JUDGMENT
T.N. Singh, J.
1. This is defendants’ appeal who are aggrieved by the judgment awarding damages against them in a defamation suit, indeed to plaintiff/respondent No. 1 only.
2. On 2-11-1972, in a local newspaper, Dainik Bhaskar, at page 6, Cols. 2 and 3, a news item was published which gave rise to the cause of action for the suit. The offensive statement is extracted in para 3 of the plaint and in para 4, it is stated that the extracted news item was false and baseless. Publication thereof had given mental pain and suffering to the two plaintiffs and they had been lowered in public estimation as they had been portrayed as persons belonging to abominable character and conduct.
3. The offfensive statement is extracted below:–
yM+fd;ksa ds uaxs QksVks dk Cysd esyj fxj¶rkj
gFkdM+h yxkdj Hkjs cktkj /kqek;k x;kA
Xokfy;j 1 uoEcj vkt eqjkj iqfyl us eqjkj esa
Hkkxao LVqfM;ks ds ekfyd jke izlkn HkkxZo mQZ eqUuk rFkk e/kqlwnu HkkxZo dks
gFkdfM;ka Mkydj ljs cktkj esa ?kqek;kA iqfyl us bu nksuksa ;qodksa dks dqN
yMfd;ksa ds uaxs fp= j[kus rFkk ,d ;qod dks pkdw fn[kkdj tku ls
ekjus dh /kedh nsus rFkk ekjihV djus dk vkjksi gSA
crk;k tkrk gS fd vkt izkr% esjh tksu uked ,d
fØf’p;u ;qod viuh cfguksa ds fp= ekaxus LVwfM;ks x;k rks LVqfM;ks ds ekfyd us
QksVksa nsus ls vkuk dkuh dhA blh dks ysdj ckr c<+ xbZ vkSj LVqfM;ksa ds
ekfyd tku ls ekjus ij vkeksnk gks x;sA fØf'p;u ;qod Jh esjh tksu us ?kVuk dh
fjiksVZ iqfyl esa fy[kokbZ vkSj ri'khy us ?kVuk dh iwjh tkudkjh nhA iqfyl us
rRdky LVqfM;ks ij Nkik ekjdj ryk'kh yhA ryk'kh ds nkSjku LVqfM;ks ls dbZ
yMfd;ksa ds uaxs rFkk vkifÙktud fp= cjken gq;sA
yksxksa esa ppkZ gS fd LVqfM;ksa ds ekfydksa }kjk
yM+fd;ksa ds QksVks xzkQjh ls vkifÙktud QksVks cukdj muls Cysd esy fd;k tkrk
gSA uxj esa tc bu vijkf/k;ksa dh cktkj esa 'kksHkk ;k=k fudkyh xbZ rks ukxfjd
iqfyl dh iz'kalk dj jgs FksA**
4. Defendants filed a joint written statement. First defendant (Ramesh Chandra Agarwal) was impleaded in his capacity of Chief and Publisher and third defendant Jagdish Chandra Jaiswal) as the local Editor. They pleaded justification and claimed that the information published as a news item was true. They also pleaded that due care and caution was exercised while doing so and that there was no malice on their part in publishing the news item in public interest. It is the duty of the newspaper to inform public matters of public interest for public good. They also pleaded additionally that they had made an offer of correction at the earliest to the plaintiffs, but the latter did not respond.
5. It is necessary to examine only the case of plaintiff/respondent Madhusudan Bhargava as decree is passed in his favour only and that is challenged. In the forefront of his argument, Shri P. L. Dubey, counsel for appellants, has flawed the pleadings and evidence to submit that nothing has been pleaded and proved as would merit decree being passed against the defendants. He has also contended that law of defamation has not been properly appreciated by the trial Court to evaluate the worth in that context of the pleadings and evidence and as a result, the conclusions reached by the trial Court are not sustainable in law. A bald allegation in the plaint that in its entirety, the news item was false, cannot be made foundation of cause of action for libel. The standard of proof prescribed is a strict one because law presumes that defamatory words are false and defendant is entitled to satisfy the Court that statement which is justified, or if it be done, so much as separately justified, is true in substance and effect. Plaintiff must give particulars of the fact and matters from which malice is to be inferred. Counsel cited para-graphs 81, 82, 85, 135, 145, 146, 153 and 155 of Fourth Edition of Halsbury’s Laws of England, in support of his contentions.
6. About the deficient pleading, I shall express my views later. It is necessary to look first at evidence which the plaintiff adduced to make up the deficiency. Plaintiff Madhusudan Bhargava deposed as P. W. 1 and stated that he was employed as a Sub-Engineer in Public Works Department at Gwalior. He proved the offensive news-item, Article P/1 and also proved the order of acquittal passed on 8-10-1974 by Magistrate First Class, Gawlior (Ex. P/8). Reading the order, I find that Madhusudan Bhargava (plaintiff No. 1) and Ram Prasad had been booked for the offence under Sections 147, 149 and 506, I.P.C. Madhusudan Bhargava was tried under Sections 322 506, I.P.C. and he took the defence that Merik John was drunk at the time of occurrence and he assaulted both accused. The prosecution case, as stated in the order, was that Merik John had approached accused Ram Prasad on 1-11-1972 for returning to him nude photographs of his sister which he had taken, but both accused threatened him with dire consequences and refused to return the photos to him. Both of them assaulted Merik John. The verdict of acquittal was rendered on the ground that complainant Merik John’s evidence was non-corroborative. His evidence was discussed. He deposed against Madhusudan attributing to him assault with a stick and the fact that he had reported the matter as per Ex. P/1 to Police Station. Evidence of Doctor (P.W. 2) is also discussed who deposed that on 1-11-1972, he had examined Merik John, Madhusudan and also Ram Prasad and found injuries on their person. The accused were given benefit of doubt.
7. What plaintiff Madhusudan (P.W. 1) did admit in his cross-examination is noteworthy. That there was a police report against him and that he was booked for an offence under Section 506, I.P.C. He admitted and he further admitted that he had been suspended on that ground. Although he denied that in regard to the facts stated in the news-item, published in Dainik Bhaskar, any action was taken against him, records of the disciplinary enquiry in which suspension order was passed were not called for and that fact he admitted in his cross-examination. At para 17, he admitted that in 1972, Ram Prasad was a student of Class V11I or IX and he was his brother. His other brother Mahesh Prasad, plaintiff No. 2 was employed in J.C. Mills. He admitted in para 18 that the records maintained under the Shops and Establishments Act were not produced to establish ownership of the Photo Studio in 1972. He denied the suggestion that Mahesh could not attend the shop as he was employed in J.C. Mills and Ram Prasad was shop’s registered owner in 1972. He admitted that in para 3 of the notice (Annexure P/2) which is served on the respondents, claiming damages for defamation, it was stated that the news-item was published with the connivance of the police. He slated that S.H.C. Hindolia’s intention was to blackmail him and that officer had involved him in other cases. He proved Ex. D/1, reply of the defendant/appellants to his notice. In para 24, he admitted that he did not annex affidavit to the “clarification” which he wanted Dainki Bhaskar to publish in regard to the news-item, while stating that he had personally met defendant/respondent, Editor Jaiswal for that purpose. This fact, however, is not stated in plaint has a distinguished and decisive bearing on plaintiff’s claim.
8. Plaintiff admitted that the alleged clarification which he wanted to be published, he had not filed in the suit though that was still available and was kept by him in his personal file. At para 26, a significant admission is made and that too has a decisive bearing. Clearly and categorically, he stated that he had been searched in connection with the criminal case; his brother Ram Prasad was also searched simultaneously. He also admitted that he was arrested and was released on bail. He staled that in Seizure Memo (Ex. P/4), it was incorrectly written that from his brother RAM PRASAD, the police seized one negative ot a nude photograph of a girl along (sic) deposed that he was handcuffed when he was arrested by S. H. Hindolia and from the place of his arrest, he was made to walk in handcuffed condition when a crowd gathered there. He was confronted with the case news-item published in Daily Niranjan and Jawahar ke Lal (both local papers), but he denied having read those. Ex. D/2 is cutting of the news-item, published in Dainik Niranjan on 2-11-1972 in which “Ram Prasad Bhargava alias Munna and his elder brother Madhusudan” were stated to have been arrested in connection with offence of assaulting Merik John and is also stated that from Ram Prasad’s possession, on search, obscene photographs were recovered and seized.
9. It is not necessary to refer to the evidence of the other two witnesses examined by him. P.W, 2 has deposed only about the effect of publication of the offensive news-item. However, even he deposed (despite admitting, that he was once tenant of the plaintiffs), that the photo studio of the plaintiffs was in a part of their own house. He also deposed that in that house, Mahesh, Ram Prasad and Madhusudan lived together. P.W. 3 gave evidence of good character and conduct of the plaintiffs and their reputation being tarnished as a result of publication of the news-item. He too, however, admitted that plaintiffs lived together and they had their Photo Studio in their house though he denied having seen Ram Prasad and Madhusudan attending the Studio which, according to him, was managed by Mahesh Prasad.
10. Ramesh Chandra, Chief Editor, Dainik Bhaskar, deposed as D.W, 1 and asserted in his cross-examination that the news-item (Ex. P1) was true and he could not help if plaintiffs’ reputation was affected. He stated that the local Editor had enquired of the truth of news published as per Annexure P/1 before it was published in the Paper. Not a whisper has to be read in his evidence of any malice as nothing in that regard was suggested to him. On the other hand, it has come in his evidence that he had no personal knowledge about the incident and did not know by name or face plaintiff Madhusudan and Mahesh. D.W. 2 is Editor of Dainik Naranjan who stated that from Police Control Room, information about the incident reported in news-item, published as per Annexure D/5 was gathered and that was verified from Thana. That news was published in public Interest.
11. Defendant Jagdish Chandra Jaiswal, local Editor Bhaskar deposed as D.W. 3. His evidence is also that the news published as per Annexure P/1 was received by him from Police Control Room and he had verified that from Morar Thana from in charge Vidya Shankar Dubey. The news was published in public interest. The same news was published in other local papers, such as Daily Niranjan and Jawarhar ke Lal. He proved Ex. P/1, reply to plaintiffs’ notice, Ex. P/2 and stated that no “clarification” as contemplated, was received from the plaintiffs. He did not personally know plaintiffs Madhusudan and Mahesh and had never met them. They never came to him for publication of any rejoinder. There is no smell in his evidence also of any malice and indeed, he has not been questioned in that regard. Surprisingly, it is not even suggested to him that S.H.O. Hindolia had any league with the newspaper and there is conspiracy between them to defame the plaintiffs. He deposed that “offer of correction” was made to the plaintiffs in reply to their notice asking for the affidavit to be submitted along with correction to be published, but no reply was received.
12. D.W. 4 is resident of the locality and he knew owners of Bhargava Studio. Three brothers lived together jointly in the same house in which the Studio was located. Ram Prasad was Studio’s owner. He deposed about the incident that at the Studio, there was a big commotion as there were arguments in regard to obscene photographs taken of Merik John’s sister. There was quarrel going on with Ram Prasad when police arrived at the spot. Madhusudan also reached the spot in the meantime. Police seized some negatives from the two and took both brothers with the negatives, hockey stick and knife, to the Police Station. The crowd followed them. He proved his signature on Panchanama, Ex. D/7 and the statement therein that in presence of the witness and another, from Ram Prasad, recovery was made of one negative and of a nude photo of a girl. He stated also that in the Studio, other brothers of Ram Prasad, namely Madhusudan and Mahesh also used to sit. Separate shop for photography was run for the last three years by Mahesh. He was an eye-witness of the occurrence and he saw Merik John and many other persons hear the shop where the altercation was going on. The Police Station was at a distance of about 250 to 300 feet and as the crowd increased, the police came to check up. The police arrested Madhusudan and Ram Prasad at the shop and took them to Thana.
13. The crux of plaintiffs’ case is based evidently on assumption and presumptions and not on the tera firma of solid pleadings and evidence. It has to be assumed, according to Shri Mangal, learned counsel, appearing for the plaintiffs/ respondents, that the plaintiff Madhusudan being a Government servant, he could not be involved in the incident and he could not also own the Bhargava Studio. He has been falsely described in news-item along with Ram Prasad, as owner of Bhargava Studio. Because plaintiff and Ram Prasad were both acquitted, it has to be presumed that the incident reported was false. In any case, counsel submitted defendants failed to establish the truth of one part of the offensive news-item. He submits that though so published, it has not been established that there was any “rumour” that the Studio owners were taking nude photographs of girls and were blackmailing them.
14. Counsel’s last-mentioned contention, I propose to dispose of first. For several reasons, to be stated presently, I have found no substance in that contention. Firstly, because, neither in the plaint nor in evidence, any case is set up by the plaintiffs that the news about the “rumour” was false. Secondly, the rumour-para (last para of the news-item) is prima facie an innocent statement. It is not directed at the plaintiffs; it attributes no act to them. They are not named in that para. The first sentence speaks generally of “Studio Owners” and about their offensive modus operandi of blackmailing girls generally. Neither plaintiff Madhusudan said so nor any of the witnesses deposed that the plaintiffs came to be regarded as “blackmailers” on the basis of the statement in “rumour-para”. The second sentence is an equally innocent statement of public opinion — people praising the police for parading on the street the two accused. The gravamen of the charge is of course to be considered. It will be examined in appropriate context if there is truth in the news published of two plaintiffs being arrested, handcuffed and made to walk to the Police Station. Thirdly, the particular statement impugning the conduct generally of “Studio Owners” carrying on illegal activities of taking obscence photographs of girls and blackmailing them is capable of being regarded as a “view” expressed in public interest to condemn such activities of a particular class.
15. Our Constitution guards ‘zealously “freedom of press” by guaranteeing as fundamental right the freedom of speech and expression vide Article 19(1)(a). Indeed, the Republican era was heralded by the Constitution Bench decision in Romesh Thapar, AIR 1950 SC 124 when early recognition was accorded to that concept to embrace freedom of propagation of ideas through circulation of newspapers. Such restriction as compelling newspapers to restrict dissemination of “news and views” was held per se unreasonable, outside the ambit of the derogation Clause (2) of Article 19. The recent decision in Indian Express Newspapers, AIR 1986 SC 515 has reminded courts of their “primary duty” to protect “freedom of press”. Evidently, not only news, but “views” also expressed in relation to any news published, by a newspaper, constitutes the essential “content” of circulation contemplated in the decision. Although derogation clause excludes from the protective umbrella dissemination of defamatory news and views, the Court must discharge, when called upon to pronounce on such character of any publication, its primary duty of analysing the same with due care, caution and circumspection and to eschew hyper-sensitivity in doing so. It is bound to discern human sensibility in a manner that suits public interest and promotes wholesomely informed public opinion for the greater good of the community. Role of press as a crusader against social evil is progressively acquiring greater importance and newer dimensions with the niche found by “investigative journalism” in contemporary societal set-up and values. Applying the test evolved to the view expressed in the “rumour-para”, I find little scope to label it as an exercise of unbriddled freedom. Extortion may be a crime; blackmailing, particularly of girls, who are regarded as the most vulnerable section of our society, in the manner complained, is a highly reprehensive sin. If public opinion is built up to reform the sinners and if it is accepted that the view expressed in the “rumour-para” is meant to achieve that object, there is no scope, in my opinion, to hold that the bounds of reasonable restriction on the enjoyment of freedom of press contemplated under Article 19(2) are violated by the statement therein contained.
16. Examining the defence from the viewpoint of English Common Law of defamation, the same result is achieved. In the case of Sutherland v. Stopes, 1925 AC 4, it was held by the House of Lords that the plea of “fair comment” is raised when words complained of consist of allegations of fact and of opinion expressed in good faith and without malice. Southerland, vocationally a Surgeon, had authored a book entitled Birth Control, of which Seventh Chapter (captioned “Evils of Artificial Control”) commented on the activities of Mrs. Marie Stopes for her running a clinic for poor mothers and encouraging them to practice a particular method of birth control which was declared hazardous by an eminent gynaecologist. Court of Appeals judgment was reversed; Mrs. Stope’s action ended in dismissal. In Slim v. Daily Telegraph (1968) 1 All FR 497, the Court of Appeal held that honest expression of genuine public opinion ventilated in a newspaper is not actionable. Lord Denning observed that an honest man’s genuine opinion was protected : “no matter that his words conveyed defamatory imputations; no matter that his opinion was wrong; or exaggerated or prejudiced; no matter that it was badly expressed so that other people read all sorts of innuendos into it”, holding that right of fair comment was as “essential element” of freedom of speech which “must not be whittled down by legal refinements”.
17, Indeed, plea of “fair comment” when established, is a complete defence to an action of defamation. That law is settled in Souther-land and Slim. Indeed the view taken in S. and K. Holdings v. Throgmorton, (1972) 3 All ER 497, is that defence of “justification” and “fair comments” are separately available in respect of different parts of the impugned statement. Evidently, therefore, in the instant case, the factum of the rumour circulating is not to be proved. In any case, plaintiffs action based on a “rumour-para” fails for other reasons also. It has not been pleaded or proved (if the rumour is regarded as an innuendo) that the expression “Studio-Owners” referred to the plaintiffs. In Morgan v. Odhams Press Ltd., (1971) 2 All ER 1156, particulars of claims in an action for libel in respect of article written in a newspaper were found deficient and that was held not to furnish a cause of action because that was regarded as a case of innuendo. In Kemsley v. Foot, (1952) 1 All ER 501, plaintiff’s plea for striking out defence of “fair comments” was rejected by House of Lords because they found factual substratum available for the comment in the impugned article which the newspaper had published. In Knupffer v. London Express Newspaper Ltd., (1944) 1 All ER 495, House of Lords expressed the view that when words referred to a “group” the imputation being not aimed directly at any particular individual, the libel was not actionable. In the instant case also, reference being generally made in the first sentence of the rumour-para to “Studio-Owners” and to their nefarious activities (“blackmailing”) generally, this decision’s holding hits fatally plaintiffs’ claim. Otherwise too, in respect of both parts of the “rumour-para” plea of fair comment is available to the defendants: in the first sentence the comment is on the offensive activity itself while in the second sentence, on the public approval of action taken by the police against the said activity of the “accused”.
18. For other parts of the news-item
materials abound to sustain the plea of
justification. The substance of the statement
may be split into two parts to examine the
plea. Indeed, truth of one part is admitted and
fully established on evidence because both
plaintiffs were arrested and were made to
walk down to the Police Station when they
were followed by crowd. About the other
part, the question is, if that was a matter of
detail and not of substance. Plaintiff/respon
dent Madhusudan is bracketted with his
brother Ram Prasad as owner of the
Bhargava Studio. In that regard, what is
established on evidence is that the three
brothers lived together and in are part of the
same joint-family house, the Studio was
located. It is also proved that the plaintiff was
actually associated in some form or other with
the management of the Studio. The only
detail which has not come on record is
regarding legal ownership of the plaintiff of
the Studio. If the plaintiff and his brother
Ram Prasad are described generally as joint-
owners of Bhargava Studio, that statement
obviously cannot be anything else than an
innocent statement of facts. In S. and K.
Holdings (supra) a deficiency in pleading was
noticed and that was held fatal, taking the
view that if the “sting” of the defamatory
statement was in any particular word or
expression, it was plaintiffs duty and burden
to plead that explicitly. In the instant case,
there is no pleading that the legal ownership
of the Studio did not vest in the plaintiff
Madhusudan even though the latter pleaded
that he was in Government service. That plea
did not discharge his burden as even a
Government servant can own property and
there can be no legal presumption negativing
legal joint ownership of the Studio vesting in
plaintiff Madhusudan and his brother Ram
Prasad.
19. Law is settled that defence of “justification” can be upheld if the chaste is substantially proved to he untrue; it is not necessary for the defendant to prove that each fact stated in the impugned publication is literally true. As noted in Salmond’s Law of Torts, “it is sufficient if it is true in substance, if the essence of the imputation is true and if the erroneous details in no way aggravate the defamatory statement or alter its nature”. (18th Edition, p. 148). See also, Haslbury’s Laws of England (4th Edition, Vol. 28, para 82.) Statutory formulation of the Common Law Rule appears in the Defamation Act, 1952 and that came to be considered in Moore v. News of the World, (1972) 1 915, wherein it was observed that the defendant ought to have pleaded “substantial justification” adding, however, that the plea, if raised, could be considered even at the appellate stage. Legal position being, thus, settled and factual finding being recorded above that the charge of defamation is substantially proved to be untrue on material facts being proved in regard to the essence of imputation, there is no option open to me except to hold that the suit is misconceived. Needless to reiterate once again the gravamen of the imputation the plaintiff being arrested, handcuffed and led to Police Station on foot in that condition with a crowd following. That it only established on evidence and on that there is no impact on acquittal of the plaintiff of the charge of his assaulting Merik John, albeit in connection with the same incident. Even so, the judgment supports truth or essential imputation.
20. Statutory provision has been made in England in 1952 to afford protection against “unintentional defamation” by contemplating offer of amends (see, Salmond, (supra) p. 142), but in our country, law of Torts has remained uncodified till today. It appears that this defence of “apology “was available also at Common Law though not used in practice (see, in this connection, Halsbury (supra) para 153, Note 3). The defence, it appears, was available to newspapers or periodicals and if that indicates anything, it, according to me, was meant to safeguard freedom of press. In the Indian context, there are sound and valid reasons for that defence to be allowed to continue despite statutory provision because of Constitutional imperative and the statutory mandate afore-noted in Indian Express Newspaper’s case (supra). In the instant case, plaintiff/respondent No. 1 admitted that an offer of apology was made to him, but he has taken (only in evidence) the stand that he did respond to the offer. That stand, he has failed to establish in evidence. I am not prepared to believe him that he had approached the respondents to publish a “correction” but they had refused to accept that. Indeed, his evidence is that he was still retaining the matter which had to be printed as “correction”. If that was so, nothing prevented him from producing and proving that in Court to confront the defendants.
21. Learned counsel for plaintiff/ respondents also cited case-law with which I propose to deal now. In Chogalal v. Purushottam (1969 MPLJ 510), publication of a rumour in a news-paper was the subject-matter of action. The plea of “justification” of the defendant was upheld holding the rumour to be “substantially true”. That holding does not benefit, in any manner, the plaintiff/respondent. However, one distinction has to be noted in that case, the plea was not of “fair comment”, as upheld in this case. Shri Mangal also cited R. K. Karanjia v. K. M. Thackersey, AIR 1970 Bom 424, but that too, does not help him. It was held that in order to make a libel actionable, the burden of proving actual or express malice is always on the plaintiff. As I have observed, there is no whisper to be read in the evidence of malice of the defendants against plaintiffs. Abdul Gani v. Chhaikodi is short-noted (1971 MPLJ (SN) 23) and that deals with the case of defamation. The plea of “fair comment” was rejected as on facts it was found that the alleged defamatory statement could not be proved to be true. On facts, it was also found that the offending article was per sc defamatory.
22. For all the foregoing reasons, I am of the view that the trial Court erred in law in decreeing the suit. The impugned judgment and decree are accordingly set aside. The suit stands dismissed with costs.
23. In the result, the appeal succeeds and is allowed. However, the parties are left to bear their own costs in this Court.
