JUDGMENT
Davar, J.
1. Rao Saheb Anant Bhasker Nimkar, the Mamlatdar of Vengurla, filed a complaint against Anandrao Balkrishna Rangnekar, in the Court of the First Class Magistrate of Malwan, Mr. Bijurkar, charging the said Rangnekar with having defamed him and thereby committed an offence punishable under Section 500 of the Indian Penal Code. The Magistrate convicted the accused and sentenced him to three months’ simple imprisonment and a fine Rs. 200, and directed that out of the fine, Rs. 75 should be paid as compensation to the complainant under Section 545 of the Criminal Procedure Code. On appeal, the Sessions Judge remitted the sentence of imprisonment, but confirmed the conviction and sentence of fine. Against this, the accused has applied to us for revision, and the record and proceedings having been sent for, the case has been fully argued before us.
2. The questions that arise for consideration are, whether the accused is guilty of the offence of defamation, and whether, if what he wrote amounts to defamation, the same is covered by any of the Exceptions to Section 499 of the Indian Penal Code, and whether he is properly convicted. In the course of the arguments before us, two very important questions have been argued, namely, whether the proceedings in connection with which the offence is alleged to have been committed were judicial proceedings, and whether the accused is not entitled to absolute privilege as a party to such judicial proceedings independently of any question of good faith governing his action.
3. I propose in the first instance to deal with the main question in the case, viz., whether the conviction is proper and ought to be upheld. In doing so, I must first consider whether the petition presented by the accused to the Assistant Collector of Ratnagiri against the order of the complainant contains statements which are defamatory, and if so, whether they are or are not covered by any of the Exceptions to Section 499. The facts which led to the filing of this complaint are shortly these. As far back as 1849 a portion of certain lands in the village of Kochre in the Ratnagiri District was mortgaged to the grandfather of the accused by one Ramchandra Jivaji Rege, and under the terms of the mortgage deed, the mortgagors paid the assessment on the mortgaged portion of the land, although the accused was in possession thereof. The mortgagors had been doing so for about fifty years, but in 1902, the accused alleges, there was a dispute as to who should pay the assessment and the then revenue authorities decided that the mortgagors should continue to pay the same. That order does not appear to be forthcoming but the fact remains that the mortgagors continued to pay the assessment till March 1913. About this time some new arrangement seems to have come into operation for the collection of revenue in the Ratnagiri District and what are spoken of as Kabja Khatas were opened, whereby the parties in possession of lands were primarily made liable to pay the assessment to Government. The last instalment for the year 1912/13 fell due in May 1913 and was not paid. The mortgagors’ movable property was attached in the first instance. After holding an investigation, the warrant of attachment against the mortgagors was cancelled by the complainant, and a warrant was issued against the accused to recover from him the overdue instalment of Rs. 6-1-4. This was on the 6th of July 1913. In consequence of the warrant the accused paid this amount. He, however, felt aggrieved by this order made by the complainant Rao Saheb Nimkar, and as he was entitled to do under the provisions of the Land Revenue Code, appealed to the Assistant Collector of Ratnagiri against the order praying that it may be reversed. The appeal he presented was in the shape of a petition which he sent to the Assistant Collector by post, and the Mamlatdar complains that it is in this petition that the accused has made statements defamatory of him and thereby committed an offence for which he was prosecuted and convicted. The petition is in Marathi. It has been translated and placed before us, and I have very carefully perused the contents of that petition. Put at its highest in favour of the complainant and at its worst against the accused, the defamatory statements amount to this that the Mamlatdar acted towards the appellant unjustly and spitefully, that in passing the order appealed against he was actuated by personal ill-will and malice against the appellant, and that the Mamlatdar had in acting as he had done exercised his authority with a view to cause harassment and loss to the appellant. The accused when questioned before the Magistrate admitted having sent the petition and admitted that he did make the allegations complained of by the Mamlatdar. He pleaded that he was justified in making those allegations, because he believed them to be true and when asked by the Magistrate whether he did not think that in making those allegations his action came under Section 500 of the Indian Penal Code, he answered that he had not exceeded the privilege given by law to aggrieved persons to make representions to superior officers. There is thus no question of the responsibility of the accused for the petition he presented, and there is no doubt that in that petition he has charged the Mamlatdar that in passing the order he did against the accused, he was actuated by malice and personal ill-will against him. In justification for his attributing personal ill-will to the Mamlatdar, the accused relies on a previous incident between himself and the Mamlatdar, which is fully brought out in the cross-examination of the complainant before the Magistrate, and it is most important for the purposes of this case that the facts relating to that incident should be most carefully scrutinized and taken into consideration. It appears that on the 18th of February 1913 two instalments of revenue which became due in December 1912 and February 1913 amounting in all to Rs. 32 were in arrears. The Mamlatdar went to the accused’s village of Kochre, sent for him and told him to pay up the arrears of these instalments on that very day. The accused promised to pay the only due instalments on the next day. He did take the moneys to the Mamlatdar on the next day, the 19th of February, but did so late in the evening. The Mamlatdar seems to have directed an hour and a half before the II accused went to him with the money that a warrant should issue for the distraint of the accused’s moveable property not only for the two instalments that were in arrears but also for the remaining two instalments for that year which had not become due and superadded a fine of Rs. 5 in the said warrant. Although the accused paid the two instalments that were due, the Mamlatdar insisted on the warrant being executed against him for instalments that were not due and for the fine that was included in that warrant. The accused’s moveable property was distrained and sold in execution and the Mamlatdar confirmed the sale on the 10th of March 1913, the warrant having been executed on the 20th of February 1913. The property attached was valued by the Punch at Rs. 45 and it was sold for Rs. 22. The Mamlatdar complainant has stated to the Magistrate that he thought he had no power to recall the warrant he had issued when the accused paid up the arrears of instalments, but went further and said that even if he had the power he “had no mind to revise the order.” In justification for this action, the Mamlatdar says that he acted as he did towards the accused ” with intent to make a deterrent example in a case.” He admits that there were other people in the village who were equally in default as the accused, but pleads that he selected the accused because his name was first in a list of about ten or twelve persons that was handed over to him and who were alleged to be prominent defaulters. This list was called for by the Sessions Judge, but has not been forthcoming. This conduct of the complainant though strictly legal was in the opinion of the Magistrate, “exceptionally stringent and invidious,” and in the opinion of the Sessions Judge was ‘of questionable propriety’ The details of the action of the Mamlatdar are clearly brought out in his cross-examination before the Magistrate by the accused’s pleader, it is unnecessary to discuss them here with any further elaboration. The accused proved this incident of February preceding the order of the Magistrate of July against which he appealed, as justification for his belief that the Mamlatdar was actuated by personal ill-will against him in acting as he did.
4. These being the facts in the case, I will now turn to consider whether in the first instance the accused has been proved guilty of having committed the offence of defamation, quite apart from any question of the offence, if any, being excused or covered by any of the Exceptions to Section 499. Under this section a person is said to defame another when “by words…intended to be read” he…”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.” This description of the offence of defamation is governed by certain Explanations and Exceptions, and unfortunately as it too often happens, and as it has happened in this case, sufficient attention is not paid to the governing clauses of Explanation 4 to this section. This Explanation in clear and explicit terms Jays down that “no imputation” such as is referred to in the section “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…calling or lowers the credit of that person.” It is an elementary principle of law which criminal Courts have always to keep in view that where a person is charged with having committed a criminal offence, the commission of that offence must be strictly proved against him, and every necessary ingredient of the section under which he is charged must be satisfied before an accused person can be convicted and punished. Therefore in this case, before the conviction of the accused can be sustained, it must be shown that the complainant has proved that what the accused wrote in his petition has directly or indirectly lowered his moral or intellectual character or has lowered his character in respect of his calling or has lowered his credit “in the estimation of others.” The words “in the estimation of others” taken in conjunction with the word “lowers ” in Explanation 4 govern all clauses in that provision of Section 499. There is no evidence whatever in this case even alleging, much less proving, that the complainant, Rao Saheb Nimkar, has been lowered in the estimation of any person. It is most essential to remember that the word used by the Legislature is “lowers” and not “would lower” or “is likely to lower” or “tending to or intended to lower.” It is not, therefore, sufficient for a complainant merely to say that the allegations he complains of have harmed or are likely to harm or were intended to harm his reputation in the estimation of others. He must prove this before he can obtain a conviction. It is not sufficient for a complainant merely to assert that the allegations against him have caused him annoyance, harassment or mental worry. It is not sufficient for him merely to raise a presumption that such imputations may lower him or may lower his moral or intellectual character in the estimation of others, or that they may, in the estimation of others, lower his character in respect of his calling, or may lower his credit. These are matters that must be proved. In this case there is absolutely no proof whatever of all the requisites necessary before a conviction for defamation could be obtained. I have carefully gone through the whole of the proceedings before the Magistrate. Besides the complainant himself, two other witnesses have been examined. Vithal Krishna, the Sheristedar of the officer to whom the appeal was presented, deposes to the receipt of the petition by post, of its being read by the addressee and of its being sent to the Mamlatdar of Vengurla for report. All he says is he read it and the Barnishi Karkun read it and not one word more. The second witness, Mukund Gopal Thucker, the Kulkarni of Kochre, merely proves the handwriting of the accused and his solvency and deposes to nothing else that is relevant in the case. There is not even an effort made to prove that the complainant has been lowered as to his character, credit or calling, reputation or position in the estimation of any single individual. Having regard to the requirements laid down by Explanation 4 to Section 499, I have come to a very clear conclusion that, on the evidence adduced before the Magistrate, he ought not to have convicted the accused of having committed the offence of defamation, and this Court could not confirm the conviction. The accused may have in writing his petition been guilty of any other offence, such as using abusive language or insult or any other offence but he is clearly not guilty of defamation as defined in Section 499 of the Indian Penal Code.
5. While coming to this conclusion, I am not unaware of the fact that in the case of Gobinda Pershad Pandey v. Garth (1900) I.L.R. 28 Cal. 63, Mr. Justice Prinsep has expressed a view of the law of defamation that is in conflict with my view of the requirements of Section 499. Referring to the Sessions Judge, Mr. Prinsep observes :-
He seems, however, to have followed the Magistrate into an error regarding the evidence necessary to prove the offence of defamation, for he points out that there is no evidence to show that the complainant has been injuriously affected by such alleged defamation. That, however, is not necessary to constitute an offence of defamation as defined in Section 499, Indian Penal Code. The law requires merely that there should be an intent that the person who makes or publishes any imputation should do so intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person.
6. I am entirely unable to agree with the learned Judge’s view of the law as laid down by Section 499. It seems to me that the view taken by the Sessions Judge in that case was quite correct and that when Mr. Justice Prinsep stated his view of the requirements of Section 499 of the Indian Penal Code, he entirely ignored or overlooked the provisions of Explanation 4 to Section 499. There is no reference whatever to the limitations imposed by that Explanation, and reading the case under reference, one would be led to believe that Section 499 stood by itself in the Statute Book without the explanation to which I have referred. The judgment, again, loses all force and importance by the fact that the learned Judge in pronouncing his opinion does not give one single reason for his dictum that it was not necessary to constitute an offence of defamation that the complainant should prove that he was injuriously affected. It must also be noticed that this view of the learned Judges is purely obiter, the question before them not being what were the requisites to constitute the offence of defamation, but whether the procedure followed by the Sessions Judge was correct under the provisions of the Criminal Procedure Code. With all my respect for the learned Judges who decided this case, I cannot persuade myself to a belief that the view of the requirements of the section taken by the learned Judges in this case is the right view. It is interesting to note that in the same volume is reported a civil case of Bhooni Money Dossee v. Natobar Biswas decided by Mr. Justice Harrington. In that case the plaintiff Bhooni Money Dossee proved to the satisfaction of the learned Judge that the defendant Natobar Biswas had publicly addressed the following words to the plaintiff in the presence of several persons:- “You are unchaste, you are a prostitute. I will publish before the caste people that you are a prostitute and stop invitations to you. I took you to the garden house at Kalighut and had illicit intercourse with you.” The woman filed a suit to recover damages from the defendant for malicious slander. The learned Judge found on the evidence as a fact that the slander complained of was spoken of and published by the defendant. He further found that the words were not merely vulgar abuse but conveyed a distinct imputation of unchastity and alleged a specific charge of an act of immorality. He, however, dismissed the suit with costs holding that the words were not per se actionable and no damage in fact was alleged or proved.
7. If both the cases are correctly decided, we have this anomaly before us that a party against whose character and morality the very gravest imputations are publicly made, would have no remedy in a civil Court unless he or she proves the actual damage. Whereas according to Mr. Justice Prinsep, the same party could obtain a conviction in a criminal case without proving that he or she was “injuriously affected,” for he says such proof “is not necessary to constitute the offence of defamation.” I find it impossible to believe that that could have been the intention of the Legislature when framing Section 499 and attaching thereto Explanation 4.
8. But assuming for argument’s sake that the requirements of the section and Explanation 4 were satisfied, the next question that arises is, whether the petition presented by the accused contained imputations which were made in good faith for the protection of the accused’s own interests, and whether they were made to a person in lawful authority over the complainant. In order to claim the protection given by Exceptions 8 and 9, the accused must prove his “good faith.” Section 52 provides that nothing is said to be done or believed in good faith which is done or believed without due care and attention. It cannot be disputed in this case that the Assistant Collector to whom the appeal was presented was a person in lawful authority over the Mamlatdar, for he had the power to revise, recall or reverse the order of the Mamlatdar against which the accused appealed. It cannot also be disputed that the accused in presenting his appeal was protecting his own interests. Did he do and say all he did and said in good faith 1 If he did, he would be protected under Exceptions 8 and 9 to Section 499. The Mamlatdar admits that there has been no private quarrel or personal ill-will between him and the accused. The accused has no doubt attributed personal ill-will and malice to the [complainant. The Sessions Judge in his judgment asks a very pertinent question. He says : “The question is whether a reasonable man in the appellant’s position could have believed when making the petition of appeal that the Mamlatdar had been moved by malice to take the step that he did take, to recover the sum of Rs. 6.
9. It is a pity that the learned Judge did not follow up this question and seek for its answer in the Mamlatdar’s own conduct. My answer to this question is in an emphatic affirmative. The Mamlatdar by his previous conduct had given ample reason to the accused for believing rightly or wrongly that he was acting with personal ill-will against him. According to the Magistrate, his conduct towards the accused was “invidious and exceptionally stringent.” According to the Sessions Judge, his conduct towards the accused was “of questionable propriety.” He selects from the whole village in which there were numerous defaulters the accused and makes him a victim in order to set a “deterrent example” to other people. No Government officer has a right to act towards a subject with undue or unnecessary harshness in order that other people may take an example by it. The accused had paid his assessment regularly for years, and not even a notice had been served on him before being called upon to pay. The assessment had fallen into arrears because admittedly the village accountant was inexperienced and incompetent, and the delay in the recovery of the assessment was entirely due to this cause. The accused only asked for a day’s time, he tendered payment with in less than a couple of hours of the issue of the warrant against him, he paid all that was due by him and yet because the law allowed him, with unnecessary harshness the Mamlatdar proceeded to sell the man’s property for moneys that were not due. Not content with that he imposed and levied a fine. The accused’s property was sold for half the value which was placed upon it by the punch. The Mamlatdar’s statement that he believed that he had no power to recall the warrant is, to my mind, an idle pretence. It is equally a hollow pretence when he tells the Magistrate that the value placed on “the” property of the accused by the punch was higher than the real value. He confirms the sale days afterwards. He confesses that even if he had the power, he would not have recalled the warrant. He fails to prove that he selected this man because his name was first in some list which was handed to him but which is not now forthcoming.
10. Having regard to all these facts, I have no hesitation in holding that the accused had the gravest reasons for believing that the Mamlatdar was actuated by malice and personal ill-will towards him in the present instance. The Mamlatdar’s action in February had been most oppressive, and under these circumstances it seems to me astonishing that Government should have sanctioned the accused’s prosecution and paid the expenses of it. Having regard to all these facts, I am very clearly of opinion that even if the offence of defamation had been proved against him, the accused is protected under Exceptions 8 and 9.
11. An extremely unsavoury feature of this case is the order of the Magistrate, Mr. Bijurkar, awarding Rs. 75 as compensation to the Mamlatdar out. of the fine which he imposed upon the accused. The complainant had not been put to the expense of one pice. The harassment, annoyance and hardship was all the accused’s and none of the complainant’s, and yet the Magistrate assesses the Mamlatdar’s mental worry at Rs. 75 and awards that sum to him out of the fine imposed by him on the accused. Quite apart from any consideration of its legality this order is one that, in my opinion, never ought to have been made by the Magistrate. I also think it very necessary to say that in my opinion even if the accused had been guilty of the offence charged against him, the sentence of three months’ simple imprisonment was absolutely and wholly uncalled for and was quite out of proportion to the particular offence charged against the accused.
12. Having regard to the view I take of this case, it is quite unnecessary to discuss the other question whether the petition in question was presented in the course of judicial proceedings and whether the absolute privilege accorded to a party to judicial proceedings under English law is or is not applicable to the present case.
13. I would acquit the accused and order that the fine should be refunded to him and the compensation, if paid, to the complainant be recalled from him.
14. I cannot conclude this judgment without expressing my very deep regret that in this case my views are not in accord with those of my brother Heaton. The great experience of my learned colleague in the administration of criminal justice in this Presidency entitles his views to be considered with the greatest respect. I am quite aware of the difficulties pointed out by him as to Explanation 4 in his judgment which he has been good enough to let me see. My difficulty in accepting those views lies in the fact that the Legislature has in express terms laid down what is necessary to constitute the offence of defamation and as long as the explanation remains on the Statute Book it cannot be ignored nor its importance and significance minimised by Courts administering criminal law.
Heaton, J.
15. In this case as I have the misfortune, which I very greatly regret, to differ from my learned colleagues, I must say a few words as to my own view of the case. the petition we are concerned with, besides describing the order of the Mamlatdar in effect as harsh an unjust, attributes to the Mamlatdar personal spite. Apart from that the petition might be taken as criticising merely the order made by the officer and as not reflecting personally on the officer himself. But when personal spite is attributed, the matter is taken into the region of personalities and has to be dealt with as such. To attribute personal spite to a Mamlatdar in the performance of his duties is a very grave imputation. If true, it would subject the Mamlatdar to the possibility of dismissal; to the probability of degradation or stoppage of promotion; and to the certainty at least of a very severe reprimand. A person who imputes such a thing to a Mamlatdar must be taken to intend harm to his reputation. For, I cannot conceive why such a thing should be said in a written petition unless it was intended to harm the officer’s reputation, in other words to represent his conduct as improper and induce his official superior to believe it to be so. It seems to me, therefore, that the case, unless covered by some exception, falls precisely within the definition of Section 499 of the Indian Penal Code. Both of my learned colleagues think, however, that the case is covered by one or other of the Exceptions and one of the Explanations, the evidence in the case falls short of proof of the offence. He relies on Explanation No. 4. My own opinion is that Explanation No. 4 like the other three merely describes the quality or nature of the imputation and not its actual effects. To illustrate what I mean I would suppose that a Judge of this Court is accused by some entirely unimportant and insignificant person of taking bribes. It would very probably be quite impossible for the Judge to prove that his character was actually lowered by this imputation. The obvious want of truth, coupled with the entirely insignificant character of the slanderer, would probably make it impossible for the Judge to prove that his character was lowered in the estimation of any one whatever. And yet if Explanation No. 4 relates to the effects of the imputation and not merely to its nature or quality, in the case I have supposed, it would be impossible to convict the slanderer of the offence of defamation. I think, therefore, both from the words used and from the general intention of the law that Explanation No. 4 does not provide any difficulty in the way of upholding the conviction. Nor do I think that the case is covered by any of the Exceptions. It can only be covered by them if the words constituting the imputation were used in “good faith”. “Good faith” is defined in Penal Code as meaning that which is done with due care and attention. It does not constitute good faith necessarily that the person making the imputation believed it to be true. “Due care and attention” implies genuine effort to reach the truth and not the ready acceptance of an ill-natured belief. In the case before us, I think that the language of the petition is the language of irritation, that it voices the grievance of the petitioner and not the reasonable reflections of even an ordinary man. That being so, I do not think the imputation, gross as it is, can be said to have been made in good faith. That is the positive conclusion at which I have arrived after considering the petition itself and the conduct of the Mamlatdar as elicited from his cross-examination. It would, I think, ordinarily have been enough to say that I saw for myself no good reason for supposing that the lower Courts were wrong in their conclusion that the imputation was not made in good faith. But having regard to the views of my colleagues, I think it better to express a positive opinion of my own.
Shah, J.
16. I agree that in this case the conviction and sentence should be set aside and the fine, if paid, refunded.
17. I hold with my brother Davar that the accused is protected by Exceptions 8 and 9 of Section 499 of the Indian Penal Code. I do not consider it necessary to give my reasons in detail for this conclusion as, generally speaking, I agree with the reasons given by my learned brother in his judgment for holding that the case is covered by Exceptions 8 and 9.
18. There could be no doubt in this case that the accused was acting in pursuance of a remedy allowed to him by law and presented the petition of appeal to the tribunal authorized by law to entertain it. It is also clear that he was acting for the protection of his own interest. The only question, therefore> with reference to the applicability of the Exceptions is whether he acted in good faith. It seems to me that the lower Courts in dealing with the question of good faith have approached the question from a wrong point of view and have failed to give effect to the circumstances, under which, and the occasion on which, the accused is found to have acted. There is nothing in the case to show that he was acting otherwise than in good faith, and the facts, in my opinion, clearly point to the conclusion that he was acting in good faith, that is, with such care and attention as could be reasonably expected of him under the circumstances. The intrinsic evidence afforded by the petition itself, fails to show that the accused did or believed anything without due care and attention. The care and attention required by law must have relation to the occasion and the circumstances and the question as to what would be due care and attention must be determined with reference thereto. I am, therefore, of opinion that the accused ought to be acquitted. In this view of the case, it is unnecessary to express any opinion as to the other important points arising in this application.
