Harbhajan Singh

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1960 SCC OnLine P&H 258 : PLR (1961) 63 P&H 794 : AIR 1961 P&H 215 :
(1961) 1 Cri LJ 710
Punjab and Haryana High Court

(Circuit Bench at Delhi)
(BEFORE TEK CHAND, J.)
Harbhajan Singh … Appellant;

Versus
The State of Punjab and another … Respondent.
Criminal Appeal No. 86-D of 1959
Decided on November 25, 1960
Page: 797
The Judgment of the Court was delivered by

TEK CHAND, J.:— This criminal appeal has been preferred by Shri Harbhajan Singh,
accused-appellant, from his conviction under section 500, Penal Code, 1860. He was
tried by the Additional Sessions Judge, Delhi, who found him guilty and sentenced him
to one year's simple imprisonment by his order dated 27th of August, 1959. The
appellant has been on bail. The accused was prosecuted on the complaint of P.W. 1,
Surrinder Singh Kairon son of Sardar Pratap Singh Kairon, the Chief Minister of Punjab
State. The statement said to be defamatory of the complainant was given by the
accused to the press on 23rd of July, 1957, which was published in extenso in the
“Blitz”, a weekly magazine of Bombay, and the extracts were published in the “Times
of India” and in some other papers. A press-note dated 22nd/23rd of July, 1957,
(Exhibit P.D.) was issued by the Punjab Government and is reproduced below:—
“Certain Urdu dailies from Jullundur are indulging in a deliberately mischievous and
false propaganda alleging complicity of a Minister's son in smuggling on the border.
This is evidently done with a view to malign Government and cause suspicion in the
mind of the public. The Punjab Government categorically deny the allegation. These
papers should have the courage to come out openly with the name of the son of the
Minister instead of repeatedly publishing things in a vague and indirect manner.
They should not take shelter behind anonymity and should not be afraid of the
consequences of the publication of these allegations.
The Punjab Government have already taken steps to curb smuggling and they are
determined to put it down with a firm hand.”
2. In response to the above press-note the accused issued a statement (Exhibit
P.A.) which runs as under:—
“Sardar Harbhajan Singh, State Secretary, Punjab Praja Socialist Party, has issued
the following statement to the Press:—
‘My attention has been drawn to a Punjab Government Press Note categorically
denying the complicity of a Minister's son in smuggling. That Press Note also throws
a challenge to some Urdu Dailies ‘to come out openly with the name of the son of
the Minister and then face the consequences. I don't know whether the newspapers
concerned will take up this challenge of the Punjab Government or not, but as one
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of those who have been naming that son of the Minister as one of the leaders of the
smugglers from Public Platform, I hereby name that on of S. Surinder Singh Kairon
son of S. Pratap Singh Kairon, Chief Minister. And I do so determined to face the
consequences of the charge being openly levied by me. I further allege that the son
of our Chief Minister is not only a leader of smugglers but is responsible for a large
number of crimes being committed in the Punjab. But because the culprit happens
to be Chief Minister's son the cases are always shelved up.
If the Punjab Government accepts this challenge, it should do so by appointing an
independent committee of impartial Judges from outside the Punjab and then let us
see who has to face the consequences. If the Punjab Government dare not do so, I
would not mind serving a term in Jail for having had the courage to come out with
the truth. May I bring
Page: 798
it to the notice of Punjab Government that Chief Minister's son his being discussed in
almost every Punjabi house, but people are afraid of talking about him in public lest
they be punished for that.’”
3. The above statement issued to the press by the accused was published in the
“Tribune” dated 25th of July, 1957, vide Exhibit D.P. Shri Ajaib Singh, Senior
Superintendent of Police, Amritsar, issued a statement on 25th of July, 1957, which
appeared in the “Tribune” on 26th of July, 1957, (Exhibit P.C.), to the effect that by
now all people involved in smuggling cases had been interrogated and he could say
that rumour about some Minister's son being involved in smuggling was false and
incorrect. A rejoinder was published by the accused Sardar Harbhajan Singh in the
“Hind Samachar”, an Urdu daily from Jullundur, dated the 27th July, 1957. In that he
had stated that he had accepted the challenge of the Government of Punjab to face
the consequences of disclosing the name of the Minister's son who is said to be
engaged in smuggling and that he had named Sardar Surinder Singh Kairon, the son
of the Chief Minister of the Punjab alter having carefully thought over the matter and
after having realised his responsibility. He had stated that Sardar Surinder Singh
Kairon was not only the leader of smugglers but there were also other grave
allegations against him.
4. On 17th of August, 1957, the complainant filed his complaint in the Court of
Magistrate First Class, Tarn Taran, stating that he is the son of Sardar Pratap Singh
Kairon, Chief Minister, Punjab, and that he passed the Master of Arts examination in
Political Science from the Punjab University in the year 1953 and was a lecturer in the
Government College, Ludhiana, for about eight months when he resigned. Later on he
became the Managing Director of the Amritsar Co-operative Cold Storage and was
drawing Rs. 500/- per mensem. He stated that he enjoyed good reputation amongst
his friends and relatives and also amongst those who came into contact with him. On
24th of July, 1957, when he was at his village Kairon, he was shown the news item, in
question, published in the “Times of India” on reading which, he found it defamatory
of his character and reputation. He then issued a statement to the press which was
published in the “Tribune” dated the 25th of July, 1957, which challenged the veracity
of the imputations. It was mentioned in the complaint that baseless and false charges
had been levelled by the accused against him with a view to harm or knowing or
having reason to believe that such imputation would harm his reputation and his
moral and intellectual character. He also said that false charges had been levelled by
the accused intentionally and with the purpose of defaming the complainant and his
father and thereby the complainant's reputation had been considerably lowered and he
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had fallen in the estimation of his friends, relations and public in general as a result of
the publication of the baseless charges against him. He, therefore, prayed that the
accused be prosecuted for having committed an offence under section 500, Penal
Code, 1860.
5. The complaint was filed in the Court of the Magistrate 1st Class, Tarn Taran, and
the accused made a petition to the Supreme Court under section 527, Code of
Criminal Procedure. The Supreme Court by its order dated the 4th of October, 1957,
remitted the case to the High Court with the direction that the case should be
transferred from the Court of the Magistrate 1st Class, Tam Taran, to a Court of
Session in Delhi. This case was thus transferred to the Court of the Additional Sessions
Judge, Shri P.D. Sharma.
6. The prosecution produced four witnesses. P.W. 1 is Surinder
Page: 799
Singh Kairon, the complainant. He stated that as a result of the impugned publication
he has been lowered in the estimation of his relatives and friends and he has suffered
“economically, mentally, physically and socially”. The news was false, malicious and
baseless and that he neither was a smuggler nor had he anything to do with the
smuggling. He also said that he did not know any smuggler and had never been
involved in any crime and he had not been responsible for any crime either. The
complainant was cross-examined at a very great length, on fourteen hearings, and his
statement covers nearly 90 typewritten sheets. It is not necessary to summarize the
cross-examination of the complainant in which a large number of imputations were
made against his personal character, which were all refuted by him. The cross-
examination covered indiscriminately, all aspects of his life and all sorts of allegations,
defamatory to his character, were made, in addition to the two main imputations
which are the subject-matter of this prosecution. The complainant was subjected to
discursive and extensive cross-examination more with the object of tarring his
character than with a view to show that the two imputations made against him were
true. It was done with a view to impeach his credit by injuring his character and most
of them did not relate to the matter, in issue, and referred to all sorts of irrelevant
collateral matters. This is why, during the course of arguments which extended over
several days in this Court, the counsel for the accused hardly referred to his statement
in the cross-examination, with a view to make out any point.
7. P.W. 2, Mohan Lal, is the representative of the “Times of India” newspaper at

Jullundur and he stated that Harbhajan Singh accused handed over to him, on 23rd of
July, 1957, in his office, a Statement, after he had put his signature on it. He had
given the statement for publication in the “Times of India” and he sent telegraphic
summary of it to the Head Office at Delhi. This statement was also published in the
“Blitz” dated the 3rd of August, 1957, (Exhibit P.B.). This withers was cross-examined
at some length and during the course of his cross-examination he stated—
“I repeat solemnly that the message, Ex. P.N., was handed over to me by S.
Harbhajan Singh personally. It will be incorrect to say that pressure had been
brought on me to give a false statement in the Court that the statement was
handed over to me personally by Sardar Harbhajan Singh as ‘Times of India’ was
threatened with legal action by the aggrieved party.”
The above trend of the cross-examination shows that an attempt was made to
prove that the statement of the witness, that the accused had handed over Exhibit
P.N., the impugned statement, to him personally, was false.
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P.W. 3 is Shri Karam Singh Mann, who said that the accused had addressed a public
meeting in Jullundur and during the course of his speech he bad said that the
complainant was a leader of smugglers and was also responsible for many more
crimes.
8. P.W. 4 is Mohinder Singh Gill, who stated that he attended a meeting in which
the accused had made a speech in Gandhi Chowk at Phagwara to the effect that the
complainant was a Chief smuggler and was responsible for many other crimes in the
State.
9. The statement of the accused under section 342 was recorded on 16th of August,
1958, and the answer to eight, out of nine questions, was “I will file a written
statement”. These questions were as to whether he had handed over the impugned
statement, Exhibit P.N. to
Page: 800
Mohan Lal; whether Exhibit P.N.,/1 bore his signatures; whether the statement,
Exhibit P.B./1, in the “Blitz” dated 3rd of August, 1957 was published at his instance;
and whether he had delivered speeches at Julundur and Phagwara defaming the
complainant and whether he had intended to harm the reputation of the complainant
by making the imputations. On 29th of June, 1959, more than ten months after his
statement under section 342 had been recorded, the accused filed a lengthy-written
statement which has been reproduced in extenso in the Judgment of the trial Court at
pages 3 to 12. In this written statement the accused admitted having issued the press
statement in question. He said that he never had any occasion to deal with the
members of the family of Sardar Partap Singh Kairon, most of whom were not even
known ta him and that he had no animus against the person of the Chief Minister or
his son. He said that he had no hesitation in admitting that he had issued the
impugned statement. In the statement he further alleged that Sardar Partap Singh
Kairon had contested the second general elections from Sirhali constituency adjoining
the Indo-Pakistan border and that during the course of that election all kinds of
vehicles were moving, freely, ostensibly for Congress electioneering but in fact laden
with smuggled gold; that smuggling in this area and elsewhere on the border was
rampant and was carried on openly with the active connivance and assistance of high
police officers and political high-ups and that it became a veritable scandal in the
State. In the press, and elsewhere, in private talks, one of the persons freely
mentioned, and broadly hinted, for complicity in smuggling, was Shri Surrinder Singh
Kairon son of Sardar Partap Singh Kairon, the Chief Minister. While the Punjab
Government maintained a studied silence, the Vidhan Sabha was deeply perturbed
and in the budget session of 1957, a number of members of the Legislative Assembly
vehemently expressed their anxiety and that of their constituents at the complicity of
the Minister's son in gold smuggling with the connivance of his father. He said that the
atmosphere in the Punjab became surcharged with the knowledge that the gang of
smugglers was under the leadership of Shri Surrinder Singh Kairon. The following
passage may be quoted in the words of Sardar Harbhajan Singh:—
“I was, then, the Provincial Secretary of the Punjab Branch of the Praja Socialist
Party. As a public man I was gravely perturbed over what was appearing in the
press and what came to my knowledge otherwise. Police and other government
officials, both high and low, whom I happened to meet during those fateful days
told me categorically that Shri Surrinder Singh Kairon is a leader of smugglers,
responsible for a large number of other crimes, and is escaping criminal liability for
being under the protective wings of his father, the Chief Minister; I was informed by
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them and otherwise how Shri Surrinder Singh Kairon even during his student days
at Hoshiarpur had brought from outside notorious criminals to threaten to shoot
fellow students with revolver; how that led to widespread agitation and a day's
strike in the college; how he cheated the Punjab University by managing to appear
in M.A. examination when he was in actual fact greatly short of the minimum
number of lectures, which he did by illegally obtaining a manifestly false certificate
of having attended the course of lectures which he never did; how he employed his
father's willing but illegal authority to force the Subordinate Services Selection
Board, Punjab, into giving him the lecturership of the Government College,
Ludhiana, which according to rules belonged to other applicants who were better
qualified for the post; how he
Page: 801
fraudulently obtained service with the Dunlops by promising them his father's illegal
influence for bettering the Dunlops' business prospects with the Punjab Government;
how he set up a co-operative cold storage, and by violating rules and laws reduced it
to the level of a family concern, built a huge fortune for himself by obtaining timber,
cement, iron and machinery etc. illegally, fraudulently and with the illegal influence
and authority of his father; how he defrauded the municipalities by committing thefts
of tolls and other taxes; how he concocted, fabricated and forged palpably false
accounts of the cold storage; how he was associated with his real first cousin, Shri
Jagjit Singh Kairon, in the Mukerian dacoity case; how he managed the postings and
transfers of police officials with the help of Shri Naurang Singh, the Senior
Superintendent of Police during the key days of smuggling in Amritsar in order to
facilitate the smuggling of gold by his gangmen; how he prevailed upon Shri Naurang
Singh and another associate Shri Sadhu Singh to appear as defence witnesses to save
another smuggling associate, Hazara Singh Gill, from the gallows for being involved in
a murder case; how he prevailed upon Shri Naurang Singh to help Hazara Singh Gill to
obtain a border defence scheme rifle which the said Hazara Singh Gill would never
have otherwise got because of police record; how he interceded with a magistrate to
let go Kalwant Rai who was being prosecuted in a smuggling case and when the
Magistrate did not Oblige got the case withdrawn by his father, the Chief Minister; how
he helped his smuggling associate, Sohan Singh, escape punishment for smuggling
when 480 tolas of smuggled gold was recovered by the customs authorities from the
said Sohan Singh; how he obtained an. Indo-Pak passport and an entry visa to
Pakistan that exempted from arrival and departure report; and how he was an
associate and protector of notorious smugglers like G.S. Purewal (since escaped to
Pakistan), Balraj Kapur and Dewan Chand Kapur of Messrs Shambu Nath and Sons,
Maddi, Jarnail Singh of Majha Transport Company, Dev Raj and a host of other
outlaws.”
10. He also said—

“During the brief time that I had at my disposal I made all such inquiries that could
be made under the circumstances in reference to the material that had earlier come
to my notice and having satisfied myself that the Press Note was was a fraud, I
accepted the challenge and in good faith and for public good, named Shri Surrinder
Singh son of Sardar Partap Singh Kairon, Chief Minister, as the Minister's son
involved in gold smuggling.”
11. In the concluding portion of his statement, he said that he had chosen to
produce defence in order to vindicate the truth of his charges and that he was not
afraid to tell the truth even at the gallows.
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12. The accused had summoned 328 witnesses and a large number of record. The
trial Court allowed him to summon 35 witnesses in all but he examined only 20
defence witnesses.
13. After considering the oral and documentary evidence on the record the trial
Court came to the conclusion that the impugned words were defamatory per se and
the accused had failed to make out a case under exceptions 1 and 9. He was,
therefore, found guilty and convicted.
14. The relevant portion of section 499 runs as under:—
“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,
Page: 802
is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1. * * *
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.”
15. The first and ninth exceptions to section 499 are in these terms:—
“First Exception.—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.
“Ninth Exception.—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.”
Section 52 of the Penal Code, 1860 defines “good faith” in the following terms:—
“Nothing is said to be done or believed in ‘good faith’ which is done or believed
without due care and attention.”
16. In the trial Court the accused had advanced two pleas covered by the first and
ninth exceptions to section 499 but in this Court arguments have been confined to the
plea of “good faith” contained in exception nine. It has been conceded in this Court
that truth of the defamatory imputations was not being urged in defence and the
contention was that although the defamatory allegations have not been justified under
the first exception the imputations, though not true, had been made in good faith and
for the public good. The counsel for the accused, during the course of the arguments,
however, said that the plea of truth was being given up as fair opportunity had not
been afforded to his client for establishing the plea of justification.
17. The arguments came under two main heads: firstly, that the case of the
appellant is covered by the ninth exception; and secondly, that the accused had been
materially prejudiced, as fair and proper opportunity had not been given to him for
establishing his case.
18. The defamatory statement which has given rise to this criminal prosecution
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contains two imputations—
(1) that the complainant is “a leader of smugglers”, and
(2) that he is “responsible for a large number of crimes being committed in the
Punjab”, and as he happens to be the Chief Minister's son the cases are always
“shelved up”.
19. It is incontrovertible that the language employed by the accused that Sardar
Surrinder Singh son of Sardar Partap Singh Kairon, Chief Minister, is not only a leader
of smugglers but is responsible for a large number of crimes being committed in the
Punjab, is defamatory per se. It has been admitted in this Court that the statement,
(Exhibit P.A.), which had been issued to the press by him contained the impugned
words, which form the basis of this criminal prosecution under section 500, Penal
Code, 1860.
20. Under our law, criminal liabilities incurred by publication of a statement, which
tends to expose a person to hatred, contempt, disgrace
Page: 803
and obloquy, or otherwise blackens his reputation or injures him in his business
occupation or profession; to impute a crime or the commission of an act involving
moral aptitude, is defamatory. The criminality lies in the fact that defamation is an
invasion on the reputation of another being an assault on his character and an injury
to his good name. In the words of Sir R. Malins, V.C., a person's reputation, is his
property, and, if possible more valuable than other property, vide Dixon v. Holden1 . It
is not denied that the impugned words are defamatory per se as they are not
susceptible of any innocent interpretation and even unaided by any extrinsic facts,
they are obviously defamatory.
21. At common law the accused in a criminal prosecution was not permitted to
prove the truth of the statement and this gave rise to the celebrated dictum of Lord
Mansfield: “The Greater the truth, the greater the libel”; the supposition being the
greater the appearance of truth in a criminal libel, the more likely would it tend to stir
up the victim to revenge himself and lead to a breach of the peace.
22. Criminal libel formerly used to be prosecuted in England not for the purpose of
redressing an injury done to an individual but for the reason that it intended to
provoke animosity and violence and disturb the public tranquillity and repose.
23. After the passing of Lord Campbell's Act, 1843, the accused was permitted to
prove the truth of his assertions provided they were to be for the public benefit. This
provision corresponds to the first exception to section 499 of our Penal Code.
24. At this stage reference may also be made to section 105 of the Indian Evidence
Act, which runs as under:—
“When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Penal
Code, 1860, or within any special exception or proviso contained in any other part
of the same Code, or in any law defining the offence, is upon him, and the Court
shall presume the absence of such circumstances.”
25. In this case it is, therefore, for the accused-appellant to show that his defence
falls within one of the statutory exceptions. Once an imputation is shown to be prima
facie defamatory, it is for the accused to show that any of the exceptions protect him.
26. The defences available to the accused under the exceptions to Section 499 have
to be proved as strictly as if the complainant were being tried for the offences imputed
to him. The accused pleading justification virtually becomes the accuser and that is
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why the burden has been placed by the law upon him, both in England and in India.
Where the publication is libellous per se the proof of the publication makes a prima
facie case, and it is then for the accused to offer proof to show, that what was said,
was true, or, was published with good motives and for justifiable ends. In cases of
criminal defamation the accused has not only to justify the whole of his libel but the
plea taken has to be proved as strictly as if the complainant was being prosecuted for
the offence. The accused seeking the protection of the ninth exception has to show
what enquiries had been made before the publication and what material there was at
his disposal or within his knowledge at the time of the making of the imputations.
27. In Superintendent and Remembrancer of Legal Affairs, Bengal v. Puma Chandra
Ghose2 , the Bench observed—
Page: 804
“Nor do we think that the accused is protected by the 9th exception to the section
as the publication was clearly not made in good faith having regard to the flimsy
materials upon which it was based and to the absence of any evidence that the
accused made any enquiries before publication or had at his disposal or within his
knowledge at that time any of the evidence which is now upon the record.”
28. In support of the plea of good faith reliance has been placed upon certain items
in the newspapers. Some evidence has been placed on the record with a view to show
that the complainant was hand in glove with known smugglers and bad characters
with whom he associated, and the accused also relied upon certain circumstantial
evidence. This is with respect to the imputation of smuggling. Certain material has
also been placed in support of the second imputation relating to other crimes
committed in the State in which the complainant has been held responsible by the
accused.
29. Shri Balram Das Tandon, an M.L.A., during the course of his speech made in the
Punjab Vidhan Sabha on the 14th May, 1957, said that persons responsible for
smuggling were high officers, political leaders, their sons and their relations, vide
Punjab Vidhan Sabha Debates, Volume I, No. 11, page 93. There was no reference to
any person in particular.
30. On 15th of May, 1957, Shrimati Om Prabha said that she wanted to suggest
that steps should be taken to stop smuggling, vide Punjab Vidhan Sabha Debates, Vol.
I, No. 12, page 21. There were also speeches by other members of the Legislative
Assembly to the effect that gold smuggling was on the increase in the border district
of Amritsar and adequate steps should be taken to stop smuggling and some speakers
were critical of the Government that effective measures were not being adopted.
31. My attention was also drawn to a speech made by Shri Kartar Singh Dewana,
M.L.A., on 15th of May, ??? vide Punjab Vidhan Sabha Debates, Volume I, No. 12,
page 13. He alluded to the speeches of other members who had said that sons of
Ministers and the Ministers themselves were accused of being engaged in smuggling.
This accusation, according to Shri Kartar Singh Dewana, was false and had been
dishonestly levelled.
32. Reference was then made by the counsel to an editorial in the “Hind Samachar”
dated the 24th of June, 1957, (Exhibit D.N.) stating that the Central Government had
sent a confidential letter to the Punjab Government in which a reference had been
made about smuggling and in connection with this smuggling a Minister's son and
high police officers were mentioned. Reference was also made to an editorial published
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in the “Hind Samachar” of 23rd of July, 1957, in which it was said that everyone in
Punjab thinks that in the smuggling of gold many Congress M.L.As., high police
officers and a son of a Minister are engaged and for this reason the prestige of the
Congress has suffered seriously.
33. In the “Pratap”, dated the 22nd July, 1957, there was an article in which it was
said that gold was being brought into India illegally and in this matter a Minister's son
and some police officers were engaged and the writer of the article suggested that
questions should be put in the Parliament inquiring whether an M.L.A., who is a right
hand man of Sardar Pratap Singh Kairon and also a son of a Minister were engaged in
the conspiracy to smuggle gold, and whether this fact was within the knowledge of
Shri Kairon and what steps had been taken by him for preventing such a conspiracy?
Page: 805
34. There was also a reference to the “Blitz”, of Saturday, June 8, 1957, to a news
item from the correspondent of the paper from Jullundur, to the effect, that the son of
a senior member of the Punjab Cabinet, and more than two dozen Congress M.L.As.
and prominent Congressmen of the border towns, were being openly charged with not
only backing but actively participating in the large scale smuggling of gold across the
Amritsar-Wagah border.
35. My attention was also drawn to a speech made on 20th May, 1957, in the
Vidhan Sabha, by the Chief Minister in which he had said that irresponsible and untrue
attacks had been made as to the involvement of a son of a Minister in smuggling. The
counsel referred to this speech in order to show that accusations were being levelled,
to the knowledge of the Chief Minister and the members of the Assembly against the
participation of a Minister's son in smuggling activities. This imputation had been
refuted by the Chief Minister who said that it was an irresponsible and false allegation.
36. Section 81 of the Indian Evidence Act lays down that the Court shall presume
the genuineness as to gazettes, newspapers etc. if such a document is produced from
proper custody. The presumption of genuineness attached under this section to a
newspaper cannot be treated as proof of the facts reported therein, as a statement of a
fact contained in a newspaper is merely hearsay and therefore inadmissible in
evidence, in the absence of the maker of the statement appearing in Court and
deposing to have perceived the fact reported. A reference to the Newspapers and to
the proceedings in the Vidhan Sabha has been made, according to the appellant's
counsel, to show that both in the press and on the floor of the Vidhan Sabha it was
widely talked that a son of a Minister was engaged in smuggling of gold. It is said that
when this matter was receiving wide publicity, it raised the curiosity of the accused
who, both as a citizen and also as the Secretary of the Praja Socialist Party, was
interested in knowing as to who the culprits, engaged in antisocial activities, were.
37. Before considering the legal effect of the evidence relating to the speeches
made on the floor of the Vidhan Sabha and of the editorials and news items, I may
also examine the other evidence, both direct and circumstantial, on which reliance was
placed by the learned counsel for the appellant.
38. Reliance has also been placed upon the statements of certain defence
witnesses. D.W. 18 is Shri Jagat Narain, M.L.A., to whose speech in the Vidhan Sabha
reference has already been made. In the witness box he said that in the year 1956
gold smuggling had increased on the Amritsar border and he had derived this
knowledge through the newspapers. He also read three or four editorials on the
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smuggling of gold on the border in the “Hind Samachar”. He said that he had received
some complaints orally and some in writing about the gold smuggling on the border
but the written complaints had not been preserved by him. He said that his answer
was the same as above on the complicity of a Minister's son in smuggling. When asked
to give names of his informants, he said that he would not like to name them lest they
get into trouble. In his examination he has nowhere stated that be had received any
information as to smuggling being carried on by the complainant or by others but in
league with him. He admits having been opposed to the complainant's father on
political grounds but he does not support accused in respect of the imputations
against the complainant.
Page: 806
39. The next witness in this connection is D.W. 34, Shri Prabodh Chander, M.L.A.
He said that he had no personal knowledge about the scale of smuggling on the
Amritsar border but there were persistent rumours of large scale smuggling going on
in that part of the State. He said that he did not, during the course of his speeches in
the Vidhan Sabha, name the complainant or anybody else or any member of the Chief
Minister's family in particular. He also stated that he did not think that he ever read
anywhere about the Chief Minister's son's complicity till he saw the statement given to
the press by the accused.
40. D.W. 23 is Dr. Baldev Parkash, M.L.A., who stated that no specific instance,
supported by positive proof, came to his notice in regard to the complicity of the
complainant in the smuggling but there were general rumours and that people used to
say that the complainant was moving with known smugglers. He said that he did not
mention the complainant's name as an associate of smugglers, in his speeches in the
Vidhan Sabha.
41. D.W. 32 is Sajjan Singh who was the Parliamentary Secretary of the Praja
Socialist party in 1946. He stated that the accused visited this area in 1957 when the
elections were going on and that he told the accused about large scale smuggling in
the border area. He also said that he told him that Hazara Singh, Singhara, Budha
Singh and Tara Pandit were smugglers and that some of the members of the
Legislative Assembly and Ministers' relations were helping the smugglers and that the
police did not take any action against Hazara Singh because of his connections with
the complainant. He was a member of the defence committee constituted to help the
accused and he said that he mostly had collected the material for the defence of the
accused, besides some money. He had seen Hazara Singh and the complainant
moving about together in the election campaigns of 1952 and 1957. This witness has
not given any further particulars about any activity of the complainant in relation to
smuggling.
42. There is no other defence witness on whose testimony the accused could rely in
support of his allegations. The statements of these witnesses, even if they are
assumed to be true, do not even remotely support the libel.
43. The counsel for the accused then referred to other evidence in order to show
that the complainant was closely associated with known bad characters and smugglers
and because of those associations his client, the appellant, was led to believe that
what he stated against the complainant in the press statement was well founded.
44. D.W. 20 is Kulwant Rai of village Sirhali district Amritsar. In his examination-in
-chief he stated that a case under section 8, sub-section (1) of the Foreign Exchange
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Regulation Act and section 5, sub-section (3) of the Land Customs Act and section 19
of the Sea Customs Act was pending in the Court of a Magistrate at Jullundur and it
was alleged against him that 140 tolas of smuggled gold had been found in his
possession. His brother was also an accused in that case. Kulwant Rai was also
prosecuted in the Court of Shri R.R. Dhir. Magistrate Tarn Taran, under the Indian
Arms Act for being in possession of a pistol without a licence. He was also being
prosecuted under the Indian Opium Act for being in possession of nine tolas of opium
without permit. On a representation made by a number of residents of village Sirhali,
Kulwant Rai D.W. 20 said that the case was withdrawn against him. A communication
No. 4604-J(C)-57/9427, dated the 18th May, 1957, was addressed by Shri N.N.
Kashyap, Home Secretary to Government, Punjab, to the District
Page: 807
Magistrate, Amritsar, wherein it was stated that the Punjab Government had decided
that two cases one under the Opium Act and the other under the Indian Arms Act—
against Kulwant Rai, pending in the Court of the Magistrate, First Class, Tarn Taran, be
withdrawn and it was desired that suitable steps be taken to carry out the decision of
the Punjab Government immediately. There is also an affidavit (Exhibit D.Y.), dated
21st of May, 1957, of Kulwant Rai, produced in the Court of Shri Dhir, Magistrate, Tarn
Taran, wherein he stated that the Chief Minister had passed an order on 7th May,
1957, for the withdrawal of the case against him and this order would shortly reach
the Court having been sent by the Home Secretary. He, therefore, requested that the
communication from the Government would shortly be reaching the Court and the
case should not be proceeded with.
45. In this case he was absent from the Court on the 9th of June, 1957, which was
a date of hearing. Proceedings under section 514 of the Criminal Procedure Code were
taken by the Magistrate. A telegram, (Exhibit D. PP.), was received by the Magistrate
from Chandigarh on 9th of January, 1957, which was worded as follows:—
“Shri Dhir Magistrate Tarn Taran.
Kulwant Rai ill. Excuse absence.
Surrinder Singh.”
46. A reference has also been made to Exhibit D.Z., an affidavit of Kulwant Rai,
dated the 28th of January, 1957, made in the Court of Shri Dhir, Magistrate, in which
he had stated that telegram, which has been referred to above, had not been sent by
him but this was the telegram of Sardar Surrinder Singh son of Sardar Partap Singh,
Chief Minister. He also said that he might have sent the telegram from Chandigarh on
9th January, 1957. With respect to the telegram the words used by Kulwant Rai are
“de di hogi…..bhej de hogi”. When confronted with the affidavit, he said, that he was
not certain whether the sender of the telegram was the complainant and that is why
he said in his affidavit “de di hogi” (might have been sent). He had stated in the trial
Court that he had now come to know that the telegram had been sent not by the
complainant but by another person of the name of Surrinder Singh whose parentage
he did not know and who was the nephew of Dewa Singh of village Manhalla and he
had confirmed the fact from him. Exhibit D.A.A. is a statement of Kulwant Rai in the
course of the proceedings taken against him under section 514, Criminal Procedure
Code, for the forfeiture of the bond executed by him. There, he said, that he could not
attend the Court as he had fallen ill and that he was under the treatment of Doctor
Mela Ram, registered medical practitioner, and that he had obtained a medical
certificate from him on 8th of January, 1957, which he produced in the Court on 29th
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of January, 1957, and that information had been given to the Court by telegram. He
also stated that on 19th January, 1957, which was a date of hearing, he did not
produce the medical certificate because it was left in the office of the cold storage,
Amritsar.
47. The complainant, as P.W. 1, has denied having sent the telegram (Exhibit
D.PP). From the above I am desired to conclude that Kulwant Rai was engaged in
smuggling and in other crimes and the complainant was a close friend of his and had
not only sent a telegram to the Magistrate to excuse his absence owing to his illness
but had even exercised his influence with the Punjab Government in order to get the
two cases under the Opium Act and Indian Arms Act, in which he was the accused,
withdrawn.
Page: 808
48. The above evidence, in my view, does show that the complainant and Kulwant
Rai were well known to each other and that the telegram was, in all probability, sent
by the complainant to the Magistrate on behalf of Kulwant Rai. When Kulwant Rai
made his affidavit, (Exhibit D.Z.), he had stated that the telegram had been sent by
Surrinder Singh son of Chief Minister. The only thing with respect to which he could be
said to be uncertain was that Surrinder Singh might have sent the telegram from
Chandigarh. Kulwant Rai's affidavit shows that the only doubt in his mind was as to
the telegram having been sent from Chandigarh and not as to the identity of sender of
the telegram. There is sufficient material on the record to justify a conclusion that the
complainant and Kulwant Rai were well known to each other and out of friendly
relations the complainant had sent a telegram to the Magistrate on his behalf.
49. Apart from the fact that two cases under the Opium Act and under the Indian
Arms Act, for which Kulwant Rai was being prosecuted, had been withdrawn, it is not
brought out the record as to whether he, in fact, had been engaged in gold smuggling.
At the time when he made the statement a criminal case against him was pending for
being in possession of smuggled gold but it is not shown on this record whether the
case was proved and he had been convicted. Even if it had been established that
Kulwant Rai had been found in possession of smuggled gold and had therefore violated
the provisions of the Foreign Exchange Regulation Act, the Land Customs Act and the
Sea Customs Act, it cannot reasonably be argued that the appellant was justified in
calling the complainant a leader of smugglers, in the absence of any proof on the
record that the complainant had any hand in the smuggling. The learned counsel for
the appellant could not, from this record, show that the truth of the imputation as to
Surrinder Singh's complicity in the smuggling had been established. No Court on this
record can connect the complainant with any smuggling activities in which Kulwant
Rai might have been engaged. I, however, cannot accept the contention that the
complainant and Kulwant Rai were strangers to each other, but assuming they were
close friends that fact alone cannot show that they were associates in smuggling. From
the facts proved it is not possible to jump to the conclusion which was arrived at by
the accused in the defamatory statement.
50. It was next alleged that the complainant had close associations with one Hazara
Singh of village Ratoke, which is at a distance of 14 to 15 miles from village Kairon.
Hazara Singh and some others were prosecuted under section 302, Penal Code, 1860,
by the Amritsar police for having committed murder of two persons Jagir Singh and
Satwant Singh on the border. They approached the Deputy Commissioner, Amritsar,
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the Deputy Inspector General and Inspector General of Police and the Chief Minister,
Punjab, for withdrawal of the prosecution against them. Applications were made to
Major Naurang Singh, Senior Superintendent of Police, at Amritsar. Major Naurang
Singh gave instructions to the Prosecution Deputy Superintendent of Police to
withdraw the case against Hazara Singh but the Magistrate declined to entertain the
application for withdrawal and committed Hazara Singh to stand his trial before the
Sessions Court. Major Naurang Singh appeared as D.W. 1 in that case and in the
course of his examination-in-chief he admitted having instructed the Prosecution
Deputy Superintendent Police to withdraw the case against Hazara Singh (vide Exhibit
D.G.G.), and he was consequently, acquitted by the Additional Sessions Judge.
Page: 809
51. Under the Border Defence Scheme Hazara Sing was given a rifle on the report
of the police. It was stated that the complainant and one Sohan Sing had stood
sureties for Hazara Singh, but in his statement as D.W. 22, he denied this and said
that be saw the complainant for the first time when he came to give evidence in this
case. The licence had been cancelled on account of the murder, case for which he was
prosecuted. He was also proceeded against, for the possession of unlicenced revolver
but this case was withdrawn against him. He admitted having been challaned for
obstructing the police but denied being registered by the police as a bad character.
52. Reliance was next placed upon the statement of D.W. 29. Hardin Singh of
visage Patti. He said, “it was a rumour that the complainant and his farther helped
Hazara Singh Gill in being bailed out”. This witness deposed that Hazara Singh helped
the complainant's father in the 1952 elections; and the complainant and Hazara Singh
used to go out together during the elections. He also said, “Hazara Singh Gill is a
badmash, he is a smuggler, he is thick with the police because he wields influence
with the Government on account of the complainant.” This witness stated that he was
arrested by the police on 19th of June, 1959, as a suspect smuggler and he was kept
in the lock up from 19th of June, 1969, till 25th of June, 1959, and had now been let
out. He said that he was arrested because he had been summoned as a defence
witness in this case. In his cross-examination he said, “I have only heard that Hazara
Singh Gill is a smuggler and a badmash”.
53. D.W. 33, Saligram, a shopkeeper of village Patti, stated that the complainant
and Hazara Singh Gill were moving together in 1957 elections and they had come to
help Narain Singh Shabazpuri, a Congress candidate.
54. Exhibit D.C. is an application of the complainant, dated 26th of April, 1957, for
passport to Pakistan where he wanted to go “for pleasure trip and to meet old friends”.
This application was “strongly recommended” by the Senior Superintendent of Police.
A similar application was made by Sadhu Singh on the same day who wanted to
proceed to Pakistan also “for pleasure trip and to meet old friends”, and this was also
“strongly recommended” by the Senior Superintendent of Police. This Sadhu Singh is
an Horticulture Supervisor at Jullundur. Gurrinder Singh, younger brother of the
complainant, also applied for passport to Pakistan on 26th of April, 1957, which was
also recommended by the Senior Superintendent of Police, Major Naurang Singh.
55. In order to show friendly relations between Major Naurang Singh, Senior
Superintendent of Police, with the complainant and also between Sadhu Singh and the
complainant, a large number of documents relating to telephone trunk calls, have
been placed on the record. The passport applications have also been produced in order
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to show friendship of Major Naurang Singh with Sadhu Singh and the complainant.
The record relating to the trunk calls shows that during 1956 a number of particular-
person calls had been hooked from the residence of the Chief Minister at Chandigarh
for “Sadhu Singh, Surrinder Singh”, and also for “Sadhu Singh, Gurrinder Singh”.
Some calls were booked for Sadhu Singh at the telephone number of the Cold Storage,
Amritsar, of which the complainant was the Manging Director. The only object for
which this voluminous evidence has been produced is to show that the complainant
and Sadhu Singh and Major Naurang Singh were well known to one another.
Page: 810
56. I am willing to accept that the complainant, Sadhu Singh and Major Naurang
Singh, Senior Superintendent of Police, were on friendly terms. It is also believeable
that Hazara Singh, who had been prosecuted in a murder case but acquitted by the
Additional Sessions Judge, was well known to the complainant. It is not, however,
clearly shown on the record whether Hazara Singh was entered as “Badmash” on the
police registers. There is, however, no clear and convincing evidence on the record to
show that Hazara Singh was a gold smuggler. From the fact that Hazara Singh was
seen together with the complainant during election days or further, from their being
friendly with each other it cannot be concluded that both of them, with or without the
connivance of Major Naurang Singh, Senior Superintendent of Police and Sadhu Singh,
Horticulture Supervisor, had any interest in the activities of gold smugglers. Apart
from the hearsay, statement of D.W. 29, Hardin Singh, there is nothing on the record
to show that Hazara Singh was engaged in smuggling of gold on the border. It is
likely, that Hazara Singh may not be the type of man with whom respectable people
may like to associate, or to have, as a friend, but from the fact, that the complainant
ought not to have been on social terms with a person of allegedly undesirable
antecedents, an imputation of the nature levelled against the complainant by the
appellant cannot be justified. However, thick the association of the complainant with
people like Kulwant Rai or Hazara Singh might have been, there does not appear to be
the slightest warrant for saying, that the complainant was a smuggler or a leader of
smugglers.
57. The next argument of the learned counsel for the appellant, is, that even if such
an inference is not deducible, the association of the complainant with people like
Kulwant Rai and Hazara Singh furnishes sufficient material for the appellant to form a
bona fide belief in the truth of his allegation against the complainant. This argument
will be examined in detail at a latter stage.
58. It is then said, that the complainant also associated with Sohan Singh of village
Kairon and some other bad characters. This Sohan Singh was summoned by the
accused as his own witness and he appeared as D.W. 26. In the course of the
examination-in-chief he stated that it was incorrect that smuggled gold was recovered
from his possession on 25th of November, 1956, but smuggled gold was foisted on
him. While he was travelling in a bus on 25th of November, 1956, some persons of the
Customs Department tried to bodily remove a passenger from the bus and he
interfered. On this they took him to be an associate of the person whom they were
trying to remove and thus had involved him in the case, fie admitted having been
fined Rs. 5,000/- by the Customs Department, and said, that he had filed an appeal
which was pending. He said that he had seen the complainant on that day in the Court
and he was not known to him previously. No association between the complainant and
Sohan Singh, D.W. 26, has been established.
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59. Shri Malik next contended that the complainant had associations with one Dev
Raj who had been found guilty of smuggling gold. The only proof of the complainants
association with Dev Raj was a photograph taken at a tea party of several persons,
including these two. This photograph was of the Home Minister, certain members of
the Parliament and other persons, including the complainant and Dev Raj. Nothing has
been brought on the record to prove that the complainant and Dev Raj were even
known to each other. Shri Malik did not rest his argument on any other material
besides this photograph (Exhibit D.I.). It is difficult to conceive of a more fatuous
argument to prove association on the
Page: 811
basis of a photographic snap at a tea party than the one advanced by the counsel for
the accused.
60. Shri Malik also argued that the complainant wanted to visit Pakistan during the
hay day of smuggling and he obtained a passport from the Government of India and a
visa from the office of the Pakistan's High Commissioner exempting him from arrival
and departure report. Without utilizing the passport it was returned to the Home
Secretary. The desire to visit Pakistan was associated with contacting persons
interested in smuggling gold into India. All that we have on the record is that the
complainant had obtained a passport for Pakistan in the year 1957 but he did not go
to Pakistan. Because the complainant had applied for a passport for visiting Pakistan in
the year 1957 the appellant's counsel wants to leap to the conclusion that the object
must have been to make contacts with the people engaged in smuggling gold on the
Pakistan side of the border. In the absence of any material on the record even
remotely connecting the complainant with smuggling, it is not possible to conclude
that the intended visit was in furtherance of smuggling activities.
61. The above is the gist of all the material placed on the record in support of the
allegation against the complainant, as to smuggling. The evidence taken separately
and as a whole does not implicate the complainant with the operation of gold
smuggling on the border. On the assumption that the entire evidence to which
reference has been made is credible it is totally insufficient for founding the charge of
smuggling. The only answer to the arguments based on the above evidence, is, non
sequitur. The inference sought does not follow from these premises. In the
circumstances it is not necessary to criticise the evidence on the ground of unreliability
or partiality.
62. The next imputation to be examined is, that the complainant was “responsible
for a large number of crimes being committed in the Punjab and as he happens to be
the Chief Minister's son the eases are always shelved up”. The natural meaning of
these words is that a large number of crimes are being committed in the Punjab for
which Surrinder Singh Kairon is responsible and these cases are shelved in view of his
being the son of the Chief Minister. The primary sense of this imputation appears to be
the moral accountability of the complainant for a large number of crimes which are
being committed in the State. This suggests the idea of crimes being committed by
others but with his abetment. He may be an accessory, before the fact or after the
fact, as on account of his being the son of the Chief Minister the cases are not
proceeded with. Such evidence, to which my attention has been drawn on behalf of
the accused in respect of this imputation, relates to the personal conduct of the
complainant with regard to certain incidents to be examined presently.
63. The appellant's counsel then animadverted upon what he called the bad
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antecedents of the complainant. Regarding the career of the complainant he said that
he passed the M.A. examination in Political Science in 1953 and desired the post of
lecturership which carried a salary of Rs. 150/- per mensem. He then joined the
service of Dunlop Rubber Company which he gave up after some time. In 1956 shares
were purchased by him in Amritsar Co-operative Cold Storage and he became the
Managing Director receiving Rs. 500/- per mensem. He purchased shares of the value
of Rs. 15,000/- after borrowing the amount from his brother-in-law and he remained
the Managing Director for 18 or 20 months when he resigned.
Page: 812
64. Reference was then made to an incident when the complainant was a student in
the Government College Hoshiarpur. The Principal, K.K. Dewett, addressed a
confidential D.O. letter (Exhibit D.W. 15/A) to Dewan Anand Kumar, Vice-Chancellor of
the Punjab University, Solan. In this letter it was stated that Surrinder Singh son of
Sardar Partap Singh Kairon came to the college on 19th January, 1953, to get his
certificate. Before seeing the Principal he went round in the college with a stick
threatening several students. The Principal sent for him. Surrinder Singh was excited
and it was difficult for the Principal to keep him under a restraint. On a false pretext he
went out of the Principal's room. It was later brought to the Principal's notice that with
the help of friends he began to intimidate and threaten students with the dire
consequences. His behaviour had provoked college students in making a protest. It
was reported to the Principal that Surrinder Singh had threatened to beat some
students and even to shoot some of them with a pistol. The police came to the college
and Surrinder Singh then left Hoshiarpur. The students went on token strike and also
passed some resolutions presumably against the conduct of Surrinder Singh. Mr.
Dewett appeared as D.W. 15 and stated during the course of cross-examination that at
the election of the office bearers of the Union of Students in the college the students
had formed themselves into two groups. The Students' Front was a group led by
certain students with communist leanings and Surrinder Singh led another group
which was pro-congress. The fight which had been referred to in his letter (Exhibit
P.W. 15/A), was between the leaders of the two groups. He also stated that during the
complainant's stay in the college as a student he had not received any complaint from
any quarter against him.
65. This incident cannot, with any sense of fairness be pressed into service in order
to support the imputation that the complainant was responsible “for a large number of
crimes being committed in the Punjab”. The affair is certainly indicative of rough and
boisterous conduct manifesting wild horse-play which is sometimes indulged in by
young people not broken in to discipline. This conduct may show juvenile indiscipline
but not juvenile delinquency; certainly not a crime in the sense of the libellous
imputation made.
66. It was then alleged that certain other crimes had also been committed by
Surrinder Singh Kairon. He was cross-examined at length about the Amritsar Co-
operative Cold Storage. He stated that before he joined the Society as Managing
Director it existed on paper only. The members of Kairon family acquired controlling
interest and the complainant built the cold storage at an estimated cost of Rs.
2,50,000/-. Funds were also raised by taking loan from the Provincial Co-operative
Bank at Jullundur. The sum borrowed was about Rs. 1,75,000/-.
67. A speech delivered on 14th May, 1957, by Shri Jagat Narain, M.L.A., in Vidhan
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Sabha was also referred to. During the course of the speech, Shri Jagat Narain read
extracts from a letter he had received form a friend of his. These extracts referred to
the cold storage at Amritsar and suggested that the quantity of cement issued to the
cold storage for construction by the departments of industries and civil supplies was
only nominal whereas the building had used a colossal quantity and a question was
posed, wherefrom had all this cement come? In the same letter there was reference to
the timber which was taken for the cold storage. The letter mentioned that the timber
was bought in an open auction at Pathankote with the only difference that the
auctioneer's hammer had fallen long before the prospective bidder could bid. A formal
Page: 813
complaint had been made but the letter said who would dare to investigate a
complaint against the son of a Minister. The speech and the extracts of the letter
which were read, contained an innuendo suggesting irregularities and illegalities
committed in obtaining cement and timber. On being asked to indicate the breach of
any Act, Statutory Rule or Bye-law in the procurement of cement or timber the
appellant's counsel was not in a position to give any information. Beyond what was
contained in certain speeches and the extracts from the letter no specific evidence was
pointed oath showing the commission of any offence. Shri Jagat Narain, M.L.A.,
appeared as D.W. 18, and nowhere in his statement there is reference to any fact
supporting this or the other libellous imputation. Shri Jagat Narain has admitted to
there being acute political differences with Sardar Partap Singh Kairon, the
complainant's father. It is not possible, even from his lengthy statement, to discover
material in support of the imputations made by the appellant.
68. Reference was then made to the statement of the complainant. He had stated
that timber had also been purchased from the Forest Department but the deal fell
through and Rs. 2100/- paid as the earnest money had been forfeited. Only one or two
trucks of the timber might have been brought to the cold storage. His statement does
not disclose the commission of any offences or illegalities in the matter of cement and
timber. The counsel for the appellant said that when the complainant stated that he
did not remember whether one or two trucks of timber brought to the cold storage had
been returned to the Forest Department, it should be concluded, that he must have
committed some crime which he was unwilling to disclose. He also argued that when
his client had said that the complainant was responsible for a large number of crimes,
the word ‘crime’ should be read to mean any illegal thing done regardless of its being
punishable or not. This argument merely serves to show the weakness of the
appellant's defence.
69. In this series he also read a letter, (Exhibit D.A.), dated the 3rd of July, 1956,
reportedly from the complainant to the Executive Officer, Tarn Taran, asking that the
octroi people at Jandiala Road and Amritsar Road should be asked not to obstruct the
trucks as to octroi. The complainant has denied having written this letter. But it is
maintained by the counsel for the appellant that the statement of the handwriting
expert, Shri Sakhuja, should be accepted when he says that the handwriting of the
letter was similar to the admitted writing of the complainant. According to the learned
counsel this was an attempted crime to avoid payment of octroi. Even assuming that
this letter was addressed by the complainant I cannot read into the words a request
that no octroi should be charged. In any case, it is not shown what was the crime,
which the complainant intended to commit by writing this letter and whether, in fact,
he had committed it.
70. The Advocate-General said that the Amritsar Cold Storage was outside the
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municipal limits of Amritsar town and no octroi was payable. Shri Malik admits that
the cold storage is beyond the municipal limits. No sinister meaning can therefore be
attached to this letter and what was probably meant was that the octroi people should
not harass the trucks loaded with timber when proceeding to the premises of the cold
storage.
71. The arguments raised in defence of the second imputation have been confined
to the college incident, the alleged irregularities committed in obtaining cement and
timber when the cold storage was being constructed and the letter, reportedly written
by the complainant, referring
Page: 814
to the octroi barrier. In support of the charge that a large number of crimes were
being committed in the Punjab for which the complainant was responsible, these are
the only four matters dealt with by the appellant's counsel. These matters can by no
stretch of language, be styled as crimes. It has not even been shown that they were
irregularities or breaches of a private right. Holding the complainant “responsible” for
crimes committed in the Punjab could either mean that the complainant had directly
committed the crimes himself or he caused their commission. In whichever sense the
libellous imputation may be construed the four matters, referred to above, cannot form
any basis in proof of the allegation. In the trial Court reliance was placed on several
other incidents to substantiate the second imputation but they were not referred to in
this Court and the findings of the trial Court on those matters have not been
questioned before ???.
72. It is not the case of the accused that he had made any investigation as to the
truth of his allegations before committing his statement to publication; and the
material, which has been placed on the record during the trial, does not show that
Surrinder Singh Kairon was either connected with smuggling or could be held
responsible for other crimes. In his written statement he did say that—
“during the brief time that I had at my disposal I made all such inquiries that could
be made under the circumstances in reference to the material that had earlier come
to my notice, and having satisfied myself that the Press Note was a fraud, I
accepted the challenge and in good faith and for public good, named Shri Surrinder
Singh s/o Shri Pratap Singh Kairon, Chief Minister as the Minister's son involved in
gold smuggling.”
73. But despite this statement, it is not stated, as to what enquiry had been
conducted to ascertain the truth of the allegations during the brief time at his disposal
which was not more than 24 hours. The contradiction to the Press Note of the Punjab
Government, dated the 22nd of July, 1957, was published by the accused the next
day. There was hardly any time for making any enquiry and the accused has refrained
from acquainting the Court as to the nature of the enquiry made by him, if any. He
has nowhere stated, as to who told him, that the complainant was the leader of
smugglers, or, was responsible for the crimes in the State, or when, and under what
circumstances, he came to know about it. There is no material to show that any
information beyond the press reports and the Assembly Debates was in his possession
when the statement was published. In such a situation the accused cannot claim the
protection of the ninth exception as was said by a Bench of the Calcutta High Court in
the case of Superintendent and Remembrancer of Legal Affairs, Bengal v. Puma
Chandra Ghose2 , to which reference has been made earlier. There is no proof of any
kind that the accused had investigated the truth of the charge. He has not even
alleged having made such an investigation.
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74. The facts of this case and the arguments addressed at the bar raise important
questions of law which may be examined at this stage. In this Court the counsel for
the accused-appellant has not relied upon the provisions of the first exception on the
plea that his client was never given fair opportunity by the trial Court to produce the
necessary material.
75. The ingredients of the ninth exception on which the entire arguments of the
appellant have pivoted are, that the imputation on the character of another should be
made in good faith, for the protection of
Page: 815
the interest of the person making it, or of any other person, or for the public good. In
this case the accused has to prove that the publication was both in good faith and for
the public good. Once it is shown that the publication was made in good faith, I will
have no difficulty in assuming that the first part of the imputation, namely, that the
complainant was the leader of smugglers, would be for the public good. It is hardly
debatable that the making of the second imputation, as to the complainant's being
responsible for the commission of large number of crimes in the Punjab, can be for the
public good.
“The term “good faith” is defined both in section 3(22) of the General Clauses Act
(No. X of 1897), and also in section 52 of the Penal Code. According to the General
Clauses Act—
“a thing shall be deemed to be done in ‘good faith’ where it is in fact done honestly,
whether it is done negligently or not.”
76. According to section 52 of the Penal Code—
“Nothing is said to be done or believed in ‘good faith’ which is done or believed
without due care and attention.”
77. The definition of “good faith” in the Penal Code is a negative one. The term
“good faith” is not attempted to be defined there but all that is stated is that if an act
is not done with due care and attention it would not be said to be done in “good faith”.
This definition conies into conflict with the definition in the General Clauses Act to this
extent only that if a thing has been done negligently, though honestly, it would not be
deemed to have been done in “good faith”. The definition of the term in the General
Clauses Act lays stress on one aspect only, but, that in the Penal Code places
emphasis on two aspects, namely, the honesty of intention along with due care and
attention. Thus section 52 excludes the dement of negligence from the purview of
“good faith”. Both the definitions retain the real essence of “good faith”, which is that
a thing is done “honestly”. This is a feature common to both definitions without which
the term “good faith” will lose its real meaning. “Good faith” therefore implies, not
only an upright mental attitude, and clear conscience of a person, but also the doing of
an act, showing, that ordinary, prudence has been exercised according to the
standards of a reasonable person. “Good faith” contemplates an honest effort to
ascertain the facts upon which exercise of the power must rest. It must, therefore, be
summed as ‘an honest determination from ascertaired facts’. “Good faith” precludes
pretence or deceit and also negligence and recklessness. A lack of diligence, which an
honest man of ordinary prudence is accustomed to exercise, is, in law, a want of good
faith. Once this is shown, good faith does not require a sound judgment.
78. In the context of the law of defamation, the requirement of good faith, in
publishing an article derogatory to the character of the complainant, is not satisfied,
by merely showing a belief on the part of the publisher in the truth of the publicatior.
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It has to be shown that the publication had been honestly made in the belief of its
truth and also upon reasonable grounds for such a belief, after the exercise of such
means to verify its truth, as would be taken by a man ??? ordinary prudence, under
like circumstances. On this question the following observations of Mitchell, J., in Allen
v. Pioneer Press Co.3 , may be cited:—
“The next question is, whether upon the evidence the question should have been
submitted to the jury whether ‘the article was published in
Page: 816
good faith; that its falsity was due to mistake or misapprehension of the facts’. This
depends upon what is meant by the expression ‘in good faith’, as used in this
connection.
“We may assume that the Act was designed to protect honest and careful
newspaper publishers. It is not to be presumed that the Legislature intended to
make so radical a change in the law of libel as to make mere belief in the truth of
the article the test of good faith. If so, they have introduced a very dangerous
principle, which virtually places the good name and reputation of the citizen at the
mercy of the credulity or indifference of every reckless or negligent reporter.
Good faith requires proper consideration for the character and reputation of the
person whose character is likely to be injuriously affected by the publication. It
requires of the publisher that he exercise the care and vigilance of a prudent and
conscientious man, wielding, as he does, the great power of the public press.”
79. A publisher of a defamatory statement can only be protected if he shows that
he had taken all reasonable precautions and then had a reasonable and well-grounded
belief in the truth of the statement. The plea of “good faith”, implies the making of a
genuine effort to reach the truth, and a mere belief in the truth, without there being
reasonable grounds for such a plea, is not synonymous with good faith. Exception 9,
therefore, covers two matters, proof of good intention and the exercise of reasonable
care and skill, having regard to the occasion and the cicumstances. Mere subjective
belief, without any objective basis, is not a dependable criterion for substantiating the
ninth exception; an unnecessary aspersion is indicative of want of good faith.
80. The Advocate-General, in support of his argument, that there was no good
faith, has placed reliance on the observations made in a decision of the Privy Council,
reported in Arnold v. King Emperor4 . In certain respects there is similarity in this case
and the Privy Council decision. In that case the appellant Mr. Arnold was the Editor of
the “Burma Critic”, a newspaper, published in Rangoon, and the proceedings arose out
of a defamatory article entitled “A Mockery of British Justice”, defaming Mr. Andrew, A
district Magistrate. In a rape case of a girl aged about 11 years one Captain McCormick
was prosecuted. The District Magistrate was of the view that the charge was false and
he had discharged Captain McCormick under section 209 of the Criminal Procedure
Code. The allegation against the District Magistrate was, that he had by wrongly
discharging the accused “committed the basic breach of trust and was unworthy of the
position he had.” The jury returned a unanimous verdict of guilty and the Chief Justice
sentenced the appellant to one year's simple imprisonment, expressing the view that
in his opinion no grosser, more unwarranted or mischievous libel could have been
published, and that the offence had been aggravated by the conduct of the defence as
the advocates not only reiterated but added to vituperation contained in the articles,
and there was no expression of apology or sorrow for the injury caused to the
complainant, even up to the end of the case, and Lord Shaw said—
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“While the plea of veritas was not openly or plainly made, their Lordships regret to
observe that surreptitiously it did appear and reappear in the case by way of
repeated innuendo.”
81. As to the question which has to be tried in such a case, Lord Shaw said—
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“Notwithstanding the elaboration of the arguments and the introduction of much

matter affecting the conduct of McCormick and the conduct of Mr. Andrew, it was
accordingly this question, and this question only, which the jury charged by Sir
Charles Fox had to try, namely, whether in publishing the libels admitted to be false
Mr. Arnold did so in good faith because he believed them to be true, having given
due care and attention to seeing that they were so. If the jury were satisfied that he
did give that due care and attention, and that he acted in good faith, then the
exception formed a good defence, and the accused would be found not
guilty.” (Page 1050).
82. A similar argument, as had been advanced in this case before me was also
raised by the counsel for the accused. The argument was “that although charges were
false yet he was excused by Statute because he believed them bona fide and had
given due care and attention to their truth”. Reliance was placed upon a letter received
for publication, signed as “Vigilance”. In this case also reliance has been placed upon
the debates in the Vidhan Sabha and also on newspaper-articles. The following
observations of Lord Shaw are helpful for purposes of this case—
“An investigation in the department of a Lieutenant-Governor of great experience
having resulted in exonerating Mr. Andrew from blame, the appellant assumed the
grave responsibility for re-opening the matter. He gave the authorities no inkling of
any fresh information which had come to his hand, and in answer to their enquiry
he simply stated that it was the old incident which he was reviving. Up to the
present the appellant has not given at their Lordships' Bar or in any Court any
statement of any fresh facts which he had discovered. This circumstance was, in
their Lordships' opinion, well worthy of consideration by the jury.
In the second place, both Judge and jury had seriously to consider the attitude of
Mr. Arnold himself. He neither defended the articles as true nor did he give any
assistance on the subject of what were the actual things upon which he founded his
own beliefs nor finally upon what the steps were, if any, which he took to
investigate their truth before giving them to the public.
Thus, although the true issue in the case was as to his own bona fides and the care
and attention which would verify that, Mr. Arnold's action when charged gave no
help to the Court and must to some extent have embarrassed even his own
defence.” (Pages 1057, 1058).
83. As to the conduct of the defend, Lord Shaw said—
“Their Lordships make every allowance for the heat of advocacy which as noted by
the Chief Judge, seems to have been in this case great. But when a gross mistake
of that kind on a matter of fact—the truth of which when exposed would have
ruined any administrative or judicial officer's career—was discovered, the libel
should not have been adhered to for a moment. The mistake should have been
acknowledged and an apology tendered. This was not done, but upon the contrary
the case was conducted to its close upon the footing that an unstated defence was
the real and good defence, namely, tint the libels and all the libels were true.
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Nobody is to be blamed in these circumstances for thinking that the plea of good
faith on the part of Mr. Arnold had sustained a serious shock.” (Pages 1061, 1062).
84. This decision brings out four principles:
85. Firstly, that “good faith” means good faith and also the exercise of due care and
attention;
86. Secondly, that due care and attention means that the libeller should show that
he had taken particular steps to investigate the truth and had
Page: 818
satisfied himself from his enquiry, as a reasonable man, that he had come to a true
conclusion;
87. Thirdly, that the conduct of the accused, during the course of the proceedings
in a Court, is a relevant factor in determining his good faith; and
88. Fourthly, that if there are several imputations, good faith or truth must be
proved with respect to every imputation, and, if he fails in substantiating truth or good
faith in respect of any one imputation, conviction must stand.
89. In the case before me the accused has not said a word that he had investigated
into the truths of the imputations made by him. In his written statement, he said that
he had hardly any time for making an enquiry, not more than 24 hours. His attitude in
the trial Court, and as made clear in this Court by his counsel, has been of complete
recalcitrance to the end. Though in clear terms it was stated that reliance was not
being placed upon the first exception and the plea of truth had been given up, the
appellant expressed no regret or remorse for having published the impugned
statement. In the words of his counsel—“My client is not but to tender an apology. It
is a matter of principle and personal conviction with him. He stands by what he has
said.” In the written statement, the libel has been reiterated and by way of
justification, several other calumnious reflections have been indulged in.
90. In Queen Empress v. Dhum Singh5 , the accused, who was facing libel charge
had pleaded that the defamatory statement was protected by the eighth exception
being an accusation made in good faith to a person in law having full authority.
Straight, J. said—
“It will be observed that two ingredients are essential to establishing of this
protection—
(i) that the accusation must be made to a person in authority over the party
accused; and
(ii) that the accusation must be preferred in good faith—that is to say, with such
reasonable care and attention on the part of the person making it, in first
satisfying himself of the truth and justice of his charge, as an ordinary man
should be expected to exercise.”
91. Referring to the plea that there was a strong suspicion in the mind of the
accused of the impugned conduct of the complainant. Straight, J. said—
“But this was not enough, and he should have exercised greater care and attention
in making himself sure of his facts before committing his accusations on this point
to writing. As to the residue of matters mentioned in the six earlier heads of charge,
it is clear to my mind from the evidence and his own statement before the
Magistrate that the appellant acted upon mere rumours that were flying about
Pilibhit, and as they referred to the cases of other persons, in which he had no
direct interest, more stringent tests must be applied in determining the question of
his good faith. Even if proof of such rumours was admissible, of which I am by no
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means clear, it was his duty, before committing them to writing as direct charges
against Badrul Hasan, to satisfy himself by all reasonable means at his command
that they were well founded in fact, and if he failed in this respect, he published
them at his peril, and must take the responsibility for them that the law
imposes.” (Pages 223, 224).
92. Reference may also be made in this connection to the case of Shibo Prosad
Pandah6 , where observations have also been made to similar effect.
Page: 819
93. The principal argument of the counsel for the appellant has been that the
reports in the Vidhan Sabha and the newspaper-articles, to which reference has
already been made, had been published before he had issued the impugned statement
to the press, and from this it should be deduced that the requisite due care and
attention, as contemplated by section 52 in support of the plea of good faith, had been
exercised. The reports which had preceded his statement do not mention the name of
the complainant any where. Reference made to a Minister's son being involved in
smuggling, cannot, by necessary implication, refer to the complainant. These speeches
expressed the concern of the speakers at the increasing undetected gold smuggling on
the border and they thought that sufficient steps were not being taken to stop it.
Suggestions were made that important and influential men in Politics and in the
Government were interested in gold smuggling. The speeches and the newspaper
reports do not, in any way, connect the complainant as one of such smugglers or
leader of smugglers. The language of the speeches and press publications cannot be
stretched so as to persuade a reasonable man that the speakers and the journalists
had the complainant in their mind when they were referring to the Minister's son.
94. Even if the speeches and the press-news had expressly referred to the
complainant and even if they had used the identical language, which had been
indulged in by the appellant, the previous publication of similar imputation would have
given to the accused, no protection. The accused cannot justify the defamatory
statement on the ground that similar reports had appeared or by saying, that rumours
to that effect were afloat, as stated in Halsbury's Laws of England (??? Vol. 24, para
84, page 47)—
“If the defendant made a statement, whether in writing or by word of mouth, which
is defamatory of the plaintiff, it is no justification, or no sufficient justification, that
the statement purported to be made on the relation of another, and that it had, in
fact, been related to the defendant by that other, even though the defendant
disclosed the name of his informant at the time or subsequently at the earliest
opportunity.”
95. Every republication of a libel is a new libel, and each publisher is answerable for
his act to the same extent as if the calumny originated with him. The publisher of a
libel is strictly responsible, irrespective of the fact whether he is the originator of the
libel or is merely repeating it. But as pointed out already, in this case, no question of
repeating of a libel arises, because the defamatory statement has originated with the
impugned statement of the accused.
96. An absolute immunity attaches to the speeches made on the floor of the Vidhan
Sabha. The members of the Legislative Assembly and of the Parliament are absolutely
privileged and they can make with impunity libellous statements while participating in
the deliberation of the House and the Court has no jurisdiction to entertain an action in
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respect of defamatory utterances by them as the Members, under the law, are not
amenable to civil or criminal action, despite the fact that the statements are grossly
defamatory and deliberately false. This privilege, however, does not extend to a
statement published by a member outside the House even though it may be an exact
reproduction of what was said during the debate. This matter was settled in England,
in an early case, The King v. Lord Abingdon7 . In that case Lord Abingdon had delivered
a speech in the House of Lords during the course of which he
Page: 820
had indulged in libellous invective against the character of one Mr. Sermon, an
attorney. Lord Abingdon sent the printed version of his speech for publication in the
newspapers. Lord Kenyon observed, that the privilege claimed by Lord Abingdon was
restricted to words spoken in the House of Lords and confined to its walls. Lord
Abingdon was found guilty of having published the libel-charge and was sentenced to
imprisonment and was also ordered to pay a fine.
97. The same principle was reiterated in The King v. Creevey8 . It was held that—
“A member of the House of Commons may be convicted upon an indictment for a
libel in publishing in a newspaper the report of a speech delivered by him in that
House, if it contains libellous matter, although the publication be a correct report of
such speech”.
Bayley, J. said—
“A member of Parliament has undoubtedly the privilege for the purpose of
producing parliamentary effect to speak in Parliament boldly and clearly what he
thinks conducive to that end. He may even for that purpose, if he thinks it right,
cast imputations in Parliament against the character of any individual; and still he
will be protected. But if he is to be at liberty to circulate those imputations
elsewhere, the evil would be very extensive. No member therefore is at liberty so to
do.”
98. It follows that the members of the Vidhan Sabha, if they had indulged in
publishing speeches, libellous in character, in newspapers, they would not have been
protected. Surely, the accused cannot escape the consequences of the criminal law of
defamation by giving publicity to libellous utterances made by members on the floor of
the Assembly. In this case it is to be noticed that the members of the Legislative
Assembly, to whose speeches reference was made, did not make any imputations
against the character of the complainant either inside or outside the Assembly. If any
one of them had published libels to the world outside by issuing press statements or
by addressing public meetings the protection of the parliamentary privilege could not
have been successfully claimed. It follows, that it is perilous, to repeat in public a
libellous statement, even if, its first publication in a House of Legislature, is privileged.
Each repetition is a fresh defamation and the person, who has made the words of
another his own, is liable to the same extent as if he had originated the story. It is
equally well settled that previous libellous publication by another, of the same
defamatory words, is neither an evidence of the truth nor proof of the exercise of due
care and caution.
99. The accused should have realised that there was no mention of the name of the
complainant even in the speeches of those members of the Assembly who were known
critics and opponents of the Chief Minister. In this connection reference has already
been made to the statements of D.W. 18, Shri Jagat Narain M.L.A., and D.W. 34, Shri
Probodh Chander, M.L.A. Neither of them has said that he had received complaints
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against Surrinder Singh regarding gold smuggling. The appellant before rushing to the
press should have, as a man of ordinary prudence, paused and pondered, that even
those members of the Vidhan Sabha who were open antagonists of the complainant's
father had not said, that his son was engaged in smuggling, even when they were fully
protected by the law. It should have occurred to the appellant that was because they
could not support such an allegation. Even if, an exactly similar
Page: 821
statement had been made on the floor of the Vidhan Sabha, the accused should have
realised that no privilege is attached to the repetition of the protected statement.
Again, when the Government had issued a press-note categorically denying that no
son of a Minister was engaged in smuggling, the accused should have been on the
guard, and, he should have exercised greater caution, and should have taken pains to
ascertain the facts, before publishing his refutation. He has not chosen to acquaint the
Court as to what efforts, if any, had been made by him for finding out the truth.
100. Reliance upon rumours, even if widely current, is no defence to a charge of a

criminal libel not being protected by exception 9. It is no defence on the part of the
accused to say, that the matters referred to in the alleged libel were bruited about and
the rumours, which were in circulation, were being believed. By proving prevalence of
rumours, the accused can neither substantiate the defence of truth, nor of good faith.
The accused can only succeed on producing proof of the truth of the matter charged,
as libellous, and not by leading evidence, as to his own belief in its truth. Evidence of
rumours, and of appellant's conviction, in their veracity, will not sufficie to stave off
the injurious consequences of an assault, on the other man's reputation. If an
information is shown to have been obtained from a supposedly reliable source, and
thereafter it is subjected to a reasonable investigation, a belief in its truth will mitigate
the guilt. In order to earn complete immunity all the ingredients of the ninth exception
have to be substantiated before a libeller cart be suffered to injure the complainant's
good name.
101. What matters in all such cases is truth and not the persistence in the libel. A
certain statement may be said to be in everybody's mouth, but that is no proof of its
truth, and, that is why, a previous publication by another of the defamatory words is
no justification for their repetition, far less, the evidence of their truth. Each repetition,
being in the nature of a fresh defamation, the credence given to such unverified
reports cannot protect the defamer against the outcome of his ill advised and hasty
conduct. A wrong cannot be justified or excused by a wrong. The endorser of a lie is in
no better position than its drawer; and the talebearer has no advantage over the tale-
maker. He who circulates a libel, is liable, equally, with the orginator. It is not open to
a person in the position of the accused appellant to adopt as true the untrue
statements male by others and then come out with the defence of good faith.
102. Cave, J., in Scott v. Sampson9 , said—
“To admit evidence of rumours and suspicions is to give any one who knows nothing
whatever of the plaintiff, or who may even have a grudge against him, an
opportunity of spreading, through the means of the publicity attending judicial
proceedings, what he may have picked from the most disreputable sources, and
what no man of sense who knows the plaintiff's character would for a moment
believe in.”
103. It will not be inappropriate to analyse what is understood by the terms
“character”, “reputation” and “rumour” as these are prone to be-confused. “Character”
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is what a person actually is, and “reputation” is, what neighbours say, what he is. Thus
a man may have, in fact, a good character and yet suffer from bad reputation or vice
versa. “Reputation” is what is reputed. It is the common knowledge of the community
or a general opinion in respect to a person. It is the estimation
Page: 822
in which a person is held by others and not the opinion which he may have of himself.
“Reputation” is a composite hearsay, but it is admitted in evidence on grounds of
necessity. “Reputation”, however, is distinguished from “rumour”. In the words of
Professor Wigmore:
“Reputation, being the community's opinion, is distingushed from mere rumour in

two respects. On the one hand, reputation implies the definite and final formation of
opinion by the community; while rumour implies merely a report that is not yet
finally credited. On the other hand, a rumour is usually thought of as signifying a
particular act or occurrence, while a reputation is predicated upon a general trait of
character, a man's reputation, for example, may declare him honest, and yet today
rumour may have circulated that this reputed honest man has, defaulted yesterday
in his accounts.”
104. A bad general reputation can, therefore, be proved but not rumours or
suspicions. It is not open to give evidence of particular facts showing bad character or
disposition. Section 55 of the Indian Evidence Act allows as admissible the evidence of
general reputation and of general disposition but not of particular facts or of traits.
105. In Hobbs v. Tinling10 , Scrutton Lord Justice observed:
“The defendant may mitigate damages by giving evidence to prove that the plaintiff
is a man of bad general reputation, and the plaintiff may rebut it by ‘coming
prepared with friends who have known, him to prove that his reputation has been
good.’ On the other hand, the defendant may not give evidence of rumours at the
time of publication to the same effect as the libel, nor may the defendant give
evidence of specific facts and circumstances to show the disposition of the plaintiff,
as distinct from general evidence that he has that reputation. If those specific facts
are to the same effect as the libel, which he has not justified, he cannot justify
under the plea of damages. If those facts are different from the libel they do not
prove actual reputation, which can be proved under the first head, but that he
ought not to have such a reputation.”
106. The decision in Hobbs v. Tinting10 , was followed in Speidel v. Plato Ltd.11 . The
Court of Appeal observed. “What is relevant is what sort of reputation the plaintiff has
in fact, not whether he ought to have it or not. Farther, the inquiry must be limited to
general reputation. If under the guise of investigating what sort of reputation a man
bears, one were to investigate whether he was thought or said to have committed
specific acts, the inquiry would soon degenerate into an inquiry about what a man had
actually done in his past life as ascertained by rumour and not by fact. All this is laid
down in Scott v. Sampson9 and Hobbs v. Tinting10 , particularly per Scrutton, L.J.
Scrutton, L.J., says clearly that cannot prove in chief specific instances of misconduct,
as distinguished from general reputation, whether involved in the libel or not, in order
to mitigate damages.”
It was also said at page 526—
“The bad reputation which is pleaded in mitigation of damages must bear some
relation to the libel that is complained of. You cannot, for example, mitigate the fact
that you have falsely called a man a traitor by proving that he had a reputation for
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loose morals.”
107. These were action in tort in which the plaintiff had claimed damages for libel.
The principles of law in a criminal prosecution for defamation are not different in this
matter. In this respect in either
Page: 823
case loss of reputation is the foundation for an action or prosecution. On the basis of
the reasoning in the above cases it is difficult to justify reception of evidence relating
to the incident in the college or pertaining to transactions of cement or timber or even
evidence of association. These pieces of evidence cannot be taken in support of either
of the two impugned imputations.
108. It was, however, open to the accused to show that the complainant had the
reputation of being the leader of smugglers but no such evidence has been placed on
the record. Such evidence, as has been adduced, does not connect the complainant
with the gold smuggling.
109. The next question that arises in this case, is as to what evidence has to be
led, by the accused in a defamation case, when he is pleading either “truth” or his
“good faith” as understood in law. The learned counsel for the appellant contended
that the standard of proof differs when the onus lies on the accused. The plea of
justification of the charge levelled by the accused has to be proved strictly as if it were
an indictment. The law is stated thus by Lord Halsbury:
“If the statement complained of imputes the commission by the plaintiff of a
criminal offence, the defendant, to succeed in his plea of justification, must prove
the commission of the offence charged as strictly as if the plaintiff was being
prosecuted for the offence.”
110. Both, the libellous imputations as to the complainant being leader of
smugglers and his being responsible for a large number of crimes in the Punjab,
imputed the commission by him of criminal offences.”
111. In Chalmers v. Shackell12 , it was held:—
“In an action for libel, to support a plea of justification stating that the plaintiff had
forged and uttered, knowing it to be forged, a certain bill of exchange, to justify a
verdict for the defendant, the same evidence must be given as would be necessary
to convict the plaintiff if he were on trial for those offences.”
112. In Willmett v. Harmer13 , Lord Denman, C.J., in summing up said—
“The first plea of the defendants is a plea of justification of so much of the libel as
imputes the crime of bigamy to the plaintiff; and I think that on this plea of
justification, you should have the same strictness of proof as on a trial for bigamy.”
113. Applying the above principle, a Court is entitled to expect from the accused,
without discharging the onus placed upon him, of proving any defence mentioned in
the exception—that he should adduce facts which would show due care and attention
justifying honest belief in the truth of the allegations.
114. The counsel for the appellant said, that his client had not the resources to be
in a position to have access to the authentic records which might prove the truth of
the imputations and, therefore, had to depend on circumstances and what other
people had said. While advancing this argument the counsel for the accused
unwittingly disclosed the weak foundations on which the case of his client was rested.
This argument of his, is destructive of the plea of good faith. If the accused had no
authentic information he was not under any inevitable constraint, or, indispensable
compulsion which had made it obligatory for him to rush to the press with a statement
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which was pregnant with grave consequences for the complainant, whose reputation
had been reviled, as a result of wide publicity given to the libellous imputation. In
publishing the statement,
Page: 824
in question, the accused conducted himself with unbecoming haste and gross
impropriety which cannot be excused or palliated by any exigency. There is not even a
semblance of good faith in respect of the other imputation that the complainant was
responsible for the commission of a large number of crimes in the Punjab. No attempt
of any kind was made to foist responsibility, upon the complainant, of crimes which
are being committed in the Punjab. A naive and disingeneous plea was taken that the
second imputation referred to certain crimes committed by the complainant in
connection with the college incident, the obtaining of cement and timber and the letter
to the Executive Officer with respect to octroi charges. Not only no crimes have been
brought home to the complainant but the incident, which has been referred to above,
had not even a remote relation to the second imputation. The accused in my view, has
completely failed to substantiate the plea of good faith in respect of his second charge.
The material which has been placed during the trial in support of the defence of good
faith is of such a flismy character that it betrays the defence.
115. The conduct of an accused person subsequent to the publication of a libel,

before and during trial, may also be taken into consideration by the Court. It is within
the power of the accused, in a case like the present, to mitigate his offence or even
aggravate his guilt. In a civil action the defendant can mitigate the damages. By
tendering apology or expressing contrition an accused person may lesson the gravity
of offence. A public retraction or an expression of remorse, without reservation, is
recognised as an extenuating factor and has the effect of blunting the edge of the
offence though such an effect cannot be attained by an half-hearted apology or
reluctant and tardy amends. For sufficiency of retraction, it should manifest an honest
intention to repair the harm done to the injured reputation of the complainant.
Reparation to the defamed person must not be merely colourable. The accused or the
defendant, as the case may be, should admit that the charge was unfounded, made
without proper information and express regrets for its publication. But the appellant
has either not chosen to, or has not been advised to make amends for the injury
caused. On the other hand he has, by his conduct during the trial, added to his
offence. The written statement which was filed by him more than 10 months after his
oral statement under section 342 has been ill advised in the extreme and whoever
advised him to adopt that course of conduct has not helped him but has harmed him.
At the late stage at which the written statement was filed the accused, as well as his
counsel, should have been fully aware of the facts of the case and the legal merits of
the pleas taken in this behalf. The long passage from the written statement which has
been reproduced in the earlier part of this judgment shows, that by submitting written
statement, the opportunity was utilised for further defaming the complainant and his
father in a manner which was wanton and indefensible by any test. Instead of
explaining the two imputations made in the light of the defences taken, the accused
not only, persisted in reiterating the imputations already made, but he launched a
further tirade of invectives and libels which had not the remotest relevance.
116. The accused claims to be a man of some education and he was the Provincial
Secretary of the Punjab branch of the Praja Socialist Party. Not only he cast all
discretion to the winds, but utilised this trial not for proving the truth of the particular
allegations made but in heaping further calumnies and obliquies of a grave character.
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The conduct of the accused during the trial, and even, some of the arguments at the
Page: 825
bar gave me an impression that the real object was not to substantiate the legal,
defences but to utilize the privileged occasion, of the trial for indulging in further
libels. The cross-examination of the complainant on 14 hearings, to which hardly any
reference was made during the course of arguments, also indicated an attempt more
in the nature of mud spattering than with a view to eliciting material in support of the
defence plea. Similar attempts, whenever resorted to, have been reprobated by the
Courts. The defence of justification of the libel, has always been considered to be
perilous for the accused, because, whenever there is failure of proof the plea is
deemed as an aggravation of the offence. But in this case in the written statement the
accused has recklessly and wantonly indulged in making wild and foul imputations
with the set purpose of smearing the character of the complainant.
117. It would have been an act both courageous and graceful to own up his error
but the accused has not adopted the course which men of fairness and honour would
not have hesitated to pursue. He has not only tenaciously adhered to the calumnious
reflection but has utilised the criminal proceedings to serve a most questionable end—
viz. character assassination. The accused must have known that he could not justify
the imputation. He nevertheless persisted in causing that description of pain which a
person feels, who knows himself to be the object of unfavourable sentiments of his
fellow beings. The intentional causing of such pain which falls defamatory imputation
gives, is an evil not easily remediable. It is not always possible even by a judicial
verdict to restore a reputation which has been severely bruised.
118. The practice of filing written statement has been strongly discountenanced
and severely condemned as pernicious by the Courts of this country. The written
statement is evolved out of the brains of the counsel, helped by the friends of the
accused and the practice has been uniformly deprecated. In this case the accused,
when he was being orally examined under section 342, replied to all questions, except
one, by saying “I will file a written statement”. It cannot, therefore, be said that the
written statement represented the mind of the accused or the facts as were known to
him. This view is amply supported by the following among other cases:—
1. The King-Emperor v. Dwijendra Chandra Mukerjee14 ;
2. Deputy Legal Rememberancer, Behar & Ori. v. Matukdhari Singh15 .
3. Dwarka Singh v. The King Emperor16 ;
4. Mohammad Anis v. Emperor17 ;
5. Samarendra Singh v. Emperor18 ;
6. Tilkeshwar Singh v. The State of Bihar19 ; and
7. Sidheshwar Ganguly v. State of West Bengal20 .
119. It was submitted at the Bar and also stated in the written statement, that the
accused had no animus against the complainant of his father, and they were not even
known to him, and in the absence of any enmity or ill will with the complainant or the
members of his family, the libellous statement was without malice. Neither ill-will nor
malice is an ingredient of the offence of defamation, and want of either, cannot serve
as a defence. An unproved plea of justification, injudicious cross-examination of the
person aggrieved, and obstinately persisting in the ??? charge without any sufficient
reason, may be taken into consideration,
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Page: 826
as evidence of malice. Malice at law does not mean, that the accused was actuated
with hatred or ill-will or even that he had an actual intent to vilify or defame such a
person. It suffices that the statement was made wilfully or purposely or without any
lawful excuse or justification.
120. Publication of a libellous statement whether motivated by a rancorous hatred,

or emanating from a misdirected zeal of a crusader, in inflicting pain on the person
defamed, or, in lowering him in the esteem of his fellow-beings, admits of ???
differentiation. The pernicious results which follow, and the mental suffering which is
caused, are not dependent upon the state of mind of the propagator of the calumnis.
The injury sustained, the odium suffered, and the humiliation endured in consequence
of a calumnious imputation, do not vary with the motives which prompted the libel. No
man has a right to libel another for the edification of the community, or for any other
salutary purpose.
121. The last argument on behalf of the accused-appellant, to which I may now
address myself, is, that fair and proper opportunity for proving the defence case, was
not given by the trial Court to the accused. It is said that certain documents which
had been summoned by the accused had been wrongly disallowed and that certain
witnesses of the complainant whose statements had already been recorded, were not
allowed to be resummoned for cross-examination. The prosecution evidence in this
case was closed on 16th of August, 1958 and on 25th of August, 1958, the accused
filed a list of 328 witnesses whom he desired to be summoned. They included the
complainant who had already been examined on fourteen hearings, and he was
desired to be recalled, for purposes of cross-examination, as certain documents had
been received subsequently. The trial Court, by its order dated the 25th of August,
1958, directed the accused to furnish a list elucidating what each witness was likely to
say. On 29th of August, 1958, the accused filed the new list in accordance with the
order of the trial Court. The purpose for which the witnesses were sought to be
summoned or re-summoned, was stated to be to prove “truth, public interest and
good faith”, and to prove documents which had been asked to be summoned by
separate applications made. On 11th of September, 1958, a detailed order was passed
in respect of the summoning of the witnesses who were grouped under five categories.
The trial Court thought that the indication given by the accused against each witness
was vague and the facts or the bundle of facts which the witnesses were likely to
prove had not been indicated with sufficient clarity and further information was sought
from the accused. On 24th of September, 1958, the accused submitted an application
expressing his unwillingness to disclose the contents of evidence, as he thought, that
it was not in accordance with section 257(1) of the Criminal Procedure Code Under the
provisions of section 247, sub-section (1), if the accused, after he has entered upon
his defence, applies to the Magistrate to issue any process for compelling the
attendance of any witness for the purpose of examination or cross-examination, or the
production of any document or other thing, the Magistrate shall issue such process,
unless he considers that such application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of justice.
122. The complainant had also filed his written reply to the application of the
accused opposing requisition of certain records. As the counsel for the accused wanted
to argue the matter the case was adjourned to 6th of October, 1958, but on that date
the counsel for the accused did not address arguments on the application. The trial
Court
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Page: 827
then passed an order on 6th of October, 1958, allowing the accused to summon 35
witnesses. In the same order, the Court specified certain documents which were
ordered to be summoned. This order was challenged by the accused in revision in the
High Court. The revision was dismissed by Capoor, J. by his order dated the 2nd of
February, 1959. Two counsel for the accused were present but they did not choose to
address any argument. In a detailed order Capoor, J. came to the conclusion that the
trial Court had applied its mind to the various aspects of the case and the order did
not deserve to be interfered with. It was also observed, that the trial Court had not
passed any final order, and it was still open to the accused to satisfy the Court during
the stage of their defence, to summon any witness, whose evidence was shown to be
necessary for the just decision of the case. Shri Malik, counsel for the accused, at first,
desired me to review this order but later on he conceded that it was not within my
jurisdiction to review the order passed by Capoor, J.
123. Although, according to the order of the trial Court 35 witnesses were allowed
to be summoned the accused examined only 20 witnesses, number of them having
been given up by the accused. Mr. Sikri urged, that it was never the case of the
accused, not even in his written statement, which was filed at a late stage, that any
witness out of his list of 328 witnesses had told him that the Minister's son, said to be
engaged in smuggling, was the complainant. In the written statement he had vaguely
mentioned that he had received information from some high Government officials but
none of them had been mentioned in the list.
124. Regarding documents, a very large number of records had been summoned by
the accused and it is surprising that no reference has been made to any before me
during the course of the arguments excepting those relating to telephone calls, which
had been booked from the residence of the complainant's father. The contention of the
complainant had been that irrelevant files had been summoned which had no bearing
of any kind on the case, the sole object being to delay the disposal of the case. By way
of illustration particulars were asked of the cases of 66 detenus. The counsel for the
accused wanted to peruse the grounds of arrest and the representations made by
them. It was said that they had stated in their representations that they had been
falsely implicated, in order to divert the public attention from powerful persons who
were actually guilty of gold smuggling. The counsel maintained that this
representation should be treated as a reference to the complainant and his associates.
It was argued by Mr. Sikri that even if the detenus had said that powerful persons
were being shielded, no weight can be attached to such a statement, unless the
persons, referred to, are indicated and the records contained no such indication.
125. An application was made on 3rd of September, 1958, calling for “record
showing the particulars of persons arrested and/or let off or discharged or against
whom cases were withdrawn, including the case files, original proposals and orders
given for letting off, discharging or withdrawing cases against such persons, in
connection with smuggling in Amritsar district in 1957 and 1958 and in particular
about the following persons”. Then the names of 48 persons ??? Files of the records
relating to these 48 persons and another lot, containing files of 18 persons, were
desired to be summoned.
126. In the written reply on behalf of the complainant, dated the 1st of July, 1959,
it is said—
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Page: 828
“The cart load of documents that have arrived in the court have never been referred
to in cross-examination of the complainant or other witnesses and they have been
lying in Court untouched.”
127. In this Court also no reference has been made to these documents.
128. It was also the grievance of the accused that the complainant, who had been
cross-examined twice already and at a great length, was not resummoned, on the
ground, that the telephone records had been received after the complainant's cross-
examination had been closed. The accused, in his application dated the 21st of May,
1959, (Exhibit D.M.) said that the complainant made trunk calls to Lahore and was in
contact with bad characters across the border, and that the complainant had a close
association with persons. Beyond making the above allegation nothing has been shown
to suggest as to who those persons were and what was the nature of the
complainant's association, if any, with them. The telephone record, which was referred
to by the counsel for the accused, discloses the names of the particular persons who
were panted on the telephone but no evidence has been made available that the
particular persons were smugglers. It has not even been shown that the calls had
been made by the complainant. No connection of any kind has been suggested with
the complainant on the calling-side and with the smugglers on the receiving-side with
respect to any of the calls made either to Lahore or to Amritsar. Another illustration of
calling for unnecessary documents relates to the records of the Dunlop Rubber
Company. The complainant has admitted having been in the service of that Company
and had resigned after some time. There is no suggestion of any gold smuggling with
reference to this concern. What instated, at the bar is that it was sought to be shown
from the record that in consideration of giving employment to the complainant the
Dunlop Rubber Company was to obtain profitable contracts from the Punjab
Government. D.W. 2, W. Miranda, is the Officer Manager of the Company and he has
denied that the Company ever obtained any contracts from the Punjab Government.
This record obviously has no relevance with respect to the libellous words.
129. It is then said that the register of P.A.P. (Punjab Armed Police), showing the
names of the persons to whom rifles had given under the Border Defence Scheme and
of their sureties, had not been furnished. Affidavit dated the 7th June, 1958, was filed
by Roshan Lal, the Head Constable of the P.A.P., to the effect that the document had
been damaged by the floods. More than one year later an application was made by the
accused that the affidavit of Roshan Lal was false and the register would have shown
that the complainant was a surety for Hazara Singh. Assuming that it be so, nothing
follows from it of which advantage could be taken by the accused for purposes of his
defence.
130. The next grievance of the accused was that he shall have been allowed to
summon Shri R.P. Kapur, Commissioner, Patiala Division, and that by refusal of the
Court to summon him the accused has Suffered a prejudice. A fortnight after the
defence had been closed an application was made by the accused on 24th of July, ???.
The object of summoning Shri Kapur was to prove certain matters which had come
into existence after 23rd of July, 1957, the date of the publication. They related to
litigation between the two widows of Sardar Mukand Singh, one of whom was the
mother-in-law of the complainant, but the marriage of Surrinder Singh had taken
place six months after the publication, in question. The request of the accused to
summon Shri R.P. Kapur was in my view, rightly refused on the ground that his
statement could have
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Page: 829
no bearing on the subject-matter of the complaint, the publication having been made
much earlier.
131. In this case all sorts of records, which had no bearing, had been called at the
instance of the accused and to which no reference was made during the course of the
arguments. This conduct provides a novel way of causing harassment by resort to
dilatory tactics.
132. It was then urged that the accused had been prejudiced because privilege had
been claimed by the Heme Ministry in the Government of India with respect to the
report by the Deputy Director Intelligence Bureau regarding smuggling in Punjab in
the first half of 1956. D.W. 8, Shri Hari Parkash Sharma, Sectional Officer, brought the
original document asked for by the Court. He submitted an affidavit of the Joint
Secretary in the Ministry of Home Affairs claiming privilege for producing the
document in the Court. On this the Additional Sessions Judge on 17th November,
1958, said “I have gone through the document. The privilege is allowed.”
133. The counsel for the accused has not questioned the correctness of the above
order of the Additional Sessions Judge in granting privilege under the law but what is
said is that the accused should have been acquitted if the privilege was granted. The
learned counsel for the accused has cited two American cases in support of his
contention—viz. Clinton E. Jencks v. United States of America21 and Roviaro v. United
States22 . The decision in these cases cannot be of any avail to the accused-appellant
because they rest on particular law prevailing in that country, which is obviously
different from the law in India. According to the law in the United Stater, of America it
is within the power of a Court to over-rule the claim of privilege on the ground that the
disclosure is essential for determination of the defence of the accused and where
Government insists on claiming privilege the Court can, if it so deems fit, acquit the
accused. The law in this country is contained in sections 123, 124 and 162 of the
Indian Evidence Act and it does not even suggest that an accused is entitled to
acquittal where privilege has been claimed with respect to unpublished official records
relating to any affairs of State. The contention of the learned counsel for the accused,
claiming acquittal for his client where privilege has been claimed on behalf of the
State, has no substance and must be rejected.
134. After having taken careful note of the arguments at the Bar and after having
examined the evidence on the record, I fed satisfied that the trial Court arrived at a
correct conclusion in finding the appellant guilty under section 500, Penal Code, 1860,
for defaming the complainant. The question as to the appropriateness of the sentence
is somewhat perplexing. The main object of the defamed complainant is to clear his
character which has been unjustly aspersed. By these proceedings the law gives the
innocent man, who has been calumniated, the means of retrieving his reputation,
which has been sullied by the libeller. The refutation of the libel is the all important
purpose which the complainant desires to achieve. The complainant's anxiety in
prosecuting the accused was presumably to vindicate his character; and this he has
succeeded. The punishment of the offender from the point of view of the complainant
is a secondary matter. His purpose would have been substantially served if he had
obtained a retraction and an expression of regret from the accused.
Page: 830
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135. One of the ends of imposing punishment is to make the wrong doer suffer in
mind for the mental suffering, his wrong act has caused to his victim, who has sought
judicial protection against the assault on his good name. To a person in the position of
the accused, a censure administered and a strong disapprobation expressed by the
Court of his scandalous conduct should be felt as a punishment.
136. Though Harbhajan Singh by his injudicious zeal and insensate persistence in
the libel and later on by his recalcitrant attitude, has aggravated his offence and has
thereby, deprived himself of lenity which might have been shown to him, the sentence
of one year's simple imprisonment passed on him is nevertheless unduly severe. I
maintain the conviction of the accused-appellant, but I order that instead of
undergoing one year's simple imprisonment, he shall undergo three months' simple
imprisonment and I also sentence him to pay a fine of Rs. 2,000/-. In default of
payment of fine, he is sentenced to undergo three months' simple imprisonment. He is
on bail which is cancelled and he is directed to surrender himself and to undergo the
unserved portion of his sentence.
H.L.S.
137. Sentence reduced.
———
1. (1869) 7 L.R. Equity 492.
2. A.I.R. 1924 Cal. 611 (614).
3. Minnesota Supreme Court (1889) 3 L.R.A. 532, 535.
4. I.L.R. 41 Cal. 1023.

5. I.L.R. 6 All. 220, 222.
6. I.L.R. 4 Cal. 124.
7.
(1794) 5 R.R. 733.
8. (1813) 14 R.R. 427.
9.
L.R. 8 Q.B.D. 491.
10. (1929) 2 K.B. 1 (17-18).

11. (1960) 2 All. E.R. 521, 525.
12. 172 E.R. 1326.
13. 173 E.R. 678, 679.
14. 19 C.W.N. 1043.
15.
20 C.W.N. 128 : 19 Cr. L.J. 9.
16. 47 Cr. L.J. 780.
17. A.I.R. 1936 Oudh 405.
18. A.I.R. 1948 Oudh 99.
19. A.I.R. 1956 S.C. 238.
20. A.I.R. 1958 S.C. 143.
21. 353 U.S. 657.
22. 353 U.S. 53.

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Page 1 Sunday, September 27, 2020

Punjab and Haryana High Court

Harbhajan Singh … Appellant;

The Judgment of the Court was delivered by

7. P.W. 2, Mohan Lal, is the representative of the “Times of India” newspaper at

10. He also said—

is said, except in the cases hereinafter excepted, to defame that person.

“Notwithstanding the elaboration of the arguments and the introduction of much

100. Reliance upon rumours, even if widely current, is no defence to a charge of a

“Reputation, being the community's opinion, is distingushed from mere rumour in

115. The conduct of an accused person subsequent to the publication of a libel,

120. Publication of a libellous statement whether motivated by a rancorous hatred,

4. I.L.R. 41 Cal. 1023.

10. (1929) 2 K.B. 1 (17-18).

22. 353 U.S. 53.

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