5. The prosecution against the “The Flavian Express and Mr.

Dolfopa Sorial is not

Liable to be quashed

It

It is not necessary that the article in the question does contain imputations which could be
termed as defamatory in nature, the imputations should be defamatory per se. In the case of
John Thomas v Dr,K Jagadeesan1 the Hon’ble court held that effect of imputations being per
se defamatory is that it would relieve the complainant of the burden to establish that the
publication of imputation has lowered him in the estimation of the people at large.

The prosecution cannot be quashed on the grounds that the imputations in the article in
questions were not per se defamatory. The exceptions mentioned in the section 499 of Cr.PC
should not be considered at the time and the present complaint does not fall within any of the
exceptions.

In the case of Sewakaram Sobhani2 the court in considering the privileges of Journalism in
publishing matters observed that “ Journalism do not enjoy any privilege and have no greater
freedom that others to make any imputations or allegations, sufficient to ruin the reputation of
a citizen. Journalist are in no better position than any other person Even the truth of an
allegation does not permit a justification under First Exception unless it is proved to be in the
public good. The question whether or not it was for public good is a question of fact like any
other relevant fact in issue. If they make assertions of fact as opposed to comments in them,
they must either justify these assertions or, in the limited cases specified in the Ninth
Exception, show that the attack on the character of another was for the public good, or that it
was made in good faith

In the case of K.M Mathew v K.A Abraham &Others3 in this case the Chief editor of daily
called Malayalam Manorama was prosecuted for the offence of defamation, the person
approached the court under the section 482 of the Cr.PC saying that the prosecution should
be quashed. The court rejected the contention and held that there is no statutory immunity for
the chief editor against any prosecution for the alleged publication of any matter in the
newspaper over which these persons exercise control. In the case of Subramanian Swamy v

1
(2001) 6 SCC 30
2
(1981) 3 SCC 208
3
2002 6 SCC 670
the Hon’ble court held that right to free speech cannot mean that a citizen can defame the
others. In the case of State of Bihar v Lal Krishna Advani 4the Hon’ble court held that Every
individual has a right to protect his reputation. Disparaging and defamatory statements made
about a person to a third person or persons without lawful justification or excuse are
actionable in law. reputation is an integral and important aspect of dignity of every
individual. The right to preservation of one's reputation is acknowledged as a right in rem, a
right good against all the world

The defamatory article read in its entirety makes it crystal clear that the defamatory article
has been published with the sole intention of harming the reputation of the complainant and
the words used are made and published

 The article is prima facie defamatory in nature. It has been published with ulterior motives
and malafides a.

According to the article published the following imputations could be termed as defamatory
in nature. The title of the defamatory article “Family First: The Great Kazalia Land Scam.
Special status was abolished for personal gains of president and his family members. The
article published is not only untrue but it is defamatory per se, on a bare perusal of the article
itself it would highlight that the sole purpose was to defame and tarnish the reputation of the
President.

It is the contention that the article published does not contain truth and even if it is assumed
without admitting that the imputations are true, it is a sufficient defence for a charge of
defamation and that even in such cases the first exception contained in Section 499 of the
Indian Penal Code requires an additional requirement of public good which is missing in the
present case. In other words, both truth and public good are missing and in any case it is a
matter of defence an cannot be considered at the stage of petition under Section 482 CrPC

4
2003 AIR SC 3357