Judgment:
1. This appeal is directed against the judgment dated 23-3-1991 passed by the VII Additional Chief Metropolitan Magistrate, Bangalore City, whereby the said Magistrate was pleased to acquit the respondents/accused.
2. I heard the learned counsel, Sri Belliyappa for Sri A. K. Subbaiah, appearing for the appellant and the learned counsel, Sri C. V. Nagesh, appearing for the respondents/accused. I have also perused the case records.
3. The brief facts of the case are as follows :
Originally the appellant had filed a private complaint under Sections 190(a) and 200 of Criminal Procedure Code as against the respondents/accused herein and seven other person for the offence under Sections 499, 500, 501, and 502 read with Section 34 of Indian Penal Code. The learned VII Additional Chief Metropolitan Magistrate (hereinafter called as the 'MAGISTRATE' has taken the cognizance of the said offence as against all the said accused persons and registered a case in CC No. 2294/1982 and issued the process to all of them. The respondents/accused herein and seven other persons challenged the order of cognizance before this Court in Criminal Petition No. 813/1983. This Court after hearing the parties allowed the said petition in so far as the same related to respondents 5 to 11 in the said criminal petition. However, the said criminal petition in so far as the same related to the appellants herein and yet another respondent by name, Nirmal C. Jain was withdrawn as not pressed. Thereafter, the proceedings before the Magistrate continued as against these respondents and the fourth accused in the said case by name Nirmal C. Jain. Since the said fourth accused, Nirmal C. Jain, could not be served with notice by the Magistrate, the case was proceeded with as against these respondents only. The complaint of the appellant is that the respondent No. 1 being the Chief Editor, respondent No. 2 being the Managing Director and respondent No. 3 being the Publisher of Hindi News Weekly by name 'Dakshina Deep' had published a defamatory statement in their said weekly on 30-8-1992 under the captain 'Carniverous Beast in the Guise of Man' and according to the complaint the said publication was made to the appellant. It is alleged in the complaint that the appellant was residing with his wife and children at No. 41, 4th Cross, Nehrunagar, Bangalore-20 and he had employed two servants out of whom one is Tulsiram. That on 29-8-1982 the respondents/accused came to his house at about 2.00 p.m. and demanded his wife, Kantha to produce the said servant, Tulsiram, that she informed that respondent/accused that he had been to purchase vegetables and they abused her and they sat inside the house till Tulsiram returned and thereafter took him and made him to file a false complaint against the appellant alleging that the appellant assaulted Tulsiram. It was stated in the said article that Tulsiram was tortured and subjected to in human treatment and the said servant was made to starve from 27-8-1982 and his signature was taken on several papers threatening that if he tried to run away he would be caught by the Police on the basis of some theft case, that people like Champalal, the appellant herein, only had spoiled the name of Marwadi community, that such fish spoiling the whole lake should be thrown out, so that others who behave in such inhuman manner should know the consequences of such misdeeds. That Champalal belongs to the Marwadi community. That it is the duty of the Jain Community that severe punishment should be given to such brutes and cruel criminals and get them punished by law. That the only way to punish such persons is to ostracise from the community in all respect and nobody should deal with or associated with him, the appellant and it is not correct to give protection to a guilty persons, just because he is a member of the community. That punishment should be given to the guilty person.
The said imputations in the article published according to the appellant have been made against him with malicious and deliberate intention of destroying his reputation and therefore he prayed that the respondents/accused be punished under Sections 499, 500, 501 and 502 read with Section 34 of IPC.
In support of the allegations, the appellant examined himself and two other witnesses. The respondents/accused defended the case on the plea that the article was published in public interest and therefore falls under the First and Ninth Exceptions under Section 499 of IPC and further that they were not guilty of any offence.
The learned Magistrate after holding the trial, hearing the parties and on appreciation of the evidence on record had acquitted the respondents/accused persons and the appellant having been aggrieved thereof had resorted to the instant appeal.
4. The learned counsel for the appellant while urging the grounds in the appeal argued that the impugned judgment passed by the learned Magistrate is not just, proper and based on the evidence on record; according to him, the learned Magistrate ought to have come to the conclusion that the article published by them in their weekly was per se defamatory and the burden of proving that it was published in the public interest and falls within the First and Ninth Exceptions under Section 499 of IPC was totally rested on them and having not led any evidence in that behalf, they have not discharged their burden and therefore, according to him, they were guilty of the offence punishable under the above sections. In support of that argument, the learned counsel for the appellant cited before me a decision of the Supreme Court reported in : 1966CriLJ82 . In the said decision while explaining the nature and scope of onus of proof which the accused has to discharge in seeking protection of Ninth Exception to Section 499 of IPC, the Supreme Court observed as hereunder :
'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 prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the prosecution has discharged its onus of proving the guilt of the accused. It 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 he is called upon to prove that his case falls under an exception, law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. 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.'
He had also cited a decision reported in 1984 Cri LJ 350 (Batu Rao v. S. K. Biban Baban) wherein the Bombay High Court held that when good faith under Exceptions 8 and 9 of Sections 499 of IPC was pleaded, the onus of proving the said circumstances be borne and discharged by the accused and that if the accused failed to discharge the onus of proving good faith, the Court must hold that the accused was not guided by any element of good faith. The other two decisions cited by the learned counsel, Sri Belliappa also on the above point are : 1980 Cri LJ NOC 154 (Mad) (Chinammal v. A Subramanian) and 1982 Cri LJ NOC 3 (Delhi)(Smt. Krishnakanta v. Miss Geeta Roy).
5. While summing up the argument of the learned counsel for the appellant submitted that when the respondents/accused have not discharged the above burden, the learned Magistrate would have naturally concluded that they were guilty of the offence. Therefore, he prayed that the impugned judgment passed by the learned Magistrate be set aside and the respondents/accused be convicted and sentenced in accordance with law.
6. As against the above argument, the learned counsel appearing for the respondent/accused argued at the outset that the complaint of the appellant cannot sustain in law in so far as the same was related to the respondents/accused No. 1 and 2. He had submitted that the respondent No. 1 being the Chief Editor and respondent No. 2 being the Managing Director of the weekly in question are neither the Editor nor Printer nor Publisher within the meaning of Section 1(1) and 7 of the Press and Registration of Books Act, 1867 and as such the charge as against them cannot sustain in law. In support of that argument, he had also cited before me a decision of this Court reported in : ILR1995KAR39 , wherein this Court held that as per the definition of the 'Editor' in Section 1(1) of the Press and Registration of Books Act, 1867, the 'Editor' means the person who controls the selection of the matter that is published in a newspaper and there is no reference to the 'Assistant Editor', 'Executive Editor', Managing Editor' in the Act and therefore there cannot be an offence under Section 500 of IPC as against the said 'Assistant Editor', 'Executive Editor' and 'Managing Editor.
7. In the above decision this Court held as follows :
'As per the definition of 'Editor' in Section 1(1) of the Act 'Editor' means the person who controls the selection of the matter that is published in a newspaper. There is no reference to Resident Editor, Executive Editor, Managing Editor in the Act. There are no allegations against petitioners 1 to 3 in the complaint to show that they have any hand in selection of the matter that is published in the Indian Express Newspaper .... In the absence of positive averments against the petitioners 1 to 3 who are described as 'Executive Editor', 'Managing Editor' and 'Resident Editor' and in the absence of presumption available under Section 7 of the Act against them, the learned Magistrate could not have ordered process for the alleged offence under Section 500, IPC. To ask the Executive Editor, Managing Editor and Resident Editor to undergo the trial because of issuing process against them would be oppressive.'
Therefore, he submitted that the charge against the respondents/accused Nos. 1 and 2 cannot sustain in law in the absence of any allegation against them and therefore he prayed that the impugned judgment in so far as the same related to them need not be interfered with. I find sufficient force in the said argument of the learned counsel for the respondent/accused.
8. In the instant case in hand also when the respondent/accused No. 1 had been described as 'Chief Editor', the respondent/accused No. 2 had been described as 'Managing Director' and there are no specific allegations against them in the complaint. Even otherwise Section 1(1) and 7 of the Press and Registration of Books Act, 1867 refers to 'Editor' who controls the selection of the matter that is published. That being the position in law, I have got no hesitation to accept the argument of the learned counsel for the respondent/accused that in law there cannot be charged as against the respondents/accused Nos. 1 and 2 herein.
9. The learned counsel for the respondents/accused further argued that the defence of the respondent/accused before the Court below is that the action of publishing the article in question was for public good and the same was published in good faith after due enquiry and attention, and therefore, the action on the part of the respondents/accused is within the meaning of the First and Ninth Exceptions of Section 499 of IPC. He had further pointed out that there was no malice on the part of the respondents/accused as against the appellant in publishing the article in question, that none of the respondents was knowing the appellant at any point of time earlier to the publication, let apart it is not that for the first time the article had appeared in their weekly, for earlier to it the very matter in the article their weekly had appeared in the leading English Daily Newspapers by name Deccan Herald and Indian Express having wide publicity throughout the State of Karnataka. The article was regarding the ill treatment meted out to the very servant of the appellant by name Tulsiram. He pointed out that the respondents/accused after receiving the information that the Seshadripuram Police Station had registered the case against the appellant for offence under Sections 349, 324 and 323 of IPC in Cr. No. 396/1982 on their file, proceeded to the Police Station and made enquiries thereto and thereafter they went to the K.C.G. Hospital, Malleswaram, wherein Tulsiram was treated for the injuries found on his person; besides they also interviewed the Doctor by name Rajagopal who treated the said Tulsiram. In addition to that they have also collected the xerox copy of the medical Certificate, copy whereof was also produced before the Court below, wherein 27 injuries were found on the body of Tulsiram and it is only after gathering all the informations regarding the incident they have also interviewed the said servant, Tulsiram. That having convinced that the appellant treated the said Tulsiram in a very inhuman manner by not providing him food and further treating him in a very cruel manner, they published the said article. That the said article was published in the public interest and it can as well be termed as an investigation reporting. The learned counsel for the respondents/accused also argued that when the article was based on the proper investigation and after cross-checking the veracity thereof, there cannot be any charge as against the respondents/accused in the hands of the appellant.
10. With reference to the argument of the learned counsel for the appellant that the respondents/accused have not led in any evidence in support of their case that their action falls within the First and Ninth Exceptions of Section 499 of IPC, the learned counsel for the respondents/accused argued that their defence being as above, they have produced six documents marked as Exs.D1 to D6, which are the copies of FIR in Crime No. 396/1982 registered by the Seshadripuram Police Station at the instance of the above said Tulsiram, paper cuttings of Deccan Herald English Daily dated 29-8-1982, Indian Express dated 21-2-1988, Deccan Herald publication (3 publications) dated 21-2-1988, 22-2-1988 and 25-3-1988, Indian Express Publication dated 2-2-1988 and true translation of Ex.P1, the paper publication in their Hindi weekly and further xerox copy of the medical certificate showing 27 injuries on the person of Tulsiram along with Ex.D1, the FIR. The said documents were produced before the trial Court to show that the said illegal act of ill treatment meted out to the servant of the appellant Tulsiram had appeared earlier to the publication in their Hindi weekly and that it was based on information they have collected with regard to the incident in question. He therefore argued that it cannot be contended by the otherside how that they have not led in any evidence in support of their defence, and therefore, he submitted that there is no substance in the instant appeal even as against the respondent/accused No. 3 and therefore he prayed that the appeal be dismissed.
11. Having heard both sides, the only point for my consideration in the instant appeal is whether the impugned judgment passed by the learned Magistrate suffers from any error for want of evidence from the side of the respondents/accused in their defence that their action falls within the meaning of the First and Ninth Exceptions under Section 499 of IPC.
12. The learned counsel for the appellant in fact argued vehemently that the impugned judgment passed by the learned Magistrate is bad inasmuch as the respondents/accused had not adduced any evidence in their defence to say that their action falls within the meaning of the First and Ninth Exceptions of Section 499 of IPC. It is also his argument that when the Article in question is per se defamatory and the publication thereof is not disputed by the respondents/accused, the respondents/accused would have discharged their burden to show before the Court below that they come within the Exceptions under Section 499 of IPC. He submitted that none of the respondents/accused entered the witness-box and further not examined any witness in support of their defence or in other words the argument of the learned counsel for the appellant is that the respondents/accused having not examined any witnesses in their defence they miserably failed to prove that their action falls within the meaning of the First and Ninth Exceptions of Section 499 of IPC.
13. It is pertinent to mention here that the defence of the respondents/accused before the learned Magistrate is that their action in publishing the article in question was squarely within the meaning of the First and Ninth Exceptions of Section 499 of IPC and they have produced Exs.D1 to D6 and further the xerox copy of the medical certificate before the trial Court; thus the production of the said documents before the learned Magistrate is in fact in their defence and it cannot be said that they have not led in any evidence. In my considered view, it is not as if the respondents/accused have to examine witness or witnesses and mark documents in support of their case. Even if they have produced the documents and got marked through the witnesses of the appellant, that satisfies the requirement of the law in Section 105 of the Evidence Act. The said section reads that when a person is accused of any offence. The burden of proving the existence of circumstance bringing the case within any of the general exceptions in the Indian Penal Code is upon himself i.e. the accused person. It is relevant to quote here Section 105 of the Evidence Act. The same reads as follows :
'105. Burden of proving that case of accused comes within exceptions. - When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.'
From the above it does not mean that one must plead or lead evidence. In my considered view, if it is borne in the evidence on record whether produced by the prosecution or by the defence to prove that the general exception would apply, then the presumption of the absence of such circumstances under Section 105 of the Evidence Act is removed and it is open to the Court to consider whether the evidence on record proves to the satisfaction of the Court to consider whether the evidence on record proves that the accused come within the meaning of the Exceptions or not. That being the position, it cannot be argued that the respondents/accused have not led in any evidence as argued by the learned counsel for the appellant. I may observe here that the respondents/accused had sufficiently discharged the burden by way of cross-examination of the witnesses of the appellant/complainant. As a matter of fact it is that evidence that was accepted by the learned Magistrate in recording the acquittal of the respondents/accused. That being the position, I do not find any error in the impugned judgment passed by the learned Magistrate.
14. For the aforesaid reason, I hold that the instant appeal does not merit any consideration and the same is liable to be dismissed and accordingly the same stands dismissed.
15. Appeal dismissed.