Holding

The Supreme Court set aside the High Court's order quashing the magistrate's proceedings and directed that the magistrate record the accused's plea under CrPC s.251 and the trial proceed, as the ninth exception to IPC s.499 was not established.

Summary

Sewakram Sobhani, a former detainee, sued the editor of the Blitz weekly for defamation after the newspaper published a story alleging he impregnated a female detainee, based on a confidential government enquiry report. The magistrate ordered the plea to be recorded under CrPC s.251 without producing the report, which the respondents sought to have produced, citing government privilege. The High Court, after the government waived privilege and produced the report, quashed the magistrate's order and the prosecution under CrPC s.482, holding the publication fell within the ninth exception to IPC s.499. The Supreme Court set aside that order, directing the magistrate to record the plea under s.251 and proceed with trial, holding that the ninth exception does not automatically apply and the burden of proving good faith lies on the accused.

Issues considered

The High Court's jurisdiction to quash the magistrate's order and the prosecution under CrPC s.482.
Whether the Blitz article is protected by the ninth exception to IPC s.499 (good faith and public good).
The burden of proof for the ninth exception and the standard of 'good faith' under IPC s.52.
The effect of the government's claim of privilege over the enquiry report on the trial.

Legislation cited

Code of Criminal Procedure, 1973s. 251, s. 397, s. 401, s. 482, s. 91
Indian Penal Code, 1860s. 499, s. 500, s. 52
Maintenance of Internal Security Act

Subjects

defamationSection 499 Ninth Exceptiongood faithpublic goodjournalistic privilegeprivilege claimCrPC Section 251CrPC Section 482MISA

Judgment

627

SEWAKRAM SOBHANI A
v.
R.K. KARANJIA, CHIEF EDITOR,
WEEKLY BLITZ & ORS.

May 1, 1981 B

[0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL ISLAM, JJ.]

Penal Code-Section 499-Ninth exception-Scope of-Respondent made
imputations regarding character of appellant in an article published in his journal
purporting to be based on confidential report of a high official of State Government-
Government claimed privilege in regard to report-Magistrate proceeded to record
c
plea of accused without seeing report-Government wuived privilege before High
Court-In revision High Court held t~e news item justified on the basis of report-
High Court, whether competent to quash the order of Magistrate.

A news item published in the Blitz weekly of which the respondent was the
Editor, stated that the appellant enticed a female detenu who alongwith him, D
was detained in the Central Jail under the Maintenance of Internal Security 'Act
and that she had conceived through him and that on getting released on parole
she had had the pregnancy terminated. It was further stated that a confidential
enquiry conducted by a senior officer of the Home Department ·revealed that it
was the appellant who was responsible for the detenu's pregnancy.·

On release from jail the appellant lodged a criminal complaint against the E
respondent. Before the Magistrate the respondent prayed that the report of the
Enquiry Officer be sent for. But the report could not be obtained because the
State Government claimed privilege in respect of that report. When the
Magistrate proceeded to record the plea of the accused under section 251 of the
Code of Criminal Procedure, the respondent requested that his plea be recorded
only after the enquiry report was produced; but the Magistrate rejected the
request.
F
The respondent thereupon filed a revision before the High Court for setting
aside the order of the Magistrate. Waiving privilege the State Government pro-
duced a copy of the enquiry report before the High Court.

A single Judge of the High Court quashed the proceedings on the view that
the respondent's case clearly fell within the ambit of the ninth exception to sec-
tion 499, I.P.C. because, ~ccording to him, the publication had been made honestly G
in the belief of its truth and also upon reasonable ground for such belief, after the
exercise of such means to verify its truth as would be taken by a man of ordinary
prudence under like circumstances.

On the question whether the High Court was right in quashing the order of H
the Magistrate, remanding the case to the Magistrate.
628 SUPREME COURT REPORTS (1981] 3 S.C.R.

A (Per majority : Chinnappa Reddy and A.P. Sen JJ-Baharul Islam J dissen-
ting)

HELD : The order passed by the High Court should be set aside. The
Magistrate should record the plea of the accused under section 251 Cr. P.C. and
thereafter proceed with the trial according to law.

B (Per Chinnappa Reddy, J.)

To attract the ninth exception to section 499, I.P.C. the imputations must
be shown to have been made (1) in good faith and (2) for the protection of the
person making it or of any other person or for the public good. The insistence
of the section is upon the exercise of due care and attention. The standard of
care and attention must depend on the circumstances of an individual case,
c the nature of imputation, the need and the opportunity for verification and so on.
In every case it is a question of fact to be decided on its particular facts and
circumstances. [631 A-Bl

Harbhajan Stngh v. State of Punjab, [1965] 3 SCR 235 @ 244, Chaman Lal
v. The State of Punjab [1970] 3 SCR 913 @ 916 and 918.

D Several questior>s may arise for consideration depending on the stand taken
by the accused at the trial and how the ·complainant proposed to demolish
the defence. In the instant case the stage for deciding these questions had not
arrived yet. Answers to such questions, even before the plea of the accused was
recorded, could only be a priori conclusions. [632 HJ

The respondent;s prayer before the High Court was to quash the
E Magistrate's order and not to quash the complaint itself as the High Court has
done. But that was only a technical defect which need not be taken seriously in
an appeal under Article 136 of the Constitution where the Court is concerned
with substantial justice and not with shadow puppetry. [630 G]

(Per A.P. Sen /.}

F The order of the High Court quashing the prosecution under section 482 of
the Code of Criminal Procedure is wholly perverse and had resulted in manifest
miscarriage of justice. The High Court has pre-judged the whole issue without
a trial of the accused persons. The matter was at the state of recording the pleas
•
of the accused under section 251 Cr. P.C. The circumstances brought out clearly
showed that .the respondent was prima facie guilty of defamation punishable
under section 500 of the Indian Penal Code unless covered by one of the excep-
G tions of section 499 Indian Penal Code. [635 E-F]

The burden to prove that his case would come within the ninth exception to
section 499, namely, that the imputation was in good faith and was for the pro-
tection of.the interests of the person making it or of any other person or for the
public good was on the respondent. All that the respondent prayed for was that
H the Magistrate should not proceed to record his plea under section 251 Cr. P.C.
without persuing the enquiry report. There was no application for quashing the
prosecution itself. [636 F; 637 CJ
SEWAKRAM V. R.K. KARANJIA 629
The enquiry report in respect of which the Government claimed privilege A
had by itself no evidentiary value. The contents of that report could not be
made use of unless the facts were proved by evidence aliunde. The report being
per se defamatory, it was for the accused to plead the ninth exception in defence
and discharge the burden of proving good faith which implies the exercise of due
care and caution and to show that the attack on the character of the appellant
was for the public good. [637 E; G; HJ
B
· Sukro Mahto v. Basdeo Kumar Mahto and Anr. [1971] Supp. SCR 329 at 332,
Harbhajan Singh v. State of Punjab [1965] 3 SCR 235, Chaman Lal v. State of
Punjab [1970] 3 SCR 913, referred to.

The High Court appears to be labouring under an impression that journa-
lists enioyed some kind of special privilege. Journalists are in no better position
than any other person. Even the truth of an allegation does not permit a justi-
• fication under the first exception unless it is proved to be in the public good, c
The question whether or not it was for public good is a question of fact like any
other relevant fact in issue. If they make assertions of facts as opposed to
comments on them, they must either justify these assertions or in the limited cases
specified in the ninth exception, show that the attack on the character of another
was for the public good or that it was made in good faith. [638 G-H]

Dr. N.B. Khare v. M.R. Masani and Ors., ILR 1943 Nag. 347, Arnold v. D
King Emperor LR (1913-14) 41 Ind. App. 149 at 169, referred to.

(Per Baharu/ /slum J.)

The Court did not commit any error in quashing the appellant's complaint.
[646 E]
The High Court's judgment justifies the factual submission of the respon- E
dents that their application wa~ under section 482 as wen as under sections 397
and 401 of Cr. P.C. and that they claimed and canvassed the protection under
the ninth exception to section 499, I.P.C. The omission in the prayer portion
of a petition, particularly in a criminal case, is not fatal. The High Court,
in its revisional jurisdiction, can always grant suitable relief justified by law as
wen as facts and circumstances of a particular case. [641 H; 642 DJ

The definition of "good faith" which is couched in negative terms indicates
F
that lack of good faith has been' made a part of the offence which the prosecu-
tion has to establish beyond reasonable doubt. On the other Iland, proof by the
accused of the report to be an authentic document is enough. It would create
a doubt in the mind of the Court as to the Jack of "good faith" on the part of the
accused. [644 F-G]
If on a complaint made by a citizen aneging laxity in the observance of jail G
rules, if the report submitted by a high Government official on the basis of
an enquiry conducted by him was for public good and if the respondents had
reasons to believe its contents to the true, they will be protected under the ninth
exception even if the burden of proof of good faith is on the accused. Good
faith need not be proved beyond reasonable doubt. [645 BJ
H
The report of the enquiry officer was exhaustive, reasoned and was based
on evidence. The report leads one to believe the imputations. If that be so, it
630 SUl'REME COURT REPORTS (1981] 3 S.C.R.

A cannot be said that the respondents published the report or its summary without
due care and attention. This establishes good faith under the ninth exception to
section 499. Therefore, the publication obviously was for public good. [646 B-C]

In the instant case even if the findings of the report be proved to be false,
the respondents would be protected. Sending back the case to the Magistrate
would be an exercise in futility and abuse of the process of the criminal court
B as the High Court has pointed out. [646 D-E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
543-545 of 1979.

Appeals by special leave from the judgment and order dated
the 15th April, 1978 of the Madhya Pradesh High Court in Criminal
c Revision No. 701/77, 105/78 & 103/78 respectively.

H.K. Puri for the Appellant.

R.K. Garg, Sunil Kumar· Jain and V.J. Era for Respondents
Nos. 1, 2, 5 & 6.
D
S.K. Gambhir and Vijay Mansaria for the State.

The following Judgments were delivered

CHINNAPPA REDDY, J. I agree with my brother A.P. Sen that
E the order passed by the High Court should be set aside and that the
Magistrate should be directed to record the plea of the accused .r
under Sec. 251 Criminal Procedure Code and, thereafter, to proceed
with the trial according to law. The facts leading to these appeals
have been stated in the judgments of both my brethren A.P. Sen
and Baharul Islam and it is unnecessary for me to state them over
F again.

The prayer in the application before the High Court was •
merely to quash the order dated November 30, 1977 of the learned
Chief Judicial Magistrate, Bhopal and not to quash the complaint
itself as the High Court has done. But, that was only a technical
G defect and we do not take serious notice of it in an appeal under y
Art. 136 of the Constitution where we are very naturally concerned
with substantial justice and not with shadow puppetry. The
position now is this : The news item in the Blitz under the caption
'MISA Rape in Bhopal Jail' undoubtedly contained serious imputa-
H tions against the character and conduct of the complainant. In
order to attract the 9th Exception to Sec. 499 of the Indian Penal
Code, the imputations must be shown to have been made (1) in good
SBWAKRAM v. R.K. KARANJIA (Chinnappa Reddy, J.) 631

faith, and (2) for the protection of the person making it or of any A
other person or for the public good. 'Good Faith' is defined, in
a negative fashion, by Sec. 52 Indian Penal Code as follows:
"Nothing is said to be done or believed in 'Good faith' which is
done or believed without due care and attention". The insistence
is upon the exercise of due care and attention. Recklessness and
negligence are ruled out by . the very nature of the definition. The B
standard of care and attention .must depend on the circumstances
of the individual case, the nature of the imputation, the need and
the opportunity for verification, the situation and context in which
the imputation was made, the position of the person making the
imputation, and a variety of other factors. Good faith, therefore
·-~ -1--- is a matter for evidence. It is a question of fact to be decided on c
the particular facts and circumstances of each case. So too the
question whether an imputation was made for the public good. In
fact the _1st Exception of Sec. 499 Indian Penal Code expressly
states "Whether or not it is for the public good is a question of
fact". 'Public Good' like 'Good faith' is a matter for evidence and
not conjecture. D
In Harbhajan Singh v. State of Punjab, (1) this Court observed
(at p. 244):

"Thus, it would be clear that in deciding whether an
accused person acted in good faith under the Ninth Excep- E
tion, it is not possible to lay down any rigid rule or test.
It would be a question 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 F
the said imputation; did he make any enquiry before he
made it; are there reasons to accept his story that he acted
with due care and attention and was satisfied that fthe
imputation was true? These and other considerations would
be relevant in deciding the plea of good faith made by an
accused person who Claims the benefit of the Ninth G
Exception".

Again in Chaman Lal v. The State of Punjab (2) this Court said
(at p. 916):
H
(I) [1965] 3 S.C.R. 235 @244.
(2) [1970] 3 S.C.R. 913@916 and 918.
632 SUPREME COURT REPORTS [1981] 3 s:c.R.

A ''In order to establish good faith and bona fide it has
to be seen first the circumstance under which the letter was
written or words were uttered; secondly, whether there was
any malice; thirdly, whether the appellant made any enquiry
before he made the allegations; fourthly, whether there are
reasons to accept the version that he acted with care and
B caution and finally whether there is preponderance of
probability that the appellant acted in good faith".

Later the Court said (at p. 918):

"Good faith requires care and caution and prudence in
c the background of context and circumstances. The position
of the person making the imputation will regulate the
standard of the person making the imputation will regulate
the standard of care and caution".

Several questions arise for consideration if the Ninth Exception
D is to be applied to the facts of the present case. Was the Article
published after exercising due care and attention? Did the author
of the article satisfy himself that there were reasonable grounds to
believe that the imputations made by him were true? Did he act
with reasonable care and a sense of responsibility and propriety?
Was the article based entirely on the report of the Deputy Secretary
E or was there any other material before the author? What steps
did the author take to satisfy himself about the authenticity of the
report and its contents? Were the imputations made rashly without
any attempt at verification? Was the imputation the result of any
personal ill will or malice which the author bore towards the com-
plainant? Was it the result of any ill will or malice which the author
F bore towards the political group to which the complainant belonged?
Was -the article merely intended to malign and scandalise the com-
plainant or the party to which he belonged? Was the article intended
to expose the rottenness of a jail administration which permitted
free sexual approaches between male and female detenus? Was the
article intended to expose the despicable character of persons who
G were passing off as saintly leaders? Was the article merely intended
to provide salacious reading material for readers who had a peculiar
taste for scandals? These and several other questions may arise for
consideration, depending on the stand taken by the accused at the
trial and how the complainant proposes to demolish the defence.
H Surely the stage for deciding these questions has not arrived yet.
Answers to these questions at this stage, even before the plea of the
SEWAKRAM v. R.K. KARANJIA (Sen, J.) 633

accused is recorded can only be a priori conclusions. 'Good faith' A
'public good' are, as we said, questions of fact and matters for
evidence. So, the trial ·must go on.

SEN, J. This appeal, by special leave, is directed against an
order of the Madhya Pradesh High Court dated April 15, 1978
quashing the prosecution of the respondent, R.K. Karanjiya, Chief B
Editor, Blitz, for an offence under s. 500 of the Indian Penal Code
for publication of a news-item in that paper which was per se
defamatory, on the ground that he was protected under Ninth
Exception to s. 499 of the Code.

During the period of Emergency the appellant, who is a senior
lawyer practising at Bhopal, was placed under .detention under s.3
c
(I) (a) (ii) o(the Maintenance of Internal Security Act, 1971 and
was lodged in the Central Jail, Bhopal. There were several other
detenus belonging to the opposition parties lodged along with him
in the same jail, including three lady detenus, viz., Smt. Uma Shukla,
D
Smt. Ramkali Misra, Advocate and Smt. Savitha Bajpai, later State
Minister, Public Works Department. The husband of Smt. Uma
Shukla, a practising advccate at Bhopal, was not detained. Smt. Shukla
was released on parole for a week between June 10 and 18, 1976.
On her return to the jail it was found that she had conceived. She
was examined on July 30, 1976, by a lady doctor, Dr. (Mrs) N.C. E
Srivstava, Woman Asst. Surgeon and the pregnancy was reported
to be six weeks old. Smt. Shukla was again released on parole in
the month of August 1976 and on August 24, 1976, she got the
pregnancy terminated by Dr. (Mrs) Upadhayay at the Zanana
Hamidia Hospital, Bhopal with the written consent of her husband
under s.3 of the Medical (Termination of Pregnancy) Act, 1976. F
While the order of detention of the appellant was still in
operation, there was an ex parte confidential enquiry held. by Shri
S.R. Sharma, I.A.S. Deputy Secretary (Home) Government of
Madhya Pradesh, into the circumstances leading to the pregnancy
of Smt. Shukla. The Enquiry Officer by his report dated November
3, 1976, apparently held that the pregnancy was due to illicit G
relations between the appellant and SJ1?.t. Shukla, during their
detention in the Central Jail. On December 25, 1976, the Blitz, in
its three editions in English, Hindi and Urdu simultaneously flashed
a summary of the report and the story as given out was that (i) there
was a mixing of male and female detenus in the Central Jail, Bhopal,
(ii) the appellant had the opportunity and access to mix with Smt. H
Shukla freely, and (iii) Smt. Shukla became pregnant through the
634 SUPREME COURT REPORTS (1981] 3 S.C.R.

A appellant. The news-item was per se defamatory. It is somewhat
surprising that the Enquiry Report, which was a document of highly
confidential nature, should have found its way to the Press.

With the revocation -of Emergency, the appellant along with
the other political detenus was released from detention. On his
B release, the appellant lodged a criminal complaint for defamation
against the respondent, R.K. Karanjia. The respondent, on
appearing before the Magistrate, moved an application under s. 91
of the Code of the Criminal Procedure, 1973, praying that the report
of the Enquiry Officer be sent for as it was likely to be lost or
destroyed. On August 23, 1976 the learned Magistrate allowed the
c app)ication and directed that ther eport with the concerned file be
produced. The State Government, however, did not comply with
the direction and by an application dated December 31, 1977,
claimed privilege in respect of the Enquiry Report which still
awaited consideration. On October 29, 1977 when the case was
fixed for recording the plea of the accused under s. 251 of the Code,
D the respondent moved an application stating that the plea should
be recorded only after the Enquiry Report· was produced. The
learned Magistrate by his order dated November 30, 1977, rejected
the said application of the respondent as to the summoning of the
records and directed the accused persons to appear in person or
through counsel for explaining to them the substance of the accusa-
E tion and also .for recording their pleas.
.r
Thereafter, the respondent filed a rev1S1on before the High
Court under s.397 of the Code for setting aside the order of the
learned Magistrate and alternatively under s. 482 of the Code, if it
were held to be an interlocutory order. The revision was heard by
F a learned Single Judge and it appears that the Government Advocate
made available a copy of the Enquiry Report for the perusal of the
learned Judge. The learned Judge by his order dated April 15, 1978,
quashed the proceedings on the ground that the respondent's case
"clearly falls within the ambit of exception 9 of section 499 of the
Indian Penal Code". In reaching that conclusion, he observed that
G "it would be abuse of the process of the court if the trial is allowed
to proceed which ultimately would turn out to be a vexatious
proceeding". . The reasoning advanced by him was as follows:

The real question to ask is, did the applicants publish
H the report for public good, in public interest and in good
faith? My answer is in the affirmative. It was a publication
SEW AKRAM v. R.K. KARANJIA (Sen, J.) 635

of a report for the ,welfare of the society. A public institution A
like prison had to be maintained in rigid discipline; the rules
did not permit mixing of male prisoners with female prisoners
and yet the report said the prison authorities connived at such
a thing, a matter which was bound to arouse resentment and
condemnation. The balance of public benefit lay in its publicity
rather than in hushing up the whole episode. Further, there B
was good faith in the publication. The source on which the
publishers acted was the proper source on which they were
entitled to act and they did so with care and circumspection.
The report further shows that the publication had been honestly
made in the belief of its truth and also upon reasonable ground
for such a belief, after the exercise of such means to verify c
its truth as would be taken by a man of ordinary prudence
under like circumstances.

{emphasis added)

It is somewhat strange that the learned Judge should have made D
public the contents of a document in respect of which the State
Government claimed privilege.

The order recorded by the High Court quashing the prosecution
under s.482 of the Code is wholly perverse and has resulted in
manifest miscarriage of justice. The High Court has pre-judged the E
whole issue without a trial of the accused persons. The matter was
at the stage of recording the plea of the accused persons under s. 251
of the Code. The requirements of s. 251 are still to be complied
with. The learned Magistrate had to ascertain whether the
respondent pleads guilty to the charge or demands to be tried. The
circumstances brought out clearly show that the respondent was F
prima facie guilty of defamation punishable under s. 500 of the Code
unless he pleads one of the exceptions to s. 499 of the Code. The
offending article which is per se defamatory, is as follows:

MISA RAPE IN BHOPAL JATL (By Blitz Correspondent).

Blitz: A shocking sex scandal involving a top RSS leader G
of M.P. was discussed at a secret meeting of Jan Sangh MLAs
and MPs here recently. The alleged escapades of 55 years
old Sewakram Sobhani. a close confidant of RSS Chief
Bhausaheb Devras. with the young wife of another RSS man
in the Bhopal Central Jail, where both were detained under H
MISA, have rocked RSS Jan Sangh circles of the State.
636 SUPREME COURT REPORTS (1981] 3 S.C.R.

A According to a report submitted to the State Government
by a Deputy Secretary in the Home Deptt. who inquired
into the grfaly affair, Sobhani was reportedly responsible for
making Mrs. Uma Shukla, 22 year old wife of a lawyer Yogesh
Shukla, pregnant.

B /.bortion?

When this was discovered she was quietly released on
parole and, at her own request, taken for abortion to the
Sultania Zanana Hospital. After discharge she refused to
rejoin her husband but stayed during the remaining 'period
c of her parole in the hide-out of the 'total-revolutionaries'
in the Professor's Colony. She returned to jail later and
was transferred to the Hoshangabad Jail, while Sobhani
was sent to the Raipur Central Jail.

The Official report throws light on how Sobhani
allegedly enticed Mrs. Shukla with the help of a high
D
official of the Bhopal Central Jail despite a ban on contacts
between male and female detenus. The jail official, himself
a close sympathiser of the RSS allowed Sobhani to meet
her frequently in his office and their love sessions were in
his anteroom. Yogesh Shukla has made a representation to
the State Government alleging that Sobhani had committed
E adultery with his wife and demanded action against the ~'·
jail authorities for permitting a "rape" of his wife.

It is for the respondent to plead that he was protected under Ninth
Exception to s. 499 of the Code. The burden, such as it is, to
prove that his case would come within that exception is on him.
F
The ingredients of the Ninth Exception are that ( 1) the imputation
must be made in good faith, and (2) the imputation must be for the
protection of the interests of the person making it or any other
person or tor the public good.

We are completely at a loss to understand the reasons which
G impelled the High Court to quash the proceedings. The respondent,
in his revision directed against the order of the learned Magistrate
dated November 30, 1977, asserted in paragraph 5 that the case
pre-eminently a fit case for quashing the impugned order either in
the revisional jurisdiction of the High Court or in the exercise of
H its inherent powers under s. 482 of the Code to prevent the abuse of
•
SBWAKRAM v. R.K. KARANJIA (Sen; J.) 637

the process of law and to secure the ends of justice. The prayer A
made in the revision was in these terms:

The applicants pray that the impugned order be
quashed and the learned Magistrate be directed to persue
the report which he has sent for under section 91, Criminal
Pro. Code and pass suitable orders according to law. B
All that the respondent wanted is that learned Magistrate should
not proceed to record the plea of the accused persons under s. 251
of the Code without perusing the Enquiry Report under s. 91 of the
Code. There was no application made before the High Court
under s. 482 of the Code for quashing the prosecution itself. The
averment contained in paragraph 4 that the Blitz only published a
c
- -+---..
concise summary from the findings reached by the Deputy Secretary
(Home) who was the Enquiry Officer appointed by the Government
and, therefore, it was the duty of the learned Magistrate, to go
through the report for himself and hold that no accusation had been
made and the question of explaining it to the accused did not arise D
and the proceedings were liable to be dropped because no ingredients
constituting an offence under s. 500 of the Code had been made out,
must be read in conjunction with paragraph 5 and in support of the
limited prayer made in revision. This cannot be construed as
invoking the High Court's powers under s. 482 of the Code for
quashing the whole proceedings. E
We have considerable doubt about the propriety of the High
Court making use of the Enquiry Report which has no evidentiary
value and in respect of which the Government claimed privilege.
The application made by the Government claiming privilege still
awaited consideration. While the Government claimed privilege· f
at one stage, it appears to have waived the claim and produced the
Enquiry Report and made the contents public. There was no
factual basis for the observations made by the High Court under-
lined by me, except the Enquiry Report. The contents of the Enquiry
Report cannot be made use of unless the facts are proved by
evidence aliunde. There is also nothing on record to show that the G
accused persons made any enquiry of their own into the truth or
other•wise of the allegations or exercised due care and caution for
bringing the case under the Ninth Exception. The Enquiry Report
cannot by itself fill in the lacunae.

A bare perusal of the offending article in Blitz shows that it H
is per se defamatory. There can be no doubt that the imputation
•
638 SUPREME COURT REPORTS [1981] 3 S.C.R~

A made would lower the appellant in the estimation of others. It
suggested that he was a man devoid of character and gave vent to
his unbridled passion. It is equally defamatory of Smt. Shukla in
that she was alleged to be a lady of easy virtue. We need not
dilate on the matter any further. It is for the accused to plead Ninth
Exception in defence and discharge the burden to prove good faith
B which implies the exercise of due care and caution and to show that
the attack on the character of the appellant was for the public good.

In Sukro Mahto v. Basdeo Kumar Mahto & Anr (1) this Court
observed:

c The ingredients of the Ninth Exception are first that
the imputation must be made in good faith; secondly, the
imputation must be for protection of the interest of the
person making it or of any other person or for the public
good. Good faith is a question of fact. So is protection
of the interest of the person making it. Public good is also
D a question of fact. ·

After referring to the two earlier decisions in Harbhajan Singh v.
State of Punjab (2) and Chaman Lal v. State of Punjf,b (3) the Court
held that there must be evidence showing that the accused acted
with due care and caution. "He has to establish as a fact that he
E made enquiry before he made the imputation and he has to give
reasons and facts to indicate that he acted with due care and atten-
tion and was satisfied that the imputation was correct. The proof
of the truth of the statement is not an element of the Ninth Exception
as of the First Exception to s. 499. In the Ninth Exception the
person making the imputation has to substantiate that his enquiry
was attended with due care and attention and he was thus satisfied
that the imputation was true."

The High Court appears to be labouring under an impression
that journalists enjoyed some kind of special privilege, and have
greater freedom than others to make any imputations or allegations,
G sufficient to ruin the reputation of a citizen. We hasten to add that
journalists are in no better position than any other person. Even
the truth of an allegation does not permit a justification under First
Exception unless it is proved to be in the public good. The question

H (1) [1971] Supp. S.C.R. 329 at 332.
(2) [1965] 3 S.C.R. 235.
(3) [1970] 3 S.C.R. 913.
SEW AKRAM v. R.K. KARANJIA ( Baharul Islam, J.) 639

whether or not it was for public good is a question of fact like any A
other relevant fact in issue. If they make assertions of facts as
opposed to comments on them, they must either justify these assertions
or, in the limited cases specified in the Ninth Exception, show that
the attack on the character of another was for the public good, or
that it was made in good faith: per Vivian Bose, J. in Dr. N.B. Khare
v. M.R. Masani and Ors. (1) B

As the matter is of great public importance, it would, perhaps,
be better to quote the well-known passage of Lord Shaw in Arnold
v. King Emperor (2 )

' The freedom of the journalist is an ordinary part of the
c
freedom of the subject, and to whatever lengths the subject
in general may go, so also may the journalist, but, apart
from statute law, his privilege is no other and no higher.
The responsibilities which attach to this power in the disse-
mination of printed matter may, and in the case of a con-
D
scientious journalist do, make him more careful: but the
range of his assertions, his criticisms, or his comments, is as
wide as, and no wider than, that of any other subject. No
privilege attaches to his position.

For these reasons, we must set aside the order passed by the
High Court and direct the Magistrate to record the plea of the
E
accused persons under s. 251 of the Criminal Procedure Code, 1973
and thereafter, to proceed with the trial according to law.

BAHARUL ISLAM, J. Had there been no subsequent develop-
ment after the impugned judgment of the High Court, 1 could have
persuaded myself to agree to the order proposed by my Brother
F
Sen, J., but after the Inquiry Report bas been released by the
Government and placed before us I regret my inability to agree to
the order of sending back the case to the Magistrate as proposed by
my Brother, and proceed to give my own judgment.

2. The facts material for the purpose of disposal of these
G
appeals may be stated thus : During the peried of Emergency bet-
ween June 1975 and March 1976 the appellant, Shri Sewakram
Sobhani, an advocate, was one of the detenus under the Main-

(!) ILR 1943 Nag. 347,
H
(2) LR (1913-14) 41 Ind.App. 149 at l 69,
640 SUPREME COURT REPORTS [1981) 3 S.C.R

A tenance of Internal Security Act, 1976 (hereinafter 'MISA') and
lodged in the Bhopal Central Jail. There were also three women
detenus including Smt. Uma Shukla and Smt. Ramkali Mishra,
Advocate. The husband of Smt. Uma Shukla was a practising
advocate at Bhopal. He was not a detenu. Smt. Uma Shukla
became pregnant while in detention in the aforesaid Central Jail
B and abortion was carried out in the month of August, 1976 in the
Zanana Hamidi Hospital to relieve her of the pregnancy. This
circumstance created an uproar and an inquiry into . the affairs had
to be held by Shri S.R. Sharma, Dy. Secretary (Home), Govern-
ment of Madhya Pradesh, (hereinafter 'Sharma') who submitted
his report dated 7.10.1976 to the Government.
c
3. Respondent No. 1 is the Chief Editor of the Blitz and
respondent No. 5 was, at the relevant time, Bhopal Correspondent
of the Blitz. Respondents 2, 3 and 4 are persons connected with
the Blitz Weekly publication. The Blitz weekly is published in three
languages, viz., English, Hindi and Urdu. The Blitz weekly
D dated 25.12.76 published a news item purported to be a summary
of the report submitted by Sharma in its Urdu and Hindi editions.
The appellant took exception to the publication and filed a criminal
case for defamation against the respondents under Sections 500
and 501 of the Penal Code. The Magistrate issued processes to
the respondents. The respondents appeared before the Magistrate
E and made an application on 23.8.77 under Section 91 of the Code
of Criminal Procedure, 1973 (hereafter 'the Code') requesting the
court, before arriving at a conclusion whether it should proceed
further with the case or not, to call for (a) the original Enquiry
Report submitted by Sharma on 7.10.76; (b) the statement of wit-
nesses recorded by Sharma, (c) the original complaint; and (d) docu-
F ments of the jail Department including letters from the Government
to the Department (Vide para 4 of Annexure D to the Special
Leave Petition). The Magistrate called for the original Inquiry
Report dated 7.10.76 submitted by Sharma to the Government, and
then posted the case for production of the said records by the
Government and recording the plea of the respondents. The
G Government failed to produce the inquiry report before the
Magistrate whereupon the Magistrate issued a notice to the Govern-
ment to show cause as to why contempt proceedings should not be
initiated against them., The Magistrate, however, did not wait for
the receipt of the report and wanted to record the plea of res-
H pondents.
SEW AKRAM v. R.K. KARANJIA (Baharul Islam, J.) 641

The respondents then filed an application before the High A
Court of Madhya Pradesh under Section 397/401 read with Sec-
tion 482 of the Code. It was alleged by the respondents that the
Deputy Home Secretary in his report came to the following con-
clusions :

(1) There was free mixing of male and female prisoners B
in the Bhopal Central Jail ;

(2) Shri Sewakram Sobhani had opportunity and also
availed of the opportunity and mixed very freely with
Smt. Uma Shukla ; and
c
(3) Smt. .Uma Shukla became pregnant through Shri Sewak
Ram Sobhani.

4. It may be mentioned that the Government later. on pro-
duced the inquiry report before. the High Court but claimed pri-
vilege. The learned High Court presumably perused the report D
before passing the impugned order. It may also be mentioned that
although the Government claimed privilege in respect of the report
at that time, it appears, they subsequently, after the impugned
order of the High Court, waived the claim of privilege, and released
the inquiry report; for, in fact, a copy of the report has been
annexed and is available in the paper book of these appeals before E
-.a, us as Annexure 'A'.

5. The submission of the appellants is that the impugned
order of the High Court is beyond its revisional jurisdiction. The
submission is that the respondents prayed for quashing the order
of the Magistrate proceeding to record their plea before the inquiry F
report was produced by the Government, but the High Court has
wrongly quashed the complaint itself. On the other hand the reply
of the respondent is that although there was no specific prayer in
the petition, the petition was also made for quashing the criminal
case under Section 500/501 of the Penal Code pending before the
Magistrate. The respondents' submission is that they are not guilty
G
for the impugned publication in view of Exception 9 to Section 499
of the Penal Code.

6. A perusal of the respondents' petition before the High ff
Court and its impugned judgment justifies the factual submission
of the respondents, namely, that their application before the High
642 SUPREME COURT REPORTS [1981] 3 S.C.R.

A Court (Copy Annexure C) was under Section 482 as well as Sec-
tions 397 and 401 of the Code, and that the respondents claimed
and canvassed the protection under the Ninth Exception of Sec-
tion 499 of the Penal Code. For, para 6 of the Judgment of the
High Court reads :

B "The applicants feeling aggrieved have come to this
Court for quashing the complaint, since they contend that
the publication would squarely fall within exception 9 of
Section 499 of the Indian Penal Code. The applicants
further contend that the report of the Deputy Secretary
(Home) is the document on the basis of which the reporting
c was done and unless that is got produced and inspected,
the defence of exception 9 cannot be made out ......

(Emphasis added)

7. The omission in the prayer portion of a petition of a part
D of the claim, particularly in a criminal case, is not fatal. The High
Court in its revisional jurisdiction can always grant suitable relief
justified by law as well as facts and circumstances of a parti-
cular case.

That a part, Article 136 of the Constitution of India gives
E wide powers to the Supreme Court to grant special leave to appeal
from any judgment, decree, determination, sentence or order in any .r
cause or matter passed or made by any court or tribunal in the
territory of India. The power is d;scretionary and therefore to
be sparingly exercised. This power is to be exercised to meet ends
F of justice, to enhance justice and remove miscarriage of justice in a
particular case. It does not exercise such powers for academic
reasons but for practical purposes.

8. The High Court in the impugned order has held that
G "it would be abuse of the process of the court if the trial
is allowed to proceed or alternatively to turn out to be vexatious
proceeding" and therefore quashed the complaint. Such an order
would be warranted under Section 482 of the Code of Criminal
Procedure if the merit of the case before the High Court justified it.
We have therefore to examine whether the respondents' case falls
H within the ambit of the Ninth Exception to Section 499 of the Penal
Code as held by the High Court.
SEW AKRAM v. R.K. KARANJIA (Baharul Islam, J.) 643

9. The appellant has not submitted before us that the A
summary of the report published in the Blitz is not a correct sum-
mary of the Inquiry Report. The copy of the Report, Annexure A,
shows that a complaint was received from one Shri Krishsan Gopal
Maheshari, advocate, alleging certain objectionable activities and
misconduct on the part of the appellant and Shrimati Uma Shukla.
Annexure A also shows that the Inquiry Officer Sharma, examined B
several witnesses including Shri Yogesh Shukla, husband of Smt.
Uma Shukla.

Para 4 of the report reads :-

"The following points are in dispute : c
(a) whether as alleged by the complainant there was free
mixing of female members with male members detained
under MISA;

(b) in case (a) is in the affirmative, whether Shri Sewakram D
Sobhani had an opportunity to mix freely with Smt.
Uma Shukla;

(c) in case (a) and (b) are in the affirmative when, how
and through whom Smt. Uma Shukla a MISA detenu
conceived". E
His findings are

"(a) There was a free mixing of male and female prisoners
in the Bhopal Central Jail;

(b) Shri Sewakram Sobhani had opportunity and also JI
availed of opportunity and mixed very freely v. ith Smt.
Uma Shukla;

(c) Smt. Uma Shukla became pregnant through Shri
Sewakram Sobhani".

It, therefore, appears that the impugned publication is a correct G
summary of the report and no submisson has been made to the
contrary by the appellant before us.

I 0. The only question is whether the publication falls within
the Ninth Exception to s~ction 499 of the Penal Code, as claimed H
by the.respondents.
644 SUPREME COURT REPORTS (1981] 3 S.C.R.
A Before we do that, we must not be oblivious of the fact that
the Inquiry Report in question was a privileged document; it is now
an unprivileged open document as indicated above. The High Court
proceeded on the footing that if the document is not produced to be
utilized by the accused, the benefit would go to him.

B 11. Section 499 defines •defamation'. It is as follows :-

"S. 499. Whoever, by words either spoken or intended
to be read, or by signs or by visible representations makes
or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such
c imputation will harm the reputation of such person, is said.
except in the cases hereinafter defame that person".

The Ninth Exception reads:

"It is not defamation to make an imputation on the
D 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.,.

The Ninth Exception requires, inter alia, that the imputation
made must be in good faith for the public good.
E 12. 'Good faith' has been defined in Section 52 of the Penal
Code as:

"52. Nothing is said to be done or believed in "good
faith" which is done or believed without due care and
attention",
F
The definition is expressed in negative terms. Normally proof
of an exception lies on the person who claims it; but the definition
of the expression "good faith" indicates that lack of good faith has
been made a part of the offence which the prosecution has to establish
G beyond reasonable doubt. On the other hand the mere proof by
the accused of the report to be an authentic document is enough; it
will create a doubt in the mind of the Court as to the lack of "good
faith" on the part of the accused.

13. The inquiry was made and the report prepared by a
H highly responsible officer and submitted to the Government. It was
in pursuance of a complaint made by one of the citizens pointing
SEWAKRAM v. R.K. KARAN1lA {Baharul Islam, J.) 645

out laxity in observance of jail rules and highly objectionable prac-
A
tices of some of the prisoners and seeking improvement in jail
administration. The object was to see improved conditions, and
maintenance of certain standard of moral conduct by prisoners, in
jail. If the complaint and the consequent · inquiry report be for
public good, and the respondents had reasons to believe its contents
to be true, they will be protected under the Ninth Exception. Even
B
if the burden of proof of 'good faith' be on the accused 'good faith'
need not be proved beyond reasonable doubt. Once this is done,
whether the publication was for public good would be a matter of
inference.

14. The Dy. Secretary (Home) examined Shri Bhandari, Editor
c
of Prach who was a MISA detenu as witness No. I, complainant
Maheshwari as witness No. 2, Smt. Ramkali Mishra, an advocate,
and a member of Jana Sangha, another MISA detenu, as witness
No. 4, Dr. Hamid Quireshi, another MISA detenu as witness No. 6,
Shri Ramesh Chand Shrivastava an 'independent' witness as witness D
No. 7, and Shri Yogesh Shukla, husband of Smt. Uma Shukla as
witness No. 3. Most of the said witnesses, it appears, were the
party colleagues of the appellant and his co-MISA detenus. I must
not be understood to suggest the contents of the inquiry report are
true; it is an exparte inquiry report; it might be the result of political
rivalry, as alleged by the appellant, but i1: appears that political E
rivalry, if any, was between the members of the appellant's party
and not between the party in power and party in opposition.

l 5. The comment of Mr. Sharma on the evidence of witness
No. 3 is as follows :
F
.• "Shri Yogesh Shukla witness No. 3 has categorically
stated that he had no connection with his wife and that she
became pregnant through Shri Sobhani, Advocate and
got the child aborted. It is worth consideration as to why
the husband will come up with such an open allegation
against his own wife, unless there be no very strong reasons G
for such a conviction. Normally, no husband, even though
his wife may have conceived through somebody else will like
to see his name being scandalised. Shri Yogesh Shukla
witness No. 3 is an advocate, quite an educated person and
we can safely presume that he knowa the consequences of H
his statement and also their legal and moral implications on
his profession. Such an open scandalous statement against
646 SUPREME COURT REPORTS (1981) 3 S.C.R.

A his own wife could not but be a result of very strong abho-
ration or an outcome of utter desperation. It could also be
an expression of a naked truth."

The entire report is exhaustive, reasoned and based on evi-
dence.
B
16. A perusal of the report will normally lead one to believe
the imputations. If that be so, it cannot be said that the respondents
published the report or its summary without due care and attention.
This establishes 'good faith' as required by the Ninth Exception to
Section 499 of the Penal Code. From what has been stated above,
c the publication obviously appears to be for public good.

17. The appellant ·submitted that he wanted an opportunity
to clear himself of the imputations made against him by adducing
evidence before the Magistrate to establish the falsity of the imputa-
tions made in the publication. We are not concerned with the truth
D or falsity of the imputations published. Even if the findings _in the
report be proved to be false, the respondents will. be protected.
Sending back the case to the Magistrate to record the respondents'
plea after the perusal of the Inquiry Report will, in my opinion, be
an exercise in futility and abuse of the process of the criminal court.
The appellant may seek his remedy, if any, in the Civil Court. The
E learned High Court, therefore, in my opinion committed no error
in quashing the complaint.

18. The appeal is dismissed.

ORDER
F In view of majority judgments, the appeals are allowed.

P.B.R. Appeals allowed.