Balraj Khanna & Ors. v. Moti Ram

Vaidialingam, J.-This appeal, by special leave, is directed a2ainst the judgment and order dated August 26, 1970 of the Delhi High Court in Criminal Revision No. 138 of 1968 dismissing under

B. KHANNA v. MOTill.AM (Vaidia/ingam,J.) 449 Section 203 Cr. P. C. the complaint filed by the respondent under Section 500 I. P. C.

The respondent Moti Ram filed a complaint in the court of the Sub-Divisional Magistrate, Delhi against the seven appellants under section 500 I. P C. alleging that they made certain allega-tions against him which were defamatory in character and had also passed a resolution placing the respondent under suspension.

The complaint filed by the respondent is a fairly lengthy one and refers to various matters. But the relevant facts which could be gathered from the same appear to be as follows :

The respondent during December, 1964 was serving as a. Liaison Officer, Municipal Corporation, Delhi. The appellants were among the members of the Standing Committee of the Corpo-ration at that time. The first appellant Balraj Khanna was bitterly inimical towards the respondent and was bent upon causing harm to him. He wielded considerable influence over the members of the Standing Committee.· At his instance a requisition was given by the members of the Standing Committee to its Chairman to summon a meeting of the Committee to enable them to move a resolution for the immediate suspension of the respondent from his office. Aro:irdingly a meeting of the Standing Commjttee was held on December 10, 1964. The said meeting was attended. not only by the Commissioner and other officers of the Corpora-tion, but also by the press reporters. In that meeting the appel-lants made very serious allegat;!ons of a defamatory nature against the respondent and passed unanimously a resolution placing him under immediate suspension. The allegations made against the respondent and the fact of his suspension from office were given wide publicity, with the result that it brought down the respon-dent in the estimation of his friends causing harm to his reputa-tion. P. W. 3, who was the Secretary of the Corporation, and who attended the meeting of the Standing Committee w. on Decem-ber 10, 1964 sent a report the next day Ex. P. 3/B to the Com-missioner regarding the allegations stated to have been made against the respondent by the appellants. The allegations refer-red to in P. W. 3/B are as follows :

"l. Since its inception in 1958 the Corporation has executed a very heavy programme of works for improving the sanitation of the Corporation and provide other civic amenities, but no publicity was given to these activities and the public has remained more or Jess in the dark. On the other hand the Corporation is adversely criticised even for minor omissions and commissions. The L. 0. has, thus not performed the duties which are required of the post he has been holding and has been deficient in the performance of his duties.

2!1-1 S.C. Inc!ia/71 450 SUPREMB COIJ!t T lla~ORTS [1971] SUPP. s.c.I\.

i. 'J1k: L. 0. is not working in harmony with the representatives of the Pr_ess who attend the Corporation office ~o ~over the meetings of the Corporation and its Committee, so much so that these repres11Rtatives have desired that he be not required to come to their rooms in the Corporation office.

¶3Instead of applying himself seriously to his official work he indulges in estranging one member from the other, one officer for the other and one political party for the other. He has even been trying to sow seeds of estrangement between the Mysore and the Commissioners.

¶4In the days when he was Chief Reporter to the Hindustan Times, he resorted to undesirable means to achieve bis desired ends. ·

¶5His association with some of the non Official Pre-sidents of the erstwhile Delhi Municipal Committee has bro11ght nothing but slur to their good names.

¶6He is known for indulging in acts of moral t11rpi-tude and for seducing unsuspecting girls and women."

In the complaint it is further stated that in October, 1964, all the seven appellants entered into a conspiracy to defame the res-pondent and remove him from the municipal service and passed a resolution on December 10, 1964 placing him under suspension. 'E It is further stated that apart from the seven appellants,

three other members of the Standing Committee were also parties to this resolution. In particular, it is alleged in the complaint that in the course of discussion relating to the passing of the resolu-tion, all the seven appellants made wild and baseless allegations involving moral turpitude against the respondent. After passing the resolution the appellants with the ulterior motive of malign-ing the respondent and lowering him in the estimation of the public, gave publicity to the resolution in the local newspapers with large circulation. The allegations stated to have been made by the appellants are those referred to in Ex. P. W. 3 /B. The respondent alleged that the appellants knowingly and maliciously made false and defamatory allegations against him and prayed for taking action against them.

Before the Magistrate the respondent and five other witnesses were examined under Section 202, Cr. P. C. and after considera-tion of the evidence, the Magistrate dismissed the complaint under Section 203, Cr. P. C. The dismissal of the complaint by the Magistrate is rested on two grounds, namely, (l) there is no evid-ence on record as to which of the appellants made which allega-tion against the respondent Q.lld in tile absen~ of Slll:h an impor-tant ingredient, no prima facie ~ ~ ll!ly of the appellants can be said to have been made out, and (2) the resolution passed by the Standing Committee and the discussion preceding it are covered by the Exceptions to Section 499 I. P. C. and hence the appellants were well within their rights in passing a resolution recommending suspension of the respondent.

The Additional Sessions Judge, Delhi, dismissed the revision of the respondent summarily stating that the material on record was not sufficient to justify any direction being given to the trial Magistrate to make further inquiry into the complaint. The Sessions Judge has further stated that the evidence produced by the respondent is too ,general to make out a case to summon any one of the appellants.·

The High Court, after a reference to the material evidence on record, as well as the allegations stated to have been made by the appellants, has held that the approach made by the Magistrate for dismissing the complaint was erroneous. In the view of the High Court the evidence on record goes to show that the case of the respondent is that all the members of the Standing Committee including the appellants had made the allegations against the res-pondent, which had been reproduced by the Municipal Secretary in Ex. P. W. 3/B. On this reasoning the High Court held that it cannot be said that there is no evidence as to which member of the Standing Committee made the allegation against the respon-dent. According to the High Court the evidence as it stands implicates all the members of the Standing Committee including the appellants herein ih the charge of making the defamatory allega-tions against the respondent. The High Court has further held that if at a later stage when witnesses are examined, it is found that only some of the appellants made the allegations and also what those allegations are, it will be open to the trial Magistrate to discharge such of the accused against whom there is no evid-ence of having made any defamatory allegation. The High Court is also of the view that the reasoning of the Magistrate that the appellants are protected by the Exceptions to Section 499 I. P. C. is also not correct. Ultimately, the High Court set aside the order of the Magistrate dismissing the complaint under Section 203 Cr. P. C. and directed further inquiry to be made into the complaint by the Chief Judicial Magistrate. Delhi or by any Magistrate subor-dinate to him, and to dispose of the same in accordance with law.

Mr. C. K. Daphtary. learned counsel for the appellants, con-tended that in cases of defemation it is essential that the actual words used should be set out in· the complaint and a reproduction of the gist or substance of the words used is not enough. He further contended that a general allegation that the appellants and other members of the Standing Committee made defamatory state-ments referred to in Ex. P. W. 3/B is not a sufficient compliance SUPllEMll COURT llEPOllTS [1971] SUPP. s.c.R. with the requirement of law to enable the Magistrate to take 'fur-ther action. On the other hand, according to the learned counsel. the complainant must specifically aver which particular allegation was made by which of the accused, in which case alone the indivi- ~ual a~used will have an opportunity of effectively meeting the ~putations alleged to have been made by him. In this connec- !10n Mr. Daphtary referred us to certain English decisions govern-mg the law of Libel and he also invited our attention to certain decisions of the High Courts.

On the other hand, the respondent, who appeared in person, has urged that at this stage the Court is concerned only with the question whether he has prima facie made out a case for his com-plaint being inquired into by the Magistrate and not whether he will be able to obtain a conviction of all or any of the appellants. That stage~ he pointed out, will arise only during the course of the trial. He urged that in his complaint he has made a categorical statement that all the appellants have made the statements referred to in Ex. P. W. 3iB. As to whether the statements have been properly recorded by the Municipal Secretary, is again a matter which will arise only during the course of the trial. According to him the allegation made by him in the complaint regarding the statements said to have been made by the appellants is sufficient for further action being taken by the Criminal Court. He further contended that the statements alleged to have been made by the appellants have been substantially reproduced in Ex. P. W. 3 /B and it has been placed before the Court in the complaint and that is a sufficient compliance with the requirement of Jaw. He plead-ed that the principles laid down by the English Courts regarding the law of Libel are not applicable when considering a case of defamation under the Indian Penal Code. He has also referred us to certain decisions in support of his contentions.

p

Before we refer to the decisions cited by Mr. Daphtary and the respondent on merits, it is necessary to clear the ground by appreciating the nature of the jurisdiction exercised by the Magis-trate under Sections 202 and 203 Cr. P. C. In Chnndra Deo Singh v. Prokash Chandra Bose and another ('), it has been held by this Court that the object of the provisions of Section 202 Cr. P. C. is to enable the Magistrate to form an opinion as to whether process should be issued or not. At that stage what the Magis-trate has to see is whether there is evidence in support of the allega-tions made in the complaint and not whether the evidence is suffi-cient to warrant a conviction. It has been further pointed out that the function of the Magistrate holding the preliminary inquiry is only to be satisfied that a prima facie case is made out against the accused on the materials placed before him by the complainant. Where a prima fade case has been made out, even though much can be said on both sides, the committing Magistrate is bound to commit the accused for trial and the accused does not come into the picture at all till the process is issued.

The question arises whether in an action for defamation under Section 500 I. P. C., it is necessary that the actual statements con-taining the words alleged tc have been used by the accused must be before the court or whether it is enough that the statements alleged to have been made are substantially reproduced in the complaint. The further question is whether the complaint in this case is defective in the sense that the actual statements alleged to have been made by the individual accused have not been stated in the complaint.

We will now refer to the decisions cited by Mr. Daphtary. He has referred us; in the first instance, to the passage in Halsbury's Laws of England, Third Edition, Volume 24, page 90 para 161 that for the statement complained of as being a libel or slander to be construed or interpreted, it is essential that the actual words and not merely their substance should be set forth verbatim in the statement of claim or indictment. Again he has referred us to another passage in the same volume as follows :

"As it is necessary in actions for libel or slander to set forth the actual words complained of in the statement of claim with proper innuendoes, so also it is necessary to do so in an indictment where words are of the essence of the offence." (Page 135 para. 249).

In Charles Bhedlaugh and Annie Besant v. The Queer (') the Court of Appeal was dealing with an indictment for publishing p an obscene book. Bramwell, L. J., observes as follows :

"In some instances, words are the subject-matter of an indictment; and it follows from this principle, which I have mentioned that wherever the offence consists of words written or spoken, those words must be stated in the indictment ; if they are not, it will be defective upon demurrer, in arrest of judgment or upon writ of error ..... ........ In like manner, there can be no doubt that in an indictment for defamtory libel it was necessary to set out the words complained of, so that the Court might judge / whether they were or could amount to a libel ............. it is

manifest that where words constitute the offence, they must be stated in the indictment.

(I) 3 Q.B.D. 607

454 .. IUPRl!ME COORT Ri!l'QRTS [1971] SUPP. s.c.R.

In. The Capital ,and Counties Bank Limited v. George Henty and sons (') Lord Blackburn in dealing with an action for libel states as follows :-

"The words themselves must have been set out in the declaration or indictment, in order that the Court might be able to judge whether' they were a libel or not. And Uris still remains the law."

In Collins v. Janes (,, Lord Denning quoted with approval the observations of Lord Coleridge, C. J. in Harris v. Waree (') as follows:

"In libel and slander everything may turn on the form of words, and in olden days plantiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declara-tion and the proof of them ....... In libel and slander the very words complained of are the facts on which the p action is grounded. It is not the fact of the defendant

having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends."

It is clear by a reference to the above English Law. that is an action for libel it is essential that the words themselves must be set out in the indictment and that requirement is insisted to enable the Court to judge whether those words published in writ-ing amount to libel or not

Mr. Daphtary referred us to certain decisions dealing with I!' the nature of proof reguired in a prosecution for sedition under

Section 124A I. P. C. 1 But we do not think it necessary to refer to those decisions as we are not at this stage concerned with the proof of the statements attributed to the appellants and whfoh. according to the respondent, are defamatory.

Mr. Daphtary also referred us to the decisions in Sarai Chandra Das and· another v. The State (') and Krisl111arao "· Firm Radhakisan Ramsahai and another ('). In the Orissa High Court decision two accused were being tried for an offence under Section 500 I. P. C. It is m> doubt stated in: the said decision that in a trial for defan\atil'>ll it is essential that the words alleged

(I) 7 Appeal Cases 741 (2) [195'1 2 AlU~ngland Reports 145 (3) [1879] 4 C.P.D. 125 (4). A.tit. 1952 Ot!Ssa 351 (5) 1956 1.i..R. Nagpur 236 to be defamatory in character should be precisely set out and the accused should be individually given notice of what he is charged with, as the words so set out will constitute the foundation for defamation. It is further laid down that it is also essential that the words in question should be proved. A perusal of this deci-sion will show that two accused were being prosecuted for defa-mation. In the complaitit in that case it was stated that both the a~cused were alle$ed to have made _certain stat~ments. .How-ever. m the sworn. statement the complamant had given a shghtly different version. In his evidence before the court the com-plainant attributed to the different accused different statements. It was, under those circumstances, that the court laid down the pro-position referred to earlier. Understood in that context, it is clear that according to the High Court when different statements are attributed to different accused, the statements alleged to have been made by each of the accused must be set out as the individual accused must have noticed as to what is specifically alleged against him.

In the second case, the Nagpur High Court dealing with a claim for damages for defamation observed as follows :

"We may point out that in a suit for damages for defamation the law requires that the plaint ought to allege the publication of the dafamtory statement, set out the actual wotds used and also state that they were published or spoken to some named individuals and specify the time and place when and where they were published."

On the other hand, the respondent has invited our attention to the decisions reported in Emperor v. Col. Bho/anath (1), K. S. Namjundalah v .. Sett/ Chikka Tippanna (') and Dhruba Charan Khandal v. Dlnabandhu Patri (').

In the first decision of the Allahabad High Court, Mukherji, J. observed :

"While I am not prepared to lay down, as a universal proposition, that in no case where the actual wotds used have not been ptoved a conviction for defamation by wcrd of mouth cannot be maintained, it must be conced-ed that in the majatity of cases it should be so. Defama-tion is define(! as follows :-"-"Whoever by words ..... . makes or pUbllshes any imputation concern.ing any per-son intended to harm, or knowing or haYi.ilg reason to (I) SI I.L.R. 1929 All. 313 (2) 1952 Criminal Law Journal Mysore 1633 (3) A.1.R. 1966 OflSSa 15.

believe that such imputation will hann, the reputation ..... is said ......... to defame that person". When the question arises as to whether the words used were intended to harm or had the effect of harming the reputation, the court must be put in possession not only of the words used, but also of the context in which they were used ... " King J., the other learned Judge of the bench observes :

"I may here remark that in my opinion it is unneces-sary to prove the exact words used by the accused, for the purpose of supporting a conviction for oral defama-tion. It is sufficient to prove the purport or substance of the defamatory imputations. No honest witness would profess to remember the exact words used by a person who has been speaking for even 15 minutes. At the most he may remember some striking phrase or expression. But a witnesse's failure to recalf the exact words used or the exact context in which they were spoken is immaterial, provided that he can give a sufficiently clear account of the purport of the defamatory remarks. Although the learned counsel for the appellant argued that no convic-tion could be sustained unless the exact words were prov-ed, he was unable to quote any authority for his proposi-tion, and I am not prepared to accept it. English rulings on the English Law of libel seem beside the point when the task before us is to apply the provisions of section 499 of the Indian Penal Code to a case of alleged defama-tion by spoken words."

In the second case the Mysore High Court has laid down that it is sufficient for the purpose of Sections 499 and 500 I. P. C. that if witnesses are agreed in a substantial measure on the words of imputation uttered as it is bardly possible or necessary to repro-duce every word or expression used.

In the fast decision, the Orissa High Court has laid down that for the purpose of an offence under Section 500 I. P. C. it is enough if the witnesses are agreed in a substantial measure on the words of imputation uttered, for it is not possible even for a most honest witness to reproduce every such word or expression. This decision has also distinguished the earlier decision in Sarat Chandra Das and another v. The State (1) on the ground that the observations contained in that judgment that the precise words uttered against the complainant should find a place in the charge were made in the context of the court dealing with two accused, each of whom was alleged to have made different statements.

(I) A. I. R. 19S2 Orissa JS!

After a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the-actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499 I. P. C. It will be highly desirable no doubt if the actual words stated to have been used by an accus-ed and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the state-ments before the court is to enable it· to consider whether those words or the statements are defamatory in nature. That purpose or object will be. served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore it is to his interest to get a proper adjudica-tion from the court that as far as possible the words spoken or the statements actually made and which he alleges to be defama-tory are before the court. But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint. From the point of view of accused also it is necessary that the matters 11lleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet.

In this case we have already referred to Ex. · P. W. 3 I B. which, according to the complainant, contains the statements made by the appellants durin_g the discussion of the resolution leading to his suspension on December 11. 1964. The High Court, in this connection, has averted to the evidence of P. Ws. I, 3 and 4 on this aspect. As to how far the evidence of those witnesses is to be accepted, is a matter which will arise only during the trial .of the complaint From the averments made in the complaint, which refers to various matters referred to in Ex. P. W. 3 I B, we are of the opinion, that the. c0mplainant has furnished in a subs-tantial mea5ure the words of imputation, which, according to him, are defamatory .. Therefore, the contention of Mr. Daphtary that the cO!llplaint is defective jnasn:iuch as· it does not contain the actual words ·aneged to have been spoken by the appellants has to be rejected.

The further question is whether the complaint is defective for the reason that the actual statements alleged to have been made by the individual accused have not been stated therein. So far as this aspect is concerned, if the case of the complainant is that each of the appellants made different statements or spoke different words, which are 'defamatory, then it is absolutely necessary that the complaint must specify the words spoken or the statements made by each of the appellants. But that is not the allegation in the complaint. We have already referred to the fact that it is specifically stated in the complaint that during the course of the discussion of the resolution, all the seven appellants made a wild and baseless allegation against the complainant involving moral turpitude. According to him those statements are contained in Ex. P. W. 3 / B. The evidentiary value of Ex. P. W. 31 B does not arise for consideration at this stage. The further question whether the complainant will be able to prove his allegation that all the seven appellants made all or any of the statements cont~in­ ed in Ex. P. W. 3/B, is again a matter which does not arise for consideration at this stage. We are only concerned to find out what are the allegations made by the respondent in his complaint against the appellants. When the case of the complainant is that the seven appellants made the statements ~eferred to in Ex. P. W. 3/B and he is prepared to go to trial on that footing, the question of the complainant being· made to state the statements alleged to have been made by the individual accused does not at all arise. Such a situation will arisi: only when the case of the complainant is that different statements were made by cfifferent accused, who are before the court.

The Magistrate dismissed the complaint on the ground that there is no evidence on record as to which of the appellant made which allegation against the respondent and in the absence of such an important ingredient, no prima facie case against any of the appellants can be said to have been made out. . This, in our opinion, is a fallacious approach made by the Magistrate in the face of the allegation made by the respondent •that all the seven appellants made the statements referred to in Ex. P. W. 3/B. In our opinion, the High Court has made a correct approach when it held that the evidence, as it stands implicates all the members of the Standing Committee, including the appellants in the charge of making the statements alleged to be defamatory and contain-ed in Ex. P. W. 3 / B. We are in entire agreement with the reason· ing of the High Court on this aspect.

Before concluding the discussion, it is to be stated that the trial Magistrate has given an additional reason for dismissing the complaint. That reason is that the resolution passed by the Stand-ing Committee on December I J, 1964 and the discussion preced· ing it by the members of the Standing Committee including the appellants is covered by tbe Exceptions to Section 499 I. P. C. Unfortunately, the High Court also has touched upon this aspect and made certain observations. In our opinion, tbe question of the application of the Exceptions to Section 499 I. P. C. does not arise at this stage. Rejection of the complaint by the Magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for tbe High Court to have considered this aspect and differed from the trial Magistrate. It is needless to state tbat the question of applicability of the Exceptions to Section 499 I. P. C. as well as all other defences· that may be available to the appellants will have to be gone into during the trial of the com-plaint.

To conclude we are satisfied that tbe High Court's order setting aside tbe order of tbe Magistrate dismissing the complaint under Section 203 Cr. P. C. and directing further inquiry to be made in the complaint of tbe respondent is correct.

The appeal fails and is dismissed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 14 of 1971.

Appeal by special leave from the judgment and order dated August 26, 1970 of the Delhi High Court in Criminal Revision No. 138 of 1968.

C. K. Daphtary and B. P. Moheshwari, for the appellants. The respondent appeared in person.