Observing that the right to life guaranteed under Article 21 of the Constitution of India cannot be invaded under the garb of freedom of speech and expression, the Karnataka High Court has reversed the acquittal of a reporter and an editor of a magazine for criminal defamation.
A single bench of Justice M G Uma, while convicting an editor and reporter of 'Kadala Koogu' (a weekly magazine) under section 500 of the Indian Penal Code (IPC) said :
"Right to Life includes life with human dignity and reputation. This right of a citizen is very precious and recognized as fundamental under Article 21 of the Constitution of India. It cannot be invaded under the garb of freedom of speech and expression. Even though the freedom of speech and expression is recognized as a right under Article 19 of the Constitution of India, it is not an absolute right but is subject to reasonable restrictions."
Justice Uma set aside the acquittal order passed in favour of Ganesh P. (Editor) and reporter Raghavendra R Bhat and said :
"...the facts and circumstances of case do not even remotely suggest that the accused were either innocent or have acted in good faith or for public good. The trial Court has not taken into consideration the settled position of law on defamation and casually proceeded to acquit the accused without assigning any valid reasons. The impugned judgment is not only illogical but it is also perverse. Under such circumstances, allowing the impugned judgment of acquittal to remain will definitely result in miscarriage of justice."
The Court said that the imputation of truth by itself is not a defense and said that the accused has to show that the imputation was made in good faith and for public good.
"If the accused prefers to seek shelter under the first exception to Section 499 of IPC, he has to prove that it was imputation of truth, which was published for public good. Imputation of truth by it self is not a defence available to the accused, when publication of imputation was not for public good. On the other hand if he invokes ninth exception, it is for him to prove that the imputation was made in good faith for protection of his own or other's interests. Public good referred to in the first exception or good faith referred to in the ninth exception to Section 499 IPC, are definitely the questions of fact, which have to be gathered from the facts and circumstances of each case and to be established by the accused", the Court observed.
However, the court showed some leniency in sentencing the convicts, it said "Considering the length of time which has already lapsed, I am of the opinion that some leniency may be shown in sentencing the accused and at the same time, the complainant who is the victim of defamation is required to be compensated."
It ordered, "Impugned judgment of acquittal dated 05.01.2011, is set aside. The accused are convicted under section 500 of Indian Penal Code (IPC) and they are sentenced to pay a fine of Rs.30,000 each, to be deposited within 30 days from the date of receipt of the judgment. In default to pay fine, accused shall undergo simple imprisonment for a period of one month. From out of the fine amount to be deposited by accused an amount of Rs.50,000 is to be paid to the complainant as compensation under Section 357 of Cr.P.C."
The appellant, a school teacher, had challenged the acquittal order passed on January 5, 2011 passed by the Principal Civil Judge and JMFC, Bhatkal. Her private complaint filed before the JMFC stated that "In view of the publication of the defamatory article by the accused her reputation in the eyes of others was lowered and the members of the society, including her students, started looking at her with suspicion."
Counsel Venkatesh M. Kharvi for the editor/reporter, had supported the trial court order and argued that true facts were published in the article after due enquiry and similar articles were published against the complainant in other newspapers and magazines and that no defamatory words were published by the accused to attract the Penal provision of Section 500 of IPC. Moreover, the Eighth and Ninth Exceptions to Section 499 of IPC apply to the present case and under such circumstances, no offence of defamation was made out.
Eighth Exception under section 499 reads thus: 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.
The Ninth Exception reads thus: 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."
The court observed :
"On going through the publication and also the evidence led by both the parties, in the light of the settled position of law, the contention of the learned counsel for the accused that the publication is covered under any of the Exceptions, cannot be accepted. I do not find either the 'public good or good faith' in the act of the accused. When the publication is not covered under any of the Exceptions, after the same is held as an imputation that has harmed the reputation of the complainant, commission of the offence punishable under Section 500 of IPC is complete."
It added "The conduct of the Accused in using objectionable and defamatory words only to have rhyming caption and the article is not at all acceptable and therefore both the accused are liable to be convicted."
Selvina Kom Peter Byarko And Ganesh P
Case No: CRL.APPEAL NO.2593/2011
Coram: MRS.JUSTICE M.G.UMA
Advocate ANANT HEGDE for petitioner.
Advocate VENKATESH M. KHARVI for respondents.
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