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CRIMINAL DEFAMATION

CRIMINAL DEFAMATION Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY Lucknow Faculty of Law PROJECT ON ‘CRIMINAL DEFAMATION’
CRIMINAL DEFAMATION Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY Lucknow Faculty of Law PROJECT ON ‘CRIMINAL DEFAMATION’

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

PROJECT ON

‘CRIMINAL DEFAMATION’

For

COURSE ON CRIME -II (INDIAN PENAL CODE ) CLASS: B.Com., LL.B (Hons.) 4th Semester

Submitted by

UTKARSH KUMAR YADAV B Com LL.B/2016-17/18 Academic Session: 2017-18

Under the Supervision of

Dr. Gulab Rai

Asst. Prof. in Law Faculty of Law Dr. Shakuntala Misra National Rehabilitation University

CRIMINAL DEFAMATION Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY Lucknow Faculty of Law PROJECT ON ‘CRIMINAL DEFAMATION’

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CRIMINAL DEFAMATION ACKNOWLEDGEMENT I would like to express my special thanks of gratitude to my teacher

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr.Gulab Rai who gave me the golden opportunity to do this wonderful topic CRIMINAL DEFAMATION’, which also helped me in doing a lot of Research and I came to know about so many new things I am really thankful to them.

Utkarsh kumar yadav

CRIMINAL DEFAMATION ACKNOWLEDGEMENT I would like to express my special thanks of gratitude to my teacher

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CRIMINAL DEFAMATION TABLE OF CONTENT Sr. No Page No. 1. Introduction …………………………………………………… … ..04 2. Section

TABLE OF CONTENT

Sr. No

Page No.

  • 1. Introduction …………………………………………………… …..04

  • 2. Section 499 section as fallows……………………………………

...

05

  • 3. Scope ………………………………………………………………….……07

  • 4. Section499 Is Not Violative of article 19 of constitution ………………...07

  • 5. Ingredients of an offence under section 499…………………………….….08

  • 6. Elaments of section 499……………………………………………… ..……09

    • 6.1. By Spoken Words or By words that are Intended to Be read Or By Signs or By Visible Reprentions ……………………… ..……09

    • 6.2. Makes ……………………………………………………………….…09

    • 6.3. Publishes…………………………………………………………….…09

    • 6.4. Imputation …………………………………………………………… ..11

    • 6.5. Concerning any person ………………………………………………..11

    • 6.6. Intending to Harm or knowing or having resons to Believe

That such Imputation will the Reputation of such person …………..12

  • 6.7. Harm………………………………………………………… ..………12

  • 6.8. Reputation ………………………………………………………12

  • 7. Exception of section 499……………………………………………………14

  • 8. Bibliography……………………………………………………… ..………16

CRIMINAL DEFAMATION TABLE OF CONTENT Sr. No Page No. 1. Introduction …………………………………………………… … ..04 2. Section

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CRIMINAL DEFAMATION 1 I NTRODUCTION "A misapplied and misapprehended term is sufficient to give rise to

1 INTRODUCTION

"A misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire." Richards. I.A.: Introduction to Roger's Pocket Thesaurus. 1

As expressed by Richards, a misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire. Every person has an inherent right to protect and preserve his reputation intact. 2

It is a fundamental principle, long established that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and 'unbridled license that gives immunity for every possible use of language, and prevents the punishment of those

who abuse this freedom

Reasonably limited, it was said by story in the passage cited, this

... freedom is an inestimable privilege in a free government; without such limitation, it might

become a scourge of the republic.

Freedom of speech and expression under Art 19 (1) (a) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without .regard to any person's honour and reputation. Indeed the right has its own natural limitation. Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the right. Under s 499, IPC, only such imputation as are malicious and reckless and not for public good, tranquillity or peace or public security or as are not made in good faith, have been brought within the definition of defamation which is but the abuse of the freedom of speech and expression punishable under s 500, IPC. Therefore, the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. Hence, s 499, IPC, is not violative of Art 19. The Constitution does not grant immunity from all punishments of abuse of freedom of speech and the accused can be put to answer criminally for the breach of reasonable restrictions on his 'freedom of speech or for his abuse of the freedom of speech. Punishment is not a restriction in itself but is indeed a consequence of the breach of restriction which the defaulter cannot escape.

Section 499 has a large number of Exceptions. They cover the entire field of privileges available in cases of defamatory statements. In fact, these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions. However, while considerable latitude is allowed in respect of these privileges, they are also subject to a large number of conditions. Loss of life and loss of reputation are two things which cannot be

  • 1 Gandhi B. M., Indian Penal Code, 2 nd Ed. 2006, P-707.

  • 2 Ibid. P-710.

CRIMINAL DEFAMATION 1 I NTRODUCTION "A misapplied and misapprehended term is sufficient to give rise to

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CRIMINAL DEFAMATION compensated in terms of money. Reputation especially is something which is a treasure to

compensated in terms of money. Reputation especially is something which is a treasure to a person. The provisions of these sections act as a deterrent against the commission of the offence of defamation. However, due to restrictions imposed in s 199, CrPC 1973, it is the aggrieved person and when he is incapable, a proper person on his behalf can set the criminal law in motion against the person accused. This topic deals with the following four sections:

  • (a) Section 499- It defines the offence of defamation along with four explanations. The

section also has ten Exceptions to the offence of defamation.

  • (b) Section 500- The offence of defamation as defined under s 499 is punishable under this

section with simple imprisonment which may extend upto two years, or with fine, or with

both.

  • (c) Section 501- The offence under this section is distinct from an offence under s 500. 3

Printing or engraving matter known to be defamatory is made punishable under this section though the sentence prescribed is the same as prescribed in the preceding section.

  • (d) Section 502- The sale of printed or engraved substance containing defamatory matter is

made punishable under this section. The sentence prescribed is the same as in the preceding

two sections.

In English law the crime of private libel has the tendency to provoke breach of peace. Under Indian Penal Code, however, defamation has been made an offence without any reference to its tendency to cause acts of illegal violence. Mental suffering caused to the person defamed is the gist of this offence. In English law a distinction has been maintained between libel and slander, but under Indian law no such distinction has been recognised. 4

2 Section 499: Section as follows

499. Defamation, - Whoever, by words either spoken or intended to be read, or, by sings 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 herein after excepted, to defame that person.

Explanation 1 - It may amount of 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 feelings 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.

3 Crown v Uma Shankar 18 PR 1889. 4 Mishra S. N., Indian Penal Code, 18 th Ed. Repr. 2012, P-854.

CRIMINAL DEFAMATION compensated in terms of money. Reputation especially is something which is a treasure to

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CRIMINAL DEFAMATION Explanation 3 - An imputation in the form of an alternative or expressed ironically,

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 loathsome state, or in a state generally considered as disgraceful.

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. 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.

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 further.

CRIMINAL DEFAMATION Explanation 3 - An imputation in the form of an alternative or expressed ironically,

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CRIMINAL DEFAMATION Explanation- A performance may be submitted to the judgment of the public expressly or

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.

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.

Eighth Exception- Accusation preferred in good faith to authorized 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.

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.

  • 3 SCOPE

This section defines the offence of defamation with the aid of four Explanations and ten Exceptions with more Explanations and illustrations appended to the Exceptions. 5 The authors of this Code observed that the essence of the offence of defamation consists in its tendency to cause that description of pain, which is fell by a person who knows himself to be the object of the unfavourable sentiments of his fellow-creatures, and those inconveniences to which a person, who is the object of such unfavourable sentiments, is exposed.

The criminal law of India with regard to defamation depends on the construction of this section, and not on what is the English law on the subject 8 Whether the publication of defamatory words or uttering defamatory words, heard and listened to by people takes place in a proceeding in a court room or outside the court precincts does not matter as long as the defamatory words are intended to harm the reputation of another. 6

  • 4 SECTION 499 IS NOT VIOLATIVE OF ARTICLE 19 OF THE CONSTITUTION

Under s 499, IPC, only such imputations as are malicious and reckless and not for public good, tranquillity or peace or public security or as are not made in good faith, have been brought-within the definition of defamation which is but the abuse of freedom of speech and

  • 5 NCERT v PD Bhatnagar 1980 Raj Cr Cas 392, 396, 1981Cr LJ(NOC) 57 (Raj).

  • 6 Praninchand Jaggiuandas Gandhi v Ibrahim Mohammed Merchant 1987 Cr LJ 1795 (Bom).

CRIMINAL DEFAMATION Explanation- A performance may be submitted to the judgment of the public expressly or

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CRIMINAL DEFAMATION expression punishable under s 500, IPC. Therefore, the provisions of s 499 cannot be

expression punishable under s 500, IPC. 7 Therefore, the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. Hence, s 499, IPC, is not violative of Art 19 of the Constitution of India.

  • 5 INGREDIENTS OF AN OFFENCE UNDER SECTION 499

The offence of defamation consists of three essential ingredients 8 :

(a) There must be a making or publishing of an imputation concerning a person;

(b) Such imputation must have been made by words, either spoken or intended to be read, or by signs or by visible representations; and

(c) The said imputation must have been made with the intention to harm, or with knowledge or reasonable belief that it will harm, the reputation of the person concerned.

The first and foremost question, which a court dealing with a criminal prosecution, involving the offence of defamation must, therefore, answer, is whether the alleged material, described as defamatory, amounts to imputation within the meaning of this expression as used in s 499. Imputation ordinarily implies an accusation. Imputation or accusation, alone will, however, not suffice. To constitute the offence of defamation, the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient (c) above A person is not guilty of defamation by making the imputation or accusation unless he intends to harm, or he knows or has reason to believe that thereby he would harm, the reputation of another person. In other words, an: imputation or accusation simpliciter without proof of the requisite intention, knowledge or belief, as covered by ingredient (c) of the definition, will not constitute the offence of defamation.

The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. If there is a controversy as to whether the material, complained of, is defamatory or not, the court will first have to decide, as a question of law, as to whether the said material is capable of being understood in a defamatory sense. If the court decides this question in the affirmative, it will then, and only, proceed to determine whether the said material, containing a defamatory potential, had, in fact, harmed the reputation of the complaint within the ambit of the definition of such harm as given in Explanation. If the material is defamatory per se, for example, where the accused imputed commission of a felonious crime to the complainant, there is no difficulty in deciding the question of law mentioned above. The court will, at once, answer it by saying that the imputation of commission of felony by the accused is capable of being understood in no other but a defamatory sense. In such a situation, the court will be justified taking the parties to evidence with a view to determine; as a question of fact, whether the said imputation had harmed the

  • 7 KV Ramaniah v Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB), 1961 (1) Cr LJ 601.

  • 8 Sunlakhya Chowdhury v HM Jadwet AIR 1968 Cal 266, 271, 1968 Cr LJ 736; Prem Pal Singh v Mohan Lal 1981 Cr LJ 1208, 1211 (Himachal Pradesh); NCERT v PD Bhatnagar 1980 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj).

CRIMINAL DEFAMATION expression punishable under s 500, IPC. Therefore, the provisions of s 499 cannot be

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CRIMINAL DEFAMATION reputation of the complainant within the four corners of Explanation 4. If, on the

reputation of the complainant within the four corners of Explanation 4. If, on the other hand, the words of the alleged imputation are ambiguous, it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. If the court decides, in the context of a particular complaint, that the words, in question, are reasonably capable of bearing a defamatory meaning, it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant.

6 ELEMENTS OF SECTION 499

1)

‘BY SPOKEN WORDS OR BY WORDS THAT ARE INTENDED TO BE READ, OR BY SIGNS OR BY VISIBLE REPRESENTATIONS

In India a person can be defamed not only by writings, he can also be defamed by spoken words. Here at this point Indian law of defamation differs from English law of defamation. Under English law only writing, printing, engraving, or some other process only can constitute defamation. Spoken words never constitute defamation. Under that law spoken words furnish ground for a civil action. In the Indian Penal Code the words furnish ground for a civil action. In the Indian Penal Code the word defamation has been used to denote what is known as libel and slander under English law. The words 'visible representation' will include every possible form of defamation which ingenuity can devise. Thus a statute, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel, 9 in addition to words spoken. The publication of a group photograph with a false caption "goonda" 10 would be defamatory.

2) ‘MAKESEvery such person who is engaged in composing, dictating, writing or in any way contributing to the making of a libel is the maker of the libel. Where the matter is dictated by one person and written down by another person, both shall be guilty of this offence. Similarly if one person speaks, another writes and third approves of it, all the three shall be guilty. The reason is that all who concur and assent to the doing of an unlawful act will be guilty of this offence.

3)

‘PUBLISHES

The word 'publishes' means to make known to others. As observed by Calcutta High Court, 11 the words "makes or publishes" supplements each other. For the offence of defamation publication of defamatory matter is essential. In other words the defamatory matter must be communicated to some person other than the person to whom it concerns e.g. dictating a letter to a clerk is publication. Communication by one person to another is the crux of publication 12 , but communication to the person to be defamed only is no publication. 13

9 Momon v, Tussands Ltd., (1894) 1 Q.B.D. 671.

  • 10 C. Piilai v. Kamnji«, (1962) 2 Cri. L.J. 142

  • 11 Sunllakhya Chowdhury v. H.M. Jadwet, AIR 1968 Ca1266: 1968 Cri W 736.

  • 12 Amar Singb v. Badaiia, (1965) 2 Cri U 693.

CRIMINAL DEFAMATION reputation of the complainant within the four corners of Explanation 4. If, on the

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CRIMINAL DEFAMATION Publication of a defamatory matter can be made by a post card, telegram, printed

Publication of a defamatory matter can be made by a post card, telegram, printed papers or leaflets, newspapers, Journals and by broadcasting on radio or television. Talkies and cinema films or even gramophones were unknown when this Code was enacted but the word “publication” covers them all. Defamatory matter, if written on a postcard, or printed on a paper will constitute publication when it is distributed or broadcasted.

It may be stated here that the word 'publishes' in s 499, IPC, does not contemplate that the communications, which one is bound to make to others in the normal course of his legal duties, should fall within the ambit of this section, otherwise every officer, clerk and superintendent and everybody, who has to deal with a document and pass it on to others, would be taken to publish the same. No publication can be said to have taken place for the counsel to give the contents of a written statement to his own client or to his own clerk in the ordinary discharge of his duties as a lawyer or to handover the envelope, containing the written statements, to a clerk of another counsel.

Publication of defamatory matter in newspaper.-A newspaper stands, in matters of defamation, in the same position, as members of the public in general. The publisher of the newspaper shall be responsible for published defamatory matter whether he was aware of that or not," But an editor's position is somewhat different. He can escape his liability by proving that defamatory matter was published in his absence and without his knowledge and he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person.' The owner of the paper or journal, however as a qua owner has no responsibility. The publication of a notice in a newspaper conveying an imputation that the complainant is dishonest in the management of the affairs of the company and thus to conceal the dishonesty by methods that are themselves dishonest is defamation.

In Asok Kumar Jain and others v. State of Maharashtra, 14 it was held that where a defamatory statement against a person is published in a newspaper, the editor, printer and publisher who has made declaration and is shown in paper as such is liable. Where it is alleged that the Chairman of Board of Directors of Company and its General Manager took part in selling out newspaper, it is indicative of the fact that they had prior knowledge of defamatory matter in paper which they could have prevented but they did not, they would be guilty of the offence and cannot escape liability under Section 502 unless they can make out a case of exception under Section 499.

13 Bhuliram, (1962) 2 Cri U 760; See also Kundanmal, (1943) 45 Cri LJ 105: S.S. Sanyal v. K V.R. Nair, 1987 Cri U 2074 (Cal). 14 1986 Cri. L.J. 1987 (Born).

CRIMINAL DEFAMATION Publication of a defamatory matter can be made by a post card, telegram, printed

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4) ‘IMPUTATION’
4)
‘IMPUTATION’

An imputation ordinarily implies an accusation or something more the expression of a suspicion. To impute is to lay the blame upon a person or to charge him or to allege against

him something which brings him into disrepute. It connotes an accusation. The accusation must be something more than creating or expressing suspicion. The following imputations, as observed in various cases, are held to be defamatory:

  • i) to call a person a drunkard, or a black marketeer, or an illegitimate person;

ii) to call a trader as an insolvent; iii) to call a woman as a woman of loose character, or that she has a paramour and iv) to express imputation against the deceased. Such imputations may be expressed in various ways, as by way of exclamation, by way of question, by way of irony or by conjecture. It would be defamatory to characterise a person as 'goonda', or to allege that the complainant sings indecent songs in the public, or is a drunkard and abuses girls and women and is a goonda" or to describe a person in the heading of a defamatory pamphlet as 'sharif badmash', or to say that Netaji Subhash Chandra Bose was a traitor, 15 or to call a person 'worthless' and ' despicable blackguard'. 16 The following imputations, as observed in various cases, are held to be defamatory:

  • Imputation regarding insolvency.

  • Imputation regarding trade or business

  • Imputation regarding profession

  • Imputation regarding criminal offence

  • Imputation against chastity

  • Imputation against caste

  • Vulgar abuses

5)

'CONCERNING ANY PERSON'

This phrase must mean any person whose identity can be established. Imputation concerning any person may be conveyed obliquely or indirectly, or by way of question, conjecture, exclamation or by irony. He may be a single individual or a group where, therefore, the identity could not be established so it was held in Government Advocate, B&O v. Gopa Bandhu Das, that the accused could not be convicted. In Asha Parekh v. State of Bihar 17 , a film was alleged to be defamatory of lawyers as a class. A criminal case was filed against the producers, its artists and Chairman of the Central Board of Censors. The court held that it is necessary in such a case to show that the class of persons is so small that its identity could be established. It is not so in this case and since advocates as a class could not be defamed, the accused is not guilty under this Section. A newspaper is not a person. Consequently it cannot be defamed.

  • 15 Pat Sharpe v. Dwi;endra Nath Bose (1964) 1 CX LJ 867, 68 CWN 654.

  • 16 Raja Ram Singh v. Emperor 19 Cr LJ 669.

  • 17 1977Cri LJ 21 (Pat).

CRIMINAL DEFAMATION 4) ‘IMPUTATION’ An imputation ordinarily implies an accusation or something more the expression of

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CRIMINAL DEFAMATION 6) 'I NTENDING TO H ARM , OR K NOWING OR H AVING R

6)

'INTENDING TO HARM, OR KNOWING OR HAVING REASONS TO BELIEVE THAT SUCH IMPUTATION WILL HARM, THE REPUTATION OF SUCH PERSON'

The essence of the offence of defamation is that the imputation must have been made either with the intention of causing harm, or with the knowledge or belief that the imputation would cause harm, to the reputation of the person defamed. The test to determine whether any statement is defamatory or not is whether under the circumstances in which writing was published; a person of reasonable prudence to whom publication was made would be likely to understand it in a libellous sense. The intention of the accused to harm the complainant is to be proved here. Imputations on a man's character lowers him in the eyes of others and this is harm; but anything which lowers a man in his own estimation is no harm, and therefore, it is no defamation.

  • a) Proof of Actual Harm to Complainant- Not Necessary

To sustain a charge of defamation, 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 that the imputation should harm, or that he knew or had reason to believe that imputation made by him would harm the reputation of the complainant.

  • b) Intention or Knowledge

In judging whether the accused had the requisite intention or knowledge, the circumstances under which, and the main object with which, the defamatory statements were made, and the background of the dispute between the parties should all be considered. Where the tenor of a document shows that the publication tends to harm the reputation of a person, the court would be justified in gathering from the terms of the matter itself that the publishers intended to harm, or they knew or had reason to believe that the imputation would harm his reputation.

7) 'HARM' Harm means harm or injury to reputation of the complainant. 18 ‘Harm' has to be the reputation itself of the person defamed. 19 Words which do not disparage a man's reputation but occasion a pecuniary loss to him do not amount to defamation.

8)

'REPUTATION'

Reputation is a jus in rem, a right absolute and against the entire world. A man's reputation is

his property. Hence, nobody can so use his freedom of speech or expression as to injure another's reputation.

18 Yeeda Menezes v. Yusuf Khan Haji Ibrahim Khan, AIR 1966 SC 1773: 1966 Supp SCR 123. 19 Amar Singh v KS Badalia (1965) 2 Cr LJ 693, 697

CRIMINAL DEFAMATION 6) 'I NTENDING TO H ARM , OR K NOWING OR H AVING R

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CRIMINAL DEFAMATION Reputation is what others believe about the complainant. Complainant's own estimation about himself is

Reputation is what others believe about the complainant. Complainant's own estimation about himself is no reputation. Consequently, communication of defamatory matter to the complainant is no publication.

EXPLANATION 1

It is regarding imputation against a dead person. If the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives, it is defamation.

This explanation will come into operation when:

  • (a) the imputation would have hurt the deceased's reputation, and

  • (b) it would also have hurt the feeling of his family and relatives.

In Luckumsey Ronji v. Hurbans Nursy, 20 a suit was brought by the heir and nearest relation of deceased person for defamatory words spoken of such deceased person but alleged to have caused damage to the plaintiff as a member of the same family; it was held that the suit was not maintainable.

EXPLANATION 2

An action for libel will lie at the suit of an incorporated trading company in respect of a defamation calculated to injure its reputation in the way of its business. A corporation has no reputation apart from its property or trade. It cannot maintain an action for a defamation merely affecting personal 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.

In M.P. Narayana Pillai and others v. M.P. Chako and another, 21 it was held that imputations against an association or collection of persons can be defamatory only if such persons are definite and determinable body. Only if there is a definite association or collection of persons capable of being identified, it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. There cannot be defamation against a community as such.

  • 20 (1881) 5 Born. 580.

  • 21 1986 Cri. L.J. 2002 (Kcrala),

CRIMINAL DEFAMATION Reputation is what others believe about the complainant. Complainant's own estimation about himself is

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CRIMINAL DEFAMATION E XPLANATION 3 A statement innocent in form or in the form of an

EXPLANATION 3

A statement innocent in form or in the form of an alternative will amount to defamation if it is ironical. In R. Shanker v. State, 22 in an article in department with his own underlings, the minister had made the appointment of a particular person and that this was but the prelude to further appointments of the like nature, it was held that the caption. 'So prospers the incorrupt administration of Minister Krishna Iyer' was obviously an ironical statement implying that the Minister's administration was a bad administration riddled with corruption and nepotism.

EXPLANATION 4

According to Explanation 4 an imputation which directly or indirectly, in the estimation of others, lowers the moral 23 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 loathsome state, or in a state generally considered as disgraceful, the imputation is defamatory. Thus describing a woman that she has paramours wherever she goes was held as per se defamatory in J. Chellihl v. Rajeswari.

7 EXCEPTION TO SECTION 499

This section has got a large number of exceptions. They cover the entire field of the privileges available in cases of defamatory statements. In fact, these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions.

The exceptions attached to the section declare that whenever a case falls within any of the exceptions, it would not be defamation. These exceptions are ten in number but they can well be condensed into seven. They constitute the privileged occasions which exempt a person from criminal liability for defamation. They may be summarised as follows:

As expressed in Balraj Khanna v. Moti Ram, the question of applicability of the exceptions in Section 499 cannot be considered at the time of entertaining the complaint to determine if a prima facie case is made out under Section 202 CrPC. It is only at the trial that the question of applicability of any of the exceptions in Section 499 or, as well as other defences can be considered.

1) Imputation for public good: It is not defamation to impute anything which is true

concerning any person if it is for the public good that the imputation should be made or published-(Exception 1). 2) Expression of opinion in good faith: It is not defamation to express in good faith any opinion respecting-

  • i) the conduct of a public servant in the discharge of his public functions (Exception 2),

ii) or the conduct of any person touching any public question (Exception 3), or

22 1959 Cr LJ 464, AIR 1959 Ker 100. 23 J. Chelliall v. Rajeswari, 1969 Cri L.J 571.

CRIMINAL DEFAMATION E XPLANATION 3 A statement innocent in form or in the form of an

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CRIMINAL DEFAMATION iii) the conduct of a party, witness or agent in a civil or criminal

iii) the conduct of a party, witness or agent in a civil or criminal case decided by a court (Exception 5), or iv) the character or merits of a public servant or any person or a party, witness or agent in a civil or criminal case decided by a court so far as his character appears in that conduct and no further (Exception 5) or,

  • v) the conduct of the author of any performance which he has submitted to the judgment of the public, so far as his character appears in such performance and no further (Exception 6).

3)

Publication of reports of court proceedings:

It

is

not

defamation to publish a

substantially true report of the proceedings or result of the proceedings of a court including a justice of the peace or other officer holding an inquiry in open court preliminary to a trial in a court (Exception 4).

4)

Censure passed in good faith: It is not defamation to pass in good faith any censure on the conduct of a person by another having authority over him,

  • i) conferred by law, or

ii) arising out of lawful contract made with him, or iii) in matters to which such lawful authority relates (Exception 7).

5)

Accusation preferred in good faith: It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of the accusation (Exception 8).

6)

Imputation made in good faith: It is not defamation to make in good faith an imputation on the character of another for (i) the protection of the interests of the person making it, or any other person, or (ii) for the public good (Exception 9).

7)

Conveying caution in good faith: It is not defamation to convey a caution, in good faith to one person against another provided that such caution is intended for the good of

  • i) the person to whom it is conveyed, or

ii) some person in whom that person is interested, or iii) for the public good (Exception 10).

CRIMINAL DEFAMATION iii) the conduct of a party, witness or agent in a civil or criminal

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CRIMINAL DEFAMATION BIBLIOGRAPHY Mishra S. N., Indian Penal Code, 18 Ed. Repr. 2012, P-854. Gandhi B.www.criminal Journal And other Net source .... INDIAN PENAL CODE Page 16 " id="pdf-obj-15-5" src="pdf-obj-15-5.jpg">

BIBLIOGRAPHY

Mishra S. N., Indian Penal Code, 18 th Ed. Repr. 2012, P-854.

Gandhi B. M., Indian Penal Code, 2 nd Ed. 2006, P-707.

PSA Pillai’s Crimnal law 12 th Ed.2014

www.criminal Journal

And other Net source ....

CRIMINAL DEFAMATION BIBLIOGRAPHY Mishra S. N., Indian Penal Code, 18 Ed. Repr. 2012, P-854. Gandhi B.www.criminal Journal And other Net source .... INDIAN PENAL CODE Page 16 " id="pdf-obj-15-26" src="pdf-obj-15-26.jpg">

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