Tarlok Nath and ors. vs Ram Sarup and anr.

Pritpal Singh, J.

In this petition under section 482 of the Code of Criminal Procedure, the summoning of the petitioners by the Court in pursuance of a complaint under section 500 of the Indian Penal Code (hereinafter called `the Code'') filed by the respondent Ram Sarup has been challenged.

The factual position is that on March 6, 1985, the petitioners, namely, Tirlok Nath, Brij Bhushan and Joginderpal lodged a report with the police that the respondent Ram Sarup, alongwith Tirlochan Singh, one Tiwari and another person, had come to their mohalla in a car. They were under the influence of liquor. Tirlochan Singh was driving the car. All of them started creating disturbance in the street and then went away threatening the residents of the mohalla to come again. The police did not take any action against the respondent Ram Sarup and his companions presumably because they did not find the report of the petitioners either true or worthy of being pursued. Subsequently, on April 25, 1985, Ram Sarup respondent filed a complaint under section 500 of the Code in the Court of Judicial Magistrate Ist Class, Nakodar, alleging that a false report has been lodged by the petitioners against him and his companions which tantamonted to defamation. It was contended in the complaint that Ram Sarup and his companions had never participated in any such occurrence alleged by the petitioners and that soon after the report lodged by the petitioners with the police, the respondent and his companions were medically examined at the Civil Hospital, Nakodar, and it was found that they had not taken liquor. Ram Sarup, respondent, therefore prayed that the petitioner be punished under section 500, Indian Penal Code, for causing harm to their reputation.

The Judicial Magistrate, Nakodar, after recording preliminary evidence in support of the complaint summoned the petitioners vide order dated July 10, 1985 (Annexure P2).

The order of the Judicial Magistrate, by which the petitioners were summoned to face trial under section 500 of the Code, in pursuance of the complaint filed by Ram Sarup respondent, has been assailed by the petitioners on two grounds. Firstly, that no action for defamation can be taken under section 500 of the Code in respect of a report lodged with the police. Second, that the petitioners'' report is covered by Exception Eighth of Section 499 of the Code and as such the Judicial Magistrate committed an error in summoning the petitioners. On hearing, the learned counsel for the parties. I find no merit in either of the two contentions.

In the context of the first contention, the learned petitioners'''' counsel cited five judgments. Four of them i.e. Lachman v. Pyarachand and others, AIR, 1959 Rajasthan 169, Bira Gareri v. Dulhin Somaria and others, 1962(1) Crl. L.J. 737, K. Ramdas v. Samu Pillai, (1969)I M.L.J. 338 and V. Narayan Bhat v. E. Subbanna Bhat, AIR 1975 Karnataka 162, are irrelevant as they deal with law of Torts and not Section 500, Indian Penal Code. The fifth relates to Section 500 and may be noticed. In G.N. Subha Rao & Ors. v. Anna M. Venkatchalapathi Aiyer, AIR 1938 Madras 904, a Single Bench held that any report made to person in authority was really intended to give information about some offence with a view to get redress or protection and the offence. If any, must be only the furnishing of false information or the making of false accusation. It was observed that it cannot be said that the offence of defamation is committed simply because some part of the information or the accusation may be found to be defamatory and false, punishable under section 182 or 211 of the Code.

As against this judgment the learned respondent''s counsel drew my attention to a Division Bench judgment of the Saurashtra High Court in Sanghiv Champaklal Lalchand v. Khushaldas Ratanshi and another, AIR 1955 Saurashtra 19. In that case a contrary view was taken and it was held, that though a defamatory statement made in answer to questions put by an investigating officer during investigation is absolutely privileged, as statement in the first information report stands on a different footing and cannot enjoy that absolute immunity, such statements fall within the 8th Exception of Sec. 499 of the Code and the accused can claim privilege only if he can bring them within the purview of that Exception, which says that accusations preferred in good faith against a person to any of those who had lawful authority over that person with respect to that accusation will not amount to defamation. It was held that good faith of the persons making accusation is, therefore, an essential condition of exemptions from liability for defamation under this Exception.

With due deference to the views expressed by the Madras High Court, I am inclined to agree with the judgment of the Saurashtra High Court. Section 499 of the Code defined defamation. This Section prescribes that "whoever, by words either spoken or intended to be read, or by signs or by visible representation, 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, is said, to defame that person." This is subject to a number of exceptions provided in the Section. The Eighth Exception reads as follows :

"Eighth Exception : Accusation preferred in good faith to authorised person : It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subjectmatter of accusation."

If a report lodged with the police containing defamatory accusations was absolutely privileged, then it ought to have been taken out of the ambit of the above quoted Eighth Exception. In that case the proving of good faith envisaged in this Exception would not arise, and all accusations made to the police being absolutely privileged would have been excluded from the purview of Section 500 of the Code. The very purport of Eighth Exception is that an accusation against any person made to a lawful authority would not be considered as defamation only if it is shown that the accusation was made in good faith. Admittedly the report lodged with the police is within the scope of the Eight Exception. Clearly, therefore, the view taken by the Saurashtra High Court is more sound, which is to the effect that a report lodged with the police does not enjoy absolute immunity but it can be shown to be falling within the Eighth Exception of Section 499 of the Code.

The second contention of the petitioners that their report to the police is covered by the Eight Exception and, therefore, they could not be summoned by the Judicial Magistrate under section 500 of the Code is evidently unacceptable. There can be no presumption that the report was lodged by the petitioners in good faith. The petitioner''s allegation that the accusations contained in the report were preferred in good faith is to be proved as any other fact to bring their report within the ambit of Eighth Exception. It, therefore, cannot be said that presuming petitioner''s good faith in lodging the report the same should be considered covered by the Eighth Exception.

A halfhearted attempt was made to contend that allegations made in the report to the police do not constitute an offence under section 500 of the Code. This cannot be accepted. In the report it was alleged that the respondent Ram Sarup and his companions had come to the petitioners'' mohalla in drunken condition and they created disturbance in the mohalla. This allegations, if untrue, will certainly harm the reputation of the respondent and his companions because it will lower them in the estimation of others. It, therefore, cannot be said that the petitioners'' report to the police does not disclose an offence of defamation.

For aforesaid reasons the summoning of the petitioners by the learned Magistrate does not suffer from any illegality or impropriety. This petition is, therefore, dismissed.