Judgment

SEN, J. (Majority view) :- This appeal, by special leave, is directed against an order of the M. P. High Court dated Apr. 15, 1978, quashing the prosecution of the respondent, R. K. Karanjiya, Chief Editor, Blitz, for an offence under Section 500 of the Indian Penal Code for publication of a news-item in that paper which was per se defamatory, on the ground that he was protected under Ninth Exception to Section 499 of the Code.

2. During the period of Emergency the appellant, who is a senior lawyer practising at Bhopal, was placed under detention under Section 3 (1) (a) (ii) of the Maintenance of Internal Security Act, 1971 and was lodged in the Central Jail, Bhopal. There were several other detenus belonging to the opposition parties lodged along with him in the same jail, including three lady detenues, viz., Smt. Uma Shukla, Smt. Ramkali Misra, Advocate and Smt. Savitha Bajpai, later State Minister, Public Works Department. The husband of Smt. Uma Shukla, a practising advocate at Bhopal, was not detained. Smt. Shukla was released on parole for a week between June 10 and 18, 1976. On her return to the jail it was found that she had conceived. She was examined on July 30, 1976, by a lady doctor, Dr. (Mrs.) N. C. Srivastava, Woman Asst. Surgeon and the pregnancy was reported to be six weeks old. Smt. Shukla was again released on parole in the month of August 1976 and on August 24, 1976, she got the pregnancy terminated by Dr. (Mrs) Upadhayay at the Zanana Hamidia Hospital, Bhopal with the written consent of her husband under Sec. 3 of the Medical (Termination of Pregnancy) Act, 1976.

3. While the order of detention of the appellant was still in operation, there was an ex parte confidential enquiry held by Shri S. R. Sharma, I. A. S. Deputy Secretary (Home) Government of Madhya Pradesh, into the circumstances leading to the pregnancy of Smt. Shukla. The Enquiry Officer by his report dated November 3, 1976, apparently held that the pregnancy was due to illicit relations between the appellant and Smt. Shukla, during their detention in the Central Jail. On December 25, 1976, the Blitz, in its three editions in English, Hindi and Urdu simultaneously flashed a summary of the report and the story as given out was that (i) there was a mixing of male and female detenus in the Central Jail, Bhopal, (ii) the appellant had the opportunity and access to mix with Smt. Shukla freely, and (iii) Smt. Shukla became pregnant through the appellant. The news-item was per se defamatory. It is somewhat surprising that the Enquiry Report, which was a document of highly confidential nature, should have found its way to the press.

4. With the revocation of Emergency, the appellant along with the other political detenus were released from detention. On his release, the appellant lodged a criminal complaint for defamation against the respondent, R. K. Karanjia. The respondent, on appearing before the Magistrate, moved an application under Section 91 of the Code of Criminal Procedure, 1973, praying that the report of the Enquiry Officer be sent for as it was likely to be lost or destroyed. On August 23, 1976, the learned Magistrate allowed the application and directed that the report with the concerned file be produced. The State Govt., however, did not comply with the direction and by an application dated December 31, 1977, claimed privilege in respect of the Enquiry Report which still awaited consideration. On October 29, 1977. when the case was fixed for recording the plea of the accused under Section 251 of the Code, the respondent moved an application stating that the plea should be recorded only after the Enquiry Report was produced. The learned Magistrate by his order dated November 30, 1977, rejected the said application of the respondent as to the summoning of the records and directed the accused persons to appear in person or through counsel for explaining to them the substance of the accusation and also for recording their pleas.

5. Thereaft