Mrs. S.K. Burke vs T.C.W. Skipp

Odgers, J.—In this case the appellant was charged u/s 500 I.P.C. with having defamed the respondent. The alleged defamation falls under

two heads which have been called in this case Ex. A (1) and Ex. B. In the Complaint, Ex. B. or the material portions thereof are more or less

stated in detail in paragraph 4. As regards Ex. A. (1) it is said that the complaint is defective in that there is no specific reference to Ex. A (1) in it.

Paragraph 3 of the complaint runs, ""That the accused on learning of the said marriage "" (i.e., the second marriage of the complainant) ""acted

maliciously in spreading caluminous reports regarding the complainant''s character with intent to defame, him and ruin his standing and position.

Several auhorities were cited to induce us to hold that, as Ex. A (1) was not specifically referred to in the complaint, there, was no complaint at all

as regards that defamation and that, therefore, the whole proceedings with regard to that item are null and void. I have carefully considered the

cases edited, namely, Empress of India v. Kallu ILR 5 A 233 Queen Empress v. Deokinandan ILR 10 A. 39 and In re Pedda Anjinigadu (1921)

M.W.N. 514, and I think that they have no bearing on the present case. All that Section 198 of the Criminal Procedure Code requires is that ''no

Court'' shall take cognizance of an offence falling under...Chapter XXI of the Indian Penal Code...except upon a complaint made by borne person

aggrieved by such an offence. In Chidambaram Pillai v. Emperor ILR (1908) M. 3 it was held that it was at most an irregularity if, in a complaint of

sedition, the seditious speeches and words were not set out. The charge in the present case is quite specific and contains the words alleged to be

defamatory ii Ex. A (1). I am of opinion that this objection fails.

A great deal of our time and a great deal of the time and the ingenuity of the learned Vakils who appeared before us were wasted on account of

the manner in which these proceedings had been conducted in the lower Court. The alleged libels themselves were apparently filed in the District

Court in Bangalore in connection with a suit which the daughter of the accused had brought against the complainant in the present case for breach

of promise of marriage and seduction. As we hear, judgment went against the complainant in that case for a considerable sum and he appealed to

the Hon''ble the Resident from that judgment. Considerable time was occupied in a discussion as to whether or not the originals were actually in the

lower Court when this case was heard. The complainant has sworn to an affidavit in which he says that the originals were in Court and he gave his

deposition with reference to them. In his deposition, however, which he signed as correct, the reference is with a single exception ""to certified

copies and not the originals. It strikes me as an extraordinary way to proceed with either a criminal matter in defamation or a civil action without

the alleged libels in original being not only not produced but closely scrutinised by the Court and placed before the witnesses. The learned Vakils

on either side could be of no assistance in this respect as neither of them appeared in the Court below. Mr. Jayarama Iyer for the respondent in this

appeal argued that a further opportunity should be given to the prosecution to produce the originals, but for the reasons, I am about to give, it

seems to me that such a course would not only be unfair to the accused in the appeal in its"" present state, but, further, that points for consideration

here can be disposed of without reference to this point.

I may perhaps usefully make some general remarks with regard to charges of defamation before I come to the particular matters charged in the

present case. It seems to me to be undoubted that the law in India demands publication, i.e., that the defamatory matter was read by at least one

other person than the defamer and the defamed. The words of Section, 499, I.P.C. are, ""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 etc."" To my mind a person

who makes an imputation intending to harm is not guilty of an offence if he either makes such imputation and, for instance, locks it away in his safe

or otherwise prevents it from getting to the knowledge of anybody except himself. The intention to harm can only be evidenced by some overt act

which in this case would be publication as it is called, i.e., bringing it to the knowledge of some person other than the defamed. I think this is clear

from explanation (4) to the section where it is pointed out that a person''s reputation is not the estimation in which he holds him self but the

estimation in which he is held by others. Thus it is impossible to harm unless these others or at least one of them have knowledge of the defamatory

statement. As has been constantly pointed out, the English Criminal Law of Libel is different. There a defamatory statement made only to the

person defamed may be the subject of a prosecution provided the defamation would lead to a breach of the peace. This view is supported by the

Full Bench ruling in Queen Empress v. Taki Husain ILR 7 A. 205. It is perfectly clear what the question before the Full Bench there was from the

judment of Mahmood, J. at page 219 of the report. He said ""the question before us is an extremely limited one, namely, whether or not a libellous

communication made only to the person whose character is attacked amounts to the offence of defamation as defined in Section 499 of the Indian

Penal Code,"" and the question is answered by the majority of the Full Bench in the negative. This being the law, it is clearly the duty of the

prosecution to prove affirmatively that the accused published the libel. See Jeremiah v. Vas 22 M.L.J. 73 and the fact that the accused has omitted

to deny publication will not supply the deficiency. In that case a difference of opinion arose between Sundaram Aiyar and Phillips, JJ. on the

question as to whether the conviction should be set aside or fresh evidence recorded where the Magistrate had improperly refused to take

evidence which the prosecution attempted to adduce. On reference to a third Judge, (Benson, j.) additional evidence was taken. We have no

evidence in the present case that the prosecution protested when the District Magistrate returned the original defamations to the Resident''s Court,

though it is said that the Counsel for the accused did protest against the reception of certified copies. I think the learned District Magistrate was

wrong in conducting the proceedings on certified copies alone if in fact he did so; but I am willing for the purposes of this case to assume that Mr.

Shipp''s affidavit is correct and that he actually had the originals in his hands when he gave his evidence.

Now Ex. A (1) is said to have been a letter posted in Bangalore by the appellant bearing postal seal, ""Bangalore, 4th January, 1922, 8-45 a.m.

and the following words were written on the outside of the cover, though it is not clear from the evidence whether they were written on the front or

the back of the cover: ""Worse than the thief is the ingrate for he is a thief who steals our goodness and kindness. Then stabs you, then twists - the

dagger."" It was addressed to Mr. T.C. Skipp, St. Mark''s Square, Local. Mr. Skipp''s evidence with regard to Ex. A (1) is exceedingly meagre.

He says that sometime in January, 1922 he received a letter from the accused or rather a New Year wish and that Ex. A (1) is a copy of the

words written on the cover. He further says, ""I am positive these letters"" (including Ex. B, to which further reference will be made) ""were written by

the accused. She has admitted them in Court."" To begin with, assuming as I have said, that Mr. Skipp had the original in his hands and that it bears

the post mark as stated, it is to my mind doubtful if Mr. Skipp''s deposition can be said to be a proof of the handwriting of the accused. I am

assuming in his favour that the letter was posted and received by him. As the words were written on the outside of the communication it would fall

within the decisions relating to the postcards. It has been held that there is evidence of publication if the libel be written on a post card. Lord

Reading, C.J. in Huth v. Huth (1915) 3 K.B. 32 says, ""The mere fact that the words are written on a post card which is posted must be taken as

some evidence that a third person will read it or has read it."" The publication in this sense is merely notional. No person has been called to actually

prove that it was read. As I have already stated, this may not be necessary, but more significant still, no person has been called to say that he or

she read the words complained of and connected them with Mr. Skipp, the addressee. In the absence of the original, which is again to be greatly

deplored, I will assume in favour of the prosecution that the words complained of were written on the front of the cover and therefore must have

been more or less close to the name of the addressee. If the words are defamatory, on which more hereafter, it appears to me extremely doubtful

whether it can-be presumed that, in the absence of positive evidence that the words were ever actually read by anybody, the words are connected

with Mr. Skipp. The words are said to be taken from a book of Moral Phrases and Maxims called ""Brass Tacks"" and I find it extremely difficult to

say that the words must inevitably have been taken to refer to Mr. Skipp by reason of the notional publication which is presumed when an open

communication is sent through the post. Are the words defamatory?. There is one case of the year 1869 Cox v. Lee (1869) L.R. 4 Ex. 284 in

which it was held actionable to charge a man with ingratitude. There is no question of course that this could not be the subject of a criminal charge

under the English Law. I am very much inclined to doubt whether, under the terms of Section 499, I.P.C., to charge a man with ingratitude involves

an intention to harm the reputation of such person. It would depend largely on evidence as to the reputation that the person enjoyed in the society

in which he moved for gratitude or other proper, but not necessary, ingredients in a good character. I am, however, content to say that presuming

publication in favour of the complainant and even assuming that the words in question are capable of a defamatory meaning, there is no ground in

the circumstances of their appearing in Ex. A for connecting them with the complainant.

Now with regard to Ex. B. The evidence with regard to Ex. B is also in my opinion strangely deficient. It again depends, entirely on the

deposition of the complainant himself. Ex. B is said to be a letter written to one of the complainant''s sons then in England by the accused and it

contains statements which, it has not been contended, may not be defamatory of the accused. Here again, the complainant says he is positive that

this letter was written by the accused and that she has admitted them in Court. We have no evidence but it may be that this so-called admission

refers to something that occurred in the breach of promise trial. The admission has not been produced or exhibited, and, under the circumstances,

we can pay no regard to it whatever. It is said or assumed that Ex. B must have been posted by the accused in Bangalore to the complainant''s son

in England and it is then said by the complainant that he received the letter complained of, Ex. B., enclosed in a letter of the son to him, the

complainant. Much argument was expended on the question as to whether, assuming this letter was posted in Bangalore, there would be any

publication in British India to bring it within the jurisdiction. As I have stated above the complainant must prove publication in fact. The words must

be published within the territorial jurisdiction. The King v. Burdett 106 E.R. 873 is an authority for saying that a letter is deemed to be published

been where it is post-and where it is received and opened. Here even the original of Ex. B would seem to bear no marks of posting whatever. The

complainant says, ""Cyril (that is one of his sons) sent me Ex. B with a letter. I have not got that letter. I do not know where it is."" This seems to

justify the assumption that Ex. B was enclosed in a letter of Cyril''s to his father, the complainant. There is no legal evidence that Cyril ever received

Ex. B or returned the letter with its original cover and there is no evidence from the complainant of any posting of the letter by the accused in

Bangalore or elsewhere. I am ready to assume in favour of the prosecution that, if it is proved (hat the letter had been posted, it is immaterial

whether it had been posted in Bangalore or in Mysore territory. The learned District Magistrate as J. P. would have jurisdiction over European

British subjects, to which class the accused belongs, in Mysore. But, as to the posting of the letter, there is again only the presumption that, when

the complainant said that he was positive that that letter was written by the accused, that was sufficient to prove her handwriting. Assuming that

posting in Bangalore, if proved, would be sufficient publication, unless the accused could show that it had come directly and unread into the

possession and control of the complainant, on the authority of The King v. Burdett 4 B and Ald. 95 : 106 E.R. 873; it seems to me fatal to the

prosecution case that the son was not examined either in person or on commission to prove receipt of this letter. That will be evidence that it had

been sent through the post. It would also have been satisfactory, but perhaps strictly unnecessary, if he could have proved that he had read the

contents. On the bare deposition of the complainant with all the deficiencies it, in my opinion, presents, I am of opinion that it has not been proved

that Ex. B emanated from the accused. This seems to be fatal in the case of Ex. B also.

Before finishing I should like to emphasise the fact once more that, though I expressed great surprise at the hearing, at the course adopted by the

learned District Magistrate in allowing certified copies of the Libels to go in, my judgment is based on the assumption that nothing but the original

libels were before the Court and in the hands of the witness when he gave his deposition.

On these grounds I am clearly of opinion that the conviction on neither of'' these alleged libels can stand and that the conviction must be set

aside. The fine inflicted on the accused must be refunded, if it has been paid.

Hughes, J.

The accused has been found guilty of defamation u/s 500 of the Indian Penal Code. There are two counts in the charge. The first count relates to

certain alleged defamatory words said to have been written by the accused on or abour 12th January, 1922 at Bangalore in a letter to the son of

the complainant. The second count relates to certain words alleged to have been written by the accused on or abour 4th January, 1922 at

Bangalore, on the outside of an envelope, addressed and posted to the complainant.

The case has been badly handled throughout. The complaint itself is exceedingly vague and does not even specifically refer to the matter of the

second count. There is a mass of irrelevant evidence. The deposition of P.Ws. 2 to 9 are of no use whatever. But the most serious defect is that

the original writings containing the alleged defamation referred to in the counts have not been marked as Exhibits though it appears they are

available and could have been marked. Instead of that, certified copies of these documents, which have been exhibited-in the Civil Court, have

been treated as evidence in this case. If it had been necessary I think additional evidence should have been allowed to be taken in this appeal so

that the originals might be sent for and the complainant examined with reference to them; for it appears to me that the Court was at fault in not

seeing that the originals were filed. The certified copies should not have been marked as exhibits and it was the duty of the Court to insist on the

originals being filed. If the Court had insisted the complainant would have done so; for it seems from his affidavit the originals were actually in

Court.

But in the view I take of this case it is not necessary; for even assuming the documents were written by the accused, a fact which she has not

denied, I do not think the convection can stand.

Taking the second count first it is doubtful whether the description of a man as an ''ingrate'' would lower in the estimation of others his moral or

intellectual character or his credit (vide explanation 4 of Section 499, I.P.C.). But taking it that it is defamation to style a man an ingrate with the

added commentary that an ingrate is worse than a thief, there is nothing to show that the words referred to the complainant. No witnesses have

been called to speak to this and the complainant himeslf does not say that the words refer to him.

The conviction as to second count therefore cannot be supported.

With regard to the first count the difficulty is one relating to jurisdiction. Some passages in the letter (copy of which is marked as Ex. B) arc

clearly defamatory. In the complaint it is alleged that the accused wrote the letter and it was posted at Bangalore and sent to the complainant''s son

who was in England. There is no direct proof that the letter was written in Bangalore but we are asked to presume this fact because the letter is

headed ""22, Cubbon Road."" Such a presumption has been drawn but personally I think it is not the safe presumption. People may put their usual

address at the head of their letters whether actually written there or not. However if the letter was written at Bangalore that would not be enough to

give jurisdiction to the District Magistrate, Bangalore. It would be necessary to prove that it was there handed over to somebody to take to the

addressee or that it was there posted. If the letter were so handed over or posted at Bangalore the accused would have had no further control

over it and the offence of making an imputation with intent to harm reputation would so far as the accused is concerned be complete vide M.R.

Krishnamurthy Aiyar Vs. C.V. Parasurama Aiyar, . But in this case there is no evidence that the accused handed over the document to anybody at

Bangalore or that she posted it there. There is in fact no evidence really that the letter was posted at all. The complainant says that his son sent the

letter on to him. But there is no evidence as to how the son got the letter. The letter, if any, which was sent by the son enclosing this letter to his

father has not been produced and the son has not been examined as a witness.

We cannot presume, that the letter of which Ex. B is a copy was sent by post to England or that it was posted at Bangalore Cantonment or

City.

It follows that it is not shown that the Disrict Magistrate had the jurisdiction to try this case. The conviction on the first cpunt also cannot be

sustained. I agree that the appeal must be allowed and the accused acquitted and the fine, if levied, refunded.