supreme court – Defamation

Mohammed Abdulla Khan vs Prakash K

5th Sep 201913th Sep 2019 by 498anlr, posted in Uncategorized

Excerpt:

Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.

27. Each case requires a careful scrutiny of the various questions indicated above. Neither prosecutions nor the power under Section 482 CrPC can be either conducted or exercised casually as was done in the case on hand.

Supreme Court of India
Mohammed Abdulla Khan vs Prakash K. on 4 December, 2017
Author: Chelameswar
Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2059 OF 2017
(Arising out of Special Leave to Appeal (Crl.) No.1741 of 2017)
Mohammed Abdulla Khan … Appellant

Versus

Prakash K. … Respondent
JUDGMENT
Chelameswar, J.

1. Leave granted.

2. The sole respondent is admittedly the owner of a Kannada Daily Newspaper by name “Jaya Kirana” published from Mangalore, Karnataka. On 16.12.2013, the said newspaper carried a news item containing certain allegations against the appellant herein. According to the appellant, the allegations are highly defamatory in nature.

3. The appellant lodged a report with the Panambur Police, Mangalore, Dakshina Kannada District on 17.12.2013 against the respondent and another person who was editor of the above mentioned newspaper. Police did not take any action. Thereafter, the appellant filed a private complaint against the respondent and the editor of the above mentioned newspaper before the J.M.F.C.-II, Mangalore in PCR No.24/2014 which eventually came to be numbered as CC No.1252 of 2014. The learned Magistrate took cognizance of the matter on 15.04.2014 for the offences punishable under Section 500, 501 and 502 of the Indian Penal Code, 1860.

4. Aggrieved by the order dated 15.04.2014, the respondent carried the matter in Revision Petition No.219 of 2014 before the Sessions Judge, Dakshina Kannada, Mangalore. By the order dated 06.11.2015, the respondent’s revision was dismissed. Respondent further carried the matter in Criminal Petition No.8679 of 2015 to the Karnataka High Court invoking Section 482 of the Code of Criminal Procedure, 1973. By an order dated 23.11.2016, the said petition was allowed and the proceedings in CC No.1252 of 2014, insofar as they pertained to the respondent, were quashed.

5. Both in his revision as well as the petition under Section 482 Cr.P.C., the respondent urged various grounds which according to him render the order dated 15.04.2014 illegal. The details of those various grounds are not necessary for our purpose.

6. The judgment under appeal is very cryptic. The first three paragraphs of the judgment under appeal (running into a short one and a half page) purport to take note of only one submission of the respondent.

“Para 2. The learned Counsel for the petitioner would point out that there can be no vicarious liability insofar as the criminal law is concerned. The complainant’s allegation of the defamatory material published in the newspaper against him, even if it is established, can only be sustained against the editor of the newspaper and not the owner of the newspaper. The petitioner admittedly was the owner. The newspaper carries a legend that the newspaper is edited and published on behalf of the petitioner and there is no dispute in this regard.”

7. It appears from the judgment under appeal that the appellant herein argued that in view of the law laid down in K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670 the respondent’s objection could not be sustained. High Court rejected the submission of the appellant.

“Para 3. Though the learned Counsel for the respondent would seek to contend that the question is no longer res integra and is covered by a judgment of the Supreme Court in the case of K.M. Mathew vs. K.A. Abraham, AIR 2002 SC 2989, it is however noticed that the said decision was in respect of a managing editor, resident editor or a chief editor of respective newspaper publications, who were parties therein.” The learned Judge recorded that the judgment in K M Mathew’s case could be distinguished and, therefore, opined that the respondent’s petition is required to be allowed.

“Para 3. … Therefore, at the outset, it can be said that the said case could be distinguished from the case on hand, as, the petitioner is not claiming as an editor, who had any role in the publication of the newspaper. Therefore, it is a fit case where the petition should be allowed.” It is unfortunate that the High Court did not choose to give any reason whatsoever for quashing the complaint except a grand declaration that “it would lead to a miscarriage of justice”.

“Accordingly, though the criminal proceedings can go on against the editor of the newspaper, the petitioner cannot be proceeded with, as it would lead to a miscarriage of justice.” Hence, the appeal.

8. Before us, the appellant appeared in person. In spite of the service of notice, the respondent neither chose to appear in person nor through a counsel. In view of the fact that a substantial question of law is involved in the matter, we thought it appropriate to request Shri M.N. Rao, learned Senior Advocate to assist the Court in this matter.

9. Heard Shri M.N. Rao, learned Senior Advocate for the appellant.

10. Section 499 IPC defines the offence of defamation. It contains 10 exceptions and 4 explanations. The relevant portion reads;

“Section 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 expected, to defame that person.”
11. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;

(i) Such imputation must be made either

(a) With intention, or

(b) Knowledge, or

that such an imputation will harm the reputation of the person against whom the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or written, or

(b) By making signs, or

(iii) Imputation could be either made or published. The difference between making of an imputation and publishing the same is:

If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation. If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the imputation.

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.1

12. Committing any act which constitutes defamation under Section 499 IPC is punishable offence under Section 500 IPC. Printing or engraving any defamatory material is altogether a different offence under Section 501 IPC. Offering for sale or selling any such printed or engraved defamatory material is yet another distinct offence under Section 502 IPC. Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)
13. If the content of any news item carried in a newspaper is defamatory as defined under Section 499 IPC, the mere printing of such material “knowing or having good reason to believe that such matter is defamatory” itself constitutes a distinct offence under Section 501 IPC. The sale or offering for sale of such printed “substance containing defamatory matter” “knowing that it contains such matter” is a distinct offence under Section 502 IPC.

14. Whether an accused (such as the respondent) against whom a complaint is registered under various Sections of the IPC (Sections 500, 501 & 502 IPC) could be convicted for any of those offences depends upon the evidence regarding the existence of the facts relevant to constitute those offences.

15. In the context of the facts of the present case, first of all, it must be established that the matter printed and offered for sale is defamatory within the meaning of the expression under Section 499 IPC. If so proved, the next step would be to examine the question whether the accused committed the acts which constitute the offence of which he is charged with the requisite intention or knowledge etc. to make his acts culpable.
16. Answer to the question depends upon the facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 IPC. If he is the person who “printed” the matter within the meaning of the expression under Section 501 IPC. Similarly to constitute an offence under Section 502 IPC, it must be established that the respondent is not only the owner of the newspaper but also sold or offered the newspaper for sale.

17. We must make it clear that for the acts of printing or selling or offering to sell need not only be the physical acts but include the legal right to sell i.e. to transfer the title in the goods – the newspaper. Those activities if carried on by people, who are employed either directly or indirectly by the owner of the newspaper, perhaps render all of them i.e., the owner, the printer, or the person selling or offering for sale liable for the offences under Sections 501 or 502 IPC, (as the case may be) if the other elements indicated in those Sections are satisfied.

18. Whether the content of the appellant’s complaint constitutes an offence punishable under any one or all or some of the above mentioned sections was not examined by the High Court for quashing the complaint against the respondent. So we need not trouble ourselves to deal with that question. We presume for the purpose of this appeal that the content of the appellant’s complaint does disclose the facts necessary to establish the commission of one or all of the offences mentioned above. Whether there is sufficient evidence to establish the guilt of the respondent for any one of the above mentioned three offences is a matter that can be examined only after recording evidence at the time of trial. That can never be a subject matter of a proceeding under Section 482 Cr.P.C.

19. From the judgment under appeal, it appears that before the High Court it was argued on behalf of the respondent that there is no vicarious liability in criminal law and therefore the owner of a newspaper cannot be prosecuted for the offences of defamation.

“2. The learned counsel for the petitioner would point out that there can be no vicarious liability insofar as the criminal law is concerned. The complainant’s allegation of the defamatory material published in the newspaper against him, even if it is established, can only be sustained against the editor of the newspaper and not the owner of the newspaper. The petitioner admittedly was the owner. The newspaper carries a legend that the newspaper is edited and published on behalf of the petitioner and there is no dispute in this regard.”

20. It appears from para 3 of the judgment that the appellant herein submitted in response to the above extracted contention of the respondent that the question is no longer res integra and is covered by a judgment of this Court in K.M. Mathew v. K.A. Abraham & Others.2 The High Court rejected the submission holding: “…….it is however noticed that the said decision was in respect of a managing editor, resident editor or a chief editor of respective newspaper publications, who were parties therein. Therefore, at the outset, it can be said that the said case could be distinguished from the case on hand, as, the petitioner is not claiming as an editor, who had any role in the publication of the newspaper. Therefore, it is a fit case where the petition should be allowed.” The High Court concluded that prosecution of the respondent would lead to miscarriage of justice. A conclusion without any discussion and without disclosing any principle which forms the basis of the conclusion.

FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE:

21. K.M. Mathew was the “Chief Editor” of a daily called Malayalam Manorama. When he was sought to be prosecuted for the offence of defamation, he approached the High Court under Section 482 Cr.P.C. praying that the prosecution be quashed on the ground that Section 7 of the Press and Registration of Books Act, 1867 only permits the prosecution of the Editor but not the Chief Editor. The High Court rejected the submission. (2002) 6 SCC 670
22. Even before this Court, the same submission was made.3 This Court rejected the submission holding:

“16. The contention of these appellants is not tenable. There is no statutory immunity for the Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control.” It was further held that though the presumption under Section 7 of the Press and Registration of Books Act, 1867 is not applicable to somebody whose name is printed in the newspaper as the Chief Editor, the complainant can still allege and prove that persons other than the Editor, if they are responsible for the publication of the defamatory material.
“20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper.”
23. K.M. Mathew’s case has nothing to do with the question of vicarious liability. The argument in K.M. Mathew’s case was that in view of Section 7 of the Press and Registration of Books The contention of the appellants in these cases is that they had not been shown as Editors in these publications and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as “Editor” and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in that newspaper. [Para 15 of K.M. Mathew’s case] Act, 1867 only the Editor of a newspaper could be prosecuted for defamation. Such a submission was rejected holding that Section 7 does not create any immunity in favour of persons other than the Editor of a newspaper. It only creates a rebuttable presumption that the person whose name is shown as the editor of the newspaper is responsible for the choice and publication of the material in the newspaper. K.M. Mathew’s case made it clear that if a complaint contains allegations (which if proved would constitute defamation), person other than the one who is declared to be the editor of the newspapers can be prosecuted if they are alleged to be responsible for the publication of such defamatory material.

The High Court, in our opinion, without examining the ratio of K.M. Mathew’s case chose to conclude that the decision is distinguishable. The judgment of the High Court is absolutely unstructured leaving much to be desired.

24. Vicarious liability for a crime is altogether a different matter. In England, at one point of time, the owner of a newspaper was held to be vicariously liable for an offence of defamation (libel). The history of law in this regard is succinctly stated by Lord Cockburn in The Queen v. Holbrook.4 Though there appears to be some modification of the law subsequent to the enactment of Lord Campbell’s Act i.e. the Libel Act 1843 (6&7 Vict C 96).

Lord Campbell’s Act did not apply to India. The Press and Registration of Books Act (Act XXV of 1867) is made applicable to British India and continues to be in force by virtue of the declaration under Article 372 of the Constitution of India. There are material differences between the scheme and tenor of both the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad 692, it was held:

“… But we cannot hold that the provisions of that Statute (Ed.
Lord Campbell’s Act) are applicable to this country, and we must determine whether the accused is or is not guilty of defamation with reference to the provisions of the Indian Penal Code. We consider that it would be a sufficient answer to the charge in this country if the accused showed that he entrusted in good faith the temporary management of the newspaper to a competent person during his absence, and that the libel was published without his authority, knowledge or consent. As the Judge has, however, misapprehended the effect of Act XXV of 1867, we shall set aside the order of acquittal made by him and direct him to restore the appeal to his file, to consider the evidence produced by the accused and then to dispose of the appeal with reference to the foregoing observations.” and reiterated in Emperor v. Bodi Narayana Rao and G. Harisarvothama Rao, (1909) ILR 32 Mad 338:

“Lord Campbell’s Act, of course, is not in force in India, and the Criminal Law of England is not necessarily the same as the Criminal Law of India as contained in the Indian Penal Code …” L.R. 3 QBD 60
25. The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the above mentioned activities is carried on by persons employed by the owner.

26. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.

28. The judgment under appeal cannot be sustained for the reasons indicated above. The same is, therefore, set-aside and the appeal is allowed. The trial court will now proceed with the case in accordance with law.

………………………………….J. (J. CHELAMESWAR) ………………………………….J. (S. ABDUL NAZEER) New Delhi December 4, 2017

M.A.Rumugam vs Kittu @ Krishnamoorthy

24th Jun 201927th Jun 2019 by 498anlr, posted in self, Uncategorized

Excerpt:

For the purpose of bringing his case within the purview of the Eight and the Ninth Exception appended to Section 499 of the Indian Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bonafide would, thus, be on the appellant alone.

Supreme Court of India

M.A.Rumugam vs Kittu @ Krishnamoorthy on 7 November, 2008

Author: S.B. Sinha

Bench: S.B. Sinha, Cyriac Joseph

                                                                      REPORTABLE

                   IN THE SUPREME COURT OF INDIA

                  CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 1749             OF 2008
               [Arising out of SLP (Crl.) No. 237 of 2007]


M.A. Rumugam                                            ...Appellant

                                     Versus

Kittu @ Krishnamoorthy                                  ...Respondent




                            JUDGMENT

S.B. SINHA, J :

1. Leave granted.

2. Applicability of the provisions of Section 482 of the Code of Criminal Procedure for quashing of a complaint petition filed by the respondent herein against the appellant under Section 500 of the Indian Penal Code is in question in this appeal which arises out of a judgment and order dated 8.09.2006 passed by the High Court of Judicature at Madras in Criminal O.P. No. 10819 of 2006.

3. Appellant herein is a retired teacher. He is said to be the owner of a land admeasuring 0.83 acres in new survey No. 246/1B at Naluvedapathi Village. About 180 numbers of coconut tress are said to have been planted on the said land.

4. On 3.06.2003, when the appellant allegedly visited his land, he found that 9 coconut trees were dead. Upon enquiry, he allegedly came to know that one Namasivayam son of Rajagopal and Kaliappan son of Ramu of Naluvedapathi Village had damaged the said coconut trees by pouring acid mixed with kerosene thereon allegedly on the advice of the respondent herein.

5. On 4.06.2003, the appellant filed a complaint before the Sub- Inspector of Police, Thalaignayar Police Station, contending:

“…On 30.4.2003, the Panchayat Union Committee member and Panchayat Board President approached me and wanted land on south side of my coconut grove to lay road through the grove. I did not give consent for the proposal. In these circumstances when I visited the grove on 3.6.2003 about 9 coconut yielding trees on the south side were found slide down. When I enquired about this I came to know that Namasivayam son of Rajagopal and Kaliappan son of Ramu of Naluvedapathi Village were standing on the south side of my coconut grove some time back with tins on their hands. Met them and told that they were responsible for the sliding of tender coconut trees as they were seen near the trees by some people of the village. They confessed that they on the advice of the Kittu alias Krishnamurthy son of Vedaiya Gounder of Naluvedapathi Village along with him poured acid mixed kerosene into the coconut trees and that they have done it since I did not give consent to lay road through my coconut grove.”

In the said complaint, the appellant requested the Sub-Inspector of Police to take action against those persons and sought protection for himself and his property.

6. On 5.06.2003, the appellant filed a suit before the learned District Munsif Court at Nagappattinam against the President, Union Council Member and other persons for grant of permanent injunction against the defendants restraining them from causing damage to the footpath in his property under the pretext of widening and laying road. In the said suit, an Advocate Commissioner was appointed to find out whether any coconut trees were found dead. The Advocate Commissioner submitted its report on 15.06.2003 stating:

“Adjacent to the path on east end 9 coconut trees were found dead with loss of chlorophyll. There were 10 bunches carrying 100 to 150 coconuts. There were in an average 20 branches in each tree. There were heap of coconut under the 9 trees.”

7. On 25.06.2003, a First Information Report was lodged on the basis of the complaint given by the appellant. In the said FIR, the names of the respondent herein and two others were mentioned in the column of `doubtful persons’ portion. As the police authorities neither filed any chargesheet within six months nor sought for extension of time for the purpose of conducting further investigation, the learned Magistrate ordered stopping of further investigation and consequently closure of the matter.

8. On 6.09.2005, the respondent herein filed a private complaint, which was marked as C.C. No. 179 of 2006, in the Court of the learned Judicial Magistrate, Tiruthuraipoondi against the appellant for commission of the offence of defamation under Section 500 of the Indian Penal Code.

Taking cognizance of the said complaint, the learned Magistrate issued summons to the appellant.

Aggrieved by and dissatisfied therewith, he filed a Crl. O.P. No. 10819 of 2006 before the High Court of Judicature at Madras praying to call for the records pertaining to the complaint petition filed by the respondent being C.C. No. 179 of 2006 and quashing the same.

9. Before the High Court, a contention was raised that the backdrop of events and the manner in which the complaint petition had to be filed by the appellant would clearly establish that the action on his part was not in good faith.

The said contention was negatived by the High Court stating:

“5. The accusation have been made the accused (sic) and there are prima facie materials to proceed against the petitioner. When there are specific allegations made in the complaint against the accused, such allegation may have to be rebutted during the course of trial. In such circumstances by invoking the inherent powers under Section 482 Cr.P.C. the pending proceedings cannot be quashed at the threshold, I do not find any merit in the case, hence the petition is dismissed. Consequently connected Crl. M.Ps are closed. However, the petitioner is at liberty to establish that the statement has been made in good faith, during the course of trial.”

10. Mr. G. Sivabalamurugan, learned counsel appearing on behalf of the appellant, would submit that the complaint preferred by the appellant against the respondent and two others before the police authorities does not amount to `defamation’ as the ingredients of Section 499 of the Indian Penal Code are not satisfied.

The learned counsel would contend that from a perusal of the complaint petition filed by the appellant before the police authorities, it would be evident that he had taken due care and caution before filing the same. He, thus, acted bonafide and in good faith.

As the police authorities were authorised to entertain the said complaint, no case has been made out for proceeding against the appellant for alleged commission of an offence under Section 500 of the Indian Penal Code.

11. Mr. P. Somasundaram, learned counsel appearing on behalf of the respondent, on the other hand, would submit that the complaint was made by the appellant before the police authorities on a wholly false premise, as much prior thereto, viz., on 27.05.2003, the respondent had left his village and in fact on 1.06.2003, he had left India for Malaysia and, thus, the question of his remaining at the place of occurrence on 3.06.2003 did not arise.

It was urged that the purported statement made by one of the co- accused in the earlier case, viz., one Namasivayam cannot be relied upon at this stage particularly when even therein they were represented by different counsel and furthermore his statement as a co-accused could not have been relied upon for the purpose of securing conviction of the respondent.

12. Section 499 of the Indian Penal Code 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 expected, to defame that person.”

Eight and Ninth Exceptions, to which reliance has been placed by the learned counsel, read as under:

“Eight 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. Ninth Exception.–Imputation made in good faith by person for protection of his or other’s interests It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.”

The word “good faith” has been defined in Section 52 of the Indian Penal Code 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.”

13. The complaint petition filed by the respondent herein contained a statement that he was implicated allegedly on the basis of an information received by the appellant from one Namasivayam son of Rajagopal and Kaliappan son of Ramu of Naluvedapathi Village that they had damaged nine coconut trees by pouring acid mixed kerosene on the respondent’s advice.

The aforementioned allegation against the respondent was published in various newspapers, viz., Maalai Murusu, Maalai Malar, Dhina Boomi, Dhina Karan, Dhina Malar as well as in some weeklies.

On the aforementioned backdrop, he alleged to have been defamed as thereby, “false propaganda among the village people and implication his name in the complaint against the enemies Kakliappan and Namasivayam besides publishing the same in the dailies and weeklies” was made against him. It was furthermore stated:

“Since there was no basic evidence in the complaint, it was given with the sole intention of defaming the petitioner herein and the complainant did not cooperate for the investigation the case registered in Thalaignayiru police station in Crime No. 360/2003 could not be proceeded further and the charge sheet could not be filed. Therefore, the case on the file of the Judicial Magistrate Tiruthuraipoondi was closed on 7.4.2005. Because of the illegal activities of the respondent, the petitioner/ complainant herein is unable to make his foreign trips and suffered heavy financial loss and lost his status among his relatives and the people of the Village and suffered enormous mental agony.”

14. Allegations made in the said complaint petition, thus, in our opinion, make out a case for proceeding against the appellant under Section 500 of the Indian Penal Code as thereby imputation concerning the respondent had been made intending to harm or knowing or having reason to believe that such imputation would harm his reputation.

15. For the purpose of bringing his case within the purview of the Eight and the Ninth Exception appended to Section 499 of the Indian Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good.

16. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bonafide would, thus, be on the appellant alone.

17. At this stage, in our opinion, it would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities.

18. Respondent was furthermore discharged by the learned Magistrate in exercise of its jurisdiction under Section 167(5) of the Code of Criminal Procedure stating that the police authorities could not complete the investigation within a period of six months.

19. Strong reliance has been placed by Mr. Sivabalamurugan on a decision of this Court in Rajendra Kumar Sitaram Pande Etc. v. Uttam and Another [1999 (1) SCR 580]. Accusation against the accused therein related to the conduct on his part before the Treasury Officer. The learned Magistrate, when the complaint was filed, instead of issuing process called upon the Treasury Officer to hold an inquiry and submit a report in the court. Pursuant thereto and / or in furtherance thereof, a report was submitted. In the said report, the Treasury Officer clearly indicated that pursuant to the report made by the accused persons against the complainant, a departmental enquiry had been made and the complainant was found guilty. It was in the aforementioned situation, the Magistrate’s order refusing to issue summons was upheld by this Court.

20. For the reasons aforementioned, we do not find any infirmity in the impugned judgment. Furthermore, the question, as to whether a totally false complaint has been made as against the respondent or not as he was not even in India prior to the date of occurrence, is required to be gone into by the learned Trial Judge.

21. Accordingly, the appeal is dismissed.

………………………….J.

[S.B. Sinha] …………………………..J.

[Cyriac Joseph] New Delhi;

November 07, 2008

Jeffrey J.Diermeier & Anr vs State Of West Bengal & Anr

24th Apr 201924th Jun 2019 by 498anlr, posted in Uncategorized

Excerpt:It is trite that where to the charge of defamation under Section 500 IPC, the accused invokes the aid of Tenth Exception to Section 499 IPC, “good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with a degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in “good faith” and for “public good” under the said Exception. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding appellants’ plea of “good faith” and “public interest”. Unfortunately, all these are questions of fact and matters for evidence.

Supreme Court of India

Jeffrey J.Diermeier & Anr vs State Of West Bengal & Anr on 14 May, 2010

Author: D JainBench: D.K. Jain, H.L. Dattu

                                                                     REPORTABLE

                  IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 1079                   OF 2010
            (Arising out of S.L.P. (Criminal) No. 898 of 2009)


JEFFREY J. DIERMEIER & ANR.                    --          APPELLANTS


                               VERSUS


STATE OF WEST BENGAL & ANR.                   --         RESPONDENTS



                            JUDGMENT

D.K. JAIN, J.:

Leave granted.

2. This appeal, by special leave, arises from the judgment dated 18 th November 2008 rendered by a learned Single Judge of the High Court of Calcutta in C.R.R. No. 523 of 2008. By the impugned judgment, the learned Judge has dismissed the petition preferred by the appellants under Section 482 of the of the Code of Criminal Procedure, 1973 (for short “the Code”) seeking quashing of a private complaint filed by respondent No.2 in this appeal, for an offence under Section 500 read with Section 34 of the Indian Penal Code, 1860 (for short “the IPC”).

3. The facts, material for the purpose of disposal of this appeal, may be stated thus:

Appellant No.1 is the President and Chief Executive Officer of the Chartered Financial Analysts Institute (hereinafter referred to as “CFA Institute”), incorporated under the laws of the State of Virginia, United States. Appellant No.2 is the President of the Indian Association of Investment Professionals, who is a member of the society of CFA Institute. CFA Institute is a non stock corporation and confers the designation of Chief Financial Analyst (“CFA” for short) upon its members who fulfil a minimum professional criterion. CFA certification is considered to be a definitive standard for professional competence.

4. In the year 1985, on being approached by the Institute of Chartered Financial Analysts of India (for short “ICFAI”), respondent No.2 herein, a registered society, having its office at Kolkata, CFA Institute entered into a licence agreement with them to conduct its CFA program in India. The agreed arrangement continued for quite some time. However, realising that respondent No.2 was not adhering to the required standards and quality in the said program, CFA Institute decided to wean off its arrangement with ICFAI – respondent No.2. Since, in the meanwhile, respondent No.2 was attempting to get the trademarks of CFA Institute registered in India, in the year 1997, CFA Institute issued a notice of termination of its licence with the said respondent. On receipt of the said notice, respondent No.2 filed a declaratory suit before the District Courts in Hyderabad, seeking a declaration regarding the change of their name “ICFAI” and their use of the designation “CFA”. However, they did not succeed in getting any interim or final relief in the said suit. In the year 2004, CFA Institute filed a Civil Suit [C.S.(OS) No.210 of 2004] in the High Court of Delhi for permanent injunction restraining respondent No.2 from using the trade marks, services, service marks or trade name CFA, Chartered Financial Analyst, The Institute of Chartered Financial Analysts of India, ICFA and ICFAI or any other name or mark which may be identical or deceptively similar to these marks and passing off CFA Institute Programs or business as that of CFA Institute. Vide Order dated 4th August 2006, the High Court passed the following order by way of interim relief:

“30. In view of the above, I allow the application under Order XXXIX Rules 1 & 2 CPC and restrain the defendants, during the pendency of the suit from using any of the trademarks or service marks CFA, Chartered Financial Analyst, The Institute of Chartered Financial Analysts of India, ICFA and ICFAI or any other name or mark which may be identical or deceptively similar to these marks and from passing off their programmes or business as that of the plaintiffs. However, this order of injunction will not come into effect till the end of current academic session of the CFA Programme run by the defendants. Nor will anything said herein will mean final expression of opinion of this Court.”

[Emphasis supplied]

5. On 30th January 2007, respondent No.2, through its sponsored University in Tripura – The Institute of Chartered Financial Analysts of India University, Tripura (hereinafter referred to as “the University”), issued an advertisement inviting applications for fresh enrolments for award of “CFA” certification. According to CFA Institute, since the programmes which were current at the time of passing of the order of interim injunction by the High Court of Delhi on 4th August 2006 had come to an end in January 2007, the invitation for fresh enrolment in terms of the advertisement issued on 30th January 2007 was for subsequent programmes, which were not current at the time of the interim injunction order and, therefore, it was in breach of the said interim injunction. Accordingly, on 12th February 2007, CFA Institute issued a public notice under the caption “A Word of Caution to the Indian Investment Community”, (hereinafter referred to as “Word of Caution”). The relevant extract of the said publication reads thus: “There is confusion over the “CFA” name in India, and you deserve to know the facts. The Chartered Financial Analyst (CFA(R)) designation from CFA Institute is the only globally recognized CFA designation for financial professionals. However, the Institute of Chartered Financial Analysts of India (Icfai) offers an educational program specializing in finance, which they term the “CFA Program”, and awards a title called the “CFA”.

On 4th August 2006, the Delhi High Court recognized that CFA Institute owns the exclusive rights to the CFA trademarks and that continued use by Icfai causes irreparable harm. The court ordered an interim injunction requiring Icfai to stop using the “Chartered Financial Analyst” and “CFA” brands and to change its corporate and “CFA” title names. Unfortunately, Icfai has continued its unauthorized use of our trademarks by running advertisements from an Icfai-sponsored university. …………………………………………………………………………………………

……………………………………………………………….. If you are planning to either hire an investment professional or obtain a designation, you need to make informed decision that benefit your future. Visit http://www.cfainstitute.org/India for more information about enrolling in the CFA Program, Scholarships, joining the IAIP, and the latest updates about our efforts to end this confusion and support the Indian Investment Community.”

(Emphasis added by us)

6. Alleging that the said public notice was defamatory within the meaning of Section 499 of the IPC, respondent No.2 filed a private complaint against the appellants. The trial court took cognizance of the complaint and issued summons to the appellants. Feeling aggrieved by the summoning order, the appellants preferred the afore-noted petition before the High Court of Calcutta. As already stated, by the impugned judgment, the High Court has dismissed the said petition. Hence, the present appeal by the accused.

7. Shri Shanti Bhushan, learned senior counsel appearing on behalf of the appellants strenuously urged that the High Court gravely erred in declining to exercise its jurisdiction under Section 482 of the Code in a case where the complaint ex facie lacks basic ingredients of Section 499 of the IPC. Learned counsel submitted that by offering a prospectus for a new session beginning in the year 2007, which would be of 12-18 months duration, the University, a sponsored University of ICFAI had violated the injunction order issued by the High Court of Delhi on 4 th August 2006 and, therefore, in the wake of a misleading advertisement, the appellants were compelled to issue a “Word of Caution”.

8. Learned counsel contended that from the provisions of the Institute of Chartered Financial Analysts of India University, Tripura Act, 2004 (for short “the Act”), it was clear that the University was nothing but an alter ego of respondent No.2. In support of the contention, learned counsel referred to certain provisions of the Act showing that it is respondent No.2 who appoints the Chancellor of the University and in turn the Chancellor appoints the Vice-Chancellor; under Section 20 of the Act, the Board of Governors consists of Chancellor, Vice-Chancellor and three other persons nominated by respondent No.2; under Section 21 of the Act, the Board of Management consists of 9 persons of whom as many as 7 persons are to be the nominees of respondent No.2. It was, thus, submitted that all the acts of the University were really the acts of respondent No.2 itself and, therefore, the advertisement issued for fresh admission by the University was clearly in breach of the order passed by the Delhi High Court. According to the learned counsel, the effect of the advertisement dated 30th January 2007 would have been to induce prospective students to believe that joining the new course offered by the University in the year 2007 would entitle them to get CFA designation from CFA Institute. It was argued that it was in these circumstances and keeping in mind the public interest that the appellants had issued a “Word of Caution” to the students who wished to obtain CFA certification. Learned counsel asserted that the prosecution of the appellants on account of publication of the said “Word of Caution” is an abuse of the process of the Court inasmuch as the said “Word of Caution” published by them was a public duty and thus, a legitimate expression. It was also absolutely necessary and in public interest and was singularly covered by the Tenth Exception to Section 499 of IPC.

9. It was also the assertion of the learned counsel that the contents of the “Word of Caution” did not in any way lower or cast a reflection on the moral or intellectual character of respondent No.2 and, therefore, Explanation 4 to Section 499 of the IPC, which imposes restrictions in the law of defamation, is clearly attracted in favour of the appellants. It was thus, pleaded that in the light of Explanation 4 as well as Tenth Exception to Section 499IPC, the allegations in the complaint did not constitute an offence of defamation punishable under Section 500 IPC and, therefore, the High Court ought to have quashed the complaint. In support of the proposition, learned counsel placed reliance on the decisions of this Court in the case of State of Haryana Vs. Bhajan Lal1 and Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi & Ors.2. Relying on Rajendra Kumar Sitaram Pande & Ors. Vs. Uttam & Anr.3, learned counsel argued that under the given circumstances, requiring the appellants to undergo trial would be travesty of justice.

10.Per contra, Shri K.K. Venugopal, learned senior counsel appearing on behalf of respondent No.2 supported the impugned judgment and submitted that all the grounds urged on behalf of the appellants for quashing the complaint involve determination of disputed questions of fact for which the matter has to go to trial and, therefore, the High Court was justified in not analyzing and returning a finding on the truthfulness or otherwise of the allegations in the complaint. Heavily relying on the majority view expressed by a Bench of three Judges in Sewakram Sobhani Vs. R.K. Karanjia, Chief Editor, Weekly Blitz & Ors.4, learned counsel argued that answers to the questions whether the appellants were entitled to protection under Explanation 4 or that the advertisement was 1992 Supp. (1) SCC 335(1996) 6 SCC 263 (1999) 3 SCC 134 (1981) 3 SCC 208 issued in “good faith” and for “public good” as contemplated in the Tenth Exception are questions of fact and matters for evidence and, therefore, trial in the complaint must continue. In this behalf, reliance was also placed on the decisions of this Court in M.N. Damani Vs. S.K. Sinha & Ors.5 and Shriram Refrigeration Industries Vs. Hon’ble Addl. Industrial Tribunal-Cum-Addl. Labour Court, Hyderabad & Ors.6

11.Learned counsel argued that a reading of the offending publication as a whole would show that omission of the sentence “However, this order of injunction will not come into effect till the end of current academic session of CFA programme run by the defendants nor will anything said herein will mean final expression of opinion of this Court” was a conscious and deliberate suppression intended to portray ICFAI as a wrong doer, which has violated an injunction order passed by the High Court and in the process is in contempt of the said order. According to the learned counsel, suppression of the fact that the interim injunction did not apply to the “current academic session of the CFA Programme”, which was to conclude only in May 2009; had subjected the students who were undergoing the three year course to fear and anxiety that three years (2001) 5 SCC 156 (2002) 9 SCC 708 of their lives would be wasted, giving the impression that respondent No.2 had cheated them. It was contended that the conscious and deliberate omission of the last sentence of the order of interim injunction was with the sole objective to deter the students from enrolling in the CFA Programme offered by the four Universities in the State of Uttarakhand, Meghalaya, Tripura and Mizoram by creating a fear psychosis amongst the aspirants and, therefore, the offending publication was not in “good faith” and “public interest” as is being pleaded by learned counsel for the appellants.

12.Placing reliance on the decision of this Court in Chand Dhawan (Smt) Vs. Jawahar Lal & Ors.7, learned counsel submitted that since the High Court had observed that the allegations in the complaint prima facie constituted an offence under Section 499 IPC, it did not err in refusing to interfere in the matter. Reliance was also placed on the decisions of this Court in Som Mittal Vs. Government of Karnataka8 and Som Mittal Vs. Government of Karnataka9 to contend that power to quash criminal proceedings is to be exercised in the rarest of rare cases. (1992) 3 SCC 317 (2008) 3 SCC 574 (2008) 3 SCC 753

13.Shri Venugopal also contended that the University at Tripura, not being a party to the suit at the time of passing of the order by the High Court was not bound by the said order, yet the statement in the advertisement that the continued unauthorized use of appellant’s trademark through the sponsored Universities is per se defamatory and has caused immense harm to the image and reputation of respondent No.2 in the eyes of the Indian Investment Community as also the student community at large.

14.Learned senior counsel strenuously urged that since the stand of the appellants before the High Court was that they were entitled to the protection of Fourth and Fifth Exceptions to Section 499 IPC, they cannot now be permitted to rely upon Explanation 4 and Tenth Exception to Section 499 IPC so as to build up a totally new case before this Court. In support of the proposition that a new plea, which is essentially a plea of fact, cannot be allowed to be urged for the first time at the hearing of appeal under Article 136 of the Constitution before this Court, learned counsel placed reliance on the decisions of this Court in Jagir Kaur & Anr. Vs. Jaswant Singh10, State of Bihar & Ors. Vs. Shyam Yadav & Ors.11 and D.S. Parvathamma Vs. A. Srinivasan12.

[1964] 2 S.C.R. 73 (1997) 2 SCC 507 (2003) 4 SCC 705

15.Thus, the question for consideration is whether or not in the light of the allegations as projected in the complaint against the appellants, it was a fit case where the High Court in exercise of its jurisdiction under Section 482 of the Code should have quashed the complaint against the appellants?

16.Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.

17.In one of the earlier cases, in R.P. Kapur Vs. State of Punjab13 this Court had summarized some of the categories of cases where inherent power under Section 482 of the Code could be exercised by the High Court to quash criminal proceedings against the accused. These are:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction;

(ii) where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

18.In Dinesh Dutt Joshi Vs. State of Rajasthan14, while dealing with the inherent powers of the High Court, this Court has observed thus:

“….The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur AIR 1960 SC 866 (2001) 8 SCC 570 et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.”

19.The purport of the expression “rarest of rare cases”, to which reference was made by Shri Venugopal, has been explained recently in Som Mittal Vs. Government of Karnataka (supra). Speaking for a bench of three Judges, Hon’ble the Chief Justice said:

“When the words ‘rarest of rare cases’ are used after the words ‘sparingly and with circumspection’ while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words ‘sparingly and with circumspection’. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression “rarest of rare cases” is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection.”

20.Bearing in mind the afore-stated legal position in regard to the scope and width of the power of the High Court under Section 482 of the Code, we shall now advert to the facts at hand.

21.As noted above, the gravamen of the allegations made against the appellants in the complaint under Section 500 of the IPC is that when on 30th January 2007, respondent No.2 through its sponsored University at Tripura issued advertisement for fresh enrolments for award of CFA Certification, CFA Institute, through its President and CEO, appellant No.1, in this appeal, issued the offending “Word of Caution” wherein they: (1) deliberately and consciously did not publish the full text of the interim injunction granted by the High Court against respondent No.2 vide order dated 4th August 2006. They did not mention that order dated 4th August 2006 was with a rider that the said order will not come into effect till the end of the current academic session of CFA programme run by the society and (2) the defamatory advertisement portrays that the designation given by CFA Institute is the only valid designation and the CFA certificate given by the society is not valid. According to the complainant, all this was a malicious act on the part of appellant No.1, with the intention to harm their reputation in the estimation of the public in general and its present and past students in particular and, therefore, they are liable to be punished under Section 500 read with Section 34 of the IPC. For the sake of ready reference, the relevant portion of the complaint is extracted below:

“That in the defamatory advertisement, the accused persons have stated inter alia as follows–

“The Chartered Financial Analyst (CFA) designation from CFA Institute is the only globally recognized CFA designation for financial professional. However, the Institute of Chartered Financial Analysts of India (Icfai) offers an educational programme specializing in finance, which they term the `CFA Programme’ and awards a title called the CFA”.

That in the aforesaid advertisement, the American Association has falsely claimed sole global recognition of its `CFA’ designation even though the same is not recognized by any Government and/or Statutory authority either in USA or in any other country including India. The sole purpose of using the word `Charter’ by the accused is purely with an intention to defraud and/or mislead the public to convey statutory recognition. The said advertisement does not disclose that unlike the “CFA’ degree granted by the Society, the so called “CFA Charter is not recognized by any University in India or outside and the students who obtain such “Charter” cannot pursue further studies based on the “CFA Charter” so awarded by the CFA Institute. The tenor of the above statements in the defamatory advertisement portrays an image that the designation, given by the CFA Institute, is the only valid designation and the `CFA’ degree given by the Society is not a valid one. However, the situation is to the contrary and the Society is a body recognized by the various statutory authorities of India to be entitled to grant the “CFA” degree. The sole purpose is to defame and scandalize and thereby lower the image of the Society in the eyes of the general public as also in the eyes of its present students as also potential students and thereby harm the image of the Society, so that the organization of the accused persons can benefit therefrom.

That in the defamatory advertisement dated 12.02.2007, the accused persons have further stated as follows:-

“On 4th August, 2006, the Delhi High Court recognized that CFA Institute owns the exclusive rights to the CFA trademarks and that continued use by ICFAI causes irreparable harm. The court ordered an interim injunction requiring Icfai to stop using the “Chartered Financial Analyst” and “CFA” brands and to change its corporate and “CFA” titles names. Unfortunately, Icfai has continued its unauthorized use of our trademarks by running advertisements from an Icfai-sponsored university”.

The said statements are patently false and defamatory in nature. The accused persons deliberately, wilfully and with malafide intention have not mentioned in the advertisement that the order dated 4.8.2006 passed by the Hon’ble High Court of Delhi, granting temporary injunction, has been made with a rider that the said “order of injunction will not come into effect till the end of the current academic session of the CFA program run by the Society.” It is well within the knowledge of the accused that the current academic session of the CFA programme of the Society has not come to an end and as such it cannot be said that there has been unauthorized use of the alleged trade marks of the CFA Institute. Continuance of the current academic session from a University, sponsored by the Society, cannot be said to be in violation of the order of injunction passed by the Hon’ble High Court of Delhi. Moreover, the defamatory advertisement does not mention the fact (which is within the knowledge of the accused) that against the above interim order of injunction, an appeal is pending in the Hon’ble High Court of Delhi. The tenor of the said defamatory statement makes it clear that the accused, with malafide intent to injure and harm the Society, had misquoted the order passed by the Hon’ble High Court of Delhi on 4.8.2006.”

(Emphasis added)

22.Since the factum of publication of the “Word of Caution” is not in dispute, the question for determination is whether the afore-extracted allegations in the complaint constitute an offence of “defamation” as defined in Section 499 of the IPC and would attract the penal consequences envisaged in Section 500 of the IPC?

23.”Defamation” is defined under Section 499 of the IPC. It reads as under:

“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.”

24.To constitute “defamation” under Section 499 of the IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

25.However, as per Explanation 4 to the Section, no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, in the estimation of others or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

26.As stated above, the thrust of the argument of learned counsel for the appellants was that since the “Word of Caution” was issued in “good faith” for the benefit of those who were planning to acquire CFA Certificate, and the same being for the “public good”, the case falls within the ambit of Tenth Exception to Section 499 of the IPC and, therefore, the appellants cannot be held liable for defamation.

27.Tenth Exception to Section 499 of the IPC reads as follows:

“Tenth Exception.–Caution intended for good of person to whom conveyed or for public good.–It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”

28.It is plain that in order to bring a case within the scope of the Tenth Exception, it must be proved that statement/publication was intended in “good faith” to convey a caution to one person against another; that such caution was intended for the good of the person to whom it was conveyed, or of such person in whom that person was interested, or for the “public good”.

29.Before dealing with the question whether or not the Tenth Exception would be attracted in the instant case, it would be appropriate at this juncture, to deal with the objection raised by learned senior counsel appearing for respondent No.2, that no plea regarding applicability of the Tenth Exception having been urged before the High Court, the appellants are estopped from raising such a plea at this stage. Ground IV in the petition before the High Court was in the following terms: “Ground IV – For that the publication dated February 12, 2007 was essential and in public interest and thus made to protect the interest of the general public who might otherwise have been induced to join the course offered by the complainant/opposite party no.2 in the belief that it was entitled to conduct the same. The language of the publication is a fact and there is no question of there being any defamation involved in the same.”

30.It is clear from the above that in their defence, the appellants had pressed into service the Tenth Exception to Section 499 of the IPC. It was their case that the publication in question was in public interest as it was made to protect the interests of those who were planning to join the CFA course announced by the University. In our view, the appellants are not seeking to raise a new ground and, therefore, respondents’ objection on that account deserves to be rejected.

31.Now, reverting back to the main issue, as afore-stated, the appellants issued the offending “Word of Caution” ostensibly in order to warn those who were either planning to hire an investment professional or to obtain a CFA designation that there was an interim injunction against respondent No.2 from using their afore-noted trademarks. It is claimed by the appellants that the said notice was aimed at that group of people who were interested in acquiring a definitive standard for professional competence or for those who wanted to hire such professionals and not for the general public as such. According to them, this is clear from the text of the “Word of Caution”, which says that “If you are planning to either hire an investment professional or obtain a designation, you need to make informed decisions that benefit your future.” However, it cannot be denied that while the publication refers to the interim order passed by the Delhi High Court, it omits to mention that the said injunction will not come into effect till the end of current academic session of the CFA programme, which, according to respondent No.2, was to conclude in May 2009, and that the order would not mean expression of final opinion on the matter. According to respondent No.2, the omission of last two sentences of the interim order was a conscious and deliberate suppression to somehow project ICFAI in a bad light in order to harm its reputation in the eyes of the professional community and, therefore, the offending publication was neither in “good faith” nor in “public interest”.

32.It is trite that where to the charge of defamation under Section 500 IPC, the accused invokes the aid of Tenth Exception to Section 499 IPC, “good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with a degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in “good faith” and for “public good” under the said Exception. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding appellants’ plea of “good faith” and “public interest”. Unfortunately, all these are questions of fact and matters for evidence.

33.In the instant case, the stage for recording of evidence had not reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of “good faith” and “public good” so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by respondent No.2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties.

34.For the afore-going reasons, we are of the opinion that the High Court was right in refusing to quash the complaint under Section 500 IPC. The appeal, being devoid of any merit, is dismissed accordingly. Nothing said by the High Court or by us hereinabove shall be construed as expression of final opinion on the merits of the complaint.

…………………………….J.

(D.K. JAIN) …………………………….J.

(H.L. DATTU) NEW DELHI;

MAY 14, 2010.