TABLE OF CONTENTSCases ...................................................................................................................................................................................... 2 Introduction ........................................................................................................................................................................ 3 Section 499 .......................................................................................................................................................................... 4 Scope ................................................................................................................................................................................ 6 Section 499 Is Not Violative Of Article 19 Of The Constitution........................................................ 7 Ingredients Of An Offence Under Section 499........................................................................................... 7 Elements of Section 499............................................................................................................................................ 8 1. ‘Whoever’................................................................................................................................ 8 2. ‘By Spoken Words or by Words that are Intended to be Read, or by Signs or by Visible Representations’ ............................................................................................................................. 8 3. 4. 5. 6. ‘Makes’ .................................................................................................................................... 8 ‘Publishes’ ............................................................................................................................... 9 ‘Imputation’ .......................................................................................................................... 14 'Concerning any Person'........................................................................................................ 18 7. 'Intending to Harm, or Knowing or Having Reasons to Believe That Such Imputation will Harm, the Reputation of Such Person' ......................................................................................... 18 8. 9. 'Harm' .................................................................................................................................... 19 'Reputation' ........................................................................................................................... 19 Explanation 1.............................................................................................................................................................. 20 CASES whatever one may choose. Indian Penal Code. 4 KV Ramaiah v Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB). without responsibility.2 It is a fundamental principle. 10th Ed. P-707. 4 Under s 499. IV. and prevents the punishment of those who abuse this freedom .INTRODUCTION "A misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. s 499. IPC. while considerable latitude is allowed in respect of these privileges. P-4673. 2006. Indeed the right has its own natural limitation. Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the right.. P-710. the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions.3 Freedom of speech and expression under Art 19 (1) (a) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without . Reasonably limited. 5 Nelson R A. 3 Benjamin Gitlow v People of the State of New York (1923) 69 Law Ed 1138. they are also subject to a large Gandhi B. The Constitution does not grant immunity from all punishments of abuse of freedom of speech and the accused can be put to answer criminally for the breach of reasonable restrictions on his 'freedom of speech or for his abuse of the freedom of speech.regard to any person's honour and reputation.A. Indian Penal Code.5 Section 499 has a large number of Exceptions. In fact. However. I. IPC. it might become a scourge of the republic. is not violative of Art 19.1 As expressed by Richards. have been brought within the definition of defamation which is but the abuse of the freedom of speech and expression punishable under s 500. or an unrestricted and 'unbridled license that gives immunity for every possible use of language. this freedom is an inestimable privilege in a free government. without such limitation. M. Therefore. They cover the entire field of privileges available in cases of defamatory statements...: Introduction to Roger's Pocket Thesaurus. 2nd Ed. IPC. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire. only such imputation as are malicious and reckless and not for public good. Punishment is not a restriction in itself but is indeed a consequence of the breach of restriction which the defaulter cannot escape. Every person has an inherent right to protect and preserve his reputation intact. 2008 Vol. it was said by story in the passage cited. 1 2 . a misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. Ibid. long established that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish. tranquillity or peace or public security or as are not made in good faith. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire. Hence." Richards. The section also has ten Exceptions to the offence of defamation. This topic deals with the following four sections: (a) Section 499. Reputation especially is something which is a treasure to a person. 7 Printing or engraving matter known to be defamatory is made punishable under this section though the sentence prescribed is the same as prescribed in the preceding section.The offence under this section is distinct from an offence under s 500. by sings or by visible representations. Loss of life and loss of reputation are two things which cannot be compensated in terms of money. except in the cases herein after excepted. or with fine. but under Indian law no such distinction has been recognised. or knowing or having reason to believe that such imputation will harm. a proper person on his behalf can set the criminal law in motion against the person accused. Dhyandevrao L Waghmode v Allabaksh GulabNadaf 1999 Cr LJ 1754 (Born). however. Mental suffering caused to the person defamed is the gist of this offence. 8 Nelson. In English law a distinction has been maintained between libel and slander. or with both. Crown v Uma Shankar 18 PR 1889.Whoever. Under Indian Penal Code.The sale of printed or engraved substance containing defamatory matter is made punishable under this section.6 The provisions of these sections act as a deterrent against the commission of the offence of defamation. Defamation. N. makes or publishes any imputation concerning any person intending to harm. defamation has been made an offence without any reference to its tendency to cause acts of illegal violence. However. (d) Section 502. (c) Section 501.8 In English law the crime of private libel has the tendency to provoke breach of peace.It defines the offence of defamation along with four explanations. (b) Section 500. Repr. CrPC 1973. the reputation of such person. 2012.. 18th Ed. The sentence prescribed is the same as in the preceding two sections. it is the aggrieved person and when he is incapable.9 SECTION 499 Section 499 read as follows: 499. P-854. is said. 6 7 . due to restrictions imposed in s 199. to defame that person. by words either spoken or intended to be read. Indian Penal Code. or.number of conditions. Supra note 5 at 4674 9 Mishra S. .The offence of defamation as defined under s 499 is punishable under this section with simple imprisonment which may extend upto two years. Explanation 3 . which has been decided by a court of justice.No imputation is said to harm a person's reputation. or in a state generally considered as disgraceful.. so far as his character appears in that conduct. .It is not defamation to express in good faith any opinion whatever respecting the merits of any case. unless that imputation.. may amount to defamation.Merits of case decided in court or conduct of witnesses and others concerned. Explanation 4 .Conduct of any person touching any public question.Public conduct of public servants. or lowers the credit of that person. Fourth Exception. directly or indirectly. Explanation 2 .It may amount to defamation to. or respecting the character of such person. or respecting his character.It may amount of defamation to impute anything to a deceased person.It is not defamation to publish a substantially true report of the proceedings of a court of justice.A justice of the peace or other officer holding an enquiry in open court preliminary to a trial in a court of justice. if it be for the public good that the imputation should be made or published. so far as his character appears in that conduct. . Fifth Exception. civil or criminal. . Explanation. in the estimation of others lowers the moral or intellectual character of that person.Explanation 1 . First Exception.. or of the result of any such ' proceedings. Second Exception. and is intended to be hurtful to the feelings of his family or other near relatives.Publication of reports of proceedings of courts. Third Exception.It is not defamation to impute anything which is true concerning any person.An imputation in the form of an alternative or expressed ironically. in any such case.. is a court within the meaning of the above section. and no further.Imputation of truth which public good requires to be made or published. or respecting the conduct of any person as a party. and no further. witness or agent. or lowers the character of that person in respect of his caste or of his calling. and respecting his character. or causes it to be believed that the body of that person is in a loathsome state. make an imputation concerning a company or an association or collection of persons as such. and no further.It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question. Whether or not it is for the public good is a question of fact.It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions. as far as his character appears in that conduct. if the imputation would harm the reputation of that person if living. heard and listened to by people takes place in a proceeding in a court room or outside the court precincts does not matter as long as the defamatory words are intended to harm the reputation of another. 1981Cr LJ(NOC) 57 (Raj).Imputation made in good faith by person for protection of his or other's interests. or of any other. and not on what is the English law on the subject 8 Whether the publication of defamatory words or uttering defamatory words. or for the public good. Ninth Exception. 10 11 .Caution intended for good of person to whom conveyed or for public good..A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Eighth Exception. who is the object of such unfavourable sentiments.It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public. which is fell by a person who knows himself to be the object of the unfavourable sentiments of his fellow-creatures.It is not defamation.11 The criminal law of India with regard to defamation depends on the construction of this section. Seventh Exception.It is not defamation in a person having over another any authority. 12 Praninchand Jaggiuandas Gandhi v Ibrahim Mohammed Merchant 1987 Cr LJ 1795 (Bom). Supra note 5 at 4681.. or respecting the character of the author so far as his character appears' in such performance.It is not defamation to convey a caution. is exposed. Tenth Exception. Explanation.Sixth Exception. to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Nelson.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.12 NCERT v PD Bhatnagar 1980 Raj Cr Cas 392.Accusation preferred in good faith to authorized person. 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. in good faith..Merits of public performance. to one person against another provided that such caution be intended for the' good of the person to whom it is conveyed. 396. SCOPE This section defines the offence of defamation with the aid of four Explanations and ten Exceptions with more Explanations and illustrations appended to the Exceptions. person.. or of some person in whom that person is interested. 10 The authors of this Code observed that the essence of the offence of defamation consists in its tendency to cause that description of pain. and' no further. and those inconveniences to which a person. or for the public good.. either conferred by law or arising out of a lawful contract made with that other.Censure passed in good faith by person having lawful authority 'over another. 397. 1961 (1) Cr LJ 601. the reputation of another person. either spoken or intended to be read. 1211 (Himachal Pradesh). complained of. JMRoy v Surinder Kumar Sher 1975 Kash LJ 358. and (c) The said imputation must have been made with the intention to harm. Hence.16 The first and foremost question. Prem Pal Singh v Mohan Lal 1981 Cr LJ 1208. amounts to imputation within the meaning of this expression as used in s 499. as to whether the said material is capable of being understood in a defamatory sense. If there is a controversy as to whether the material. the reputation of the person concerned.14 INGREDIENTS OF AN OFFENCE UNDER SECTION 499 The offence of defamation consists of three essential ingredients15: (a) There must be a making or publishing of an imputation concerning a person. 15 Sunlakhya Chowdhury v HM Jadwet AIR 1968 Cal 266. Imputation ordinarily implies an accusation. 13 14 .13 Therefore. 1968 Cr LJ 736. however. an: imputation or accusation simpliciter without proof of the requisite intention. answer. or with knowledge or reasonable belief that it will harm. Nelson.18 The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. Prem Pal Singh v Mohan Lal 1981 Cr LJ 1208. alone will. is not violative of Art 19 of the Constitution of India. s 499. 1981 Cr LJ (NOC) 57 (Raj). as covered by ingredient (c) of the definition. 1981 Cr LJ (NOC) 57 (Raj).17 Imputation or accusation. 397. Supra note 5 at 4682. Supra note 5 at 4681. In other words. If the court decides this KV Ramaniah v Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB). 1981 Cr LJ (NOC) 57 (Raj). the court will first have to decide. is whether the alleged material. knowledge or belief. tranquillity or peace or public security or as are not made in good faith.SECTION 499 IS NOT VIOLATIVE OF ARTICLE 19 OF THE CONSTITUTION Under s 499. IPC. NCERT v PD Bhatnagar 1980 Raj Cr Cas 392. 18 NCERT v PD Bhatnagar 1980 Raj Cr Cas 392. the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient (c) above A person is not guilty of defamation by making the imputation or accusation unless he intends to harm. 397. 17 NCERT v PD Bhatnagar 1981 Raj Cr Cas 392. 16 Nelson. or by signs or by visible representations. the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. only such imputations as are malicious and reckless and not for public good. To constitute the offence of defamation. is defamatory or not. which a court dealing with a criminal prosecution. IPC. not suffice. IPC. therefore. 271. 1211. will not constitute the offence of defamation. as a question of law. or he knows or has reason to believe that thereby he would harm. involving the offence of defamation must. described as defamatory. have been brought-within the definition of defamation which is but the abuse of freedom of speech and expression punishable under s 500. (b) Such imputation must have been made by words. J. In the Indian Penal Code the words furnish ground for a civil action. If the court decides. Under English law only writing. ELEMENTS OF SECTION 499 1) ‘WHOEVER’ 2) ‘BY SPOKEN WORDS OR BY WORDS THAT ARE INTENDED TO BE READ. (1962) 2 Cri. Kamnji«.21 3) ‘MAKES’ Every such person who is engaged in composing. Thus a statute. 19 in addition to words spoken. (1894) 1 Q. where the accused imputed commission of a felonious crime to the complainant. In the Indian Penal Code the word defamation has been used to denote what is known as libel and slander under English law. Supra note 9 at 858. are reasonably capable of bearing a defamatory meaning.. The words 'visible representation' will include every possible form of defamation which ingenuity can devise. in the context of a particular complaint. dictating. or some other process only can constitute defamation. the words of the alleged imputation are ambiguous.B. In such a situation. it will then. L. a caricature. The court will. as a question of fact. it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant. that the words. in question. If the material is defamatory per se. proceed to determine whether the said material. containing a defamatory potential. on the other hand. If. C. 19 20 . Under that law spoken words furnish ground for a civil action. Piilai v. in fact. at once. The publication of a group photograph with a false caption "goonda"20 would be defamatory. had. he can also be defamed by spoken words. OR BY SIGNS OR BY VISIBLE REPRESENTATIONS’ In India a person can be defamed not only by writings.D. Tussands Ltd. the court will be justified taking the parties to evidence with a view to determine. it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. harmed the reputation of the complaint within the ambit of the definition of such harm as given in Explanation. writing or in any way contributing to the making of a libel is the maker of the libel. an effigy. for example. chalk marks on a wall. whether the said imputation had harmed the reputation of the complainant within the four corners of Explanation 4. answer it by saying that the imputation of commission of felony by the accused is capable of being understood in no other but a defamatory sense. and only. there is no difficulty in deciding the question of law mentioned above. Spoken words never constitute defamation. signs or pictures may constitute a libel. 142 21 Mishra.question in the affirmative. 671. Here at this point Indian law of defamation differs from English law of defamation. engraving. Where the matter is dictated by Momon v. printing. (1884) 7 All. in the editorial. Supra note 9 at 855. Keshavall. K. dictating a letter to a clerk is publication. telegram. Allahabad High Court was of the view that since there was no publication of the matter. 25 Gandhi. K V. The notice contained imputation on the character of the recipient.J. (1965) 2 Cri U 693. 1987 Cri U 2074 (Cal). Supra note 1 at 715.R. Shalt v.one person and written down by another person.27 Communication by one person to another is the crux of publication 28 . 31 Gandhi. Supra note 9 at 855. 25 For the offence of defamation publication of defamatory matter is essential. 24 the words "makes or publishes" supplements each other. Nair. 1968 Cri U 398. 22 23 .M. 34 Taki Hussain.e. 24 Sunllakhya Chowdhury v. H. 32 Mishra. an interesting situation arose for decision. Jadwet. L.32 if written on a postcard. 23 As observed by Calcutta High Court. 35 1984 Cri. (1943) 45 Cri LJ 105: S. In other words the defamatory matter must be communicated to some person other than the person to whom it concerns26 e.g. both shall be guilty of this offence. Supra note 1 at 715. newspapers. 26 Mishra. (1962) 2 Cri U 760. Supra note 5 at 4686. 30 Journals and by broadcasting on radio or television. The reason is that all who concur and assent to the doing of an unlawful act will be guilty of this offence. dispute broker. 30 Abid Ali Khan v. Sanyal v.).L. Krishnasami. (1900) I Weir 579. Supra note 9 at 855.33 In Taki Hussain's case. IIIalh v. Badaiia. 214. printed papers or leaflets. 205 (F. therefore. or printed on a paper will constitute publication when it is distributed or broadcasted. There was agitation of lawyers in Gujarat in connection with appointment and transfer of Chief Justice of High Courts.S. Talkies and cinema films or even gramophones were unknown when this Code was enacted but the word “publication” covers them all. 29 Bhuliram. AIR 1968 Ca1266: 1968 Cri W 736.). all the three shall be guilty. Similarly if one person speaks. another writes and third approves of it. a person despatched a public officer a notice by post which was closed in a cover. (1892) 15 Mad. On account of the agitation the lawyers ceased to participate in court proceeding and resorted to 'satyagraha'. See also Kundanmal. this offence was not constituted.31 Defamatory matter. In a suit for Mishra. 33 Tlriagaraya v. 1968 Cri LJ 836. An editorial in a newspaper criticised as to whether it behoves to the lawyers as a class to resort to strike. Prabhakar Rao. Shiv Gonda.29 Publication of a defamatory matter can be made by a post card.B.22 4) ‘PUBLISHES’ The word 'publishes' means to make known to others.34 In N. Nelson. 27 V. Patel Maganbltni Reoabhai and Another35. but communication to the person to be defamed only is no publication. 1790 (Guj. 28 Amar Singb v. The lawyers were inter alia described as "kajia dalal" i. who has to deal with a document and pass it on to others. Supra note 5 at 4687. daughter and wife. Brij Ballabh Goyal v Satya Dav 1960 Cr LJ 1136. The words "Kajia Dalal" was held to be used in relation to the lawyers as a class and is not referable to a determinate section of lawyers. containing the written statements. namely.5habLal v Provet Chandra AIR 1938 Cal 667. a good character and yet suffer from bad reputation or vice versa.41 a newspaper published extracts from a book written about a former Prime Minister of India alleging corruption by him. The term 'reputation' means 'what is generally said or believed about the persons or things'.37 No publication can be said to have taken place for the counsel to give the contents of a written statement to his own client or to his own clerk in the ordinary discharge of his duties as a lawyer or to handover the envelope. Ke. 36 otherwise every officer. 38 Ajit v Radha Klshan 32 PLR 772. Ramesh v. in fact.B. character is what a person "actually is". the term 'reputation' can imply ones' own belief about himself. to a clerk of another counsel. "Character" means fortitude or moral constitution or strength of a person. IPC. does not contemplate that the communications.40 In K. should fall within the ambit of this section. the Gujarat High Court held that the editorial did not refer to the complainant personally or to any other individual but referred to the lawyers as a class and at the most the lawyers of Gujarat. 39 PR Rama Krishnan v Subbramma SJltrigal AIR 1988 Ker.18. 842. AIR 1960 Raj 213. The maker of the statement must know that it will harm the reputation of one concerning whom it is made. If the imputation is defamatory per SC. 41 2001 Cr LJ 3556 (Karn. 40 Boxus v. The alleged defamation could not be referred to a determinate or identifiable section or class of lawyers as distinguished from the rest of the members of lawyers fraternity. (1894) 1 Q. By no stretch of reasoning. the lawyers who were participating in the agitation. which one is bound to make to others in the normal course of his legal duties. The court distinguished between 'character' and 'reputation'. The Karnataka High Court observed that sons could thus be said to be persons aggrieved and so complaint filed by a son cannot be quashed. The extracts also contained imputations against his other family members including sons. Therefore. C.defamation against the editor.). (1987) ILR 1 Ker 547. Mohinder Singh Dhillon v Ganga Dhar Sharma (1975) 77 Punj LR 716. H. 1988 Cr LJ 124. would be taken to publish the same. It may be stated here that the word 'publishes' in s 499. necessary mens rea will be presumed. while "reputation" is what neighbours and others say "what he is". It has no relevance with the belief or opinion of others in respect of a person. The thrust of the editorial was that lawyers should not have gone on strike. 36 37 . clerk and superintendent and everybody. Goblet Freres. Ramesh.38 The dictation given by a lawyer to his clerk and transcription made by him of a per se libellous matter cannot amount to publication. A solicitor or an advocate who dictates to his clerk a letter containing defamatory statement regarding a person is not liable for defamation. Goblet Freres.39 In Boxus v.V. The editor of the newspaper is liable for Nelson. The man may have. managing editor and the resident editor with clear intention of defamation of the complainant were made. executive editor. b) Communication between husband and wife In England the rule appears to be well settled that except in certain well defined matters. MN Meera v AC Mathew 2002 Cr LJ 3845 (Ker).45 A libel is deemed to be published as soon as the manuscript has passed out of the possession of the writer.prosecution and his plea that he was merely a publisher and not an author of the matter is not tenable. A degree of indirectness or innuendo may be there and this can very well be expected since defamation is an offence. The court held that application for quashing of proceedings on the ground that only the editor was responsible for the said publication cannot be allowed. Allegations of criminal conspiracy between the editor. That. even if the imputation is not per se defamatory. It is reasonable to think that he who defames is not anxious to invite legal consequences and would be looking for loopholes. c) Communication to even one person is sufficient Publication does not require proof of communication to more persons than one.44 it was held that there is no presumption of law that the wife and husband constitute one person In India for the purpose of the criminal law. 42 43 . Supra note 5 at 4687. There are various circumstances regarding the publication:42 i. does not protect him from prosecution. the accused cannot contend that he is entitled to discharge on the ground that the imputations in the extracted publication were not per se defamatory. the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. the husband and wife are regarded as one arid in an action for libel disclosure by the husband of the libel to his wife is not publication. 44 (1894) ILR 17 Mad 401. However. Publication. Publication of extracts of the book in the newspaper gives a fresh cause of action for prosecution against the publisher of the newspaper.43 a) Imputation per se defamatory or otherwise. 45 Govindan Nair v Atchuta Menon (1916) ILR 39 Mad 433.46 Nelson.Effect The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public. that by itself would not go to the advantage of the publisher for. However. Similarly. however.May not always be made with clarity A libellous statement may not always be made with clarity. in Queen-Empress v Buthi. it was held that the prosecution had failed to prove that there was publication of the imputation alleged.50 Every repetition of defamatory matter is a fresh publication and constitutes a fresh cause of action. 52 16 Cr LJ 482 46 47 .51 In Jai Debi Kaur v Emperor. irrespective of the fact whether he is the originator of the libel or is merely repeating it. therefore. was not produced and there was no evidence at all on behalf of the prosecution to show that the letter was actually read by the addressee. 48 Empress v Taki Hussain (1885) ILR 7 All 205. G Chandrashekhara PiIlai v K Karthikeyan (19M) 2 Cr LJ 549.48 iv. Am 1964 Ker 277. whether there is publication or not. Khima Nand v Emperor 38 Cr LJ 806. R v Burdett (1820) 2 And Aid 95. Publication-Both originator and repeater liable The publisher of a libel is clearly responsible. Publication-Communication to complainant-No defamation Communication of a defamatory matter to the person defamed does not amount to publication arid-is. with instigating her opponent to bring false charges against her. were clearly publications of the original defamatory statement and there were thus three separate publications of the libel.47 Where the officer. Publication-Communication to spouse of defamed person sufficient Communication of the defamatory matter to the husband or wife of the person defamed is a sufficient publication. 143. 50 Re Howard (1888) ILR 12 Born 167.Proof by direct or circumstantial evidence The question. to whom an alleged defamatory letter was addressed.ii. a deputy collector. 51 Duke of Branswick v Harmer (1849) 14 QBD 185. not an offence. it was held that there was sufficient publication of defamatory matter. Where the accused wrote letters to the husband of a woman in whom he alleged that she was a witch and by her secrecy she had caused the death of some relations of the accused. On enquiry. made by her to the two magistrates.49 v. It was held that the statements. 1937 ALJ 128. iii.67 The Penal Code makes no exception in favour of a second or third publication as compared with a first. Abdul Aziz v Mohammad Arab AIR 1935 Cal 736. is one of fact.52 the accused presented an application to the Lt Governor in which she charged the complainant. she repeated the same statements before two magistrates. Publication. and the question may be decided either on direct evidence or on the circumstances of the case. 37 Cr LJ 133 49 Shoobhagi Keori v Bokhori Ram 4 C LJ 390. J.-A newspaper stands. Supra note 9 at 857. 212 (S. these allegations constitute an offence under Section 295-A and Section 500 read with Section 34 of the Penal Code. But as regard the complaint at Nasik was concerned it was held that it was not for the Supreme Court to see whether the complaint constitutes an offence under Section 499. The Magistrate at Pune took cognizance and issued the process. they would be guilty of the offence and cannot escape liability under Section 502 unless they can make out a case of exception under Section 499. According to the respondents. 56 1997 Cri. L. I. It was alleged in the complaint that this statement was published with deliberate and malicious intention of outraging the religious feelings of Marwari community and this also defamed the member of Marwari community as a class". J." But an editor's position is somewhat different. Complaints were filed by the respondent at Pune and Nasik.J.56 the respondent a social activist belonging to Marwari Community filed a complaint against the appellant for his interview published in "Star Dust" a film magazine in which he was alleged to have stated that "Marwari community have no faith and love towards India. The Magistrate at Nasik came prima facie to the conclusion that the allegations disclosed in the complaint might come within the definition of Section 499. it is indicative of the fact that they had prior knowledge of defamatory matter in paper which they could have prevented but they did not. as members of the public in general. printer and publisher who has made declaration and is shown in paper as such is liable. 1986 Cri. the editor. in matters of defamation. It is Mishra. He can escape his liability by proving that defamatory matter was published in his absence and without his knowledge and he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person. The Magistrate at Pune was not justified in issuing process against the appellant and hence the complaint is quashed. The publication of a notice in a newspaper conveying an imputation that the complainant is dishonest in the management of the affairs of the company and thus to conceal the dishonesty by methods that are themselves dishonest is defamation. their motherland. 54 it was held that where a defamatory statement against a person is published in a newspaper. however as a qua owner has no responsibility. The High Court had held that no offence under Section 295-A could be made out but the allegations prima facie constitute an offence under Section 500. Code.Publication of defamatory matter in newspaper. L. 53 54 .P. Where it is alleged that the Chairman of Board of Directors of Company and its General Manager took part in selling out newspaper.P. The publisher of the newspaper shall be responsible for published defamatory matter whether he was aware of that or not.C). Code.55 In Shutrughna Prasad Sinha v.P. Supra note 9 at 857.' The owner of the paper or journal. 55 Mishra. State of Maharashtra. I. 1987 (Born).53 In Asok Kumar Jain and others v. in the same position. Rajbhall Surajmai Rathi. Code. As far the complaint filed is concerned it was held that it does not contain any of the allegations constituting the offence of defamation defined in Section 499. 1969 Cri U 571.K Singh v. AIR 1963 SC 1317. AIR 1952 Mys 123. Namjudaiah v. 63 N. 62 K S. 2828 (S. Vishwanath. 68 CWN 654. by way of irony or by conjecture. 1998). R. The following imputations. 61 Horilal v. Thippanna. or a black marketeer62. 60 Gandhi. 1962 MLJ (Cr) 635. 1957 Cri U 1360. Supra note 5 at 4691. AIR 1964 Manipur 20. ii) to call a trader as an insolvent64. 68 Ratanlal.c. 65 Kanwal Lal v. Singh. p. 71 Ram Narain v. Supra note 1 at 715.C). 1965: 69 Chellapan Pillai v.71 or to say that Netaji Subhash Chandra Bose was a traitor. 73 Raja Ram Singh v. as observed in various cases. 66 J. Shriram Sharma. 1982 Cri LR 68 (MP).J. or an illegitimate person63. 70 Re Bhulliram Jalam (1962) 2 Cr LJ 760 (2). or that she has a paramour66 and iv) to express imputation against the deceased. Dwi.73 (2010) 3 Cri. 1998. Yeshwant Singh v. by way of question.68 It would be defamatory to characterise a person as 'goonda'. Emperor 19 Cr LJ 669. 69 or to allege that the complainant sings indecent songs in the public.for the Magistrate to weigh the facts at trial and hence at this stage it is not proper for the Supreme Court to quash the complaint. L.B. 26 Cr LJ 23. Am 1960 Madhya Pradesh 38. Law of Crimes. Moreover complainant was not an aggrieved person. 64 Bhikachand.72 or to call a person 'worthless' and ' despicable blackguard'. The accusation must be something more than creating or expressing suspicion. Code. It connotes an accusation. Kushwah 1955 NVC 3695 (Madhya Bharat). He did not attack on reputation of anyone in particular. 67 Laxminarayan Singh v. Supra note 1 at 714. (224th Edn. In S. or is a drunkard and abuses girls and women and is a goonda"70 or to describe a person in the heading of a defamatory pamphlet as 'sharif badmash'. It does not amount to defamation under Section 499 I.. State of Punjab. It was held that the statement of accused was given to news magazine calling for societal acceptance of pre-marital sex. 72 Pat Sharpe v. 57 58 . 57 it was complained that the statement of accused given in news magazine amounts to his defamation. AIR 1927 Sindh 24. are held to be defamatory60: i) to call a person a drunkard61.2. Khushboo v. Vol II.endra Nath Bose (1964) 1 CX LJ 867. Gandhi. as by way of exclamation. Karniammal and Another. iii) to call a woman as a woman of loose character65.67 Such imputations may be expressed in various ways. Emperor Am 1924 All 566.59 To impute is to lay the blame upon a person or to charge him or to allege against him something which brings him into disrepute. Rajeshwari.P. v. Hence complaint was held liable to be quashed. 59 Nelson. Chelliah. Karanjia (1962) 2 Cr LJ 142.58 5) ‘IMPUTATION’ An imputation ordinarily implies an accusation or something more the expression of a suspicion. s. Where some passages in a petition are alleged to be defamatory. Supra note 5 at 4692. The court should have regard to the time and place of publication.75 where a girl was named as the source of inspiration in the biography of a poet. the document should be read as a whole with a view to find out the main purport. and. 4 th Ed. Sudhakaran.The test is. and too much importance should not be attached to a few isolated passages here and there.Innuendo. R. the whole circumstances of the case. L Rina.The court must be put in possession. P-694 77 Nelson. Imputation regarding trade or business 1987 CrLJ 736 (Kef). P. Evidence showing two kinds of inferences cannot establish an innuendo and evidence of additional facts must. and the complainant bearing the same name sought to prove that her name was joined with the -poet. whether.. as observed in various cases. b) Words should be considered as a whole . Indian Penal Code. then he requires the help of an innuendo which is a statement by the complainant of the meaning which he attributes to the words. which being wrong was defamatory. that meaning which is not defamatory. In Lalliani v. c) Alleged defamatory words. reasonable men. 74 75 . must be fair if susceptible of the meaning sought to be put upon 'them by the innuendo. are held to be defamatory: Imputation regarding insolvency An imputation of insolvency against a person in the way of his trade is per se defamatory. In V. would be likely to understand it in the libellous sense. not only of the words used. 78 Nelson. the court has to consider the following facts for arriving at a decision whether the words are defamatory: a) Circumstances and context . or where the complainant wishes to rely upon additional defamatory meaning in which the words were understood by persons who had knowledge of particular facts. in fact. to whom the publication was made.show that the complainant was the person who was intended by the words. and existence of facts to support that meaning must be proved by him. the words. but also of the context in which they were used in order to find the intention and the effect of the words. the complainant successfully proved that the statement was meant to attack him and the accused was held guilty of defamation. from which an innuendo is to be extracted. etc. the court was not convinced.77 Where the words are obviously defamatory. should be preferred.76 However. under the circumstances in which the writing was published. 1987 Cr U 1295 (Gau).Where the natural and ordinary meaning of the words is not defamatory. Supra note 5 at 4693.78 The following imputations. If there are two interpretations possible. the relationship between the parties. Subair v. 2004.74 where the accused described a medical practitioner as a 'professional debauch' and 'of low moral character'. 76 Bhattacharya T. should be interpreted in a manner in which to reasonable man would do:. K. 83 or that a woman had miscarriage without any knowledge whether she was married or not. Where a letter sent by the accused. 81 Krishnappa v Swami Akhandanand 42 CWN 1045.85 would be defamatory. a barrister.itolower him in the eyes of the public as a barrister. would be defamatory. 30 Cr LJ 101. he can prosecute -the accused for defamation even though he is a low man or a man of low caste. is to impute. or that he had been dishonest in the management of the affairs of the company and was trying to conceal that dishonesty by methods that were themselves dishonest. 86 AIR 1929 All 1. 37 Cr LJ 1033. of the girls would be spoiled by attending the classes of the type.82 Imputation against chastity It would be defamatory to make any imputation against the chastity of a woman. was the concubine of some persons. should be on their guard take particular care to see that they are not cheated. 43 Cr LJ 17 Panna Lal v Emperor AiR 1936 Lah 294.81 Imputation regarding criminal offence If a person is falsely charged with theft. as his wife and subsequently married him after the death of her husband. dealing with this company. was living with the son of the accused.86 the complainant. In Bola Nath v Emperor. Supra note 5 at 4695.32 Cr LJ 435. with the heading 'the hollowness of Mr-s' capacity as a barrister has been exposed' would amount to making a serious aspersion upon his professional status and is calculate4. 1940 MWN 892. An imputation of dishonesty to a tradesman is actionable per se. 82 Nelson.79 An election poster against a rival candidate. 85 Thangaoelu Chettiar v POllnammal 1966 Cr LJ 1149. it was held that such imputations were undoubtedly defamatory. the accused Mitlul Rustomji Murzban v Nueeertoanji Nowroji AIR 1941 Bom 278.To say that a person indulging in black-marketing on an extensive scale all over the world. To state that an unmarried well-connected brahmin girl had not preserved her virgin purity. 84 Kashi Ram v Emperor AIR 1930 All 493. AIR 1966 Mad 383. brahmin girl. A charge of bribery and corruption would be defamatory. suggested that the company gave guarantees which were worthless. to the complainant. who had purchased a watch from a company. During interviews with the authorities. 83 Edara Venkayya v Kalipattapu Chitti AIR 1940 Mad 879. To ask a witness in crossexamination whether he was doing opium smuggling business or cloth smuggling trade is per se defamatory.84 or that the complainant. Imputation regarding profession To say in respect of an instructress in physical culture and dancing that the future. aged thirty years. 281. it was held that it was calculated to harm the reputation of the officer concerned and was defamatory. an unfitness which is worse than attributing mere incapacity. 80 It is defamatory to publish an unskilful reproduction of an artist's work. that it was a deceitful company and that persons. She had made several attempts either for her suicide or for the murder of her husband. religious and moral future. an-European lady. 79 80 . including the social. Where an article in a newspaper alleged that a public servant had amassed a tidy amount by way of bribe. which she conducted. a military officer. an unmarried. A1R 1952 Ori 351. IPC. The question of privilege has been discussed later under different Exceptions. To say so would bring about disastrous consequences. 91 AIR 1922Lah 459 (1). such as deprivation of religious and social communication. cannot be regarded as conveying any imputation as can. vulgar abuses are uttered in the circumstances which tend to lower the person addressed in the estimation of the people present or to bring him into ridicule and contempt. In Emperor v. Behari . or is 'pichhlag' and 'Lawaris' (which does not mean illegitimate). It is defamatory and is not covered by s 95. there is no deliberate intention to harm the reputation of the person defames. Among Hindus.89 Vulgar abuses Where the defamatory words. The imputation is all the more damaging when the parties concerned are people of high social status. 4 LLJ 480. 93 Rukmani Bai v Radha Ballabh 1955 NUC 472. prima facie libellous. harm the reputation of the complainant. Supra note 5 at 4696. 94 Nelson. 1953 Raj LW 203. and would be prima facie defamatory. and (ii) Whether the statements are privileged under any of the exceptions. In Bhewati v Umabai. likely to murder her husband and that she was of loose moral character. 93 does not lead to an offence under this section. or is “chandal”92 or is dishonest or fraudulent. Two questions have arisen frequently for consideration: (i) Whether the statements are defamatory. It was held that there was no justification for charging the complainant with sexual immorality and the accused was guilty of the offence of defamation in respect of' the second allegation. 89 Nelson. 90 1883 AWN 36. The first question has been dealt here with respect to the statements about castes being or not being defamatory. 92 Sarat Chandra Das v State 1952 Cr LJ 1640. AIR 1964 Manipur 20. 91 to say that the complainant is 'Beiman and Badmash'. Supra note 5 at 4697. having reference to the daughter or sister of the complainant. In Bakhtwar Lal v. Crown. Imputation against caste Statements have often been made which becomes a matter of importance for the member of the caste to consider their defamatory effect. Bhaskar Singh. It also affects the reputation of the mother of the person and the mother's father.94 However. (1964) 1 Cr LJ 408. Supra note 5 at 4695.88 The description of a person as illegitimate is a very serious imputation to make and such an imputation harms the reputation of the person against whom it is made. 95 1962 MPLJ (notes) 112. are used in a street quarrel and are mere vulgar abuses.87 Nomgthombum Kanhai Singh v. in any way.90 'Beti ki gali' or "Bahin ki gali'.said that she was of unsound mind and was.95 there was a quarrel between A and Nelson. 87 88 . it would cause the gravest harm to allege that a man was out of caste. they would amount to defamation. therefore. OR KNOWING OR HAVING REASONS TO BELIEVE THAT SUCH IMPUTATION WILL HARM.96 He may be a single individual or a group where. to the reputation of the person defamed.101 The test to determine whether any statement is defamatory or not is whether under the circumstances in which writing was published. It was held that since the remarks and the scene in the film being of a general nature. 100 Gandhi. it amounted to defamation. the film "Kal Aaj Aur Kal' contained some imputations against the Bhangi community in general to the effect that the said community was held lower in status in the eyes of the Brahmins. Gopa Bandhu Das. a person of reasonable prudence to whom publication was made would be likely to understand it in a libellous sense. a film was alleged to be defamatory of lawyers as a class. In Asha Parekh v. the identity could not be established so it was held in Government Advocate. (1922) 1 Pat 414. its artists and Chairman of the Central Board of Censors. It is not so in this case and since advocates as a class could not be defamed. therefore. it is no defamation.103 96 97 98 99 Mishra. Imputation concerning any person may be conveyed obliquely or indirectly. B&O v. A criminal case was filed against the producers. said that B was the wife of her son. 15 Guj LR 125. Narendra. Supra note 1 at 716. conjecture. . 6) 'CONCERNING ANY PERSON' This phrase must mean any person whose identity can be established. Supra note 9 at 857. THE REPUTATION OF SUCH PERSON' The essence of the offence of defamation is that the imputation must have been made either with the intention of causing harm.97 that the accused could not be convicted. who was mother-in-law of A. but anything which lowers a man in his own estimation is no harm. 103 Gandhi. the accused is not guilty under this Section. The court held that it is necessary in such a case to show that the class of persons is so small that its identity could be established. Consequently it cannot be defamed. or by way of question. and therefore. or with the knowledge or belief that the imputation would cause harm. In Raj Kapoor case99. Similarly C. 102 Mishra. Raj Kapoor v. Imputations on a man's character lowers him in the eyes of others and this is harm. exclamation or by irony. 1977Cri LJ 21 (Pat). Supra note 5 at 4699. Supra note 9 at 858.102 The intention of the accused to harm the complainant is to be proved here. It was held that the imputation was a deliberate statement of fact and as it was made in the presence of several persons.100 7) 'INTENDING TO HARM. A newspaper is not a person. it was not directed against any particular group of individuals who could be identified or particularised.B over their children in which A said to B that she was the wife of the' former's husband. 101 Nelson. State of Bihar98. Supra note 1 at 718. A man's reputation is his property. Supra note 1 at 718. 108 Amar Singh v KS Badalia (1965) 2 Cr LJ 693. communication of defamatory matter to the complainant is no publication. 104 105 . Mishra.R. and the background of the dispute between the parties should all be considered.106 8) 'HARM' Harm means harm or injury to reputation of the complainant. it is sufficient to show that the accused intended that the imputation should harm. Complainant's own estimation about himself is no reputation. it is not necessary to prove that the complainant actually suffered directly or indirectly from the scandalous imputation alleged. Yusuf Khan Haji Ibrahim Khan. 106 Nelson.111 A.I. b) Intention or Knowledge In judging whether the accused had the requisite intention or knowledge.Not Necessary To sustain a charge of defamation. or that he knew or had reason to believe that imputation made by him would harm the reputation of the complainant. Supra note 5 at 4702. or they knew or had reason to believe that the imputation would harm his reputation. 107 „Harm' has to be the reputation itself of the person defamed.In Wahid Ullah Ansari case104. 107 Yeeda Menezes v. a right absolute and against the entire world. Supra note 9 at 858. Supra note 5 at 4701.109 9) 'REPUTATION' Reputation is a jus in rem. 743.105 a) Proof of Actual Harm to Complainant. Supra note 5 at 4702. nobody can so use his freedom of speech or expression as to injure another's reputation. 697 109 Nelson. 110 Nelson. AIR 1966 SC 1773: 1966 Supp SCR 123. each girl thereby individually suffered in reputation and hence some of the girls were held entitled to maintain action for defamation. 1935 All. Hence. the court would be justified in gathering from the terms of the matter itself that the publishers intended to harm. where certain article published in a paper contains scandalous accusation against the girl students of a college which implied that the girls were habitually guilty of misbehaviour described in the article. the defamatory statements were made. Consequently. Where the tenor of a document shows that the publication tends to harm the reputation of a person. the circumstances under which. and the main object with which.108 Words which do not disparage a man's reputation but occasion a pecuniary loss to him do not amount to defamation.110 Reputation is what others believe about the complainant. 111 Gandhi. 116 1986 Cri. and (b) it would also have hurt the feeling of his family and relatives. and had no faith and love towards India. (1881) 5 Born. Chako and another. L. They were traitors and Gandhi. M.115 In M. Supra note 9 at 860. it is defamation. This explanation covers any collection of persons but such collection of persons must be identifiable in the sense that one could with certainty say that this group of particular people has been defamed as distinguished from the rest of the community. There cannot be defamation against a community as such. 2002 (Kcrala).117 In Shatrughna Prasad Sinha v. Hurbans Nursy. it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. Supra note 9 at 859. 580.P.114 EXPLANATION 2 An action for libel will lie at the suit of an incorporated trading company in respect of a defamation calculated to injure its reputation in the way of its business. Rajbhau Surajmal Rahi. 115 Mishra. 118 (1996) 6 SCC 263: 1996 SCC (Cri) 1310.113 a suit was brought by the heir and nearest relation of deceased person for defamatory words spoken of such deceased person but alleged to have caused damage to the plaintiff as a member of the same family. it was held that the suit was not maintainable. Supra note 1 at 719. 114 Mishra.P. 117 Mishra. It cannot maintain an action for a defamation merely affecting personal reputation. Supra note 9 at 859. A corporation has no reputation apart from its property or trade. 116 it was held that imputations against an association or collection of persons can be defamatory only if such persons are definite and determinable body. In Luckumsey Ronji v.112 This explanation will come into operation when: (a) the imputation would have hurt the deceased's reputation.EXPLANATION 1 It is regarding imputation against a dead person. 118 complainant alleged that the appellant in an interview published in a magazine made statements outraging religious feelings of Marwari community by alleging that the members of this community were not a class belonging to India. Narayana Pillai and others v.J. If the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives. Only if there is a definite association or collection of persons capable of being identified. 112 113 . it was held that the caption. lowers the moral123 or intellectual character of that person. In MKT Subramanium v. Shanker v. in the estimation of others. continuance of the case after the death of the complainant under the representation of his advocate would not be proper. and nor were the said imputations related to the complainant. Supra note 9 at 860. Chelliall v. through satirical and ironical expressions. or lowers the credit of that person. EXPLANATION 3 A statement innocent in form or in the form of an alternative will amount to defamation if it is ironical. State. 'So prospers the incorrupt administration of Minister Krishna Iyer' was obviously an ironical statement implying that the Minister's administration was a bad administration riddled with corruption and nepotism. and the said community was also not found to be a definite identifiable body of people. or lowers the character of that person in respect of his caste or of his calling. Mishra. especially because. the minister had made the appointment of a particular person and that this was but the prelude to further appointments of the like nature. State. 119 120 .J 571. Shambha Nath Pandeya. 122 1971 LW (Cr) 131. It was held that these allegations did not disclose offence under Section 500 and hence Magistrate was not justified in issuing process against the appellant.122 where the accused author through imaginary conversation between two parliamentarians of a political party brought out. 1969 Cri L.120 In R.enemies of India. In Vishwa Nath v. confessions out of them about the misdeeds of the ministers belonging to that political party it was held to be defamation. Rajeswari. the imputation against the chief minister was very real and intended to harm the reputation of the complainant who had been shown to have amassed wealth by cheating the public and abusing political power. 123 J. even though the whole situation was imaginary.121 in an article in department with his own underlings. EXPLANATION 4 According to Explanation 4 an imputation which directly or indirectly. AIR 1959 Ker 100. or 1995 Cr LJ 277 (All). 121 1959 Cr LJ 464. 119 it was held that where in an article of a magazine imputations were made against a certain community in general and nor any particular group. witness or agent in a civil or criminal case decided by a court (Exception 5). In fact. They constitute the privileged occasions which exempt a person from criminal liability for defamation.124 Thus describing a woman that she has paramours wherever she goes was held as per se defamatory in J. so far as his character appears in such performance and no further (Exception 6). Rajeswari125 EXCEPTION TO SECTION 499 This section has got a large number of exceptions. 124 125 .126 The exceptions attached to the section declare that whenever a case falls within any of the exceptions. these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions. They cover the entire field of the privileges available in cases of defamatory statements. witness or agent in a civil or criminal case decided by a court so far as his character appears in that conduct and no further (Exception 5) or. or in a state generally considered as disgraceful. 2) Expression of opinion in good faith: It is not defamation to express in good faith any opinion respectingi) the conduct of a public servant in the discharge of his public functions (Exception 2). the question of applicability of the exceptions in Section 499 cannot be considered at the time of entertaining the complaint to determine if a prima facie case is made out under Section 202 CrPC.causes it to be believed that the body of that person is in a loathsome state. Moti Ram. They may be summarised as follows: As expressed in Balraj Khanna v. It is only at the trial that the question of applicability of any of the exceptions in Section 499 or. These exceptions are ten in number but they can well be condensed into seven. 1) Imputation for public good: It is not defamation to impute anything which is true concerning any person if it is for the public good that the imputation should be made or published-(Exception 1). it would not be defamation. v) the conduct of the author of any performance which he has submitted to the judgment of the public. 126 Nelson. Supra note 1 at 719. Chellihl v. 1969 Cri L. or iii) the conduct of a party. as well as other defences can be considered. Gandhi.J 571. Supra note 5 at 4707. ii) or the conduct of any person touching any public question (Exception 3). the imputation is defamatory. or iv) the character or merits of a public servant or any person or a party. 7) Conveying caution in good faith: It is not defamation to convey a caution. in good faith to one person against another provided that such caution is intended for the good of – i) the person to whom it is conveyed. i) conferred by law. or any other person. . or ii) arising out of lawful contract made with him. or iii) for the public good (Exception 10). or ii) some person in whom that person is interested. 4) Censure passed in good faith: It is not defamation to pass in good faith any censure on the conduct of a person by another having authority over him. or (ii) for the public good (Exception 9).3) Publication of reports of court proceedings: It is not defamation to publish a substantially true report of the proceedings or result of the proceedings of a court including a justice of the peace or other officer holding an inquiry in open court preliminary to a trial in a court (Exception 4). 6) Imputation made in good faith: It is not defamation to make in good faith an imputation on the character of another for (i) the protection of the interests of the person making it. or iii) in matters to which such lawful authority relates (Exception 7). 5) Accusation preferred in good faith: 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 the accusation (Exception 8).