K. Kelu Nair vs T.S. Thirumampu and Others

Rajamannar, J.—This case arises out of a complaint filed by the petitioner one Kelu Nair charging the first and the second accused with an

offence punishable u/s 500, Indian Penal Code and the third accused with an offence punishable u/s 501, Indian Penal Code. The second accused

is the publisher and the third accused is the printer of a Malayalam newspaper called ""Deshabimani"" printed and published at Calicut. The first

accused is the writer of an article published in that paper in its issue dated 25th March, 1945, under the caption,"" Panathadai village of Kasargad

Taluk--The dancing ground of repression."" The petitioner alleged that the said article contained defamatory matter consisting of imputations which

would harm his reputation. To the charge as framed by the Additional First Class Magistrate, South Kanara, on this complaint was appended an

extract from the said article of five passages. These passages, according to the Petitioner, maliciously and falsely made scurrilous attacks against

him in the discharge of his duties as the Patal of Panathady. The Magistrate acquitted all the accused of the offences with which they were charged

on the ground that the article was written and published in circumstances which would bring it within the ninth exception of Section 499, Indian

Penal Code. The complainant seeks to revise this order of acquittal.

Undoubtedly the article in question contained matter defamatory of the petitioner. Inter alia it alleged that he as patal was guilty of acts of

oppression against the villagers in discharging his duties and in particular in the matter of procurement of grain. It was also alleged in the article that

the petitioner had been taking bribes. The sole question therefore is whether the accused are entitled to the benefit of any of the exceptions to

Section 499 of the Indian Penal Code. The Magistrate considered that the ninth exception applied to the case. In revision learned advocate for the

petitioner Mr. P. Govinda Menon suggested that the second exception, if any, was the more appropriate to the facts of the case. This exception

enacts that:

It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public 4.

functions, or respecting his character so far as his character appears in that conduct, and no further.

The ninth exception on the other hand enacts that:

It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the

interest of the person making it, or of any other person, or for the public good.

The article which is fairly lengthy in form appears to be a descriptive account of a tour undertaken by the writer, that is the first accused, to

Panathady. The article describes the plight of the villagers and in several places gives an apparently verbatim reproduction of the complaints made

to the writer by some of the villagers who were the victims of the petitioner''s oppression. After giving an account of what the villagers told him, the

writer winds up by saying that the poor people could not file a complaint in a Court of law and seek justice and that he has written to the Collector

asking him to conduct an enquiry into the state of affairs existing in the village and to punish the persons guilty of oppression. There is very little in

the article which can be described as the opinion of the writer, respecting the conduct of the petitioner. The incidents related need no comment if

true. I do not think it however very material in this case to decide which of the two exceptions, whether the second or the ninth is the more

appropriate. The only material question which falls for decision is whether the expression of opinion or the making of the imputation by the accused

was ""in good faith"". If it was, the lower Court was certainly right in acquitting the accused.

The learned advocate for the petitioner contended that the writer could not be said to have acted ""in good faith"" because on the 17th March,

1945, he had sent up a petition to the Collector of South Kanara containing almost the same allegations as in the article and without waiting for a

reply from the Collector he proceeded to publish the article on the 25th March, 1945. It was also urged by him that ultimately the Collector, after

an enquiry, came to the conclusion that the allegations made by the first accused against the petitioner were false. The order of the Collector on the

petition of the first accused is dated the 28th May, 1945, long after the date of the article in question. In determining the question of bona fides it

was contended that the opinion of the superior Government officer who dealt with the allegations made by the first accused and who made an

enquiry should be a decisive factor. I do not agree. The fact that the Collector, on such enquiry as he chose to make, came to the conclusion that

the allegations had not been proved does not mean that the allegations were not made "" in good faith "", i.e., that they were made without due care

and attention. It is for the Court to determine whether the first accused acted without due care and attention in making the allegations against the

petitioner in his article. Nor do I think the fact, that the first accused did not wait till he received a reply from the Collector, negatives good faith. In

matters like this a strong public opinion is as effective as departmental action.

The question remains whether the action of the first accused can be said to have been done '' in good faith ''. The Magistrate found that none of

the accused were actuated by any malice or illwill towards the petitioner. All the imputations and allegations in the article were, as appears from the

article, themselves, based upon what was related to the first accused by the villagers. Whether the villagers were speaking the truth or not, it does

not appear to have been suggested that the first accused never went to the village to collect information. No less than ten defence witnesses were

examined to prove that proper enquiries had been made of the facts contained in the article and that only after being satisfied that there was an

element of truth in the statements that the article in question was published. The Magistrate even goes to the length of holding that it cannot be

definitely held that all the imputations are wholly false or unjustifiable. It is therefore clear that the first accused did exercise due care and attention

before he expressed his opinion respecting the conduct and character of the petitioner in the discharge of his public functions. I agree with the

Magistrate, even assuming the ninth exception to Section 499, Indian Penal Code, applied to the case, that the imputations were made in good

faith for the public good. There is therefore no reason to interfere with the order of acquittal.

The revision petition is therefore dismissed.