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KERALA HIGH COURT
Padmanabhan, J.
Abdurahiman - Appellant
Versus
Pradeep Menon - Respondent
Civil Appeal No. 64 of 1986
Decided on 22.3.1988
P M. Mohammed Ali, Advocate-For the Appellant.
M. Ratna Singh-For the Respondent.
Held, That the essential ingredient is good faith as defined in S. 52 of the Indian Penal Code. That is a negative definition and the requirements are only due care and attention The element of honesty, whether done negligently or not, introduced by the definition in the General Clauses Act is not imported in the Code. We are governed by the definition in S. 52 of the Indian Penal Code alone. In order to establish due care and attention a mere belief in truth is not sufficient. The belief must be shown to have a rational basis. A blind belief is not enough. That is where the element of due care and attention plays an important role. Absence of due care and attention before making the statement would defeat the plea of good faith. But good faith does not require logical infallibility. The question is only whether the accused was informed and he had good reason after exercise of due care and attention to believe that the allegations were true. If that standard is achieved, 'good faith' under exception 9 is attracted and the publication of the imputation ceases to be an offence if public good is established Whether or not good faith is proved by an accused person who pleads in his defence the ninth exception to charge of defamation would be a question of fact. Its acceptability depends upon the facts of cases. An honest belief in the truth of the allegations formed on the basis of due enquiries or on information which is honestly considered acceptable will amount to good faith. Erroneous actions or statements cannot always be imputed to want of due care and attention. The general circumstances and the capacity and intelligence of the person whose conduct is in question may be relevant factors. The honest conclusions of a calm and philosophical mind may differ largely from the honest conclusion of a person excited by sectarian zeal and untrained to habits of precise reasoning. At the same time good faith in the formation or expression of an opinion, can afford no protection to an imputation which does Dot purport to be based on that which is the legitimate subject of public comment.
Held, Further also the evidence is that third accused published it in the paper only after making due enquiries in the school and ascertaining that Suhra never participated in the National Volley Ball games. The acquittal is perfectly justified.
JUDGMENT
Padmanabhan, J. - Complainant is the appellant. He was the Volley Ball Coach of Calicut University. First accused Pradeep Menon was the. Chairman, Calicut University Union and the second accused Joseph was the General Secretary of the Kerala Students Union. Third accused p. V. Chandran is the Printer and Publisher of Mathrubhoomi Daily. Prosecution was for offences under Ss 500 and 501(a) of the Indian Penal Code. It was in connection with a news item that came in the front page of the issue of Mathrubhoomi dated 30.9.1982 making certain defamatory imputations against the appellant and suggesting that he may be suspended The news item was published as if it came from accused 1 and 2. The imputation is that the appellant misused his official position in attempting to secure admission for his daughter for the second group to the Pre-degree course in the Providence Women's College, Calicut under sports quota by producing bogus certificates. The Magistrate acquitted the accused on the finding that the publication is justified under exception 9 to S. 499 of the Indian Penal Code.
2. The authorship of the publication is owned by accused 1 and 2 and its publication is admitted by the 3rd accused. The imputations are per se defamatory against the appellant. The plea is only that the publication will not amount to defamation on account of the applicability of exceptions 1 and 9 to S.499.
3. The sum and substance of the defamatory imputation is that misusing his position as Coach and the sports quota, he produced more than ten false certificates including one of participation in the National games at Parur in older to secure admission to his daughter. Suhra who secured only the very poor mark of 239 and on the basis of these certificates, the Principal has written to the Vice Chancellor requesting for admission of Suhra in sports quota. The contentions raised on belief of the appellant are: (i) The correctness of the entire imputations including the submission of more than 10 false certificates will have to be established, and (ii) Even then the benefit of 9th exception is not available because it applies only to an expression of opinion regarding character and not to assertions of fact which are in themselves defamatory.
4. The necessary ingredients for the applicability of the first exception are the truth of the imputations and its making or publication for the public good Good faith for the protection of the interests of the person making it or of any other person for the public good are the essentials of exception 9. Proof of truth which IS one of the ingredients of the first exception is not an ingredient of the 9th exception Good faith which is the essence of the 9th exception is not a component of the first exception. Going by these standards it cannot be said that exception 1 is established because each and every imputation cannot be said to be proved to be true even if it be taken to be for public good.
5. Even though the burden of proving any general or special exception is on the accused who pleads it and the Court shall presume the absence of such circumstances, the question of the accused discharging the burden will arise only when the prosecution proves its case beyond any reasonable shadow of doubt. Till then the applicability of the general exception under the Indian Penal Code of special exceptions or provision under the Code or any other law will not arise because the question of exception comes in only when the offence is proved. The burden cast on the accused by virtue of S 105 of the Evidence Act is not so onerous as the primary burden cast on the prosecution and he can discharge his burden by preponderance of probabilities as in a civil case. For that purpose, he can bank on the prosecution evidence itself without adducing evidence of his own. The onus cast upon the prosecution in criminal cases is an exception founded upon considerations of public policy because of the necessity of excluding any doubt in
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