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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. Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the fellings of his family or other near relatives. Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.- No imputation is said to harm a person' s reputation, unless that imputation directly or indirectly, in the estimation of others, 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, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful. Illustrations (a) A says-" Z is an honest man; he never stole B' s watch", intending to cause it to be believed that Z did steal B' s watch. This is defamation, unless it fall within one of the exceptions. (b) A is asked who stole B' s watch. A points to Z, intending to cause it to be believed that Z stole B' s watch. This is defamation, unless it fall within one of the exceptions. (c) A draws a picture of Z running away with B' s watch, intending it to be believed that Z stole B' s watch. This is defamation, unless it fall within one of the exceptions. First Exception.- Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.- Public conduct of public servants.- 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, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.- Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Illustration It is not defamation in A to express in good faith any opinion whatever resepting Z' s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

Fourth Exception.- Publication of reports of proceedings of courts- It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation.- A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section. Fifth Exception.- Merits of case decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Illustrations (a) A says-" I think Z' s evidence on that trial is so contradictory that he must be stupid or dishonest." A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z' s character as it appears in Z' s conduct as a witness, and no farther. (b) But if A says-" I do not believe what Z asserted at that trial because I know him to be a man without veracity"; A is not within this exception, inasmuch as the opinion which expresses of Z' s character, is an opinion not founded on Z' s conduct as a witness. Sixth Exception.- Merits of public performance.- 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, or respecting the character of the author so far as his character appears in such performance, and no farther. Explanation.- 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. Illustrations (a) A person who publishes a book, submits that book to the judgment of the public. (b) A person who makes a speech in public, submits that speech to the judgment of the public. (c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public. (d) A says of a book published by Z-" Z' s book is foolish; Z must be a weak man. Z' s book is indecent; Z must be a man of impure mind." A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z' s character only so far as it appears in Z' s book, and no further. (e) But if A says-" I am not surprised that Z' s book is foolish and indecent, for he is a weak man and a libertine." A is not within this exception, inasmuch as the opinion which he expresses of Z' s character is an opinion not founded on Z' s book. Seventh Exception.- Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Illustration A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier- are within this exception.

Eighth 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. Illustration If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z' s master; if A in good faith complains of the conduct of Z, a child, to Z' s father- A is within this exception. 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 interest of the person making it, or of any other person, or for the public good. Illustrations (a) A, a shopkeeper, says to B, who manages his business-" Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests. (b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception. 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. Ingredients.The offence of defamation consists of the following essential ingredients, viz.: (1) Making or publishing of an imputation concerning a person; (2) Such imputation should have been made, (a) by words either spoken or written, or (b) by signs or (c) by visible representations; (3) The said imputation should have been made with intent to harm or knowing or having reason to believe that it will harm the reputation of such person or defame him. The section is aimed at protection of the reputation, integrity, and honour of the persons. The definition of the offence contains three important elements, viz., (i) the person, (ii) his reputation, and (iii) the harm to reputation of the person with necessary mens rea (guilty mind). If the imputation is defamatory per se, necessary means rea will be presumed. The maker of the statement must knew that it will harm the reputations of one concerning whom the allegation is made. Imputation.Imputation implies an accusation which is something more than an expression of suspicion. Some of the imputations that have been held to be defamatory are: to call a man a drunkard, black marketeer, goonda, a woman of loose character an illegitimate person, a trader as an insolvent, a woman as having a paramour) imputation against the deceased, etc, Similarly, the words, coward, dishonest man, and something worse than either, and words to the effect that the complainant and others were preparing to bring a false charge against the accused were held to be

defamatory. It is immaterial whether the imputation is conveyed obliquely or indirectly, or by way of question, conjecture, exclamation, or by irony. Concerning any person,The words must contain an imputation concerning some particular person or persons whose identity can be established. That person need not necessarily be a single individual. A newspaper is not a person and therefore it is not an offence to defame a newspaper. Defamation of a newspaper may in certain cases, involve defamation of those responsible for its publication. All those who compose, dictate, write or in any way contribute to the making of a libel are liable for defamation. For instance, if one dictates, other writes and the third approves of what is written, they are all makers of it and are jointly liable. Murdering a malis reputation by a libel may be compared to murdering a man in which all who are present and encourage the act are guilty, though the injury might have been given by one only. But the mechanic or the compositor of the press are not liable for libel as they neither make nor publish the matter that might be impugned as defamatory. They operate mechanically and have no voice of their own. They are employees and work under the direction and control of their employers. Intention on the part of the accused to harm the reputation, or the knowledge or reasonable belief that an imputation will harm the reputation of the person concerned, being an essential ingredient of the offence of defamation, the act of such person will not be covered within the definition of defamation. Imputation by words either spoken or written.An essential difference between the Indian and the English law is that the former recognises words spoken as a mode of defamation, and the latter does not. By the English law, defamation is a crime only when it is committed by writing, printing, engraving or some similar process. The Penal Code makes no distinction between written and spoken (verbal) defamation. The term defamation under section 499 is wide to embrace both libel and slander. In the second place, it is not necessarily the fact that the harm caused by defamation is proportioned to the extent to which the defamation is circulated Some slandersand those slanders of a most malignant kindcan produce harm only while confined to a very small circle, and would be at once refuted if they were published. The words visible representation will include every possible form of defamation which ingenuity can devise. For instance, a statute, a caricature, effigy, chalkmarks on a wall, signs, or pictures, etc. may constitute a libel. The publication of a group photograph with a false caption in a newspaper depicting the persons in the photograph as soldiers of a goonda war was held to be defamatory. Publication.The defamatory matter must be published, that is communicated to some person other than the person about whom it is addressed. For instance, dictation of defamatory matter in a letter to clerk, writing on a postcard, or printing on paper or distributing or broadcasting, constitutes publication. When an employee submits a defamatory petition to a superior officer, who in the ordinary course of an official routine sends for inquiry, there is a publication of the letter at the place where it is received for which the original writer prima facie would be responsible. Similarly, communication to a husband or wife of a charge against the wife or husband is publication but the uttering of a libel by a husband to his wife and vice versa is not, as they are one in the eyes of the law. The Code makes no exception in favour of a second or third publication as compared with the first.

Publication of defamatory matters in newspaper.In the matter of defamation, the position of a newspaper is in no way different from that of a member of the public in general. The responsibility in either case is the same.1 The publisher of a newspaper is responsible for defamatory matter published in the paper, whether he knew the contents of such paper or not.2 The sending of a newspaper containing defamatory matter by post from Calcutta, where it is published, addressed to a subscriber at Allahabad, is publication of such defamatory matter at Allahabad. Imputation to harm reputation.There must be an intention to harm the reputation of the complainant or the knowledge that the imputation will harm the reputation of such person. It is not necessary that actual harm should result. Where certain articles published in a paper contained scandalous accusations against the girl students of a college, and implied that the girls were habitually guilty of the misbehaviour described in the articles, each girl individually suffering in reputation, could bring an action for defamation. The expression harm means harm to the reputation of the aggrieved party. The meaning attached to the word harm is not in the ordinary sense in which it is used. By harm is meant imputation on a mans character made and expressed to others so as to lower him in their estimation. Anything which lowers him merely in his own estimation does not constitute defamation, Intending to harm, or knowing or having reason to believe that such imputation will harm.In this section the expression harm means harm to e reputation of the aggrieved party. It is not necessary to prove that the complainant actually suffered directly or indirectly from the scandalous imputation alleged; it is sufficient to show that the accused intended to harm, or knew, or had reason to believe that the imputation made by him would harm the reputation of the complainant. A statement made primarily with the object that the person making it should escape from a difficulty cannot be made the subject of a criminal charge merely because it contains matter which may be harmful to the reputation of other people or hurtful to their feelings. Innuendo.Where the statement does not refer to the complainant directly, the doctrine of innuendo may be pressed into service for the purpose of showing that the complainant was the real target of the attack. He must bring forward additional facts showing how the words are related to him in a manner which is defamatory. A true innuendo is an innuendo by which the plaintiff alleges a special defamatory meaning of the words distinct from their ordinary meaning and arising by virtue of extrinsic facts or matters known to the recipients. Man Mohan Kalia versus Yash AIR 1984 SC 1161 Applying this principle to the facts of a case before it, the Supreme Court laid down that an innuendo cannot be established by an evidence showing inferences of two kinds. The evidence of additional facts must be capable of showing that the words were applicable to the complainant and the complainant alone. Character and Reputation.Distinguished.Character is what a person actually is, while reputation is what neighbours and others say that he is. A man may have in fact good character and yet suffer from bad reputation or vice versa. A mans opinion of himself cannot be called his reputation. A man has no reputation to himself and, therefore, communication of defamatory matter to the person defamed is not publication. But the act of husband suspecting wifes chastity on wedding night itself and resorting to mudslinging and character assassination amounts to defamation.

Person Aggrieved :- Sec 499 IPC and Sec 199 Cr.P.C S. Khushboo vs Kanniammal & Anr. on 28 April, 2010 2. The appellant is a well known actress who has approached this Court to seek quashing of criminal proceedings pending against her. As many as 23 Criminal Complaints were filed against her, mostly in the State of Tamil Nadu, for the offences contemplated under Sections 499, 500 and 505 of the Indian Penal Code, 1860 [hereinafter `IPC'] and Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 [hereinafter `Act 1986']. The trigger for the same were some remarks made by the appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical. Faced with the predicament of contesting the criminal proceedings instituted against her in several locations, the appellant had approached the High Court of Madras, praying for the quashing of these proceedings through the exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 [hereinafter `Cr.PC.']. The High Court rejected her plea vide impugned judgment and order dated 30.4.2008. At the same time, in order to prevent the inconvenience of litigating the same subject-matter in multiple locations directed that all the cases instituted against the appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the aforesaid judgment, the appellant approached this Court by way of a batch of Special Leave Petitions. 3. Before addressing the legal aspects of the case before us, it would be useful to examine the relevant facts. In September 2005, `India Today' a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex. As a part of this exercise, the magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases. This can be readily inferred from the statement which was published, a rough translation of which is reproduced below: According to me, sex is not only concerned with the body; but also concerned with the conscious. I could not understand matters such as changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity. None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases. These remarks were published alongside a survey, the relevant extracts of which are stated below: 4. Subsequently, `Dhina Thanthi', a Tamil daily carried a news item on 24.9.2005 which first quoted the appellant's statement published in `India Today' and then opined that it had created a sensation all over the State of Tamil Nadu. This news item also reported a conversation between the appellant and a correspondent from `Dhina Thanthi', wherein the appellant had purportedly defended her views in the following manner (rough translation reproduced below):;The persons who are protesting against my interview, are talking about which culture? Is there anyone who does not know about sex in Tamil Nadu? Is there anyone who does not know about AIDS? How many men and women do not have sex before marriage? Why are people saying that after the

marriage the husband and wife should be honest and faithful to each other? One should have confidence in the other, only to avoid the mistakes from being committed. If the husband, without the knowledge of the wife, or the wife, without the knowledge of the husband, have sex with other persons, if a disease is caused through that, the same will affect both the persons. It will also affect the children. Only because of this, they are saying like that. However, soon after the publication of the above mentioned news item, the appellant had sent a legal notice dated 2.10.2005 to the Editor of `Dhina Thanthi', categorically denying that she had made the statement quoted above. In fact, the appellant had asked the publisher to withdraw the news-item carried on 24.9.2005 and to publish her objections prominently within three days of receipt of the notice, failing which the appellant would be constrained to take appropriate legal action against the newspaper. 5. As outlined above, the publication of these statements in `India Today' and `Dhina Thanthi' drew criticism from some quarters and several persons and organisations filed criminal complaints against the appellant. For instance, the complainant in the appeal arising out of SLP (Crl) No. 4010 of 2008 has stated that she is a married woman who is the Treasurer of a Districtlevel unit of the Pattali Makal Katchi [hereinafter `PMK'], a political party, and is also involved in social service. She had quoted some parts of the statements published in `India Today' and `Dhina Thanthi' to allege that the appellant's interview had brought great shame on her since it had suggested that women of her profile had engaged in premarital sex. The complainant further alleged that the appellant's remarks had caused mental harassment to a large section of women, and in particular women from Tamil Nadu were being looked down upon with disrespect and contempt. 6. In the appeal arising out of SLP (Crl.) 4764 of 2008, the complainant is a male advocate who is a District Secretary of the PMK for Salem District. In his complaint, there is no direct reference to the news-item published in `Dhina Thanthi' on 24.9.2005. Instead the complainant has stated that he found second-hand accounts of the same to be quite shocking since the appellant had questioned the need for women to maintain their virginity or chastity. It was alleged that these remarks were an abuse against the dignity of the Tamil women and that they had grossly affected and ruined the culture and morality of the people of the State. It was further submitted that these statements could persuade people to involve themselves in unnatural crimes and that the appellant's acts amounted to commission of offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 3 and 4 of Act 1986. Similarly, in the appeal arising out of SLP (Crl.) 6127 of 2008, the complainant is a lady advocate who has been practicing in the Trichy District Courts for more than 10 years. She has quoted some portions from the statements published in `India Today' and `Dhina Thanthi' to submit that the appellant's acts were punishable under Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509 IPC read with Section 6 of Act 1986. 7. Likewise, in the appeal arising out of SLP (Crl.) 6259 of 2008, the complainant has stated that she is a married woman belonging to a reputed family and that she is serving as the President of the District Magalir Association of the PMK (in Thiruvarur) and rendering social service. In her complaint, some parts of the appellant's statements have been quoted to allege that she had suffered great mental agony and shame since it was suggested that all women in Tamil Nadu had lost their virginity before marriage. In this respect, the complainant has alleged that the appellant had committed offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 6 of Act 1986. It is noteworthy that in most of the other cases filed in various districts of Tamil Nadu, the complainants are functionaries of the PMK and similar allegations

have been levelled against the appellant. Oddly enough, one of the complaints had even been filed in Indore, Madhya Pradesh. 8. As mentioned earlier, the appellant approached the High Court of Madras to seek quashing of all the criminal proceedings instituted against her in this connection. In its judgment dated 30.4.2008, the High Court refused to quash the proceedings by exercising its inherent powers under Section 482 Cr.PC, on the premise that the relevant considerations in this case were questions of fact which were best left to be determined by a trial judge. The High Court noted that two basic questions were involved in the case. Firstly, whether the appellant could claim any of the recognised defences against the allegations of having committed defamation, as contemplated by Section 499 IPC. Secondly, whether the complainants could at all be described as `aggrieved persons' within the meaning of Section 199 Cr.PC since that was linked to the question of whether the complaints had been made in a bona fide manner. The High Court thought it fit to leave both these questions for consideration by a trial judge, and in a partial reprieve to the appellant it was directed that all the criminal proceedings pending against her be consolidated and tried by the Chief Metropolitan Magistrate at Egmore, Chennai. However, the High Court also proceeded to record its own views regarding the contents of the appellant's statements and even made some strong observations condemning the incidence of premarital sex and live-in relationships. 20. Offence means `an act or instance of offending'; `commit an illegal act' and illegal means, `contrary to or forbidden by law' . Offence has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 (vide Proprietary Articles Trade Association Vs. Attorney General for Canada AIR 1931 PC 94; Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram & Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962 SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate of Enforcement & Ors. AIR 2006 SC 1301). 23. We now turn to the question whether the appellant's remarks could reasonably amount to offence of defamation as defined under Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court observed that as to whether the appellant could claim a defence against the allegations of defamation was a factual question and thus would be decided by a trial Court. However, even before examining whether the appellant can claim any of the statutory defences in this regard, the operative question is whether the allegations in the impugned complaints support a prima facie case of defamation in the first place. It is our considered view that there is no prima facie case of defamation in the present case. This will become self- evident if we draw attention to the key ingredients of the offence contemplated by Section 499 IPC, which reads as follows: The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 further states that `It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.' 24. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to

their reputation. In short, both the elements i.e. mens rea and actus reus are missing. As mentioned earlier, the appellant's statement published in `India Today' (in September 2005) is a rather general endorsement of premarital sex and her remarks are not directed at any individual or even at a `company or an association or collection of persons'. It is difficult to fathom how the appellant's views can be construed as an attack on the reputation of anyone in particular. Even if we refer to the remarks published in `Dhina Thanthi' (dated 24.9.2005) which have been categorically denied by the appellant, there is no direct attack on the reputation of anyone in particular. Instead, the purported remarks are in the nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of sex. Even if we consider these remarks in their entirety, nowhere has it been suggested that all women in Tamil Nadu have engaged in premarital sex. That imputation can only be found in the complaints that were filed by the various respondents. It is a clear case of the complainants reading in too much into the appellant's remarks. 25. This takes us to the question of whether the impugned complaints were made in a bona fide manner. As we have already noted, most of the complainants are associated with the PMK, a political party which is active in the State of Tamil Nadu. This fact does add weight to the suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage. It may be reiterated here that in respect of the offence of defamation, Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate's Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However, in given facts of the present case, we are unable to see how the complainants can be properly described as `persons aggrieved' within the meaning of Section 199(1)(b) Cr.PC. As explained earlier, there was no specific legal injury caused to any of the complainants since the appellant's remarks were not directed at any individual or a readily identifiable group of people. In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, this Court observed as under: The `person aggrieved' means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. `Person aggrieved' means a person who is injured or one who is adversely affected in a legal sense. A complaint under Sections 499, 500 and 501 IPC was filed in response to this report. Like the present case, the Court had to consider whether the complainant had the proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of Criminal Procedure, 1898 (analogous to Section 199 of the Cr.PC. 1973) and observed that the said provision laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an aggrieved person or not. But there is a departure from this norm in so far as the provision permits only an aggrieved person to move the Court in case of defamation. This section is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person , the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. This Court further noted that the news-item in question did not mention any individual person nor did it contain any defamatory imputation against any individual. Accordingly, it was held that the complainant was not a `person aggrieved' within the meaning of Section 198 CrPC, 1898. The Court also took note of Explanation 2 to Section 499 IPC which

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contemplates defamation of `a company or an association or any collection of persons as such'. Undoubtedly, the explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed. 34. In conclusion, we find that the various complaints filed against the appellant do not support or even draw a prima facie case for any of the statutory offences as alleged. Therefore, the appeals are allowed and the impugned judgment and order of the High Court dated 30.4.2008 is set aside. The impugned criminal proceedings are hereby quashed. Explanation 1.A prosecution may be maintained for defamation of a deceased person, but it has been ruled that no suit for damages will lie in such a case. Where, therefore, a suit was brought by the heir and nearest relation of a 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. Explanation 2.Imputation concerning company, association or collection of persons.An action for libel will lie at the suit of an incorporated trading company in respect of a libel calculated to injure its reputation in the way of its business. The words complained of must attack the corporation or company in the method of conducting its affairs, must accuse it of fraud or mismanagement or must attack its financial position. A corporation has no reputation apart from its property or trade. It cannot maintain an action for a libel merely affecting personal reputation. The words complained of, to support a prosecution, must reflect on the management of its business and must injuriously affect the corporation, as distinct from the individuals who compose it. They must attack the corporation in its method of conducting its affairs, must accuse it of fraud or mismanagement must attack its financial position. A corporation cannot bring a prosecution for words which merely affect its honour or dignity. A prosecution lies for libeling Hindu widows as a class. Where the defamatory articles, published in a newspaper, related to the habitual immoral conduct of the girls of a particular college, but no particular girl or girls were named in or identifiable from the articles, and the complaint was filed by a number of girls of the college, it was held that the author of the articles was guilty of defamation inasmuch as the inevitable effect of the articles on the mind of the reader must be to make him believe that it was habitual with the girls of the college to misbehave in the ways mentioned so that all the girls in the college collectively and each girls individually must suffer in reputation. 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. The offending article must carry an imputation against a definite and ascertainable body of people. A complaint was not allowed to be continued where the article published in a magazine carried imputations against a certain in general and not against any particular group, nor the community was found to be a definite and identifiable body of people and the imputations also did not relate to the complainant. Where a news in a local daily about insufficiency of sandal wood pieces at the cremation of the President of a National Political party was published, but no defamatory words or imputation against the said political party was used in the news item and it did not refer to any

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definite or determinate person or persons, it was held that offence of defamation was not continued. Explanation 4.This Explanation would not apply when the words used and forming the subjectmatter of the charge are per se defamatory. Describing a woman that she has paramours wherever she goes is per se defamatory. (i) First ExceptionImputation of truth in public interest for public good.To invoke this exception two conditions must be proved, namely: (i) that the alleged imputation regarding the complainant was true; and (ii) that its publication was for the public good. If any one of the two conditions is not satisfied, Exception 1 would not be attracted. So though the truth of a defamatory matter is a complete defence to an action for damages in a civil suit, it is not so in a prosecution for the crime of defamation. Where a person makes a comment upon the conduct of a public servant and it is for the public good; no action will lie against him so long as the comments are honestly made and there is no willful misrepresentation. No amount of truth will justify a libel unless its publication was for the public goods. The question of public good has to be considered from the point of view of the good of the general public as contrary to that of an individual. The onus of proving the two ingredients is on the appellant. Public good is a question of fact and good faith has also to be established as a fact. Chaman Lal vs The State Of Punjab on 6 March, 1970 HELD : On the facts, the appeal must be dismissed. In order to come within the First Exception to s. 499 it has to be established that what has been imputed concerning the respondent is true and the publication of the imputation is for the public good. The onus of proving these two ingredients was on the appellant but he totally failed to establish these pleas. On the contrary, the evidence showed that the imputation concerning the respondent was not true but was motivated by animus of the appellant against the respondent. The Eighth Exception to s. 499 indicates that an accusation in good faith against the person to any of those who have lawful authority over that person with respect to the subject matter of the accusation is not defamation, but in the present case there was utter lack of good faith in the accusation. Good faith requires care and caution and prudence in the background of context and circumstances. The position of the person making the imputation will regulate the standard of care and caution. The Ninth Exception provides. that if the imputation is made in good faith for the protection of the person making it or for another person or for the public good it is not defamation. Apart from the lack of good faith there was no evidence to support the Plea that the imputation was for the public good. Furthermore the interest has to be real and legitimate when communication is made in protection of the interest of the person making it. JUDGMENT: The case started on a complaint filed by Bishan Kaur on 23 October, 1963. The complaint was that the appellant Chaman Lal who was at that time President of Municipal Committee, Sujanpur in the District of Gurdaspur had made defamatory remarks against her character at a public meeting held at Sujanpur on 29 July, 1962 and that he further wrote a letter on 2 August, 1962 to the Civil Surgeon, Gurdaspur which contained defamatory statements

12

against her character and further that on 27 August, 1962 the appellant repeated those defamatory allegations before the Civil Surgeon. The appellant pleaded justification under Exceptions 1, 8 and 9 to section 499 of the Indian Penal Code. The First Exception states that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. The Eighth Exception states that it is not defamation to prefer in good faith ail accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. The Ninth Exception states that 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 interest of the person making it, or of any other person, or for the public good. The letter written by the appellant dated 2 August, 1962 which was marked ;as Exhibit P.W. 4/A, inter alia, states, "It is a matter of grave concern and consideration that Smt. Bishan Kaur, Nurse Dai attached with Civil Dispensary is earning very bad reputation having illegal relations with one Shri Prakash Chand, a cycle repairer of Sujanpur. A meeting of the Co-ordinate Civic-body of Sujanpur was convened, to create civic sense .... on 29 July at 8 A.M. in the Town Hall wherein leading men of all communities were present. The issue about the character of Smt. Bishan Kaur was discussed in open house and the -public felt this point seriously. The matter has been brought to the notice of the worthy Deputy Commissioner, Gurdaspur personally by me on 1 August, 1962 and-he assured to take immediate action against her. I feel my assumption to bring to your notice and request for immediate transfer of her in the public interest". The appellant claimed that the residents of Ward-5 of Sujanpur and submitted a complaint in writing dated 25 July, 1962 against the serious misbehavior of the respondent Bishan Kaur and that allegations were made against the character of Bishan Kaur in that application. The appellant further claimed that the -said application marked Exhibit D.W. I/A was read by the Secretary of the Municipal Committee, Sujanpur at the meeting on 29 July, 1962. The further defence of the appellant was that a resolution was passed at that meeting requesting the appellant to approach the higher authorities regarding the said application and it was pursuant to that resolution that the appellant wrote the letter dated 2 August, 1962 forming the subject matter of the complaint. The resolution on which the appellant relied was marked as Exhibit D.C. Public good is a question of fact. Good faith has also to be established as a fact. The appellant said that he verified the allegations and then wrote the letter forming the subject matter of the complaint. The appellant has not given any evidence as to what steps he took for verifying the allegations. On the contrary, it appears to be established on evidence that during five years preceding the letter written by the appellant to the Civil Surgeon there was not a single instance or occasion of any complaint against the respondent Bishan Kaur. The further finding is that the appellant in defence sought to produce witnesses who tried to establish that the respondent was a woman of doubtful virtues. Three of the witnesses on behalf of the appellant were a potato chop seller, a tongawala and a petty shop-keeper and they went to the extent of saying that they had illicit connections with her" These defence witnesses were disbelieved. That also proved that the appellant did not act in good faith. The appellant was the President of the Municipal Committee and it would not be an act of good faith or prudence and caution to rely on such persons as a tongawala or a petty shop-keeper in making allegations against the character of the respondent. In order to come within the First Exception to section 499 of the Indian Penal Code it has to be established that what has been imputed concerning the respondent is true and the publication of

13

the imputation is for the public good. The onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good is on the appellant. The appellant totally- failed to establish these pleas. On the contrary, the evidence is that the imputation concerning the respondent is not true but is motivated by animus of the appellant against the respondent. The Eighth Exception to section 499 of the Indian Penal Code indicates that accusation in good faith against the person to any of those who have lawful authority over that person with respect to the subject matter or the accusation is not defamation. We have already expressed the view that there is utter lack of good faith in accusation. The Ninth Exception states that if the imputation is made in good faith for the protection of the person making it or for another person or for the public good it is not defamation. There is no evidence whatever to support the plea that the imputation was for the public good. The accusation was not also made in good faith. Good faith requires care and caution and prudence in the background of context and circumstances. The position of the person making the imputation will regulate the standard of care and caution. Under the Eighth Exception statement is made by a person to another who has authority to deal with the subject matter of the complaint whereas the Ninth Exception deals with the statement for the protection of the interest of the person making it. Interest of the person has to be real and legitimate when communication is made in protection of the interest of the person making it. The appeal, therefore, fails and is dismissed. The appellant is directed to surrender to the bail bond to undergo the unexpired term of his imprisonment. R.K.P.S. Appeal dismissed. (ii) Second ExceptionPublic conduct of public servants.Exception 2 deals with criticism of public servants. Where an editor of a newspaper is prosecuted for defamation under section 500, I.P.C. for publishing some defamatory statements complaining about the conduct of the jail superintendent towards the prisoners and about the defective sanitary fittings and medical arrangements in the jail, the accused must show that the opinion expressed by him was confined to the character of the official concerned so far as it appeared in his conduct in the discharge of his public functions. But under the second and ninth exception to section 499, I.P.C. the opinion respecting conduct and character must be expressed in good faith, The accused must show that he had reasonable grounds for believing that the conduct attributed is true. If the accused accepted the allegations made by certain prisoners affected by the alleged conduct of the jail superintendent as true, after hearing the interested party only and without giving the other party concerned an opportunity to refute them, he cannot be said to have acted with due care and attention and therefore in good faith so as to bring himself within the second and ninth exceptions to section 499, I.P.C. In Purushottam Vijay v. State of Madhya Pradesh, the High Court of Madhya Pradesh, while observing that a newspaper should be more cautious and careful than a private individual, has stated the requirements of the defence available under the second and third Exceptions to section 499. These are: (i) The facts (on which the comment is offered) should be substantially true; (ii) The comments should be fair, in the sense that they are inspired by a genuine desire on the part of the writer to serve the public interest, and not by any intention of venting private spite; and

14

(iii) The criticism, should be in the public interest, and for public good. It should not be malicious. It is for the accused to show that these requirements are satisfied. Every citizen has a right to comment on those acts of public men which concern him as a citizen of the country, if he does not make his commentary a cloak for malice and slander. A writer in a public paper has the same right as any other person, and it is his privilege, if indeed it is not his duty to comment on the act of public men which concern not himself only but which concern the public, and the discussion of which is for the public good and where a person makes the public conduct of a public man the subject of comment and it is for the public good, he is not liable to an action if the comments are made honestly and he honestly believes the facts to be as he states them and there is no willful misrepresentation of fact or any misstatement which he must have known to be a misstatement, if he had exercised ordinary care. In order that a comment may be fair (a) it must be based on facts truly stated, (b) it must not impute corrupt or dishonourable motives to the person whose conduct or work is criticized except in so far as such imputations are warranted by the facts. (C) It must be honest expression of the writers real opinion made in good faith. (D) It must be for the public good (iii) Third ExceptionConduct of any person touching any public question.While the second Exception is confined to the criticism of public servants, the third Exception to the section embraces a much wider area of fair comment by providing that it is not defamation to express any opinion whatsoever respecting the conduct of any person touching any public question, and respecting his character. This exception thus has a positive as well as negative aspect. The positive aspect is concerned with those situations wherein the exception applies, and the negative aspect is concerned with the limitations to which the exception is subjected to. The conduct of publicists who take part in politics or other matters concerning the public can be commented on in good faith. (iv) Fourth ExceptionPublication of Reports of proceedings of Courts,The fourth Exception to section 499 provides that it is no defamation to publish a substantially true report of the proceedings of a Court or of the result of any such proceedings. The Explanation to the exception provides that a Justice of the Peace or other officer holding an inquiry in open court, preliminary to a trial in a Court of Justice, is a Court within the meaning of the above exception. Annanda Prasad: In Annanda Prasad v. Manatosan Roy, it was held that it is not necessary under this Exception that the proceedings of the court should be published continuously. The publication need not be true by word, but should give a substantially true account of the proceedings. Good faith is not an ingredient of the exception.

15

(v) Fifth ExceptionMerits of a case decided in Court or conduct of witnesses and others. This Exception deals with comments expressed on the merits of a case which has been already decided in a court or comments relating to the conduct of parties and witnesses in any such case. It is not defamation to express in good faith any opinion whatever respecting (a) The meritsof any case, civil or criminal, which has been decided by a court; or (b) The conduct of any person as a party, witness or an agent in any such proceeding; or (c) The character of such person, so far as his character appears in that conduct, and no further. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Sunil Mahajan & Anr. Vs. State of Punjab & Anr. Ashwani Sarpal son of Darbari Lal Sarpal, brother of complainant Jaswant Singh respondent No.2 (for brevity the complainant) filed a civil suit for a decree of permanent injunction, restraining petitioners Sunil Mahajan and others (defendants therein) from raising any type of construction on the 1st floor of disputed building, situated at Mahan Singh Gate, Amritsar. The defendants (therein) filed their respective written statements, wherein, the petitioners have pleaded that in fact, the plaintiff and his brother Jaswant Singh Sarpal are in the habit of grabbing the land and property of others. According to the complainant that this averment is false, defamatory and was made by the accused in their written statements to cause injury to his reputation in the eyes of officials of the department, Courts and general public. In the background of these allegations, the complainant filed the impugned complaint (Annexure P1) against the petitioners and their other co-accused. 2. Sequelly, the trial Magistrate dismissed the complaint being premature, by virtue of order dated 27.10.2004 (Annexure P3). However, the revision petition filed by the complainant was accepted by the revisional Court and a direction was issued to the trial Magistrate to pass a fresh summoning order, by way of order dated 12.12.2005 (Annexure P4). Consequently, the Magistrate summoned the petitioners to face the trial under Sections 499, 500 and 501 IPC, by means of impugned summoning order dated 9.1.2006 (Annexure P5). 7. As is evident from the record, that initially, Ashwani Sarpal, brother of the complainant, filed a civil suit seeking a decree for permanent injunction, restraining petitioners Sunil Mahajan and others (defendants therein) from raising any type of construction on the 1st floor of indicated disputed building. The defendants (therein) filed their respective written statements, wherein the petitioners have pleaded that in fact, the plaintiff and his brother Jaswant Singh Sarpal are in the habit of grabbing the land and property of others. The complainant alleged that this averment is false, defamatory and was made by the accused in their written statements to cause injury to his reputation in the eyes of officials of the department, Courts and general public in this connection. 10. As is clear, Section 499 IPC postulates that 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. However, the imputation of truth which public good requires to be made or published, conduct of any person touching any public question and publication of reports of proceedings of Courts would not constitute any offence. 11. Not only that, Fifth Exception further posits that it is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided

16

by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Ninth Exception envisages that 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. Sequelly, the other situations, where no offence under section 499 IPC is made out, are listed in other Exceptions contained therein. 12. A conjoint and meaningful reading of these provisions would reveal that the averment in question made by the petitioners in their written statement would not constitute and no offence whatsoever under the indicated provisions is made out against them. 13. This is not the end of the matter. Moreover, it is no where mentioned in the complaint (Annexure P1) that such pleadings in the written statement were ever published, intending to harm the reputation of the complainant. As per his own showing, the petitioners have just filed their written statement in the Court and such averments were under the scrutiny of the Court in the civil suit at the time of filing the complaint. It is not a matter of dispute that the civil suit in question, bearing No.303 of 1998 filed by the brother of the complainant, in which, the petitioners were stated to have filed the written statement, has already been dismissed by the Civil Judge, Amritsar, through the medium of judgment and decree dated 12.6.2006 (Annexure P6). The question whether such averments contained in the written statement would constitute an offence or not, is no more res integra and is now well settled. 14. An identical question came to be decided by this Court in case Jogesh Kumar Khaitan and others v. Balbir Singh Cheema 2000(2) R.C.R. (Criminal) 224. Having considered the provisions of Sections 499 and 500 IPC, it was ruled as under (paras 5 & 6):5. On a consideration of the material on record, I am of the opinion that the complaint filed by the respondent is liable to be quashed. It is the respondent, who filed the suit and invited the petitioners to file the written statement in their defence. The respondent filed the suit for permanent injunction restraining the petitioners and others from terminating his services and also for a direction to pay him the salary. In reply to that suit, the petitioners have to necessarily defend themselves. According to the defendants (who are petitioners herein), the respondentcomplainant submitted his resignation and he also applied for leave in lieu of the notice and also one month's pay and wanted to be relieved forthwith. In the written statement, the defendants (petitioners herein) alleged that the respondent had removed some of the papers from the file. The Civil Court while dismissing the application for grant of an interim injunction pending disposal of the suit, after considering the averments made in the reply to application for temporary injunction and also in the written statement, came to the conclusion that the respondent suppressed the material facts and obtained an ex parte ad-interim injunction and vacated the same on the ground of nondisclosure of material facts and suppression thereof. 6. Admittedly, the suit is still pending. When the Civil Court found on the interlocutory application for grant of injunction that the respondent/complainant suppressed certain facts in his complaint, it cannot be said that the contentions raised by the defendants (petitioners herein) are prima facie false. It is open to a party to the civil litigation to raise all the pleas that are available to it. It is for the Civil Court to decide on the basis of the evidence whether the averments made in the written statement are true or not. But prima facie the Civil Court found that the allegations are correct and rejected the grant of injunction pending disposal of the suit believing the averments made in the

17

written statement and the counter filed to the application for temporary injunction for vacating the ad-interim injunction. I am, therefore, of the opinion that the simultaneous criminal proceedings cannot be allowed to be proceeded with. 15. As indicated earlier, even in the instant case, the civil suit in question has already been dismissed and decided in favour of the petitioners (defendants therein), vide judgment and decree (Annexure P6). In this manner, the contrary arguments of learned counsel for the respondents stricto sensu deserve to be and are hereby repelled under the present set of circumstances as the ratio of law laid down in the aforesaid judgment mutatis mutandis is applicable to the facts of this case and is the complete answer to the problem in hand. Therefore, the criminal complaint (Annexure P1) and summoning order (Annexure P5) qua the petitioners only deserve to be quashed. If the complaint is allowed to continue, then it will inculcate and perpetuate injustice to the petitioners, which is not legally permissible. 17. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main complaint case, the present petition is accepted. Consequently, the impugned complaint (Annexure P1), summoning order (Annexure P5) and all other subsequent proceedings arising therefrom in regard and relatable to petitioners only are hereby quashed and they are discharged from the indicated criminal complaint, in the obtaining circumstances of the case (vi) Sixth ExceptionMerits of public performance.This Exception deals with literary criticism of public performances submitted to its judgment. It covers criticism of books published on literature, art, painting, speeches made in public, acting, singing, etc. The criticism should be fair and made in good faith. An opinion expressed in good faith respecting the merits of any performance which its author has submitted to the judgment of the public is exempt from criminal liability. Review of a published work will come under this Exception. The Explanation to the exception provides that 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. . (vii) Seventh ExceptionCensure passed in Good faith by person having lawful authority over another. This Exception provides that it is not defamation of a person having over another any authority, either conferred by law or arising out of lawful contract made with another, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. The illustration to the Exception gives six instances of censure protected by this exception, if good faith is established. For instance, the following acts of censure fall within the purview of this Exception. (i) A judge censuring the conduct of a witness, or of an officer of the court; (ii) A head of a department censuring those who are under him; (iii) A parent censuring his or her child in the presence of other children; (iv) A school master whose authority is derived from a parent censuring a pupil in the presence of other pupils; (v) A master censuring a servant for remissness in service; and (vi) A banker censuring the cashier of his bank or the conduct of the cashier as such cashier. (viii) Eighth ExceptionAccusation preferred (made) in good faith to authorised person. This Exception indicates that accusation in good faith against a person to any of those who have lawful authority over that person is not defamation. Good faith has to be established as a fact as explained in section 52, I.P.C.

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An accused relying on Exception 8 to section 499, I.P.C. need not establish the truth of his allegation. All that he need to do is to show that there were reasonable grounds for believing in the allegations, and that he acted on the bona fide belief that the allegations were true. If a person signs a petition to the chairman f Lucknow Development Authority against defective construction of houses, along with several other residents of the locality, he can be said to have acted in good faith. It is quite clear from the wording of Exception 8 that an accused person is not bound to prove that the allegations made by him are true. It is sufficient if he proves that on reasonable grounds he believed the allegations to be true and in that belief he made the accusation to the lawful authority mentioned in the exception. Where the accused claims protection under this Exception it is for him to establish good faith. M.A.Rumugam vs Kittu @ Krishnamoorthy on 7 November, 2008 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. 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 bona-fide would, thus, be on the appellant alone. (ix) Ninth ExceptionImputation made in good faith by person for protection of his or others interest.The Ninth Exception to the section affords protection when a defamatory statement is made in good faith for the protection of the person making it. The Exception covers not only such allegations of fact as could be proved true but also expressions of opinion and personal inferences. But in order to come within this Exception the imputation must have been made or published by the accused:

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(a) for the protection of his interest; and (b) in good faith. Mere plea that the accused believed that what he stated was true by itself will not sustain his case of good faith under Ninth Exception. It must be a belief inspired on rational basis and not to be just a blind belief. The Times of India, Chandigarh and another VERSUS Raman Behl and another AIR 2011 P&H An Editor of a newspaper Times of India and one of its Correspondent have prayed for quashing of the complaint dated 31.7.2006 and the summoning order dated 23.12.2006 passed by Chief Judicial Magistrate, Gurdaspur, under Section 500, 500/109 IPC pending against them. Petitioner No.2 got a news item published in the newspaper on 27.7.2006 containing allegations made by one Anoop Singh of Pathankot against the respondent-Raman Behl of he having been duped of Rs.17.50 lacs, which he had raised by selling his land with a promise that when he needed, he would repay him double the amount. Having made this allegation, Anoop Singh further alleged that the money was not being returned, which was taken about 6 years ago and he accordingly threatened to immolate himself before Behl's house, if money was not returned. Aggrieved against this defamatory news-item published by the petitioners, respondent No.2 filed a complaint before Chief Judicial Magistrate, Gurdaspur, under Sections 500 and 500/109 IPC, alleging that his reputation has been damaged and tarnished in general public. After recording the evidence, the Magistrate had summoned the petitioners on 23.12.2006. The petitioners have accordingly filed this petition for quashing of the complaint and the summoning order. The petitioners would submit that the facts contained in the statement made by Anoop Singh were duly verified on the strength of an affidavit submitted by him and that having satisfied itself that affidavit executed by Anoop Singh was duly attested by Executive Magistrate, the petitioners had published this news item in the newspaper. Accordingly, it is urged that this news item was published in a good faith after due verification of the statement of Anoop Singh and this would be a complete defence to the offence alleged against the petitioners under Section 500 IPC. The petitioners are relying upon the 9th Exception as contained under Section 499 IPC. This Section defines the offence of defamation as under:Ninth Exception:- Imputation made in good faith by person for protection of his or other's interest. It is no 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. No doubt, the 9th Exception provides that it is no defamation to make an imputation on the character of another provided that imputation be made in good faith for the protection of the interest of the person making it or by any other person or for the public good. However, this is required to be proved that the publication was in a good faith or for a public good as failure to prove that a defamatory statement is made in a good faith and it is for protection of interest of a person making it or of any other person or for public good, would exclude the application of exception. Not only that, in order to claim good faith the accused must show that before making the alleged imputation, he had made enquiry with due care and attention and that he was satisfied about the truth of imputation. The emphasis is on enquiry, care and objectives and not subjective satisfaction. (See Sukra Mahto Vs. Basudeo Kumar Mahto and another, AIR 1971 Supreme Court 1567).

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Apparently, the petitioners had satisfied themselves only on the basis of an affidavit given by Anoop Singh and whether this would be a sufficient enquiry, care and objective to fall within the exception primarily would have to be seen by the Trial Court and can not be so determined on the basis of affidavit annexed with the petition under Section 482 Cr.P.C. It has also been viewed that mere belief in the truth of the allegation is not sufficient to establish good faith. Such belief should be based on rational grounds. In order to establish good faith and bonafides, it is required to be seen that (i) the circumstances under which imputation was made or published (ii) whether there was any malice (iii) whether the accused made any enquiry before he made the allegation and (iv) whether there are reasons to accept the version that he acted with care and caution (v) whether there is preponderance of probability that the accused acted in a good faith. In short, the good faith requires care and caution and prudence in the background of the context and circumstances. Reference in this regard can be made to Chaman Lal Vs. The State of Punjab, AIR 1970 Supreme Court 1372. It is viewed that good faith will be negatived by recklessness indicative of want of due care and attention and the question of good faith is always a question of fact. To establish good faith, it is sufficient to show from the material on record by adducing

evidence that there is preponderance of probability in his favour. It would be no defence for an accused to say that he acted on the information given to him by another and that he must establish that the source of information on which he has acted was a proper source on which he was entitled to act or justified acting and that he did so with due care and circumspection. Similarly, where the imputation is allegedly made for public good, it is again a question of fact.
Tenth Exception :Jeffrey J.Diermeier & Anr. vs State Of West Bengal & Anr. on 14 May, 2010 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 Codet;) 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

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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 Icfaisponsored university. ...................................................................................................... ....................................

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...................................... 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 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 499 IPC, 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

23

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 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 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. 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.

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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. 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 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.

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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

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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 Icfaisponsored 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

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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

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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. 11992 Supp. (1) SCC 335 2 (1996) 6 SCC 263 3 (1999) 3 SCC 134 4 (1981) 3 SCC 208 5 (2001) 5 SCC 156

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6 (2002) 9 SCC 708 7 (1992) 3 SCC 317 8 (2008) 3 SCC 574 9 (2008) 3 SCC 753 10 [1964] 2 S.C.R. 73 11 (1997) 2 SCC 507 12 (2003) 4 SCC 705 13 AIR 1960 SC 866 14 (2001) 8 SCC 570