P. Ramaswamy vs S.B. Adityan

Sadasivam, J

Petitioner, P. Ramaswami, Editor, Printer and Publisher of ""Nathigam"" has been convicted under S. 500 and 501 I.P.C. and sentenced to six

months R.I. on each count, to run concurrently. Admittedly, the petitioner made the following publication Ex. P. 3 in the issue of Nathigam dated

26th April 1968:

The complaint against the petitioner is that the above publication conveys the Idea that the complainant is suffering from leprosy, that he is

growing a beard to conceal the same and that if the beard is removed, the disease would become apparent.

P.W. 2, S.B. Adityan, the complainant, in this case, was the Speaker of the Legislative Assembly at the time of the publication. His attention

was drawn to the publication by his wife and P.W- 4, A.P. Arasu, 8 member of the Legislative Assembly, Madras and formerly the Mayor of the

Madras Corporation. He rightly considered the publication harmed his reputation and brought him down in the estimate of the public, as leprosy is

regarded as loathsome disease. In fact, he believed that, as the petitioner belonged to the rival party, he was motivated by animosity in making the

said publication. He examined his doctor, P.W. 3, Janardhanan to prove that he did not suffer from leprosy.

The plea of the petitioner is that he did no publish Ex P-3, having the complainant in mind and that he had no animosity in doing so. He pleaded

that he ordinarily used to refer to the complainant as Adityanar. In paragraph 5 of his written statements he has stated that ''if the complainant had

at any stage prior to the filing of the complaint drawn his attention to the said publication, he would have willingly clarified the matter to the full

satisfaction of the complainant and would have published a clarification in the paper, If so required by the complainant"".

D. W. 1, Sankardas, a student of the S.S. L.C. class In the C.M. S. High School Srivilliputtur, deposed that when he was going in a taxi to the

Five Falls in Courtallam, he noticed a taxi going ahead of him with the cinema actor Adityan in it, that on remaining the Five Falls, he noticed that

the actor had a small beard and some thickness of the cheek, that the classmates remarked that he was having leprosy and hence he was growing,

beard, that some other classmates stated that it could not be true, that they all suggested that the matter could be written in the papers and so he

sent the question and answer to the journal Nathigam. He stated that he knew about the complainant Adityanar as a Minister only during the trial of

the case. D. Ws. 2 and 3 are press reporters. They gave evidence to prove that the complainant was known as Adltyanar and not as Adityan. But

therewider so of the complaint is that he is also known as Adityan. He stated that he was not aware of any cinema actor by name Adityan.

Sri C.K. Venkatanarasimham, appearing for the petitioner, urged that in the absence of proof about the identity of Adityan, in Ex.P. 3, who is

the complainant in this case, the conviction of the petitioner cannot be sustained. The learned Fourth Presidenty Magistrate who tried the case has

referred to the leading decision, Hulton v. Jones (1909) 2 K. B. 444 as to the test to be applied in such cases. According to the decision, the test

as to whether the words that do not specifically name of the plaintiff refer to him or not is this:

Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the parson referred to.

The plaintiff in that case was a Barrister in practice, who at one time had been on the staff of the defendant''s paper and had contributed to is

articles signed in his own name. They subsequently appeared in the defendant''s paper an article defamatory of a person who was called by the

plaintiff''s name. At the trial, friends of the plaintiff gave evidence that they had read the libel and believed it referred to the plaintiff. The writer of

the article and the editor of the paper both swore that they did not know of the plaintiff''s existence and this was accepted as true by the plaintiff''s

counsel. The jury found a verdict for the plaintiff for 1750 damages and the judgment was entered for him, which was affirmed both in the court of

appeal and in the House of Lords. The decision clearly supports the following passages in Odgers ""Libel and Slandor"" 6th Edx. at page 128.

If the defendant''s words have in fact Injured the plaintiff''s reputation, It is no defence to an action that the defendant intended them to refer to

some one else. He should have been more explicit; his secret Intention is Immaterial. The plaintiff is entitled to recover if he can show that the

defamatory, words were understood as referring to him, by persons who knew him, or if the words are such that the world would apply them to

the plaintiff. A gain, if the writer intends to portray a real person under an imaginary name, and chooses for that purpose what he supposed to be a

fictitious name, he will nevertheless be liable if he happens to choose the name of a real person, though he had no Intention whatever of doing so.

But one should be careful in applying the said principles of the civil law of defamation in dealing with the crime of defamation as defined In S.

499, I. P. C. The criminal law in this country with regard to defamation depends on the construction of S. 499, I. P. C. and not on what may be

the English civil law on the some subject. It is one of the ingredients of the definition of defamation In S. 499 I. P. C. that the imputation made or

published must concern some person and it should have been made by the accused with the necessary intention to harm the said person or with

knowledge or sufficient reasons to believe that such imputation will harm the reputation of the said person. Thus in a prosecution for defamation

under S. 499, I. P. C. it would be a good defence if an accused is able to establish that he never knew the complainant and that he did not intend

to harm his reputation or at any rate he did not know or have reason to believe that the Imputation made by him will harm the complainant. It is

therefore accessory for the complainant to establish the identity of himself as the person referred to in the defamatory matter. The defamatory

matter must be such that it contains an imputation concerning the complainant whose identity can be established. It is not necessary that the

defamatory matter should describe the complainant accurately by name. It is sufficient if on the evidence it can be shown that the Imputation was

directed towards the complainant, or, in other words, the identity of the person referred to in the defamatory matter is established as that of the

complainant.

On the facts of this case, there can be little doubt that the petitioner referred to the complainant Adityan alone in Ex. P.3. The evidence of P.W.

2 shows that he also used to write his name as Adityan and that he considered the publication Ex. P.3 as referring to him. Is feet, his attention was

drawn to the publication by hit wife and by P.W. 4, Aras, M.L.A.P. W. 4 Aras stated that on reading Ex. P. 3 he considered it to refer to the

complainant. It is significant to note that Ex. P-3 is found among several other passages referring the political matters. It is true. D. Ws. 2 and 3

have been examined to show that the complainant is known as Adityanar, and not merely as Adltyan. But the real question is whether Ex. P. 3

refers to the complainant or some one else. The learned Fourth Presidency Magistrate who tried the case has observed that the evidence of D.

Ws. 2 and 3 does not advance the defence of the accused. The fact that the complainant insisted on his being called Adityanar cannot lead to the

inference that the name Adityan does not refer to him. In fact, no such argument was advanced before us in this Court. The learned Fourth

Presidency Magistrate has given good reasons in paragraph 9 of his judgment to show that the evidence of D.W.I Sankardas is an after thought to

get over the liability and that it does not at all help the accused. The evidence of the complainant is that he and the petitioner belonged to rival

political parties and that the petitioner has animosity against him. In fact, he has stated that he was net aware of any cinema actor by name Adityan.

The learned advocate for the petitioner was not able to infirm us about any film in which the said actor Adityan has appeared. P.W. 2 Adityan was

questioned about his growing board. It is significant to note that though Ex. P.W- 3. Dr. Janardhanan was examined only to speak to the fact that

the complainant Adityan was not suffering from leprosy, it was suggested to him that he was deposing falsely. Thus having regarded to all these

facts the lower court was justified in finding that the petitioner intended to defame the complainant Adityan in making the publication Ex. P 3.

No other point was argued before as in this case. The conviction of the petitioner is correct and it is confirmed. The petitioner has been

sentenced to six months S.I. on each count, to run concurrently. The said sentence is ordered to run concurrently with the sentence Imposed on the

petitioner in 1967 Cri, Ap, 552 , (1) on the file of this Court.