matter was intended to be read by person or persons other than the person of whom it is written and that it was published. In this respect we do not accept the argument of Mr. Niharendu Dutt Majumdar, the learned Counsel for the State, that what is required Under Section 499, I. P. G. is that the person proceeded against should have been either the maker or publisher of the defamatory matter. So that an offence Under Section 500, IPC may be said to have been committed, the alleged defamatory matter must be communicated to a person or persons other than the person defamed.
24. But from what we have discussed above, it has been abundantly proved that Mrs. Sharpe intended the article to be published in the ‘Women’s Own Weekly’. The allegation that the articles were taken out by Mr. Sharpe through mistake; from the ‘wrong file’ kept in the appellant’s desk is clearly an afterthought. The file was marked WOW and the articles were earmarked for the item ‘candid comments’. The other articles taken out from the second file were meant for the four other items. There is no indication in the numerous- letters written by Mrs. Sharpe to either Mr. Hamilton or Mrs. D’Suza, excepting the: letter (Ext. 32) written by her after she came t6 know that a case had been instigated against I Mr. Hamilton, that the offending article was not meant for publication. As we have seen above, she came to know about the despatch of the articles, including the article “Bengali”, by her hudband long before it was published in the journal on the 13th of January. 1062. No steps were taken by her to withhold the article from publication. On the other hand, as appears from what we have discusssd above, she had full approval to the publication of the offending article in trie journal. Mr. Ghosh’s contention has been that trie ratification, if any of the action of hot husband by Mrs. Sharpe subsequent to the publication of the offending article, will not make it her own publication. It, however, appears that by her letter dated 2-1-62, addressed to Mrs. D’Suza, to which reference has already been made, she in effect approved of the articles despatched by her husband. She, on the other hand, asked Mrs. D’Suza if she herself approved of the article by writing in a letter “Let me know if it’s all O. K.” So there Is no substance in this contention of Mr. Ghosh.
25. Mrs. D’Suza admits that she sent the article to ths press knowing it to be defamatory and that the appellant feels aggrieved that the editorial staff did not apply scissors by excluding the offending portion before publishing the article. Mrs. D’Suza. however, has said that she had no authority to do so in respect of the article sent by Mrs. Sharpe. Mr. Hamilton also says that he gave instruction to Mrs. D’Suza not to alter her manuscript on the insistence of Mrs. Sharpe herself. Any how, Mrs. Sharpe cannot now be allowed to take shelter under such a plea.
26. Mr. Ghosh next contended that the complainant was not competent Under Section 198, CrIPC to institute criminal proceedings as a person aggrieved by the alleged offence within the meaning of that section. His argument has been that only person defamed can be said to be the person aggrieved and Section 198 bars cognizance being taken by the Court in respect of an offence falling under Chapter XXI of the Indian Penal Code, which also deals with tie offence of defamation, upon a complaint made by any person other than the person aggrieved. There is no proof that Netaji Subhash Chandra Bose is dead and the Court in the circumstance, had no jurisdiction to take cognizance of the alleged offence upon the complaint of the respondent.
27. The decision on the question raised before us turns upon the construction that may be put on the expression “some person aggrieved” in Section 198 Cri P. C. It cannot be laid down as an inflexible rule that the expression “some person aggrieved” will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by ‘some person aggrieved’. In our opinion the expression “some person aggrieved” was not intended to be restricted to the person actually defamed. As was held in Daem Sardar v. Batu Dhali 3 Cal LJ 38, it must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense it person ‘aggrieved’ within the meaning of Section 198, Cri. P. C. In that case Mukherjee, J. as he then was, pointed out the distinction between the phraseology of Sections 198 and 199 in this respect in these words:
For whereas Section 199 allows a complaint of an offence Under Sections 497 and 498 to be preferred only by the husband of the woman, of in his absence by some person who had care of her on his behalf. Section 198 allows a complaint of an offence specified therein and therefore of an offence Under Section 494 to be preferred by any person aggrieved thereby.
The answer to the question, as he further observed, must depend on the nature of the offence and special’ circumstances of each case. In Thakur Das v. Adhar Chandra ILR 32 Cal 425, the view was taken that where imputations were- madle against the character of a widowed Hindu lady, the brother, with whom she was residing, was a person aggrieved w.thin the meaning of Section 198 (see also Dwijendra Nah Talukdar v. Makhon Lai Pramanik , .Surajmal v. Ramnath 28 Cri LJ 996.. : AIR 1928 Nag 5J and Uanru Ram Ramkumar v. Rambarau Thakuri .
28. In our view where the person defamed is an adult and a male and is not incapacitated by physical infirmities or otherwise incapable of attending the Court, no other person should be held to be competent to make a complaint Under Section 500. But where the whereabouts of the person defamed are not known or he has not been heard of for a long time or is not readily available to make a complaint o respect of the ofience and the complainant, as in this case, is his near relation, who lived in the same family and in joint mess with him, suffered incarceration for a number of years in the cause held dear by the person defamed and the alleged defamatory article challenges and castigates his life’s work, he should be held to be a person aggrieved within the meaning of Section 198 and competent to make a complaint in respect of the offence.
29. We get from evidence that late Satish Chandra Bose, the father of the complainant Dwijendra Nath Bose, was the head of the joint family of which Netaji Subhash Bose was a member. Dwijendra Bose was a sincere follower of Netaji and suffered imprisonment in the fight for freedom of India under Netaji’s lead. Netaji disappeared from Calcutta sometime in the month of January, 1941 under dramatic circumstances and he reappeared sometime after in the South-East Asia where he assumed leadership and organised the Indian National Army, known as the ‘I.N.A.’, which waged war against the British with Netaji at its head. Dwijendra Bose would have been one of the first persons to hear of Netaji Subhas Bose had he been alive at this date. He has stated in his evidence “I don’t know where is Netaji now. I have not heard about him since 1945.” His evidence in this respect has not been disputed by the defence. Mr. Ghosh lays stress on his evidence where he says, “I hope he is alive. My personal faith is that he is alive” and argues that the death of Netaji cannot be said to have been proved. We are however, of the opinion, that in view of the evidence that Subhash Chandra Bose has not been heard of for much more than seven years by those who would naturally have heard of him, had he been alive, the presumption Under Section 108 of ths Evidence Act will be that he is dead. The burden will be on the other side to rebut the presumption. The presumption has not been rebutted in this case.
30. Lalchand Marwari v. Ramrup Gir 53 Ind App 24 : AIR 1926 PC 9, relied on by Mr. Ghosh, only lays down that there is no presumption Under Section 108 of the Evidence Act that a person who has not been heard of for seven years, died at the end of the first seven years or at any particular date. Similar view was expressed by this Court in In the goods of Gaaesh Das Aurora, 43 Cal LJ 578: AIR 1926 Cal 1056. But the date of death of, Netaji is not an issue in this case,
31. Under Explanation I to Section 499 of. the Indian Penal Code, imputation against a, deceased person of such a character as would harm, the reputation of that person if living and was intended to be hurtful to the feelings of his family or other near relatives, would amount to defamation. The complainant has stated that he had been intensely hurt and aggrieved by the defamatory article published in the ‘Women’s Own Weekly’.
32. We accordingly, hold that the complainant is a person, aggrieved within the meaning of Section 198 and he is entitled to make the: complaint Under Section 500, IPC
33. Mr. Ghosh has also urged that in the petition of complaint the complainant had simply asked for process Under Section 500, IPC against the appellant and there was; no complaint as required Under Section 198. But on a perusal of the petition of complaint we agree with the learned Magistrate that this contention of Mr. Ghosh is frivolous and must be rejected. Charga Under Section 500, IPC was framed against the accused on evidence recorded after cognizance-and not on a mere perusal of the contents of the petition of complaint.
34. So, the appeal preferred by Mrs. Pat Sharpe must be dismissed and we maintain her conviction Under Section 500, IPC Mr. Ghosh has also addressed us on the question of sentence. We have been unable to find any mitigating circumstance in her favour. The article ‘Bengali’ in. which the defamatory imputations against Netaji Subhash Chandra Bose appear, reveals an extremely perverted mind of the writer. The article not only contains misquotation and misinformation but at places it is full of sordid details and obscenities. It is difficult to conceive that any person with decent education could have written such obnoxious things. The imputations to Netaji were highly scurrilous and defamatory. We also note that Mrs. Sharpe does not appear to be sincerely repentant for what she had written and no unconditional regret was expressed by her. We, therefore, agree with the learned Magistrate that a deterrent sentence is called for in this case. We, however, think that an imposition of fine-of Rs. 1000/- will be a sufficiently deterrent sentence in this case and we remit the sentence of imprisonment for the period of two months passed against her. In default of payment of the fine-she will however, undergo simple imprisonment for two months. With this modification in the sentence, the appeal is dismissed.
R.N. Dutt, J.
35. I agree with the order proposed by my Lord but I should like to add a few words .of my own.
36. I need not recite the facts over again. I straightway come to the points raised by Mr. Ghosh on behalf of the appellant.
37. Mr. Ghosh argues that the learned Chief Presidency Magistrate had no jurisdiction to try or convict the appellant inasmuch as cognizance taken by him of the offence, said to have been committed by her, is illegal. The appellant is said to have defamed Netaji Subhas Chandra Bose. Mr. Ghosh submits that the complainant has failed to prove that Netaji Subhas Chandra Bose was dead at the time when the article in question was published and as such Netaji should be considered to have been alive at that time. And since Netaji was alive, he is the person ‘defamed’ and in view of Section 198 of the Code of Criminal Procedure the complaint can only be filed by Netaii himself. But the complaint on the basis of which the learned Magistrate took cognizance of the offence was actually filed by one Dwijendra. Nath Bbse said to be a nephew of Netaji. Mr. Ghosh iargues ‘that the learned Magistrate was not conipetent to take cognizance of the offence on the basis of a complaint filed by the said Dwijendra Nath Bose. It is tme that the article in question has defamed Netaji but the complaint on the basis of which the learned Magistrate took cognizance was not filed by him. Let me first assume that it has not been proved that Netaji was dead at the time when the article in question was published or in other words let me assume that Nftaji was alive at that time. Section 198 of the Code of Criminal Procedure states that no Court shall take cognizance of an oflence of defamation except upon a complaint made by “some person aggrieved by such offence”. Mr. Ghosh contends that the words “person aggrieved” mean ”person defamed” and as such no person other than Netaji himself was competent to file the complaint. The words used are ‘person aggrieved” and not “person defamed”. Moreover, the legislature had used the words “by some person aggrieved” and not “by the person aggrieved”. It appears to me, therefore, that so far as an offence’ of defamation is concerned the complaint may be made not only by the persons defamed but by sorne person aggrieved by such defamation.
Mr. Ghosh refers to the decision in Sajjad Hossain v. Askari Mirza , in support of his contention. It appears, however, that K. C, Chunder, J. did not decide in that case that no person except the person defamed can in view at Section 198 of the Code, make a complaint. He quashed the proceedings in that case on the ground that no complaint in accordance with the definition of ‘complaint’ as given ;in the Code of Criminal Procedure was filed. This case, therefore, is no authority in support of Mr. Ghosh’s contention.
Mr. Ghosh then refers,to Hussainbhoy Ismailji v. Emperor reported in 156 Ind Cas 567 : AIR 1926 Sind 98. There in that case the person defamjed was the High Priest of a community. The domplaint was filed by a member of the com-munitjy. It was held that the mere fact that the feelings of the complainant have been injured in consequence of a defamatory statement made against his religious head affords him no ground to prosecute the accused for defamation. Rupchand A.J.C. however expressly stated in that case that the person defamed was not always person aggrieved. It will thus appear that this case : in a way negatives Mr. Ghosh’s contention that ‘the words “person aggrieved” mean “person defatted”.
Mr. Ghosh then refers to Jagdish Narain v. Sharrts Ara Begam reported in AIR 1935 Oudh 6. That was a case where a woman was defamed and; the case came under the first proviso to Section 19S of the Code and it was held that the cognizance taken was bad as the requirements of that proviso were not observed. That the words “person aggrieved” do not always mean “person defamed” will also be clear from the definition of defamation itself as contained in Section 499. Explanation 1 to the definition states that imputation against a deceased person may also amount to defamation. If the words “person aggrieved” always meant “person defamed”, in case of defamation of a dead person, it would be only competent for the dead person to make a complaint. That is an absurd result which can never have been contemplated by the Legislature. I cannot accept an interpretation which will lead to such absurdity. I hold, therefore, that the words “person aggrieved” do not always mean “person defamed”. The words ‘person aggrieved’ has a wider connotation than the words ‘person defamed’ and the addition of the word “some” before the words “person aggrieved’ supports this wider connotation. Dwijendra Nath Bose is a nephew of Netaji. He was a to worker with him and the imputation affects not only Netaji but his co-workers and in fact the whole family. I hold, therefore, that Dwijendra Nath Bose is a person aggrieved within the meaning of Section 198 of fie Code of Criminal Procedure and as such even I though it be assumed that Netaji was alive at the time of the publication of the article in question, the complaint made by Dwijendra Nath Bose was competent and the cognizance taken by the learned Magistrate on the basis of this complaint was legal. This finds support in the decision and . Handerson, J. held in the former case that Section 198 of the Code does not say that the complaint, in a case of defamation, can only be made by the ‘person defamed.’
38. There is one other aspect of this question. I have so long assumed that Netaji was alive; at the time of publication of the article. I cannot, however, agree with the submission of Mr. Ghosh that the complainant has failed to prove that Netaji Subhas Chandra Bose was not alive at the time when the article in question was published. He has said in his evidence that Netaji Bose has not been heard of since 1945, Section 107 of the Indian Evidence Act states that when the question is whether a man is aliye or dead and it is shown that he is alive within 30 years the burden of proving that he is dead is on the person who affirms it. Section 108 of the Indian Evidence Act provides a rider and states that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if. he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Here Dwijendra Nath Bose is a person who would have naturally heard of Netaji if he had been alive. He has said that Netaji has not been heard of since 1945. A presumption Under Section 108 of the Indian Evidence Act, therefore, arises that Netaji is dead. Mr. Ghosh refers to the case of Ganeshdas Aurora reported in 43 Cal LJ 578 :. AIR 1926 Cal 1056 and argues that three is no presumption that Netaji died on a particular date. He is certainly correct is that submission but here we are not concerned with the actual date of death of Netaji but we are concerned with whether Netaji was dead or alive on the day when, the article in question was published. Obviously, Netaji is not being heard of for more than 7 years before that date. It is, thus clear that the presumption that Netaji was dead had already arisen and was effective on that date. It may, therefore, be safely presumed that Netaji was dead on the day the article in question was published. The case thus comes under explanation of Section 499 of the Indian Penal Code and Dwijendra Nath. Bose, as a member of his family and as a person aggrieved, is competent to make the complaint. Mr. Ghosh argues that there can be no conviction in a criminal case on the basis of a presumption. He refers to what may be called a rule of prudence that a person should not be convicted on the basis of a presumption but here the presumption that is being made has no connection with the allegations of facts made against the appellant. It has connection with the question about the legal competence of the cognizance taken by the learned Magistrate, Such presumption in law can be made to find jurisdiction of the learned Magistrate to try the case. Thus in any view of the matter the argument of Mr. Ghosh on this point fails in its entirety and I hold that the cognizance taken by the learned Magistrate was legal and the trial and conviction of the appellant is not without jurisdiction.
39. The allegation against the appellant is that she has defamed Netaji by describing him as ‘traitor’ and ‘quisling’. Mr. Ghosh submits that he will not dispute that the words used are defamatory. If Netaji is alive, there is no doubt that the imputation made against him was intended to harm or that the appellant knew or had reason to believe that such imputation would harm Netaji’s reputation. The imputation, therefore, does amount to defamation. Even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives, Thus in any view of the matter the words used do amount to defamation.
40. Mr. Ghosh then submits that the appellant is not the maker of the article in question. The article was published in a Weekly journal “Women’s Own Weekly”. The journal is published from Bombay. It contains a page known as ‘Pat’s page’. The appellant contributes all that is published in that page. The appellant’s case is that she is widely known as the contributor of ‘Pat’s page’ and people desiring to have some topics discussed in ‘Pat’s page’ used to send articles or matters to the appellant and the appellant used to work on those articles or matters and prepare her contributions to ‘Pat’s page’. Portions of the article in question were received by her in this way in hand-written form and she had it typed and corrected and she kept it on her table with a view to work it out into a contribution of her own to be published in the Pat’s page. But suddenly she fell seriously ill and she was admitted in Woodland’s Nursing Home and her husdand without reference to her sent the article to Women’s Own Weekly at Bombay.
It is argued that the appellant is thus not the maker of the article as published. It will however appear from her husband’s evidence that ‘ he found 4 articles including the article in question in one cover and he sent all of them to be published in Pat’s page in four successive issues. These articles were to be published under the heading “Candid comments”. This is the main heading and the other headings contained short articles or comments. Her husband found some other short articles or comments in a separate cover. He sent some of them along with these four of ‘Candid comments’. It would appear from the manner in which these articles were sorted out and kept in separate covers that the appellant before she got ill had finally worked out these articles intending them to be published. The manuscript of the article as sent to Bombay, itself contains evidence that the appellant had herself corrected it and thereby finalised it for publication. It does not appear that she intended to work on it further. Moreover, she made out this case for the first time after she came to know that a criminal case had been started against the Editor of the journal for publishing this article.
The case against the Editor was started of February 7, 1962 and she made out this case for the first time on February 11, 1962 in her letter to the Editor. The article was published on January 13, 1962. The Editor wrote to the appellant on January 22, 1962 that the article in question had provoked protests. The Editor wrote two further letters to the appellant on January 30 and 31, 1962. The appellant replied to these letters and took full responsibility for the article in question as the maker of it. She even said that she was prepared to take the consequences and to prove that what she had written was not defamation. She herself eulogised her own independence as a journalist and informed the Editor that she had the courage of her conviction and was fearless in expressing her conviction. She even sent a defence to the Editor for publication but since the case against the Editor was started she sent a wire stopping the publication of the defence. Upto February 7, 1962 she did not disclaim that she was the maker of the article but on the other hand assumed full responsibility as the maker of the article. It appears however that all courage and independence vanished as soon as j. she learnt of the case against the Editor and when she was made the accused she made out the case denying that she was the maker. The case made at the time of trial has to be testsd in the light of her conduct before the complaint was filed and when tested in that light I have no hesitation in my mind that tins present case was cooked up just to avoid criminal liability. On a considerate on of all these I hold that the appellant is of naker of the article in Question.
41. Mr. Ghosh lastly submits that the appellant was not responsible for the publication of the article, I have said that the article was publ shed In the Journal “Women’s Own Weeklv” on January 13, T962. The appellant examined Dr. Solberg as one of ‘her witnesses. It appears from his evidence that the appellant fell seriously ill on December 10, 1961, became unconscious and was admitted in Woodland’s Nursing Home and remained unconscious upto December 14, 1961. Mr. Ghosh argues that the husband f the appellant without reference to her sent the article in question along with scjme other articles to Women’s Own Weekly by registered post on December 15, 1961 and the article got published without her knowledge or consent Dr. Solberg has said that the appellant became unconscious with cerebral feyer on December 10, 1961 and she was admitted in Woodland’s Nursing Home that very day and was discharged on December 28, 1961. He has further said that the appellant was unconscious upto December 14, 1961. She was allowed visitors after December 18, 1961 but before that, her husband only was allowed to See her. The article in question was sent by registered post by her husband on December 15, 1961. The appellant was unconscious upto December 14, 1961. It was, therefore, not possible to have her consent till December 14, 1961, It is j list possible that her husband might have seen her in the Nursing Home on December 15, 1961 before the article was sent but still in view of the Appellant’s 1ndition on that day, I think, it was not possible for her husband to have consulted the before he actually sent the article in question to Bombay. Some more articles were sent by the appellant’s husband on December 18 or 19, 11961. The appellant’s husband has said that he told his wife about sending of articles on December 17 or 18, 1961. It will thus appear that at least on December 17 or 18, 1961 the appellant had come to know that her husband had sent the article in question to Bombay, for publication. Mr. Ghosh argues that the appellant’s husband sake to her on December 17 or 18, 1961 about the further articles to be sent but he did not inform the appellant that he had sent the article in question. He does net specifically say in his evidence that he spoke to his wife on December 17 for 18, 1961 only about the further articles to be spnt. Moreover it must be said that when the appellant’s husband spoke to her about the further articles to be sent he must have told her about the articles already sent, otherwise she would not be ;in a position to properly advise her husband about the further article to be sent. Obviously, therefore, it must be held that at least on December 17 or 18, 1961 the appellant came to know that the article in question has been sent to Women’s Own Weekly for being published in ‘Pat’s page’. Then again, she came back to her house on December 28, 1961. She wrote a letter to one Mrs. D’Souza, an Assistant Editor of the journal pa January 2, 1962. The appellant states in this letter that before she went to the Nursing Home she had sorted out her articles in weekly instalments. This letter also reveals that she was aware of the fact that the articles sorted out by her had been sent to the journal and she wanted to be assured that it was all O.K. She was then back in; his house and it is unthinkable that she would write like that without ascertaining what articles had been sent by her husband. It is all very easy now to say that she did not know before the; actual publication that her husband had sent the article in question. Bat her denial is to be tested in the light of probabilities and I have no hesitation in believing that the appellant knew on December 17 or 18, 1961 or at least before January 2, 1962 that her husband had sent the article for publication in the ‘Pat’s page’ as her contribution. Had she not been the maker of the article and had not she intended that the article should be published, she would have stopped its publication. The appellant must therefore be held to have intended publication of the article and to have been responsible for the publication.
42. The people of this country remember Subhas Chandra Bose as their ‘beloved Netaji’. By describing him as a ‘traitor’ or a ‘quisling’ the appellant has only disgraced herself.
43. This has no doubt hurt the feelings of the people of this country but their esteem and affection for Netaji will, it is hoped, remain unaffected even in spite of such unfortunate outbursts.