The only contention which is sought to be canvassed
to challenge the proceedings is that the offence under
Section 499 I.P.C. is not made out inasmuch as the case is
covered under the first exception to the section which
provides that if the imputation is made for public good,
the same would not amount to defamation.
11. Defamation i.e. an injury to a person's reputation, is
both a crime and a civil wrong. In a civil action for
defamation in tort, truth is a defence, but in a criminal
action, the accused would be required to prove both the
truth of the matter and also that its publication was for
public good and no amount of truth would justify a
defamatory act unless its publication is proved to have
been made for public good. The defence of truth is not
satisfied merely by proving that the publisher honestly
believed the statement to be true, he must prove that the
statement was in fact true.
12. Truth by itself, would be not a defence to an action
for criminal defamation if other ingredients are present,
unless it can be shown that imputation in question besides
being truthful was made for the public good. As to what is
public good would be a question of fact depending upon
the facts and circumstances of the case and the onus of
proving two ingredients, namely, truth of the imputation
and the publication of the imputation for the public good,
would be on the accused.
13. The question whether or not the imputation was
made for public good would therefore be a question of fact
which would be required to be proved by the accused to
seek the benefit of the first exception to Section 499. The
defence in this regard being a question of fact, can be
decided during trial only and the benefit of the first
exception cannot be claimed at the stage of issuance of
summons.
ALLAHABAD HIGH COURT
Case :APPLICATION
U/S 482 No. 10431 of 2021
Rajesh Churiwala Vs State of U.P.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
Dated: Order Date :14.7.2021
1. Heard Sri Birendra Prasad Shukla, learned counsel
for the applicant and Ms. Sushma Soni, learned Additional
Government Advocate appearing for the Stateopposite
party.
2. The present application under Section 482 Cr.P.C.
has been filed seeking to quash the proceedings of
Complaint Case No.10 of 2019 (Mohan Lal Saravagi Vs.
Rajesh Churiwala), under Section 500 I.P.C., pending
before the Additional Chief Judicial Magistrate, Court
No.3, Varanasi, within a stipulated time period.
3. Counsel for the applicant has also sought to assail
the order dated 18.01.2020 in terms of which the
applicant has been summoned.
4. The only contention which is sought to be canvassed
to challenge the proceedings is that the offence under
Section 499 I.P.C. is not made out inasmuch as the case is
covered under the first exception to the section which
provides that if the imputation is made for public good,
the same would not amount to defamation.
5. Learned AGA points out that the question as to
whether an imputation is made for public good or not
would be a question of fact which is to be seen in the trial
and the same cannot be taken as a ground to seek
quashing of the proceedings.
6. In order to appreciate the rival contentions, the
relevant statutory provisions relating to defamation under
Chapter XXI of the Indian Penal Code, 18601 would be
required to be referred to. Section 499 reads as follows :"
499. DefamationWhoever,
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 imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to
defame that person."
7. The first exception to Section 499, which is also
relevant for the purpose of the controversy at hand, is
being extracted below:
“First ExceptionImputation
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.”
8. Section 499 of the Penal Code states as to when an
act of imputation amounts to defamation. It contains four
explanations and ten exceptions and section 500
prescribes punishment in such cases. The ten exceptions to
Section 499 state the instances in which an imputation,
prima facie defamatory, may be excused. The first
exception corresponds to the defence which may be set up
by taking the plea of the imputation being true and for
public good. This exception recognizes the publication of
truth as a sufficient justification, if it is made for the public
good. Truth by itself would be no justification in criminal
law, unless it is proved that its publication was for the
1. Penal Code
public good.
9. The plea of defence of public good, under the first
exception to Section 499, fell for consideration in Chaman
Lal Vs. State of Punjab2, and it was held that public good
is a question of fact and the onus of proving the two
ingredients under the first exception i.e. the imputation is
true and the publication is for public good, is on the
accused. It was stated thus:
“8. Public good is a question of fact. Good faith has
also to be established as a fact.
xxx
15. In order to come within the First Exception to
section 499 of the Indian Penal Code it has to be
established that what has been imputed concerning
the respondent is true and the publication of the
imputation is for the public good. The onus of
proving these two ingredients, namely, truth of the
imputation and the publication of the imputation for
the public good is on the appellant...”
10. The provisions relating to defamation under Section
499 were again considered in the case of Subramanian
Swamy Vs. Union of India3, and in the context of the plea
for justifying the imputation by referring to the first
exception, it was observed as follows:“
179. Having dealt with the four Explanations, presently,
we may analyse the Exceptions and note certain
authorities with regard to the Exceptions. It is solely for
the purpose of appreciating how the Court has
appreciated and applied them. The First Exception
stipulates that 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. "Public good" has to be treated to be a fact. In
Chaman Lal v. State of Punjab : (1970) 1 SCC 590, the
Court has held that in order to come within the First
Exception to Section 499 of the Indian Penal Code it has
to be established that what has been imputed concerning
the Respondent is true and the publication of the
imputation is for the public good. The onus of proving
2. (1970) 1 SCC 590
3. (2016) 7 SCC 221
these two ingredients, namely, truth of the imputation
and the publication of the imputation for the public
good, is on the accused.
180. It is submitted by Dr. Dhawan, learned senior
Counsel for the Petitioners that if the imputation is not
true, the matter would be different. But as the Exception
postulates that imputation even if true, if it is not to
further public good then it will not be defamation, is
absolutely irrational and does not stand to reason. It is
urged that truth is the basic foundation of justice, but
this Exception does not recognize truth as a defence and,
therefore, it deserves to be struck down.
xxx
191...It is submitted that the Exceptions make the
offence more rigorous and thereby making the concept of
criminal defamation extremely unreasonable. The
criticism advanced pertain to truth being not a defence,
and unnecessary stress on 'public good'. The counter
argument is that if a truthful statement is not made for
any kind of public good but only to malign a person, it is
a correct principle in law that the statement or writing
can amount to defamation. Dr. Singhvi, learned senior
Counsel for some of the Respondents has given certain
examples. The examples pertain to an imputation that a
person is an alcoholic; an imputation that two family
members are involved in consensual incest; an
imputation that a person is impotent; a statement is
made in public that a particular person suffers from
AIDS; an imputation that a person is a victim of rape;
and an imputation that the child of a married couple is
not fathered by the husband but born out of an affair
with another man. We have set out the examples cited by
the learned senior Counsel only to show that there can
be occasions or situations where truth may not be sole
defence. And that is why the provision has given
emphasis on public good. Needless to say, what is public
good is a question of fact depending on the facts and
circumstances of the case. ”
11. Defamation i.e. an injury to a person's reputation, is
both a crime and a civil wrong. In a civil action for
defamation in tort, truth is a defence, but in a criminal
action, the accused would be required to prove both the
truth of the matter and also that its publication was for
public good and no amount of truth would justify a
defamatory act unless its publication is proved to have
been made for public good. The defence of truth is not
satisfied merely by proving that the publisher honestly
believed the statement to be true, he must prove that the
statement was in fact true.
12. Truth by itself, would be not a defence to an action
for criminal defamation if other ingredients are present,
unless it can be shown that imputation in question besides
being truthful was made for the public good. As to what is
public good would be a question of fact depending upon
the facts and circumstances of the case and the onus of
proving two ingredients, namely, truth of the imputation
and the publication of the imputation for the public good,
would be on the accused.
13. The question whether or not the imputation was
made for public good would therefore be a question of fact
which would be required to be proved by the accused to
seek the benefit of the first exception to Section 499. The
defence in this regard being a question of fact, can be
decided during trial only and the benefit of the first
exception cannot be claimed at the stage of issuance of
summons.
14. It is well settled that at the stage of issuing process
the Magistrate is mainly concerned with the allegations
made in the complaint or the evidence led in support of
the same and he is only to be prima facie satisfied whether
there are sufficient grounds for proceeding against the
accused. At this stage, there is no requirement to enter
into the detailed factual aspects or on the merits or
demerits of the case.
15. In the present case the applicant has sought to raise
a challenge to the order dated 18.01.2020 in terms of
which he has been summoned. At this stage, the
Magistrate is required only to be prima facie satisfied that
there are sufficient grounds for proceeding against the
accused and the defence of the accused is to be seen only
during the course of the trial. The protection of the first
exception to Section 499 of the Penal Code, which is being
relied upon on behalf of the applicant, is not to be seen at
this stage.
16. Learned counsel for the applicant does not dispute
the aforesaid legal position and states that the applicant
would appear before the court below, submit to its
jurisdiction and place his defence during the trial.
17. Having regard to the aforesaid, this Court is not
inclined to entertain the present application in exercise of
its inherent jurisdiction under Section 482 Cr.P.C.
18. The application stands accordingly dismissed.
Order Date :14.7.2021
Shahroz/Pratima
(Dr. Y.K. Srivastava,J.)
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