1. This revision application arises out of a complaint for the offence punishable under Section 500, Indian Penal Code which was filed by the opponent No. 2 herein named Prabhudas Bhogilal Dudhwala in the Court of the Judicial Magistrate, First Class, 7th Court, Baroda, which was registered as Criminal Case No. 77 of 1966. The complainant opponent's case is that the accused, who is the applicant herein, was staying as a tenant in his house. The accused had, on September 10, 1965., made an application against the complainant before the Sub-Divisional Magistrate under Section 107 of the Code of Criminal Procedure, 1898 (5 of 1898) for taking out chapter proceedings against him. The case was registered as Chapter Case No. 632 of 1965. In that application made in Gujarati, several wild and reckless defamatory imputations were made against the complainant, with the intention to harm the reputation of the complainant. It stated, inter alia, that the present complainant Prabhudas Bhogilal, who was the landlord of the premises which the present accused Gulabchand was occupying as a tenant, with a view to obtain possession of the said premises in order to realise higher rent, was making frantic intrigues (original in Gujarati omitted) against him. The application further stated that, on the night of June 10, 1965, while the applicant therein (present accused) was sitting in his house and mending mangoes, the opponent therein (present complainant) entered his house and committed criminal trespass; that he gave wild abuses and gave a kick on his back; that he took out a knife from his pocket, opened it, raised it at him and menacingly demanded of him and withdrawal and settlement of his application (complaint) made against the complainant accusing him of having committed murder of his son or else he would meet the same fate as did the son. After narating the other facts relating to the incident, in the penultimate paragraph of the application, it was stated that the opponent was a rich, influential, frenzied type man and a leader of a gang of misereants and he (present accused) had apprehension that any time he (present complainant) might cause harm to his person and property. In his examination on oath recorded below his application Ex. 15, the accused had, inter alia, stated that the complainant was a dangerous 'goonda'. These imputations made in the penultimate paragraph of the present accused's application and in the examination on oath below it are the defamatory imputations of which the present complainant has made grievance in his complaint in Criminal Case No. 77 of 1966 out of which this revision application arises. It may here be stated that the accused had not proceeded with his application Ex. 15, which was dismissed because of default of his appearance on the date of hearing. At the trial, the accused had pleaded protection under Exception 8 to Section 499, Indian P.C. However, he had led no evidence whatsoever to show that he had exercised good faith in making these imputations. Both the Courts below have taken the view that the said imputations are defamatory to the complainant and were made with the intention of harming or with the knowledge that they would harm the reputation of the complainant. Both the Courts have also held that the accused did not prove good faith in making the imputations and, therefore, was not entitled to the protection of Exception 8 to Section 499. Indian P.C. The learned Judicial Magistrate had convicted the accused for the offence under Section 500, Indian P.C., and sentenced him to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 100, in default rigorous imprisonment for one month. The order of conviction and sentence has been upheld by the learned Additional Sessions Judge, Baroda, in Criminal Appeal No. 137 of 1966. The present revision application is directed against the said order dismissing the appeal of the accused.
2. Mr. A. M. Joshi, learned Advocate appearing on behalf of the applicant-accused, has not contested the finding of the lower Court that the imputations made were defamatory. He has, however, contested the finding that the applicant was not entitled to the protection of Exception 8 to Section 499, Indian P.C. Further, he has contended that the accused was also entitled to the benefit of Exception 9. Now, Exception 9 to Section 499 provides that it is not defamation to make an imputation on the character of another, provided the imputation be made in good faith for the protection of the interest of the person making it, or for any other person, or for the public good. In the present case, the ingredient of public good is not available to the accused and that is not the case as urged by Mr. Joshi, whose contention was that the imputations were made for the protection of the interest of the accused who made them. This Exception relates to private communications which a person makes in good faith, for the protection of his own interests, etc. This Exception appears to be a mere reproduction of the guiding principle which was stated by Lord Campbeli, C.J., in Harrison v. Bush, (1855) 5 E & B 344, 348, namely; " A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege would be slanderous and actionable." The requirements of "good faith" and "public good" have both to be satisfied. Having regard to the admitted fact that the imputations did not relate to private communications and to public good, the Exception cannot be invoked in this case. But, even when and if the Exception is available in a case, the accused has necessarily to prove that he made them "in good faith."
3. Exception 8 to Section 499 provides that "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." To avail of the benefit of this Exception, the accused must prove that; (i) the accusations were made to a person in authority over the party accused, and (ii) the accusation must be preferred in good faith. This exception does not formulate, according to the decision of the Special Bench of the Calcutta High Court in Satish Chandra Chakravarti v. Ram Dayal De, ILR 48 Cal 388 = (AIR 1921 Cal 1 SB), which has been followed by the Full Bench of the Bombay High Court in Bai Shanta v. Umrao Amir Malik, 28 Bom LR 1 = (AIR 1926 Bom 141), any rule of absolute privilege. The accused must, therefore, show that the accusations were preferred in good faith. The expression "good faith" has been defined in Section 52 of Indian Penal Code. It provides that "Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention." This is a negative definition, but it indicates that an act is said to be done in good faith when it is done with due care and attention. Indeed, it does not require logical infallibility. The plea of good faith may be negatived on the ground of recklessness indicative of want of due care and attention if the imputations in question, as in the instant case, have been made as categorical statements of facts. Apart from that there is no doubt that the accused must substantiate his plea of good faith to be entitled to the protection of the Exception. Of course, the degree or proof that is to be offered by the accused for the purpose is not the same as is expected of the prosecution which is required to prove its case, beyond reasonable doubt, but is as in civil proceedings. In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97, Gajendragadkar, C.J., speaking for the Court has in this connection observed at p. 101: ".. there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to pove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability." As soon as the preponderance of probability is proved the burden shifts to the prosecution which has still is discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. . . . . . . ." The observations further at p. 102 of the report are:
"It will be recalled that it was with a view to emphasizing the fundamental doctrine of criminal law that onus to prove its case lies on the prosecution, that Viscount Sankey in Woolmington v. Director of Public Prosecutions, 1935 AC 462, observed that "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person, he is not required to justify his plea; but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case."
4. Now, examining the case before me in that light, it must be remembered that the imputations referred to earlier have been held to be defamatory and the finding is not in challenge before me. It was, therefore, for the accused to have discharged the onus which lay on him to show that he acted in good faith. But here, the accused has led no evidence and made out no circumstance which would show that he had so acted in good faith in preferring the wild and reckless accusations aforesaid to be found in the application Ex. 15. He has not shown that such impugations were called for in his application for security proceedings. Again, in answer to the questions put to him by the learned Judicial Magistrate in the case under Section 348 of the Code of Criminal Procedure, the accused has gone to the extent of even denying that he made an application as Ex. 15 and that he made the reckless imputations which are found in Ex. 15. In this situation, it must be held that the accused has failed to prove "good faith" and the failure would exclude the application of Exception 8 and even of Exception 9 assuming it can be invoked in the case.
5. I must say that Mr. Joshi had contended before me that there was an absolute privilege of the parties to the judicial proceedings. Mr. Joshi has for the purpose relied upon the following observations of Tulzapurkar J., sitting as a Single Judge in the matter of Miss Kamalini Manmade v. Union of India, (1967) 69 Bom LR 512 he remarks at p. 526: "Having regard to the aforesaid discussion of the several authorities, it is clear to me that the English common law Rule pertaining to absolute privilege enjoyed by Judges, Advocates, Attorneys, witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in India....."
But, it has to be remembered that Tulzapurkar, J., was concerned in that case with a civil suit for damages for defamation and the learned Judge has taken pains to add the following material qualification to the passage aforesaid:
". . . at any rate in relation to civil suits filed for damages for libel or slander."
The decision is thus, with respect, not an authority for the view canvassed by Mr. A. M. Joshi. Again, as observed by me earlier, the Full Bench of the Bombay High Court has in 28 Bom LR 1 = (AIR 1926 Bom 141) (supra) followed the decision of the Special Bench of the Calcutta High Court in ILR 48 Cal 388 = (AIR 1921 Cal 1 SB ) (supra), laying down that there is no such absolute privilege. In the said Calcutta case, which was concerned with a criminal prosecution for defamation under Section 499, Indian Penal Code, distinction between the position obtaining with regard to criminal prosecutions and the position obtaining with regard to civil actions has been clarified as under at p. 425 (of ILR) = (at pp. 14, 15 of AIR) of the report: "our conclusions then may be summarized as follows:
(i) If a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein on oath or otherwise, his liability must be determined by reference to the provisions of Section 499, Indian P.C. under the Letters Patent, the question must be solved by the application of the provisions of the Indian Penal Code and not otherwise. The Court cannot engraft thereupon exceptions derived from the Common Law of England or based on grounds of public policy. Consequently, a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499 Indian P.C. (ii) If a party to a judicial proceeding issued in a civil Court for damages for defamation in respect of a statement made therein on oath or otherwise, his liability, in the absence of statutory rules applicable to the subject must be determined with reference to principles of justice, equity and good conscience. There is a large preponderance of judicial opinion in favour of the view that the principles of justice, equity and good conscience applicable in such circumstances should be identical with the corresponding relevant rules of the Common Law of England. . . ." The aforesaid observations having been followed by the Full Bench of the Bombay High Court in 28 Bom LR 1 = (AIR 1926 Bom 141) (supra), are binding upon me apart from the fact that I am in respectful agreement with the said observations. Tested in the light of the first rule, it is plain that the question of good faith is material and as the aforesaid imputations which are not absolutely privileged are not shown to have been made in good faith, the accused must be held to be not entitled to the benefit of Exception 8.
6. I must say that Mr. A. M. Joshi had relied upon the decision of a Division Bench of the Bombay High Court in Emperor v. Esufalli Abdul Hussein, 20 Bom LR 601 = (AIR 1917 Bom 192). In that case, whilst an application and a counter application to prevent breach of the peace were being investigated into by the police, the accused called the complainant a 'rogue'. It appeared that some four months previously, the complainant was convicted and fined at the instance of the accused. The accused having been convicted of defamation, it was held that the accused was protected by Exception 9 inasmuch as the statement was made apparently for the protection of his own interests and when his application was under investigation by the police, and that the statement was made by him in good faith, Kemp, J., who was a party to the said judgment with Shah, J., had, in his judgment, agreeing with the reasoning of Shah, J., therein observed at p. 603 (of Bom LR) = (at p. 193 of AIR): "I think that the fact that the statement otherwise defamatory, was made in good faith, is corroborated by the fact that the complainant in the present case had been convicted and fined for insult to the accused. I also think accused's remark about him was made in the protection of his own interests."
The decision has no applicability in the instant case. It is true that public policy requires that a party preferring a legal proceeding shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for a libel. But, the privilege is a qualified one and not absolute. A person who deliberately makes defamatory statements without justification is not protected.
7. For the aforesaid reasons, the contentions raised by Mr. A. M. Joshi have no merit and are rejected. In the result, the revision application fails and the rule is discharged.
8. Rule discharged.