TABLE OF CONTENTS

Cases ...................................................................................................................................................................................... 2 Introduction ........................................................................................................................................................................ 3 Section 499 .......................................................................................................................................................................... 4 Scope ................................................................................................................................................................................ 6 Section 499 Is Not Violative Of Article 19 Of The Constitution........................................................ 7 Ingredients Of An Offence Under Section 499........................................................................................... 7 Elements of Section 499............................................................................................................................................ 8 1. Whoever................................................................................................................................ 8

2. By Spoken Words or by Words that are Intended to be Read, or by Signs or by Visible Representations ............................................................................................................................. 8 3. 4. 5. 6. Makes .................................................................................................................................... 8 Publishes ............................................................................................................................... 9 Imputation .......................................................................................................................... 14 'Concerning any Person'........................................................................................................ 18

7. 'Intending to Harm, or Knowing or Having Reasons to Believe That Such Imputation will Harm, the Reputation of Such Person' ......................................................................................... 18 8. 9. 'Harm' .................................................................................................................................... 19 'Reputation' ........................................................................................................................... 19

Explanation 1.............................................................................................................................................................. 20

CASES

INTRODUCTION
"A misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire." Richards. I.A.: Introduction to Roger's Pocket Thesaurus.1 As expressed by Richards, a misapplied and misapprehended term is sufficient to give rise to a fierce and interminable dispute. An artful watchword thrown among combustible materials has kindled the flame of deadly warfare and changed the destiny of an empire. Every person has an inherent right to protect and preserve his reputation intact.2 It is a fundamental principle, long established that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and 'unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom ... Reasonably limited, it was said by story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become a scourge of the republic.3 Freedom of speech and expression under Art 19 (1) (a) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without .regard to any person's honour and reputation. Indeed the right has its own natural limitation. Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the right. 4 Under s 499, IPC, only such imputation as are malicious and reckless and not for public good, tranquillity or peace or public security or as are not made in good faith, have been brought within the definition of defamation which is but the abuse of the freedom of speech and expression punishable under s 500, IPC. Therefore, the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. Hence, s 499, IPC, is not violative of Art 19. The Constitution does not grant immunity from all punishments of abuse of freedom of speech and the accused can be put to answer criminally for the breach of reasonable restrictions on his 'freedom of speech or for his abuse of the freedom of speech. Punishment is not a restriction in itself but is indeed a consequence of the breach of restriction which the defaulter cannot escape.5 Section 499 has a large number of Exceptions. They cover the entire field of privileges available in cases of defamatory statements. In fact, these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions. However, while considerable latitude is allowed in respect of these privileges, they are also subject to a large
Gandhi B. M., Indian Penal Code, 2nd Ed. 2006, P-707. Ibid. P-710. 3 Benjamin Gitlow v People of the State of New York (1923) 69 Law Ed 1138. 4 KV Ramaiah v Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB). 5 Nelson R A, Indian Penal Code, 10th Ed. 2008 Vol. IV, P-4673.
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number of conditions. Loss of life and loss of reputation are two things which cannot be compensated in terms of money. Reputation especially is something which is a treasure to a person.6 The provisions of these sections act as a deterrent against the commission of the offence of defamation. However, due to restrictions imposed in s 199, CrPC 1973, it is the aggrieved person and when he is incapable, a proper person on his behalf can set the criminal law in motion against the person accused. This topic deals with the following four sections:

(a) Section 499- It defines the offence of defamation along with four explanations. The section also has ten Exceptions to the offence of defamation. (b) Section 500- The offence of defamation as defined under s 499 is punishable under this section with simple imprisonment which may extend upto two years, or with fine, or with both. (c) Section 501- The offence under this section is distinct from an offence under s 500. 7 Printing or engraving matter known to be defamatory is made punishable under this section though the sentence prescribed is the same as prescribed in the preceding section. (d) Section 502- The sale of printed or engraved substance containing defamatory matter is made punishable under this section. The sentence prescribed is the same as in the preceding two sections.8 In English law the crime of private libel has the tendency to provoke breach of peace. Under Indian Penal Code, however, defamation has been made an offence without any reference to its tendency to cause acts of illegal violence. Mental suffering caused to the person defamed is the gist of this offence. In English law a distinction has been maintained between libel and slander, but under Indian law no such distinction has been recognised.9

SECTION 499
Section 499 read as follows: 499. Defamation, - Whoever, by words either spoken or intended to be read, or, by sings or by visible representations, 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, except in the cases herein after excepted, to defame that person.

Dhyandevrao L Waghmode v Allabaksh GulabNadaf 1999 Cr LJ 1754 (Born). Crown v Uma Shankar 18 PR 1889. 8 Nelson, Supra note 5 at 4674 9 Mishra S. N., Indian Penal Code, 18th Ed. Repr. 2012, P-854.
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Explanation 1 - It may amount of defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2 - It may amount to defamation to, make an imputation concerning a company or an association or collection of persons as such. Explanation 3 - An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4 - No imputation is said to harm a person's reputation, unless that imputation, directly or indirectly, in the estimation of others lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. First Exception- Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception- Public conduct of public servants.- 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 functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception- Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Fourth Exception- Publication of reports of proceedings of courts. - It is not defamation to publish a substantially true report of the proceedings of a court of justice, or of the result of any such ' proceedings. . Explanation- A justice of the peace or other officer holding an enquiry in open court preliminary to a trial in a court of justice, is a court within the meaning of the above section. Fifth Exception- Merits of case decided in court or conduct of witnesses and others concerned.- It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a court of justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Sixth Exception- Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears' in such performance, and' no further. Explanation- A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Seventh Exception- Censure passed in good faith by person having lawful authority 'over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Eighth Exception- Accusation preferred in good faith to authorized 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 subject-matter of accusation. Ninth Exception- Imputation made in good faith by person for protection of his or other's interests.- 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 interests of the person making it, or of any other; person, or for the public good. Tenth Exception- Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another provided that such caution be intended for the' good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

SCOPE
This section defines the offence of defamation with the aid of four Explanations and ten Exceptions with more Explanations and illustrations appended to the Exceptions. 10 The authors of this Code observed that the essence of the offence of defamation consists in its tendency to cause that description of pain, which is fell by a person who knows himself to be the object of the unfavourable sentiments of his fellow-creatures, and those inconveniences to which a person, who is the object of such unfavourable sentiments, is exposed.11 The criminal law of India with regard to defamation depends on the construction of this section, and not on what is the English law on the subject 8 Whether the publication of defamatory words or uttering defamatory words, heard and listened to by people takes place in a proceeding in a court room or outside the court precincts does not matter as long as the defamatory words are intended to harm the reputation of another.12
NCERT v PD Bhatnagar 1980 Raj Cr Cas 392, 396, 1981Cr LJ(NOC) 57 (Raj). Nelson, Supra note 5 at 4681. 12 Praninchand Jaggiuandas Gandhi v Ibrahim Mohammed Merchant 1987 Cr LJ 1795 (Bom).
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SECTION 499 IS NOT VIOLATIVE OF ARTICLE 19 OF THE CONSTITUTION

Under s 499, IPC, only such imputations as are malicious and reckless and not for public good, tranquillity or peace or public security or as are not made in good faith, have been brought-within the definition of defamation which is but the abuse of freedom of speech and expression punishable under s 500, IPC.13 Therefore, the provisions of s 499 cannot be said to place any unreasonable restriction on the freedom of speech or expression. Hence, s 499, IPC, is not violative of Art 19 of the Constitution of India.14

INGREDIENTS OF AN OFFENCE UNDER SECTION 499

The offence of defamation consists of three essential ingredients15: (a) There must be a making or publishing of an imputation concerning a person; (b) Such imputation must have been made by words, either spoken or intended to be read, or by signs or by visible representations; and (c) The said imputation must have been made with the intention to harm, or with knowledge or reasonable belief that it will harm, the reputation of the person concerned.16 The first and foremost question, which a court dealing with a criminal prosecution, involving the offence of defamation must, therefore, answer, is whether the alleged material, described as defamatory, amounts to imputation within the meaning of this expression as used in s 499. Imputation ordinarily implies an accusation.17 Imputation or accusation, alone will, however, not suffice. To constitute the offence of defamation, the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient (c) above A person is not guilty of defamation by making the imputation or accusation unless he intends to harm, or he knows or has reason to believe that thereby he would harm, the reputation of another person. In other words, an: imputation or accusation simpliciter without proof of the requisite intention, knowledge or belief, as covered by ingredient (c) of the definition, will not constitute the offence of defamation.18 The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. If there is a controversy as to whether the material, complained of, is defamatory or not, the court will first have to decide, as a question of law, as to whether the said material is capable of being understood in a defamatory sense. If the court decides this
KV Ramaniah v Special Public Prosecutor AIR 1961 Andhra Pradesh 190 (DB), 1961 (1) Cr LJ 601. Nelson, Supra note 5 at 4681. 15 Sunlakhya Chowdhury v HM Jadwet AIR 1968 Cal 266, 271, 1968 Cr LJ 736; Prem Pal Singh v Mohan Lal 1981 Cr LJ 1208, 1211 (Himachal Pradesh); NCERT v PD Bhatnagar 1980 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj). 16 Nelson, Supra note 5 at 4682. 17 NCERT v PD Bhatnagar 1981 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj); Prem Pal Singh v Mohan Lal 1981 Cr LJ 1208, 1211. 18 NCERT v PD Bhatnagar 1980 Raj Cr Cas 392, 397, 1981 Cr LJ (NOC) 57 (Raj); JMRoy v Surinder Kumar Sher 1975 Kash LJ 358.
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question in the affirmative, it will then, and only, proceed to determine whether the said material, containing a defamatory potential, had, in fact, harmed the reputation of the complaint within the ambit of the definition of such harm as given in Explanation. If the material is defamatory per se, for example, where the accused imputed commission of a felonious crime to the complainant, there is no difficulty in deciding the question of law mentioned above. The court will, at once, answer it by saying that the imputation of commission of felony by the accused is capable of being understood in no other but a defamatory sense. In such a situation, the court will be justified taking the parties to evidence with a view to determine; as a question of fact, whether the said imputation had harmed the reputation of the complainant within the four corners of Explanation 4. If, on the other hand, the words of the alleged imputation are ambiguous, it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. If the court decides, in the context of a particular complaint, that the words, in question, are reasonably capable of bearing a defamatory meaning, it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant.

ELEMENTS OF SECTION 499

1) WHOEVER

2) BY SPOKEN WORDS OR BY WORDS THAT ARE INTENDED TO BE READ, OR BY SIGNS OR BY VISIBLE REPRESENTATIONS In India a person can be defamed not only by writings, he can also be defamed by spoken words. Here at this point Indian law of defamation differs from English law of defamation. Under English law only writing, printing, engraving, or some other process only can constitute defamation. Spoken words never constitute defamation. Under that law spoken words furnish ground for a civil action. In the Indian Penal Code the words furnish ground for a civil action. In the Indian Penal Code the word defamation has been used to denote what is known as libel and slander under English law. The words 'visible representation' will include every possible form of defamation which ingenuity can devise. Thus a statute, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel, 19 in addition to words spoken. The publication of a group photograph with a false caption "goonda"20 would be defamatory.21

3) MAKES Every such person who is engaged in composing, dictating, writing or in any way contributing to the making of a libel is the maker of the libel. Where the matter is dictated by
Momon v, Tussands Ltd., (1894) 1 Q.B.D. 671. C. Piilai v. Kamnji, (1962) 2 Cri. L.J. 142 21 Mishra, Supra note 9 at 858.
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one person and written down by another person, both shall be guilty of this offence. Similarly if one person speaks, another writes and third approves of it, all the three shall be guilty. The reason is that all who concur and assent to the doing of an unlawful act will be guilty of this offence.22

4) PUBLISHES The word 'publishes' means to make known to others. 23 As observed by Calcutta High Court, 24 the words "makes or publishes" supplements each other. 25 For the offence of defamation publication of defamatory matter is essential. In other words the defamatory matter must be communicated to some person other than the person to whom it concerns26 e.g. dictating a letter to a clerk is publication.27 Communication by one person to another is the crux of publication 28 , but communication to the person to be defamed only is no publication.29 Publication of a defamatory matter can be made by a post card, telegram, printed papers or leaflets, newspapers, 30 Journals and by broadcasting on radio or television. Talkies and cinema films or even gramophones were unknown when this Code was enacted but the word publication covers them all.31 Defamatory matter,32 if written on a postcard, or printed on a paper will constitute publication when it is distributed or broadcasted.33 In Taki Hussain's case, a person despatched a public officer a notice by post which was closed in a cover. The notice contained imputation on the character of the recipient. Allahabad High Court was of the view that since there was no publication of the matter, therefore, this offence was not constituted.34 In N.L. Shalt v. Patel Maganbltni Reoabhai and Another35, an interesting situation arose for decision. There was agitation of lawyers in Gujarat in connection with appointment and transfer of Chief Justice of High Courts. On account of the agitation the lawyers ceased to participate in court proceeding and resorted to 'satyagraha'. An editorial in a newspaper criticised as to whether it behoves to the lawyers as a class to resort to strike. The lawyers were inter alia described as "kajia dalal" i.e. dispute broker, in the editorial. In a suit for
Mishra, Supra note 9 at 855. Nelson, Supra note 5 at 4686. 24 Sunllakhya Chowdhury v. H.M. Jadwet, AIR 1968 Ca1266: 1968 Cri W 736. 25 Gandhi, Supra note 1 at 715. 26 Mishra, Supra note 9 at 855. 27 V. IIIalh v. K. Keshavall, (1900) I Weir 579. 28 Amar Singb v. Badaiia, (1965) 2 Cri U 693. 29 Bhuliram, (1962) 2 Cri U 760; See also Kundanmal, (1943) 45 Cri LJ 105: S.S. Sanyal v. K V.R. Nair, 1987 Cri U 2074 (Cal). 30 Abid Ali Khan v. Prabhakar Rao, 1968 Cri U 398; Shiv Gonda, 1968 Cri LJ 836. 31 Gandhi, Supra note 1 at 715. 32 Mishra, Supra note 9 at 855. 33 Tlriagaraya v. Krishnasami, (1892) 15 Mad. 214. 34 Taki Hussain, (1884) 7 All. 205 (F.B.). 35 1984 Cri. L.J. 1790 (Guj.).
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defamation against the editor, the Gujarat High Court held that the editorial did not refer to the complainant personally or to any other individual but referred to the lawyers as a class and at the most the lawyers of Gujarat. The alleged defamation could not be referred to a determinate or identifiable section or class of lawyers as distinguished from the rest of the members of lawyers fraternity. The words "Kajia Dalal" was held to be used in relation to the lawyers as a class and is not referable to a determinate section of lawyers, namely, the lawyers who were participating in the agitation. The thrust of the editorial was that lawyers should not have gone on strike. If the imputation is defamatory per SC, necessary mens rea will be presumed. The maker of the statement must know that it will harm the reputation of one concerning whom it is made. The court distinguished between 'character' and 'reputation'. The term 'reputation' means 'what is generally said or believed about the persons or things'. "Character" means fortitude or moral constitution or strength of a person. It has no relevance with the belief or opinion of others in respect of a person. Therefore, character is what a person "actually is"; while "reputation" is what neighbours and others say "what he is". The man may have, in fact, a good character and yet suffer from bad reputation or vice versa. By no stretch of reasoning, the term 'reputation' can imply ones' own belief about himself. It may be stated here that the word 'publishes' in s 499, IPC, does not contemplate that the communications, which one is bound to make to others in the normal course of his legal duties, should fall within the ambit of this section, 36 otherwise every officer, clerk and superintendent and everybody, who has to deal with a document and pass it on to others, would be taken to publish the same.37 No publication can be said to have taken place for the counsel to give the contents of a written statement to his own client or to his own clerk in the ordinary discharge of his duties as a lawyer or to handover the envelope, containing the written statements, to a clerk of another counsel.38 The dictation given by a lawyer to his clerk and transcription made by him of a per se libellous matter cannot amount to publication.39 In Boxus v. Goblet Freres, A solicitor or an advocate who dictates to his clerk a letter containing defamatory statement regarding a person is not liable for defamation.40 In K.V. Ramesh v. H. C. Ramesh,41 a newspaper published extracts from a book written about a former Prime Minister of India alleging corruption by him. The extracts also contained imputations against his other family members including sons, daughter and wife. The Karnataka High Court observed that sons could thus be said to be persons aggrieved and so complaint filed by a son cannot be quashed. The editor of the newspaper is liable for
Nelson, Supra note 5 at 4687. Brij Ballabh Goyal v Satya Dav 1960 Cr LJ 1136, AIR 1960 Raj 213; Mohinder Singh Dhillon v Ganga Dhar Sharma (1975) 77 Punj LR 716. 38 Ajit v Radha Klshan 32 PLR 772; Ke,5habLal v Provet Chandra AIR 1938 Cal 667, 39 PR Rama Krishnan v Subbramma SJltrigal AIR 1988 Ker,18, 1988 Cr LJ 124, (1987) ILR 1 Ker 547. 40 Boxus v. Goblet Freres, (1894) 1 Q.B. 842. 41 2001 Cr LJ 3556 (Karn.).
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prosecution and his plea that he was merely a publisher and not an author of the matter is not tenable. Allegations of criminal conspiracy between the editor, executive editor, managing editor and the resident editor with clear intention of defamation of the complainant were made. The court held that application for quashing of proceedings on the ground that only the editor was responsible for the said publication cannot be allowed. Publication of extracts of the book in the newspaper gives a fresh cause of action for prosecution against the publisher of the newspaper.

There are various circumstances regarding the publication:42

i. Publication- May not always be made with clarity

A libellous statement may not always be made with clarity. A degree of indirectness or innuendo may be there and this can very well be expected since defamation is an offence. It is reasonable to think that he who defames is not anxious to invite legal consequences and would be looking for loopholes. That, however, does not protect him from prosecution.43 a) Imputation per se defamatory or otherwise- Effect The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. Similarly, the accused cannot contend that he is entitled to discharge on the ground that the imputations in the extracted publication were not per se defamatory. b) Communication between husband and wife In England the rule appears to be well settled that except in certain well defined matters, the husband and wife are regarded as one arid in an action for libel disclosure by the husband of the libel to his wife is not publication. However, in Queen-Empress v Buthi,44 it was held that there is no presumption of law that the wife and husband constitute one person In India for the purpose of the criminal law. c) Communication to even one person is sufficient Publication does not require proof of communication to more persons than one.45 A libel is deemed to be published as soon as the manuscript has passed out of the possession of the writer.46
Nelson, Supra note 5 at 4687. MN Meera v AC Mathew 2002 Cr LJ 3845 (Ker). 44 (1894) ILR 17 Mad 401. 45 Govindan Nair v Atchuta Menon (1916) ILR 39 Mad 433.
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ii.

Publication- Proof by direct or circumstantial evidence

The question, whether there is publication or not, is one of fact, and the question may be decided either on direct evidence or on the circumstances of the case.47 Where the officer, to whom an alleged defamatory letter was addressed, was not produced and there was no evidence at all on behalf of the prosecution to show that the letter was actually read by the addressee, it was held that the prosecution had failed to prove that there was publication of the imputation alleged.
iii. Publication-Communication to complainant-No defamation

Communication of a defamatory matter to the person defamed does not amount to publication arid-is, therefore, not an offence.48
iv. Publication-Communication to spouse of defamed person sufficient

Communication of the defamatory matter to the husband or wife of the person defamed is a sufficient publication. Where the accused wrote letters to the husband of a woman in whom he alleged that she was a witch and by her secrecy she had caused the death of some relations of the accused, it was held that there was sufficient publication of defamatory matter.49
v. Publication-Both originator and repeater liable

The publisher of a libel is clearly responsible, irrespective of the fact whether he is the originator of the libel or is merely repeating it.67 The Penal Code makes no exception in favour of a second or third publication as compared with a first.50 Every repetition of defamatory matter is a fresh publication and constitutes a fresh cause of action.51 In Jai Debi Kaur v Emperor,52 the accused presented an application to the Lt Governor in which she charged the complainant, a deputy collector, with instigating her opponent to bring false charges against her. On enquiry, she repeated the same statements before two magistrates. It was held that the statements, made by her to the two magistrates, were clearly publications of the original defamatory statement and there were thus three separate publications of the libel.

R v Burdett (1820) 2 And Aid 95, 143. Khima Nand v Emperor 38 Cr LJ 806, 1937 ALJ 128. 48 Empress v Taki Hussain (1885) ILR 7 All 205; Abdul Aziz v Mohammad Arab AIR 1935 Cal 736, 37 Cr LJ 133 49 Shoobhagi Keori v Bokhori Ram 4 C LJ 390. 50 Re Howard (1888) ILR 12 Born 167. 51 Duke of Branswick v Harmer (1849) 14 QBD 185; G Chandrashekhara PiIlai v K Karthikeyan (19M) 2 Cr LJ 549, Am 1964 Ker 277. 52 16 Cr LJ 482
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Publication of defamatory matter in newspaper.-A newspaper stands, in matters of defamation, in the same position, as members of the public in general. The publisher of the newspaper shall be responsible for published defamatory matter whether he was aware of that or not," But an editor's position is somewhat different. He can escape his liability by proving that defamatory matter was published in his absence and without his knowledge and he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person.' The owner of the paper or journal, however as a qua owner has no responsibility. The publication of a notice in a newspaper conveying an imputation that the complainant is dishonest in the management of the affairs of the company and thus to conceal the dishonesty by methods that are themselves dishonest is defamation.53 In Asok Kumar Jain and others v. State of Maharashtra, 54 it was held that where a defamatory statement against a person is published in a newspaper, the editor, printer and publisher who has made declaration and is shown in paper as such is liable. Where it is alleged that the Chairman of Board of Directors of Company and its General Manager took part in selling out newspaper, it is indicative of the fact that they had prior knowledge of defamatory matter in paper which they could have prevented but they did not, they would be guilty of the offence and cannot escape liability under Section 502 unless they can make out a case of exception under Section 499.55 In Shutrughna Prasad Sinha v. Rajbhall Surajmai Rathi,56 the respondent a social activist belonging to Marwari Community filed a complaint against the appellant for his interview published in "Star Dust" a film magazine in which he was alleged to have stated that "Marwari community have no faith and love towards India, their motherland. Complaints were filed by the respondent at Pune and Nasik. It was alleged in the complaint that this statement was published with deliberate and malicious intention of outraging the religious feelings of Marwari community and this also defamed the member of Marwari community as a class". The Magistrate at Pune took cognizance and issued the process. According to the respondents, these allegations constitute an offence under Section 295-A and Section 500 read with Section 34 of the Penal Code. The High Court had held that no offence under Section 295-A could be made out but the allegations prima facie constitute an offence under Section 500, J.P. Code. As far the complaint filed is concerned it was held that it does not contain any of the allegations constituting the offence of defamation defined in Section 499. The Magistrate at Pune was not justified in issuing process against the appellant and hence the complaint is quashed. But as regard the complaint at Nasik was concerned it was held that it was not for the Supreme Court to see whether the complaint constitutes an offence under Section 499, I.P. Code. The Magistrate at Nasik came prima facie to the conclusion that the allegations disclosed in the complaint might come within the definition of Section 499, I.P. Code. It is

Mishra, Supra note 9 at 857. 1986 Cri. L.J. 1987 (Born). 55 Mishra, Supra note 9 at 857. 56 1997 Cri. L.J. 212 (S.C).
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for the Magistrate to weigh the facts at trial and hence at this stage it is not proper for the Supreme Court to quash the complaint. In S. Khushboo v. Karniammal and Another, 57 it was complained that the statement of accused given in news magazine amounts to his defamation. It was held that the statement of accused was given to news magazine calling for societal acceptance of pre-marital sex. He did not attack on reputation of anyone in particular. It does not amount to defamation under Section 499 I.P. Code. Moreover complainant was not an aggrieved person. Hence complaint was held liable to be quashed.58

5) IMPUTATION An imputation ordinarily implies an accusation or something more the expression of a suspicion.59 To impute is to lay the blame upon a person or to charge him or to allege against him something which brings him into disrepute. It connotes an accusation. The accusation must be something more than creating or expressing suspicion. The following imputations, as observed in various cases, are held to be defamatory60: i) to call a person a drunkard61, or a black marketeer62, or an illegitimate person63; ii) to call a trader as an insolvent64; iii) to call a woman as a woman of loose character65, or that she has a paramour66 and iv) to express imputation against the deceased.67 Such imputations may be expressed in various ways, as by way of exclamation, by way of question, by way of irony or by conjecture.68 It would be defamatory to characterise a person as 'goonda', 69 or to allege that the complainant sings indecent songs in the public, or is a drunkard and abuses girls and women and is a goonda"70 or to describe a person in the heading of a defamatory pamphlet as 'sharif badmash',71 or to say that Netaji Subhash Chandra Bose was a traitor,72 or to call a person 'worthless' and ' despicable blackguard'.73

(2010) 3 Cri. L.J. 2828 (S.C). Gandhi, Supra note 1 at 715. 59 Nelson, Supra note 5 at 4691. 60 Gandhi, Supra note 1 at 714. 61 Horilal v. Vishwanath, 1957 Cri U 1360. 62 K S. Namjudaiah v. s.c. Thippanna, AIR 1952 Mys 123. 63 N.K Singh v. R.B. Singh, AIR 1964 Manipur 20. 64 Bhikachand, AIR 1927 Sindh 24. 65 Kanwal Lal v. State of Punjab, AIR 1963 SC 1317. 66 J. Chelliah. v. Rajeshwari, 1969 Cri U 571. 67 Laxminarayan Singh v. Shriram Sharma, 1982 Cri LR 68 (MP). 68 Ratanlal; Law of Crimes, 1998. Vol II. (224th Edn., 1998), p. 1965: 69 Chellapan Pillai v. Karanjia (1962) 2 Cr LJ 142, 1962 MLJ (Cr) 635; Yeshwant Singh v. Kushwah 1955 NVC 3695 (Madhya Bharat). 70 Re Bhulliram Jalam (1962) 2 Cr LJ 760 (2), Am 1960 Madhya Pradesh 38,2. 71 Ram Narain v. Emperor Am 1924 All 566, 26 Cr LJ 23. 72 Pat Sharpe v. Dwi;endra Nath Bose (1964) 1 CX LJ 867, 68 CWN 654. 73 Raja Ram Singh v. Emperor 19 Cr LJ 669.
57 58

Innuendo- Where the natural and ordinary meaning of the words is not defamatory, or where the complainant wishes to rely upon additional defamatory meaning in which the words were understood by persons who had knowledge of particular facts, then he requires the help of an innuendo which is a statement by the complainant of the meaning which he attributes to the words, and existence of facts to support that meaning must be proved by him. Evidence showing two kinds of inferences cannot establish an innuendo and evidence of additional facts must- show that the complainant was the person who was intended by the words. In V. Subair v. P. K. Sudhakaran,74 where the accused described a medical practitioner as a 'professional debauch' and 'of low moral character', the complainant successfully proved that the statement was meant to attack him and the accused was held guilty of defamation. In Lalliani v. R. L Rina,75 where a girl was named as the source of inspiration in the biography of a poet, and the complainant bearing the same name sought to prove that her name was joined with the -poet, which being wrong was defamatory, the court was not convinced.76 However, the words, from which an innuendo is to be extracted, must be fair if susceptible of the meaning sought to be put upon 'them by the innuendo. If there are two interpretations possible, that meaning which is not defamatory, should be preferred.77 Where the words are obviously defamatory, the court has to consider the following facts for arriving at a decision whether the words are defamatory: a) Circumstances and context - The court must be put in possession, not only of the words used, but also of the context in which they were used in order to find the intention and the effect of the words. The court should have regard to the time and place of publication, the relationship between the parties, and, in fact, the whole circumstances of the case. b) Words should be considered as a whole - Where some passages in a petition are alleged to be defamatory, the document should be read as a whole with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there. c) Alleged defamatory words, etc, should be interpreted in a manner in which to reasonable man would do:- The test is, whether, under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in the libellous sense.78 The following imputations, as observed in various cases, are held to be defamatory: Imputation regarding insolvency An imputation of insolvency against a person in the way of his trade is per se defamatory. Imputation regarding trade or business

1987 CrLJ 736 (Kef). 1987 Cr U 1295 (Gau). 76 Bhattacharya T., Indian Penal Code, 4 th Ed. 2004, P-694 77 Nelson, Supra note 5 at 4692. 78 Nelson, Supra note 5 at 4693.
74 75

To say that a person indulging in black-marketing on an extensive scale all over the world, or that he had been dishonest in the management of the affairs of the company and was trying to conceal that dishonesty by methods that were themselves dishonest, would be defamatory. Where a letter sent by the accused, who had purchased a watch from a company, suggested that the company gave guarantees which were worthless, that it was a deceitful company and that persons, dealing with this company, should be on their guard take particular care to see that they are not cheated, it was held that such imputations were undoubtedly defamatory. An imputation of dishonesty to a tradesman is actionable per se. To ask a witness in crossexamination whether he was doing opium smuggling business or cloth smuggling trade is per se defamatory. Imputation regarding profession To say in respect of an instructress in physical culture and dancing that the future, including the social, religious and moral future, of the girls would be spoiled by attending the classes of the type, which she conducted, is to impute, to the complainant, an unfitness which is worse than attributing mere incapacity.79 An election poster against a rival candidate, a barrister, with the heading 'the hollowness of Mr-s' capacity as a barrister has been exposed' would amount to making a serious aspersion upon his professional status and is calculate4,itolower him in the eyes of the public as a barrister. 80 It is defamatory to publish an unskilful reproduction of an artist's work.81 Imputation regarding criminal offence If a person is falsely charged with theft, he can prosecute -the accused for defamation even though he is a low man or a man of low caste. A charge of bribery and corruption would be defamatory. Where an article in a newspaper alleged that a public servant had amassed a tidy amount by way of bribe, it was held that it was calculated to harm the reputation of the officer concerned and was defamatory.82 Imputation against chastity It would be defamatory to make any imputation against the chastity of a woman. To state that an unmarried well-connected brahmin girl had not preserved her virgin purity, 83 or that a woman had miscarriage without any knowledge whether she was married or not,84 or that the complainant, an unmarried. brahmin girl, aged thirty years, was the concubine of some persons,85 would be defamatory. In Bola Nath v Emperor,86 the complainant, an-European lady, was living with the son of the accused, a military officer, as his wife and subsequently married him after the death of her husband. She had made several attempts either for her suicide or for the murder of her husband. During interviews with the authorities, the accused
Mitlul Rustomji Murzban v Nueeertoanji Nowroji AIR 1941 Bom 278, 281, 43 Cr LJ 17 Panna Lal v Emperor AiR 1936 Lah 294, 37 Cr LJ 1033. 81 Krishnappa v Swami Akhandanand 42 CWN 1045. 82 Nelson, Supra note 5 at 4695. 83 Edara Venkayya v Kalipattapu Chitti AIR 1940 Mad 879, 1940 MWN 892. 84 Kashi Ram v Emperor AIR 1930 All 493,32 Cr LJ 435. 85 Thangaoelu Chettiar v POllnammal 1966 Cr LJ 1149, AIR 1966 Mad 383. 86 AIR 1929 All 1, 30 Cr LJ 101.
79 80

said that she was of unsound mind and was, therefore, likely to murder her husband and that she was of loose moral character. It was held that there was no justification for charging the complainant with sexual immorality and the accused was guilty of the offence of defamation in respect of' the second allegation.87 Nomgthombum Kanhai Singh v. Bhaskar Singh,88 The description of a person as illegitimate is a very serious imputation to make and such an imputation harms the reputation of the person against whom it is made. It also affects the reputation of the mother of the person and the mother's father. The imputation is all the more damaging when the parties concerned are people of high social status. Imputation against caste Statements have often been made which becomes a matter of importance for the member of the caste to consider their defamatory effect. Two questions have arisen frequently for consideration: (i) Whether the statements are defamatory; and (ii) Whether the statements are privileged under any of the exceptions. The first question has been dealt here with respect to the statements about castes being or not being defamatory. The question of privilege has been discussed later under different Exceptions. Among Hindus, it would cause the gravest harm to allege that a man was out of caste. It is defamatory and is not covered by s 95, IPC. To say so would bring about disastrous consequences, such as deprivation of religious and social communication, and would be prima facie defamatory.89 Vulgar abuses Where the defamatory words, prima facie libellous, are used in a street quarrel and are mere vulgar abuses, there is no deliberate intention to harm the reputation of the person defames. In Emperor v. Behari ,90 'Beti ki gali' or "Bahin ki gali', having reference to the daughter or sister of the complainant, cannot be regarded as conveying any imputation as can, in any way, harm the reputation of the complainant. In Bakhtwar Lal v. Crown, 91 to say that the complainant is 'Beiman and Badmash', or is 'pichhlag' and 'Lawaris' (which does not mean illegitimate), or is chandal92 or is dishonest or fraudulent, 93 does not lead to an offence under this section.94 However, vulgar abuses are uttered in the circumstances which tend to lower the person addressed in the estimation of the people present or to bring him into ridicule and contempt, they would amount to defamation. In Bhewati v Umabai,95 there was a quarrel between A and
Nelson, Supra note 5 at 4695. (1964) 1 Cr LJ 408, AIR 1964 Manipur 20. 89 Nelson, Supra note 5 at 4696. 90 1883 AWN 36. 91 AIR 1922Lah 459 (1), 4 LLJ 480. 92 Sarat Chandra Das v State 1952 Cr LJ 1640, A1R 1952 Ori 351. 93 Rukmani Bai v Radha Ballabh 1955 NUC 472, 1953 Raj LW 203. 94 Nelson, Supra note 5 at 4697. 95 1962 MPLJ (notes) 112.
87 88

B over their children in which A said to B that she was the wife of the' former's husband. Similarly C, who was mother-in-law of A, said that B was the wife of her son. It was held that the imputation was a deliberate statement of fact and as it was made in the presence of several persons, it amounted to defamation. 6) 'CONCERNING ANY PERSON' This phrase must mean any person whose identity can be established. Imputation concerning any person may be conveyed obliquely or indirectly, or by way of question, conjecture, exclamation or by irony.96 He may be a single individual or a group where, therefore, the identity could not be established so it was held in Government Advocate, B&O v. Gopa Bandhu Das,97 that the accused could not be convicted. In Asha Parekh v. State of Bihar98, a film was alleged to be defamatory of lawyers as a class. A criminal case was filed against the producers, its artists and Chairman of the Central Board of Censors. The court held that it is necessary in such a case to show that the class of persons is so small that its identity could be established. It is not so in this case and since advocates as a class could not be defamed, the accused is not guilty under this Section. A newspaper is not a person. Consequently it cannot be defamed. In Raj Kapoor case99, the film "Kal Aaj Aur Kal' contained some imputations against the Bhangi community in general to the effect that the said community was held lower in status in the eyes of the Brahmins. It was held that since the remarks and the scene in the film being of a general nature, it was not directed against any particular group of individuals who could be identified or particularised.100 7) 'INTENDING TO HARM, OR KNOWING OR HAVING REASONS TO BELIEVE THAT SUCH IMPUTATION WILL HARM, THE REPUTATION OF SUCH PERSON' The essence of the offence of defamation is that the imputation must have been made either with the intention of causing harm, or with the knowledge or belief that the imputation would cause harm, to the reputation of the person defamed.101 The test to determine whether any statement is defamatory or not is whether under the circumstances in which writing was published; a person of reasonable prudence to whom publication was made would be likely to understand it in a libellous sense.102 The intention of the accused to harm the complainant is to be proved here. Imputations on a man's character lowers him in the eyes of others and this is harm; but anything which lowers a man in his own estimation is no harm, and therefore, it is no defamation.103

96 97 98 99

Mishra, Supra note 9 at 857.

(1922) 1 Pat 414.

1977Cri LJ 21 (Pat). Raj Kapoor v. Narendra, 15 Guj LR 125. 100 Gandhi, Supra note 1 at 716. 101 Nelson, Supra note 5 at 4699. 102 Mishra, Supra note 9 at 858. 103 Gandhi, Supra note 1 at 718.

In Wahid Ullah Ansari case104, where certain article published in a paper contains scandalous accusation against the girl students of a college which implied that the girls were habitually guilty of misbehaviour described in the article, each girl thereby individually suffered in reputation and hence some of the girls were held entitled to maintain action for defamation.105 a) Proof of Actual Harm to Complainant- Not Necessary To sustain a charge of defamation, it is not necessary to prove that the complainant actually suffered directly or indirectly from the scandalous imputation alleged; it is sufficient to show that the accused intended that the imputation should harm, or that he knew or had reason to believe that imputation made by him would harm the reputation of the complainant.

b) Intention or Knowledge In judging whether the accused had the requisite intention or knowledge, the circumstances under which, and the main object with which, the defamatory statements were made, and the background of the dispute between the parties should all be considered. Where the tenor of a document shows that the publication tends to harm the reputation of a person, the court would be justified in gathering from the terms of the matter itself that the publishers intended to harm, or they knew or had reason to believe that the imputation would harm his reputation.106

8) 'HARM' Harm means harm or injury to reputation of the complainant. 107 Harm' has to be the reputation itself of the person defamed.108 Words which do not disparage a man's reputation but occasion a pecuniary loss to him do not amount to defamation.109 9) 'REPUTATION' Reputation is a jus in rem, a right absolute and against the entire world. A man's reputation is his property. Hence, nobody can so use his freedom of speech or expression as to injure another's reputation.110 Reputation is what others believe about the complainant. Complainant's own estimation about himself is no reputation. Consequently, communication of defamatory matter to the complainant is no publication.111

A.I.R. 1935 All. 743. Mishra, Supra note 9 at 858. 106 Nelson, Supra note 5 at 4701. 107 Yeeda Menezes v. Yusuf Khan Haji Ibrahim Khan, AIR 1966 SC 1773: 1966 Supp SCR 123. 108 Amar Singh v KS Badalia (1965) 2 Cr LJ 693, 697 109 Nelson, Supra note 5 at 4702. 110 Nelson, Supra note 5 at 4702. 111 Gandhi, Supra note 1 at 718.
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EXPLANATION 1
It is regarding imputation against a dead person. If the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives, it is defamation.112 This explanation will come into operation when: (a) the imputation would have hurt the deceased's reputation, and (b) it would also have hurt the feeling of his family and relatives. In Luckumsey Ronji v. Hurbans Nursy,113 a suit was brought by the heir and nearest relation of deceased person for defamatory words spoken of such deceased person but alleged to have caused damage to the plaintiff as a member of the same family; it was held that the suit was not maintainable.114

EXPLANATION 2
An action for libel will lie at the suit of an incorporated trading company in respect of a defamation calculated to injure its reputation in the way of its business. A corporation has no reputation apart from its property or trade. It cannot maintain an action for a defamation merely affecting personal reputation. This explanation covers any collection of persons but such collection of persons must be identifiable in the sense that one could with certainty say that this group of particular people has been defamed as distinguished from the rest of the community.115 In M.P. Narayana Pillai and others v. M.P. Chako and another, 116 it was held that imputations against an association or collection of persons can be defamatory only if such persons are definite and determinable body. Only if there is a definite association or collection of persons capable of being identified, it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. There cannot be defamation against a community as such.117 In Shatrughna Prasad Sinha v. Rajbhau Surajmal Rahi, 118 complainant alleged that the appellant in an interview published in a magazine made statements outraging religious feelings of Marwari community by alleging that the members of this community were not a class belonging to India, and had no faith and love towards India. They were traitors and
Gandhi, Supra note 1 at 719. (1881) 5 Born. 580. 114 Mishra, Supra note 9 at 859. 115 Mishra, Supra note 9 at 859. 116 1986 Cri. L.J. 2002 (Kcrala), 117 Mishra, Supra note 9 at 860. 118 (1996) 6 SCC 263: 1996 SCC (Cri) 1310.
112 113

enemies of India. It was held that these allegations did not disclose offence under Section 500 and hence Magistrate was not justified in issuing process against the appellant. In Vishwa Nath v. Shambha Nath Pandeya, 119 it was held that where in an article of a magazine imputations were made against a certain community in general and nor any particular group, and nor were the said imputations related to the complainant, and the said community was also not found to be a definite identifiable body of people, continuance of the case after the death of the complainant under the representation of his advocate would not be proper.

EXPLANATION 3
A statement innocent in form or in the form of an alternative will amount to defamation if it is ironical.120 In R. Shanker v. State,121 in an article in department with his own underlings, the minister had made the appointment of a particular person and that this was but the prelude to further appointments of the like nature, it was held that the caption. 'So prospers the incorrupt administration of Minister Krishna Iyer' was obviously an ironical statement implying that the Minister's administration was a bad administration riddled with corruption and nepotism. In MKT Subramanium v. State,122 where the accused author through imaginary conversation between two parliamentarians of a political party brought out, through satirical and ironical expressions, confessions out of them about the misdeeds of the ministers belonging to that political party it was held to be defamation, especially because, even though the whole situation was imaginary, the imputation against the chief minister was very real and intended to harm the reputation of the complainant who had been shown to have amassed wealth by cheating the public and abusing political power.

EXPLANATION 4
According to Explanation 4 an imputation which directly or indirectly, in the estimation of others, lowers the moral123 or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or
1995 Cr LJ 277 (All). Mishra, Supra note 9 at 860. 121 1959 Cr LJ 464, AIR 1959 Ker 100. 122 1971 LW (Cr) 131. 123 J. Chelliall v. Rajeswari, 1969 Cri L.J 571.
119 120

causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful, the imputation is defamatory.124 Thus describing a woman that she has paramours wherever she goes was held as per se defamatory in J. Chellihl v. Rajeswari125

EXCEPTION TO SECTION 499

This section has got a large number of exceptions. They cover the entire field of the privileges available in cases of defamatory statements. In fact, these privileges represent the freedom of speech and expression which is the foundation of all democratic institutions.126 The exceptions attached to the section declare that whenever a case falls within any of the exceptions, it would not be defamation. These exceptions are ten in number but they can well be condensed into seven. They constitute the privileged occasions which exempt a person from criminal liability for defamation. They may be summarised as follows: As expressed in Balraj Khanna v. Moti Ram, the question of applicability of the exceptions in Section 499 cannot be considered at the time of entertaining the complaint to determine if a prima facie case is made out under Section 202 CrPC. It is only at the trial that the question of applicability of any of the exceptions in Section 499 or, as well as other defences can be considered. 1) Imputation for public good: It is not defamation to impute anything which is true concerning any person if it is for the public good that the imputation should be made or published-(Exception 1). 2) Expression of opinion in good faith: It is not defamation to express in good faith any opinion respectingi) the conduct of a public servant in the discharge of his public functions (Exception 2), ii) or the conduct of any person touching any public question (Exception 3), or iii) the conduct of a party, witness or agent in a civil or criminal case decided by a court (Exception 5), or iv) the character or merits of a public servant or any person or a party, witness or agent in a civil or criminal case decided by a court so far as his character appears in that conduct and no further (Exception 5) or, v) the conduct of the author of any performance which he has submitted to the judgment of the public, so far as his character appears in such performance and no further (Exception 6).

Gandhi, Supra note 1 at 719. 1969 Cri L.J 571. 126 Nelson, Supra note 5 at 4707.
124 125

3) Publication of reports of court proceedings: It is not defamation to publish a substantially true report of the proceedings or result of the proceedings of a court including a justice of the peace or other officer holding an inquiry in open court preliminary to a trial in a court (Exception 4).

4) Censure passed in good faith: It is not defamation to pass in good faith any censure on the conduct of a person by another having authority over him, i) conferred by law, or ii) arising out of lawful contract made with him, or iii) in matters to which such lawful authority relates (Exception 7). 5) Accusation preferred in good faith: 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 subject-matter of the accusation (Exception 8).

6) Imputation made in good faith: It is not defamation to make in good faith an imputation on the character of another for (i) the protection of the interests of the person making it, or any other person, or (ii) for the public good (Exception 9).

7) Conveying caution in good faith: It is not defamation to convey a caution, in good faith to one person against another provided that such caution is intended for the good of i) the person to whom it is conveyed, or ii) some person in whom that person is interested, or iii) for the public good (Exception 10).