exception 3 and 9 are a matter of trial

Delhi High Court

S. Nihal Singh And Others vs Arjan Das, New Delhi on 24 September, 1982

Equivalent citations: 1983 CriLJ 777, 1983 (1) Crimes 438, 1983 RLR 58

Bench: J Jain

ORDER

1. On 4th November 1981 the New Delhi Edition of “The Indian Express.” a leading newspaper published from various important stations in the country including New Delhi (in shot the ‘Newspaper’) carried a news item titled ‘Cong-I leader blocks checking of food-stuff. (Annexure-‘B’). To be concise the newspaper reported that officials of Delhi Administration led by an SDM. Miss Khiangte, an IAS officer, had gone to the Laxmibai Nagar market on the evening of Tuesday, the 3rd November 1981′, for a surprise checking of foodstuff. The team of officials from the Food and Civil Supplies Department had already collected a few samples of edible oil in glass jars from a shop when the respondent Shri Arjun Das reportedly appeared on the scene. He asked them not to collect samples and he allegedly snatched a few jars and threw them. The official leading the team then went to the Vinay Nagar police station and lodged a complaint to that effect (Annexure-‘B’).

2. On the next following day viz. 5-11-1981 the newspaper published further details of the aforesaid incident as per inspection note submitted by Miss Khiangte to the Delhi Administration on 4-11-81. The news item carried the caption ‘Police case against Arjun Dass’ and alluding to the complaint lodged by her with the police, it reported that :-

Mr. Arjun Dass had used abusive language and intimidated her and a team of seven inspectors of the Directorate for Prevention of Food Adulteration (PFA) when they had gone to the Laxmibai Nagar market for a surprise checking. Miss Khiangte said that Mr. Arjun Dass has asked the checking party not to collect oil sample from a shop and snatched the sample lifted from the shop. Miss Khiangte had conducted that inspection in her capacity as Public Health Authority (PHA).”

3. Some more excerpts from the said report are extracted below for ready reference :-

“Miss Khiangte said that Mr. Arjun Dass had appeared on the scene and threatened that he would not allow her to take any samples. She said that Mr. Arjun Dass has described her as “inhuman” and paid no heed to her contention that sparing one shop during the inspection would mean discrimination. She said when the crowd and Mr. Arjun Das shad started using abusive language she contacted the police control room for help.”

4. The newspaper further reported as below. –

“A reliable source in the Food and Civil Supplies Department said that a team of civil supplies officials was also treated in a similar fashion by Mr. Arjun Dass and his followers on the eve of Diwali. He said the team had gone to check the distribution at fair price shops in the Laxmibai Nagar area.”

5. On 6-11-1981 the respondent instituted a complaint against S/Shri Ram Nath Goenka petitioner in Cr. R. No. 84/82, S. Nihal singh, Arun Shorie, S. K. Kohli, A. N. Dar and Prabhat Joshi, petitioners in Cr. R. No. 83/82 under Section 500 of the I.P.C. He alleged that on the evening of 3-11-1981 when he was sitting at his shop in Laxmibai Nagar market some shopkeepers came to him and told him that some sample had been lifted from M/s. Rai Stores by Food Inspector and the lady S.D.M. in the absence of its owner who was lying in a precarious condition in the hospital and they were insisting that Shri Mukesh son of the shopkeeper who had come after the sample had already been lifted sign all the prescribed papers but Mukesh was protesting saying that since he was not being present when the sample had been lifted the prescribed forms could be signed only by the servant who was then present at the counter. As the request of Shri Mukesh appeared to be reasonable he i.e. the respondent accompanied the other shopkeepers of the locality and made a request to the S.D.M. and the Inspectors very politely to give due consideration to the request of Shri Mukesh. However, the S.D.M. without any provocation snubbed him and directed him to leave the spot. Thereupon he left the spot and returned to his shop, even though the highhanded act of the S.D.M. was gravely criticised by independent person present there. He denied having snatched any jars or glassware containing the samples of food articles and thrown the same. Thus he dubbed both the news reports dated 4-11-1981 and 5-11-1981 published in the newspaper to be false and contended that the same had been made with a view to defame him and lower him in the estimation of his friends, relatives admirers and voters. He asserted that he was a prominent political and social figure of repute in the locality and that the scandalous imputation attributed to him was absolutely false and baseless. He further alleged that the newspaper had been indulging in the character assassination of the respondent.

6. The learned Magistrate after examining him and the witness produced by him observed that a prima facie case of defamation under S. 500/501, I.P.C. was made out against the petitioners for printing and publishing defamatory news on 4th and 5th November 1981. So vide order dated 16th November 1981 he directed all the petitioners to be summoned to face trial for offence under Section 500/501 I.P.C.

7. Feeling aggrieved by the said order the petitioners have come up in the aforesaid revision petitions. Since both the revision petitions spring from the same order and common questions of law and fact are involved therein this order of mine shall dispose of both of them.

8. The learned counsel for the petitioners has at the very outset pointed out that Shri Ram Nath Goenka petitioner in Crl.R. No. 84/82 has been described as owner of the newspaper and is sought to be made liable for the publication of the offending news item on that score. However, as declared at the bottom of the back page of issue dated 4-11-1981 of the newspaper itself the newspaper is owned by M/s. Indian Express Newspaper (Bombay) Private Limited which is a corporate body and not be any individual person much less Shri Goenka. Further according to him, Shri Goenka is at present Chairman of the said company which owns and publishes the newspaper, from ten different centres in India. The submission made precisely is that Shri Goenka not being the owner of the aforesaid company or the newspaper cannot be held liable even vicariously for publication of the offending news items. It is all due to misrepresentation on the part of the respondent that he has been summoned by the trial court. It is pointed out that this fact was to the knowledge of the respondent as would be borne out by the reply filed by him in Crl.M. 214/82 (in Cr. M. (M) No. 76/82). In the said reply the respondent admitted that Shri Goenka was the Chairman of the Indian Express Newspapers (Bombay) Pvt. Ltd. which is a private limited company However, he was explained that it was in the aforesaid context that Sh. Goenka was described as owner he being the Chairman of the private limited company which owns the newspaper. Evidently there is misdescription about Shri Goenkar being owner of the newspaper and it has led the trial court to summon him to face trial. Had the true position been revealed to the trial court this order, in all probablity, would not have been made. Needless to say that as Chairman of the company Shri Goenka can be had liable for the publication of the offending news items only if it is shown that the was somehow concerned with the publication of the defamatory news items. It is highly doubtful that he can be asked to answer the charge of defamation merely because he happened to be the Chairman of the company owning the newspaper without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company. Intention on the part of the accused to harm the reputation or the knowledge or reasonable belief that an imputation will harm the reputation of the person concerned is an essential ingredient of offence under Section 499 I.P.C. but such evidence is totally missing in the instant case. Under the circumstances the impugned order as regards Shri Goenka cannot be sustained on this short ground.

9. As far the petitioners in Cr. R. No. 83/82, it is not disputed that petitioner No. 1. S. Nihal Singh is the Editor-in-Chief of the newspaper, petitioner No. 2 Shri Arun Shorie is the Executive Editor, petitioner No. 3. Shri Prabhat Joshi is the Resident Editor of the New Delhi Edition of the newspaper, petitioner No. 4, Shri A. N. Dhar is the Editor of the “Express News Service” and petitioner No. 5, Shri S. K. Kohli is the Printer, Publisher of New Delhi Edition of the newspaper. This is precisely how they have been described by the respondent in his complaint. It is, therefore to be seen if all or any of them can be held liable for defamation in respect of the offending articles.

10. Section 3 of the Press and Registration of Books Act, 1867 (for short the ‘Act’) provides that every book or paper shall have printed legibly on it the name of the printer and the place of printing and if the book or paper be published, the name of the publisher and the place of publication. Section 5 of the Act requires that every printer and the publisher of a newspaper shall make a statutory declaration before a competent Magistrate in the prescribed form. Further, the name of the owner and the editor have to be printed clearly on each copy. Section 6 contains provisions for authentication of a declaration made under Section 5. Lastly Section 7 lays down that :-

Section 7 : “In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declaration, (or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor) shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, (or printed on such newspaper, as the case may be) that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every (newspaper) whereof the title shall correspond with the title of the (newspaper) mentioned in the declaration (or the editor of every portion of that issue of the newspaper of which a copy is produced).”

11. In other words the printer or the publisher, as the case may be, who has made a declaration under the Act and the editor whose name appears on the copy of the newspaper shall be presumed to be aware of what is printed and published in the issue of the paper. The declaration is prima facie evidence of the publication by the editor of all the news items in the paper. He will not be absolved for the publication of objectionable matter by the mere fact that in the daily routine he had asked the editor/sub-editor etc. to select the news items. The term ‘editor’ is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper. In the instant case the declaration printed at the bottom of the back page of the newspaper shows that the newspaper had been printed and published for the proprietors Indian Express Newspapers (Bombay) Private Limited by S. K. Kohli, petitioner No. 5 and S. Nihal Singh and Prabhat Joshi are Editor-in-Chief and Resident Editor respectively of the newspaper. Ex. facie a resident editor will be an associate of the Editor-in-Chief in the selection of news items and to that extent he is answerable on a charge of defamation. Hence in view of the foregoing provisions of law a presumption will arise against all three of them that they are printer, publisher. Editor-in-Chief and Resident Editor respectively of the newspaper and as such they are aware of the contents of offending news items. However, it is difficult to draw such a presumption in the case of other petitioners viz. Arun Shorie, petitioner No. 2 and A. M. Dar, petitioner No. 4. Their names do not find place in the declaration printed on the newspaper itself and there is no iota of evidence to show that they are in any manner concerned with the collection, control or selection of the matter printed in the newspaper. Their designations as Executive Editor/Editor of the Express News Service will not per se warrant an inference that they are in any way responsible for the selection of the material. An authority for this view may be found in State of Maharashtra v. R. B. Chowdhari, .

12. In the said case the public prosecutor had filed a complaint against four persons who were members of the Editorial Board of a Marathi Weekly named “Maharashtra,” under Section 500 I.P.C. The complaint was that in an issue of the Maharashtra dated October 30, 1959, they had published an article which tended to defame one IAS Officer who was Collector and District Magistrate, West Khandesh in respect of his conduct in the discharge of his public functions. One of the accused Shri Sudhakar Gopal Madane had filed the declaration in the prescribed form under the Act describing himself as the editor, printer and publisher of the newspaper. The particular copy of the Maharashtra in which the alleged defamatory article appeared bore the name of Madane as the editor printer and publisher of the newspaper. It also showed on the front page that the Editorial Board consisted of Madane and three other accused. The question arose whether the members of the Editorial Board could be prosecuted for defamatory article. Adverting to Section 7 of the Act, the Supreme Court held that :-

“Where there is mentioned an editor is a person who is responsible for selection of the material, Section 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question.”

13. The ratio of this decision to my mind would aptly apply to the instant case inasmuch as neither Arun Shorie nor A. N. Dar had declared himself as an editor of the newspaper. Significantly during his deposition as P.W. 1 the respondent simply reiterated the description of Arun Shorie and A. N. Dar as given in the complaint itself viz. they are Executive Editor of the newspaper and Editor of the Express New Service respectively. No doubt he has stated in his statement that they are also responsible for the publication of the defamatory news items but that is hardly of any consequence. It is more in the nature of an allegation than evidence of a fact. It was urged by the learned counsel for the respondent that Shri A. N. Dar is sought to be made liable because the offending news items emanated from “Express News Service” as given out in the news items and Shri A. N. Dar being editor thereof, it may be safely presumed that he too was responsible for the publication of the scurrilous news items. Evidently this argument overlooks the vital fact namely that intention on the part of the accused to harm the reputation or the knowledge that it will harm the reputation is an essential ingredient of offence under S. 499, IPC. There is not a shred of evidence on record to warrant an inference of guilty intention knowledge on the part of the either Shri Shorie or Shri Dar. Hence the impugned order cannot be sustained against them too.

14. The next submission made by the learned counsel for the petitioners is that the impugned order betrays total non-application of judicial mind by the learned Magistrate. This contention is sub-divided into three parts. In the first instant it is urged that on a bare reading of the news item in question it is manifest that Miss Khiangte had lodged a complaint against the respondent at Vinay Nagar police station and a case of obstructing public servant in the performance of his official duties was registered against him. Thereafter she submitted an inspection note to the higher authorities giving details of the incident. This could be well noticed by the learned Magistrate while going through the offending news items. It was thus obligatory on the part of the Magistrate to call for both these documents, one from the police station which was in his own jurisdiction and the other from Delhi Administration in order to verify true facts. The argument put forward precisely is that while holding a preliminary enquiry under S. 202, the Magistrate need not confine himself to the evidence adduced by the complainant and he is free to hold any kind of enquiry which he deems fit in order to ascertain the truth/falsehood of the allegations contained in the complaint before dismissing the same under S. 203 or issuing the process under S. 204 of the Code. On the other hand the counsel for the respondent has urged vehemently that no obligation was cast on the Magistrate to summon the First Information Report or the inspection note as urged by the petitioners’ counsel. He has canvassed that the Magistrate could not be expected to summon documents which would constitute virtually the defense of the accused inasmuch as it would have amounted to prejudging the guilt/innocence of the accused.

15. On a bare reading of S. 202 of the Code, it is manifest that the Magistrate may either enquire the case himself or direct the enquiry to be made by a police officer or by such officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The object of an enquiry or investigation under this section is to ensure that no person shall be compelled to answer a criminal charge unless the court is satisfied that there is prima facie case for proceeding and issuing a process against the accused person. In other words enquiry/ investigation envisaged therein is to prevent abuse of the process of court by throwing out at the threshold a false and frivolous complaint. As observed by the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1340 : (1963 (2) Cri LJ 397) “it is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defense the accused may have can only be enquired into at the trial”. The later observation was apparently made by the Supreme Court in the context of the question whether the accused has a right to take part in the proceedings at the stage of enquiry under S. 202 and their Lordships held in unequivocal terms that “he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so”. The learned counsel for the respondent has invited my attention to the following further observations which were made by Their Lordships while dealing with this aspect of the matter :-

“No doubt, as stated in Sub-section (1) of S. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant”.

16. These observations are sought to be interpreted by the learned counsel for the respondent as implying that the Magistrate has no power to call any documents or witnesses other than those sought to be produced by the complainant himself. However, on a careful perusal/consideration of the judgment, I am unable to find such a limitation being imposed on the power of the Magistrate in this authority. The Supreme Court as stated above was confronted with the peculiar situation viz. that the Magistrate had even examined the associates of the accused as court witnesses and the suggestion was that he did so at the instance of the counsel for the accused. As I read S. 202(1), I am unable to find any such fetter on the power of the Magistrate while enquiring into the case himself with a view to decide whether or not there is sufficient ground for proceeding. Indeed an alert and experienced Magistrate with a little circumspection and sagacity can see through the game of the complainant and can call for any documents or summon any witnesses who is in his opinion will be able to throw light on the case and help in arriving at a conclusion whether the complaint is devoid of any substance or a prima facie case is made out. There is no strait-jacket rule. If there is any hesitation or doubt in the mind of the court, it can summon any witnesses or call for any documents which in the opinion of the court can aid the court in confirming or removing such hesitation or doubt. Of course, the discretion vesting in him in this respect has to be exercised judicially. He is neither expected to play into the hands of the complainant and chew meekly what he is fed by the complainant nor is he expected to hold a brief for the accused and summon witnesses with a view to find out the defense of the accused, if any. He is neither a post office nor an automation and he is to exercise his jurisdiction as the exigency of the situation demands, the only limitation being that he cannot convert the enquiry into a full scale trial. Of course, he is under a statutory obligation to examine the complainant and the witnesses, if any, produced by him. In this view of the matter, therefore, the Magistrate would have been well advised to call for the First Information Report and the inspection note made by Miss Khiangte to verify if the offending news items were substantially a faithfully reproduction of the allegations made by Miss Khiangte in her official capacity against the respondent or not. However, omission on his part to do so will not necessarily be inferential of either non-application of his judicial mind or failing to perform his duties so as to vitiate the enquiry. Indeed as shall be presently seen it does not even affect in any manner his decision to summon the accused.

17. The second limb of the contention of the petitioners’ counsel as regards non application of judicial mind by the Magistrate is that he has misread and misquoted each and every sentence in the impugned order which he considers to be prima facie defamatory. For instance instead of the sentence “in her complaint she said that Mr. Arjun Dass had used abusive language and intimidated her” as appeared in the newspaper reports, the learned Magistrate has simply reproduced “Mr. Arjun Dass had used abusive language and intimidated her” thus omitting the preceding words “in her complaint she said that”. This according to the learned counsel for the petitioners leaves an impression in one’s mind that the aforesaid insinuation against the respondent was made by the reporter of the news and not by the complainant Miss Khiangte. Similarly according to the report “Miss Khiangte said that Mr. Arjun Dass had asked the checking party not to collect oil sample from a shop and snatched the sample lifted from the shop.” However the insinuation as reproduced in the impugned order is bereft of the opening words “Miss Khiangte said that”. The submission made by the learned counsel for the petitioners, therefore, is that the learned Magistrate while recording the impugned order was all along labouring under the impression that defamatory imputation and insinuation was made by the newspaper and not by Miss Khiangte whose report forms the very basis of the offending news items. It is no doubt true that the learned magistrate has not reproduced the offending excerpts from the report appearing in the newspaper with exactitude but that will not necessarily reflect non application of the judicial mind. It may as well be for the reason that he did not care to compare and tally the quotations in the impugned order with the original news items. At any rate this lapse on his part will not warrant an inference that the misquoting has stemmed from misreading of the offending news items.

17A. Lastly the learned counsel for the petitioners has made a valiant effort to canvass that in the absence of any allegation of malice the learned Magistrates should have held that the news items were published in good faith and for public good inasmuch as the publication was intended to high light unwarranted interference by local politician with the official duties of public servants who had gone on a routine checking of food stuffs with a view to curb adulteration of food articles which was extremely harmful to the society at large. Thus according to him the circumstances of the case speak eloquently of good faith on the part of the petitioners. It was to impress upon public men to maintain a high standard of moral conduct and refrain from obstructing public servants in the discharge of their official duties in order to shield and placate anti-social elements and offenders. In publishing the offending news items the public good is equally transparent on the face of it and in case the maxim res ipsa loquitur is not invoked by the courts even in a self evident case like the present the journalists will find it difficult to discharge their duties in public interest. In other words the press will not be able to function fearlessly and inform the public at large of the anti-social and illegal activities of politicians and other public men who ostensibly claim to be men of high moral caliber and rectitude.

18. This argument to my mind is wholly misconceived, having regard to settled law on the subject. The petitioners seek to invoke Third and Ninth Exceptions to S. 499. Exception Third embodies the doctrine of fair comment. Where a writer makes the public conduct of a public man the subject of comment, and it is for the public good, the writer is not liable to an action if the comments are made honestly and he honestly believes the facts to be as he states them. However, an imputation or criticism cannot be justified on the ground of fair comment, the moment it is shown that the criticism is based upon a misstatement of facts. Whether or not it is for public good, is question of fact and like any other defense the onus of proving the same lies on the accused. It has been repeatedly held that the freedom of the press is not higher than the freedom of an ordinary citizen and is subject to the same limitations as are imposed by Art. 19(2) of the Constitution. The limitations, inter alia are to the effect that the freedom of speech and expression is not to be exercised in such a way as to constitute an infraction of the law relating to defamation. Just as every individual possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as properly. In the instant case the offending news items do not involve an element of comment by the author or the editor of the news items. It simply purports to be a report based on the complaint and the inspection note made by Miss Khiangte. It is, therefore, highly doubtful that Third Exception can be pressed into service by the petitioners. The only other exception on which the petitioners’ defense hinges is Exception 9. This exception affords protection when a defamatory statement is made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. This exception is wide enough to cover not only such allegations of fact as could be proved true but also expression of opinion and personal inferences.

19. Good faith is a question of fact. Public good is also a question of fact. So it will have to be found out whether the petitioners acted with due care and attention. Honesty of purpose would also been an essential ingredient in judging good faith. While dealing with the nature and scope of the onus of proof which the accused has to discharge in seeking the protection of Exception 9, the Supreme Court observed in Harbhajan Singh v. State of Punjab, that “simple belief or actual belief by itself is not enough. It must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. That is where the element of the due care and attention plays an important role”. Adverting to the foregoing observations with approval, the Supreme Court held in Sukra Mahto v. Basu Deo Kumar Mahto, “The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to S. 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry care and objective and not subjective satisfaction”.

20. In the later authority reference was also made to the following observations in Chaman Lal v. State of Punjab, “In order to establish good faith and bona fide it has to be seen first the circumstances under which the letter was written or words were uttered; secondly whether there was any malice; thirdly, whether the appellant made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith”.

21. Only recently the Supreme Court had an occasion to consider almost an identical question which arises in the instant case. There (Sewakram v. R. K. Karanjiya. ) an editor of a newspaper viz. the respondent was prosecuted under Section 500, I.P.C. for publication of a news item which was per se defamatory. The editor alleged that he published the news item on basis of an Enquiry Report submitted by a high official to the Government relating to certain irregularities committed in jail. He claimed protection under Exception Ninth to S. 499. The Report was made available to the High Court in a petition under S. 482 Cr.P.C. which was filed by the editor. The High Court on a perusal of the said Report quashed the prosecution on the ground that the editor was entitled to the protection under S. 499, Exception 9. On Special Leave to Appeal being granted the Supreme Court by a majority of two to one reversed the order of the High Court holding that the High Court has prejudged the whole issue without the trial of the person and the same has resulted in manifest miscarriage of justice. Sen, J. with whom Chinnappa Reddy, J. concurred made the following observations as regards the evidentiary value of the Enquiry Report.”The contents of the Enquiry Report cannot be made use of unless the facts are proved by evidence aliunde. There is also nothing on record to show that the accused persons made any enquiry of their own into the truth or otherwise of the allegations or exercised due care and caution for bringing the case under the Ninth Exception. The Enquiry Report cannot by itself furnish the lacunae”. Chinappa Reddy, J., in his separate judgment clarified the position still further as regards the concept of good faith. His Lordship observed that :

“The insistence is upon the exercise of, due care and attention. Recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification the situation and context in which the imputation was made, the position of the person making the imputation, and variety of other factors. Good faith therefore, is a matter for evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the 1st Exception of S. 499 Penal Code expressly states “Whether or not it is for the public good is a question of fact”. ‘Public Good’ like ‘Good faith’ is a matter of evidence and not conjecture.”

22. Thus in view of the clear legal position as enunciated by their Lordships, the stage for deciding whether the petitioners acted in good faith and for public good or not has not arrived yet. The question can, therefore, be decided only after the plea of the accused is recorded. Needless to say that the complainant shall be entitled to demolish the defense by whatever evidence he chooses to adduce in this behalf. Reference in this context be also made to Balraj Khanna v. Moti Ram, , wherein too it was held that :-

“The question of applicability of the Exceptions to Section 499 I.P.C. as well as all other defenses that may be available to the appellants will have to be gone into during the trial of the complaint and not at the stage of enquiry under Section 202 of the Code.”

23. The learned counsel for the petitioners has in answer to the foregoing decisions placed reliance on Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, . In the said case the Magistrate had directed enquiry under Section 202 of the Code for ascertaining the truth or falsehood of a complaint and on receipt of the report from the Enquiry Officer which supported a plea of self-defense made by the person complained against, the learned Magistrate dismissed the complaint. The question arose as to whether it was open to the Magistrate to hold that the plea of self-defense was correct on the basis of the report and the statements of witnesses recorded by the Enquiry Officer. Replying in the affirmative, their Lordships observed as follows :-

“The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an inquiry under Section 202 and has applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment.”

24. The learned counsel for the petitioners has fervently urged that this decision still holds the field and in none of the subsequent judgments adverted to above, the Supreme Court has taken a contrary view. It would no doubt appear to be so but at present we are concerned with the specific question whether a defense pleas based on any of the exceptions to Section 499 I.P.C. can be considered and spelt out by the magistrate even at the stage of enquiry under Section 202 of the Code i.e. even before such a plea is raised by the accused. The Supreme Court has consistently held that the stage for considering such a plea is only after trial has commenced and the plea of the accused is recorded. If that be so surely such a plea cannot be considered by this Court in a revision or even in exercise of its inherent powers under Section 482 of the Criminal P.C. unless, of course it can be said to be a clear case of abuse of process of court or it is necessary to secure the ends of justice. Evidently these considerations do not arise in the instant case. Hence this contention of the learned counsel for the petitioners merits rejection as being premature.

25. To sum up the impugned order cannot be sustained as regards Shri Ram Nath Goenka, petitioner in Crl.R. No. 84/82 and S/Shri Arun Shourie and A. N. Dhar, petitioners in Crl.R. No. 83/82. It is accordingly quashed qua them. However, the case shall proceed further as regards the other petitioners viz. S. Nihal Singh, Prabash Joshi and S. K. Kohli.

26. Order accordingly.