P.R. Ramakrishnan vs Subbaramma Sastrigal and Another

K.T. Thomas, J.—Sri P. R. Ramakrishnan, as advocate was, convicted for the offence of defamation u/s 500 of the I.P.C. The trial court

sentenced him to pay a fine of Rs. 1,000/-. The Sessions Court confirmed the conviction, but reduced the sentence to Rs. 250/-. Sri.

Ramakrishnan filed the present revision. During the pendency of this revision, Sri. Ramakrishnan passed away and his wife and children got

impleaded as parties. The foundation of this criminal case is a reply which Sri. Ramakrishnan sent to the first respondent''s lawyer on 2-2-1974. It

was a reply to a notice sent by the aforesaid counsel to Sri Ramakrishnan. The said reply contained imputations which are per se libellous. The

criminal proceedings commenced twelve years ago did not culminate even with the death of the accused. For the sake of convenience, Sri.

Ramakrishnan will be referred to as ''the accused'' hereinafter and the respondent will be referred to as the ''complainant''.

The complainant was a foreman of a chit fund scheme and the accused was one of the subscribers in a kuri piloted by the foreman. The

complainant''s lawyer issued a notice to the accused demanding money due from the latter. Ext. P1 is the reply sent by the accused for himself as

well as on behalf of his wife. Allegations were made in Ext.P1 regarding the manner in which the complainant conducted kuri business. There is no

dispute now on the point that those allegations are per se defamatory. Hence it is not necessary to reproduce those imputations here.

Two questions were raised in this revision. The first is, whether there was publication of Ext.P1 notice. The second is, whether, the Ninth

Exception to Section 499 of the I.P.C. was available to the defence. I shall first consider the argument based on the Nineth Exception. That

Exception reads thus :

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 primary requisite to attract the Exception is ""good faith"". Other requisites need be considered only if the primary requisite has been made out.

Out of the ten exceptions enumerated in Section 499 of the I.P.C., the First and the Fourth Exceptions do not mention the good faith aspect, but in

all other exceptions emphasis is given to good faith in making the imputation. It has a connotation in the I.P.C. which is well defined, in Section 52.

Nothing is said to be done or believed in ""good faith"" which is done or believed without due care and attention."" The person who makes the

imputation must take due care and attention before making or publishing the imputation. Whether a person took due care and attention before he

made the imputation is a matter most often within the special knowledge of that person himself.

When the allegation against an accused consists of per se defamatory imputations, the court will presume absence of the exception by virtue of

Section 105 of the Evidence Act. The onus is on the person to rebut the presumption. The onus can be discharged by showing that he made due

enquiries before he published the imputation. It is not enough to show that the enquiry made by him was only a make-believe one, or that a slip-

shod attention was paid to the matter. The words ""care and attention"" are qualified by the term ""due"" and therefore the degree of care expected is

what a reasonable man would do in a reasonable manner. It is not necessary to show that the enquiry made by him was so fool-proof or

exhaustive, or so threadbare that any possibility of error or chance of any mistake is ruled out therein. However, the onus of proof will not be

discharged merely by showing that he acted on the information given to him by another. He must show that the source or sources on which he

acted were the proper sources and that he acted on the said sources with a reasonable degree of circumspection and that he has reasonable

grounds to believe the truth of the statement he makes. The standard of his proof, of course, is not that of a prosecution to prove the guilt of the

accused. It is enough, if he proves the same by preponderance of probabilities.

The classical decision on the subject is Harbhajan Singh Vs. State of Punjab, . Gajendragadkar, C.J., in the judgment made reference to English

and Indian decisions on the subject and held, inter alia, that the element of honesty is not introduced in the expression of good faith. The learned

Chief Justice said that ""it is not possible to lay down any rigid rule or test for deciding whether an accused person acted in good faith under the

Ninth Exception. The question has to be considered on the facts and circumstances of each case, what is the nature of the imputation made, under

what circumstances did it come to be made, what is the status of the person who makes the imputation, was there any malice in his mind when he

made the said imputation, was any enquiry made by him before he made it, are there reasons to accept his story that he acted with due care and

attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith under

the Ninth Exception."". About the degree or standard of proof of the accused, Their Lordships said ""the onus on the accused may well be

compared to the onus on a party in civil proceedings; just as in civil proceedings the Court which tries an issue makes its decision by adopting the

test of probabilities, so must a Criminal Court hold the plea made by the accused proved, if a preponderance of probability is established by the

evidence led by him."" The ratio and principles laid down in Harbhajan Singh''s case stand on good stead till this date. In Chaman Lal Vs. The State

of Punjab, , the need for proof of enquiry conducted by the accused before making the imputation is highlighted as the test for good faith.

In a case where the defence fails to adduce evidence, it is almost difficult to establish the ingredient of good faith. Normally, an accused may not

succeed in establishing his good faith through cross-examination of prosecution witnesses alone. Of course, it is not an impossibility. Perhaps one

may succeed in that task if he elicits circumstances to prove good faith through cross-examination of prosecution witnesses. What is usually done

by the defence is to let in evidence to prove good faith. Establishment of truth of the imputation is not enough to apply the Ninth Exception. That

the accused made due enquiry is the normal precursor for the defence of good faith. The feasible mode to prove that aspect is by adducing

defence evidence. Even if the imputation is not true, but the accused, after making due enquiry, honestly believed that the imputation is true,

accused can establish good faith as envisaged in the Ninth Exception by giving evidence regarding the enquiry made by him. In this case, the

learned counsel for the accused admitted that no defence evidence was adduced, except by marking some exhibits during cross-examination of the

prosecution witnesses. Without oral evidence from the defence side, it is an uphill task to show that the accused madedue enquiries. The accused

did not make an attempt to show that he made due enquiry before issuing Ext. P1 reply.

Hence the onus is not discharged by the accused in this case.

The next question is about publication of the imputation. It is contended that there is no publication. To attract the definition of the offence of

defamation as contained in Section 499 of the I.P.C., the imputation should have been made or published ""whoever makes or publishes any

imputation"" are the relevant words employed in the section. The word ""makes"" is intended to supplement the sense of ""publishes"". Those words

conjunctively connote ""to make public"". It is settled proposition that there is no publication if the libellor merely communicates his libel to the person

defamed.

The facts found by the two Courts below are that the accused dictated the contents of Ext. P1 to his clerk who wrote them and that reply was

addressed to the complainant''s lawyer. At two different ends, at least one more person would have come to know of it and that would amount to

publication, contended the counsel for the complainant. At the sending end the clerk who transcribed the dictation and at the receiving end the

advocate who read the imputation are those persons. If either the dictation to the clerk or the reading of it by the advocate is sufficient to amount to

publication that would complete the offence. Therefore, I shall take up first, the aspect of dictation to and transcription by the clerk. 8. The making

of imputation involves the translation of the imputation into some form. If the libel is in writing, the making of the libel is incomplete without writing it

down. The author himself can be its scribe or it can be a different person. Dictation by a lawyer to his clerk is part of his professional exercises and

merely because the clerk in the course of his professional work heard it, cannot amount to factual publication. The privilege attached to the

professional communications between a lawyer and his client is further fortified by providing Section 127 of the Evidence Act as per which the ban

against disclosure is extended to clerks and servants of the lawyer. The clerk of a lawyer, in the professional sphere, has to maintain confidence

regarding matters conveyed to him, if it relates to communication between the counsel and the client. If a notice, or a letter or even a pleading is

dictated to the clerk by a lawyer, it does not, in practical sense go beyond the lawyer''s professional range. The fact that the clerk, as a different

human being, comes to know of the contents of the notice cannot make it publication to a third person.

In Pullman v. Walter Hill, (1891) 1 QB 524, a letter was dictated by the Managing Director of a company to a shorthand clerk who transcribed

it with the help of a typewriting machine, and the letter was sent by post addressed to the plaintiff. The trial Court held that it did not amount to

publication, but court of appeal reversed the finding. Lord Esher M.R. and Lopes LJ, wrote separate judgments holding that the dictation to the

shorthand clerk will amount to publication. But their Lordships in Boxsius v. Goblet, (1884) 1 QB 842 distinguished Pullman''s case on the ground

that when a solicitor dictated to a clerk in his office a letter containing defamatory statements, the occasion was privileged and the dictation to the

clerk ""was necessary and shall in the discharge of his duty to his client and was made in the interest of client."" In Edmondson v. Birch, (1907) 1

KB 371 Collins M.R. and Lopes L.J., reiterated the principles laid down in Boxsius''s case. A single Judge of the Bombay High Court in Sukhdeo

Vithal Pansare Vs. Prabhakar Sukhdeo Pansare and Another, accepted the contention that the advocate dictating to his clerk or typist any matter

which the typist or clerk transcribes in the discharge of his duties does not make publication of that matter. These decisions lend support to the

view that the dictation given by a lawyer to his clerk and transcription made by him of a per se libellous matter cannot amount to publication.

Sri P. G. Rajagopalan, counsel for the complainant tried to draw out a distinction in this case, that the accused was not dictating the contents of

Ext. P1 to his clerk in his capacity as a lawyer. That distinction is not much of consequence in this case, because Ext. P1 notice was sent not only

for the accused but on behalf of his wife as well. For the purpose of notice the accused''s wife could as well have been his client. Therefore, I am

not pursuaded to take a different view on the facts of his case merely on the basis of the difference sought to be made out by the learned counsel.

Now, I shall consider the question whether the sending of Ext P1 to the advocate of the complainant would make it publication. As pointed out

earlier, it was sent as reply to a notice issued by the complainant''s advocate. As between the advocate and his client, principles of agency would

apply depending on the context. It is true that an advocate is not a mere agent of a client, for, duties of the advocate are far greater and far more

subline than that of a mere agent. But there can be functions which an advocate may have to perform for his client which may fall within the

amplitude of principal and agent relationship. Receiving a reply by the advocate on behalf of his client is one of the instances where the function of

an agent is involved. The receipt of the reply by the advocate is, in effect, receipt by the client himself. It is one of the recognised modes of

communicating to the client. The confidential communications between client arid advocate have protection from compulsory disclosure as

envisaged in Section 129 of the Evidence Act. Neither the advocate nor the client is under any obligation to spell it to a third person. The interdict

provided in Sections 126 and 127 and the protection of communication embodied in Section 129 of the Evidence Act are intended to keep the

communications confidential as between the advocate and client. In ordinary law of agency the above protection is not afforded either to the agent

or to the principal. So the relationship between the lawyer and client is far more salubrious than the ordinary principal and agent relationship. Yet

the idea of agency inheres in it. So the mere fact that the advocate is a different person does not make the receipt of the reply as amounting to

publication. As early as in 1934 a Division Bench of the Bombay High Court observed that a pleader is a special kind of agent. Hormusji K.

Bhabha Vs. Nana Appa, .

He is aspecial kind of agent, or an agent selected out of a special class, for whom this kind of agency contract is reserved by law but nevertheless

governed by the law relating to agency"".

For the above reasons, I take the view that the sending of a communication to an advocate on behalf of his client is virtually a communication

made to the client himself. As such there is no publication of the imputation concerning the client.

In view of the aforesaid stand taken by me, I must hold that the accused was not liable to be convicted for the offence of defamation. I

therefore, allow this revision and set aside the conviction and sentence passed on the accused. The fine, if paid, will be refunded to the petitioner.