Tuesday, December 20, 2011

DEFAMATION taken lightly by courts in India


 and taken seriously against person defamed by community/ public .....Alok


 DEFAMATION
The loss of reputation, by injury or by misconduct, is the loss of one’s goodwill. Reputation entails credibility and trustworthiness in society. It is elementary to say that defamation is making a statement concerning any person which exposes him to hatred, ridicule or contempt.
According to Salmond – the test of the defamatory nature of the statement is its tendency to excite against the Plaintiff the adverse opinion or adverse feelings of other persons.
A typical form of defamation is an attack on the moral character of the Plaintiff, something utterly disgraceful, attributing to him a disgraceful conduct.
Reputation is the estimation in which a person is held by others.
M B Kanwar versus State – (1963) 1 CrLJ 609 : AIR 1963 Punj 201.

Attempted to character assassination.

Ever man is entitled to have his reputation preserved intact and any words calculated to infringe this right affords a good cause of action.
Rahim Bux versus Baccha Lal – AIR 1929 All 214.
Chaturbhuj versus Manjit Ram – AIR 1936 All 537 (539)
S T Sahib versus Hasan Ghani – AIR 1957 Mad 649.


Man, as a social being, treasures his honour and reputation, and there is almost an instinctive resistance to any injury or encroachment on these valued assets.

The basis of the law of defamation is for the respect for the honour and reputation of the individuals composing society, a respect implicit in the civilized way of life.

Honour and reputation are treasured attributes of individual personality and the law recognizes the right of each man to the unimpaired possession of his reputation and good name.

The injury caused by the defamation frequently goes beyond the sphere of society and does extend to business and commercial interests. The law of defamation must reach all miscreants who trample on the right of a person to his honour and the reputation.

The courts, it seems, do not value the injury to the honour of the person, as compared to they value the injury to man’s person and his purse.

The law considers that no citizen should be harassed by frivolous litigation.

Once besmirched by unfounded allegation, a reputation can be damaged forever, if no opportunity is advanced to vindicate one’s reputation.

The reputation of a person is his valuable asset and is a facet of his right under Article 21 of the COI.
Deepak Bajaj versus State of Maharashtra – (2008) 16 SCC 14.
Sukhwant Singh versus State of Punjab – (2009) 7 SCC 559.

The respect and reputation of a person is not dependant upon how much wealth he has accumulated. A human being is entitled to lead respectful life in the civilized society. Our society is already adrift in the ocean of debasing human values. Conscious efforts are to be made to ensure that there is no further deterioration.
Mustaq Ahmed Mir versus Akash Amit Bhat – AIR 2010 J & K 11.


Broadly speaking – false and damaging statement –
Paras Dass, Son of Jugal Kishore versus Shri Paras Dass – 1969 Delhi LT 241;
M C Verghese versus T J Poonam – (1969) 1 SCC 37.

Defamatory if false are actionable. Injury to a man’s reputation is the gist of an action for defamation.

NO NEED TO SHOW SPECIAL DAMAGE CAUSED –
(Mst) Ramdhara versus (Mst) Phulwantibai – 1970 CrLJ 286.


It is not necessary by the fact that the harm caused by defamation is having limited circulation. The defamatory malignant words may be whispered to a single person, but may circulate to infinite persons, like a shifting rumour, which nobody repeats exactly as he heard it. 

Defamatory words are calculated to injure the reputation of a person.

If the conduct attributed to a person is disgraceful, affecting his moral character, tending to lower him in the estimation of right thinking members of the Society.

ACTUAL WORDS USED:
It is well established that the test here to be applied is what the words would convey to the ordinary readers.
Lewis versus Associated Newspapers Ltd – (1963) 2 All ER 151.
Rubber Improvement Ltd versus Daily Telegraph Ltd – (1964) AC 234.
Brijlal Prasad Mahanlal Das versus Firm Radhkishan Ramsahai – AIR 1956 Nag 264 (DB).
Nanumal versus ramprasad – AIR 1926 All 672;
Page 62 and 63.

There must be clear reference to the Plaintiff.
Reference to a company or collection of persons – Explanation – 2.

Even the knowledge that such imputation will harm the reputation is enough to constitute the requisite mens rea for an offence punishable u/s 500 of IPC 1860, for a man is presumed to know and aware of the natural consequences of his acts and omissions.

At any rate, he being fairly prudent person, can be credited with the knowledge that the aforesaid imputations would harm the reputation of the opposite party.

Black’s dictionary define Defamation as an intentional false communication that injures another’s reputation and good name. Holding up of a person to ridicule, scorn or contempt in a respectable and considered part of the community.

Defamation is that which tends to injure reputation, to diminish the esteem, respect, goodwill, or confidence, in which a Plaintiff is held or to excite adverse, derogatory or unpleasant feelings or opinion against him.

Defamatory per se – in respect of words, those by themselves, and as such, without reference to extrinsic proof, injure the reputation of the person to whom they are applied.

An allegation which would either tend to make people think the worse of the Plaintiff or avoid him or which would expose him to ridicule.




False and misleading information
Malicious falsehood

In the absence of any statutory provisions suits for damages founded upon tort and more specially which are based upon slander have to be decided according to the principles of justice, equity and good conscience and in the light of judicial principles to be found in the decisions of eminent English judges and recognized jurists, principles which are broad based upon human nature and common experience of mankind.
Rahim Baksh versus Baccha Lal – AIR 1929 All 214;
Balammal versus Pallandi Naidu – AIR 1938 Mad 164;
Bira Gareri versus Dulhim Somaria – AIR 1962 Pat 229.

Both Civil and criminal remedy is available under Indian law:
Venkayya Pantulu versus Kalipattapu Chetty – AIR 1940 Mad 876;
Ashok Kumar Sarkar versus Radha Kanto Pandey – AIR 1967 Cal 178;
Hirabai Jehangir versus Dinshaw Edulji – AIR 1927 Bom 22;
Ma Sein Tin versus Kyaw Maung – AIR 1936 Rang 322.

If the defendant has in fact injured the Plaintiff’s reputation, he is liable, although he is not intend so to do, and had no such purpose in his mind when he wrote or spoke the words. The above deeming proposition is founded on the premise that every man is presumed to know and to intend the natural and ordinary consequences of his acts. The words are actionable if false and defamatory, although published / spoken inadvertently.

If the defendant at the time of making statement knew that what he is saying is false, it is clear evidence of malice. AIR 1938 Mad 164 (170).

A mischief with the machinery of law.


ABSENCE OF HONEST BELIEF
If the statement is made wantonly, without the defendant’s knowing or caring whether it was true or false, such recklessness is considered as malicious and deliberate falsehood.
Clark versus Molyneue – (1877) 3 QBD 237;
Ahsanali versus Hifazatali – AIR 1956 Nag 146.


If a person from anger or some other wrong motive has allowed his mind to get into such a state as to make him cast aspersions on other people recklessly, he is said to have abused the occasion.

If a person is charged with the duty of dealing with people’s rights and interests, has allowed his mind to fall into such a state of unreasoning prejudice that he was reckless, he is said to have abused the occasion.
Royal Aquarium and Summer and Winter Garden Society versus Parkinson – (1892) 1 QB 431 at P.444.
Ghulam Rasool versus Ibrahim Beg – AIR 1934 Oudh 8.

The general rule remains that in assessing damages the character of the defamatory words and the circumstances attending its publication are to be taken into account.
Dina Nath versus Syed Habib – AIR 1919 Lah 129, P.133.
Narayanan versus Viru Govindan – 1941 MWN 971.

They may also fairly take into consideration the rank and the position in society of the parties, the mode of publication selected etc.
Tushar Kanti Ghose versus Bina – ILR (1955) 2Cal 161.

The grief and annoyance caused by such ill acts of the defendant.

It is founded on the broad principle that it is in the interest of the civilized communities that crimes should not go unpunished.

BAR UNDER SECTION 195 OF CRPC
State of UP versus Mata Bhikh – 1994 SCC (Cri) 831 (834).
Maniklal Bhagat versus State – 1982 CrLJ 1473 (Cal)
Binapani Ghosh versus State – 1983 (2) Crimes 901, 903 (Cal) (DB).
Phoolchand Jan versus State – 1987 (1) Crimes 567 (Del).



GOOD FAITH

A person can be excused for having committed an error of judgment only if he has exercised due care and attention before proceeding further; to claim having acted in good faith presupposes his conduct which must show that there was no negligence according to reasonable standard.

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 questions have been made.
Gulabchand Bhudarbhai Soni versus State of Gujrat – AIR 1970 Guj 171 (173).

In the matter of defamation “good faith” requires care and caution and prudence in the background of context and circumstances. The position of the person making the imputation will regulate the standard of care and caution.
Chamanlal versus State of Punjab – (1970) 1 SCC 590 at p. 594 : AIR 1970 SC 1372.

Absence of due care and attention is destructive of good faith –
N Subramani Aiyar versus Official Receiver – AIR 1951 SC 1, 10.

Whether an act has been done in good faith would depend upon the factual scenario.

BLACK’S DICTIONARY – good faith is an intangible and abstract quality and it encompasses, among other things, an honest belief, the absence of malice, and the absence of design to defraud, or to seek an unconscionable advantage; and an individual’s personal good faith is concept of his own mind and inner spirit.

The state of mind denoting honesty in acts.

When a question arises as to whether a person acted in good faith, then it devolves upon him to show not merely that he had a good intention but that he exercised such care and skill as they duty reasonably demanded for its due discharge.
Gaya Din – (1934) 9 Luck 517.

The definition of the term in the General Clauses Act, 1897 lays stress on the one aspect of honesty only irrespective of negligence, but in the Indian Penal Code stress is laid on two aspects, viz, honesty of intention alongwith due care and attention.

When a case is concerned with IPC, the definition in IPC shall and that of the General Clauses Act shall not prevail. (1980) 1 Cal HN 276

The IPC definition is operative in respect of a clause purporting to attract clause (9) of S.499 of IPC, 1860.
(1982) 2 Bom CR 559.

Due care denotes the degree of reasonableness in the care sought to be exercised. So before a person proposes to make an imputation on another, the author must first make an enquiry into the factum of the imputations which he proposes to make. It is not enough that he does just a make believe show for an enquiry. The enquiry expected of him is of such a depth as a reasonable and prudent man would make with the genuine intention in knowing the real truth of the imputation which is up in his sleeves. If he does not do so he cannot claim that what he did was bonafide, i.e. done in good faith.
S K Sundaram – AIR 2001 SC 2374.

In a case the accused made baseless allegations against the school authorities that school building was unsafe and had become meeting place for opposite sexes. This poisonous propaganda was to create a wrong impression on the minds of the parents so that they may not send their children to such institution. It was held that the statement was defamatory and was not made in good faith as there was no factual basis for the same. Dogar Singh versus Shobha Gupta – 1998 CrLJ 1541 (P&H).

GOOD FAITH:

Where a party ha acted with due care and attention, a thing shall be deemed to be done in good faith; where a thing is done honestly whether done negligently or not, is done in good faith.

The expression “good faith” has several sets of meaning, however in popular sense, it simply means acting honestly without fraud, collusion, deceit, pretence and without intent to act in furtherance of a fraudulent or any unlawful scheme.

The question of good faith requires consideration with reference to the position of the accused and the circumstances under which he has acted.


A person is entitled for excuse for committing an error of judgment only if he has exercised due care and attention and his conduct shows that there has been no negligence on his part. Acting in good faith presupposes a due inquiry.

     
The SC in Municipality of Bhivandi and Nizampur versus kailashsizing Works – AIR 1975 SC 529 at p.531, while quoting Lord Blackburn in Jones versus Gordon, said, “the distinction between the case of a person who was honestly blundering and careless; and the case of a person who has not acted honestly. An Authority is not acting honestly where an authority has a suspicion that there is something wrong and yet does not make further enquiries. Being aware of possible harms to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequence of which, the law presumes to be present in the mind of the negligent person, whether actually it was there or not. Surat Singh versus Delhi M C – AIR 1989 Delhi 51 at p.59. This legal presumption is drawn through the well known hypothecation of reasonable man.

Reckless disregard of consequences and malafides stands equal.

The test of good faith: doing of an act showing that ordinary prudence has been exercised according to the standards of a reasonable person.

Good faith contemplates an honest effort to ascertain the facts upon which the exercise of power rests.

A lack of diligence, which an honest man of ordinary prudence is accustomed to exercise, is, in law, a want of good faith.
 


Section 182 of IPC

The object of this section is that a public servant should not be given false information with the intent that he should be misled by a person who believed that information to be false, and intended to misled him. Thus it is an offence to knowingly give false information which misleads a Public Servant and cause him to do what he ought not to do. The offence under section 182 is complete when a person has moved a public servant for action. Even the section 182 does not require that action must be taken by the said Public servant, and it is enough for the completion of the offence that the person who moves the public servant knows or has reason to believe that action would be taken on the false information given by him. Daulat Ram versus State of Punjab – AIR 1962 SC 1206.

A Positive knowledge or belief in the falsity of the information given.


Information given should be information which the accused person knows or believes to be false.

Section 182 (b) postulates that the false information to the public servant must be intended to lead the public servant to use his lawful power to the injury or annoyance of any person.

The onus is on the prosecution to prove that the information was false and false to the knowledge of the accused.







Section 211 of IPC

This is an offence which relates to an attempt to put the criminal law machinery in motion against another person. The action, which section 211 renders penal, is a action entailing very serious consequences.

Setting the criminal law in motion.


Section 211 speaks of false charge. Where there is a specific section dealing with a false charge that section must be considered to be the one applicable to the circumstances of the case.

The essentials for invoking section 211 are that (a) the complainant must have falsely charged such person for having committed an offence. (b) The complainant must have known that there is no just or lawful ground for the charge made. (c) There must have been an intention to cause injury to the person. The last, can in some cases, be inferred from the relation of the parties when the other two elements are established.

The essential ingredient of a offence as stated by SC are that under section 211, is to institute, or cause to be instituted any criminal proceeding (not judicial proceedings) against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Santokh Singh versus Izhar Hussain – AIR 1973 SC 2190.

Turning to English law as laid down by HALSBURY it is an indictable offence at common law to bring a false charge against a person or to make false statement to Police officer investigating an offence. HALSBURY Laws of England – 4th Edn Vol.11, para 955, p.556.

The gist of the offence of the offence of conspiring to accuse another of a crime, is that the accusation should be false to the knowledge of the conspirator. Conten versus R – 1956 AC 158 PC.

Where the offence u/s 211 consists in giving false information to the Police and the case does not go further than a Police inquiry, the offence falls within para (1) of section 211 and not within para (2) even though the charge made in the report is one of murder. Gaya Teli versus Emperor – AIR 1930 All 818.

Section 211 covers cases where there is a definite information or charge with reference to a criminal offence against a particular person. Bholu versus Punaji – AIR 1928 Nag 17.

In an inquiry u/s 211, proof of the absence of just and lawful ground for making the charge is an important element. Raghvendra versus Kashinath bhat – (1894) 19 Bom 717, 725.

If the information conveyed to the Police amounts to the institution of the criminal proceedings against a defined person or amounts to the falsely charging of a defined person with an offence, then the person giving such information is guilty of an offence u/s 211.

The words “with intent to cause injury” in section 211 indicate malice, and words “there is no just or lawful grounds” indicate want of reasonable or probable cause. Kapoor versus Kairon – AIR 1966 All 66.

The words “intent to cause injury” postulates a particular person or persons whose injury was intended. So before a case can be instituted u/s 211, it must be proved that the person accused, instituted or cause to institute a criminal proceeding against a particular person with intent to cause injury to that person.
Naiz Ali versus Emperor – 5 CrLJ 396.

The gravamen of an offence u/s 211 is institution of a false criminal proceedings or causing a false criminal proceedings to be instituted or preferring a false charge.
Landmark Lahore HC case – Sultan versus Empress – 3 PR 1888 Cr.

The laying of an information which the Police officer has power to investigate and the causing of that officer to investigate amounts to institution of criminal proceedings. Consequently, where the accused person reports to two Police officers, one of whom had no jurisdiction, while the other had, the accused must be held to have instituted proceedings and the offence u/s 211 is committed. Nankoo Mahton versus Emperor – AIR 1936 Pat 358.

If a report of a cognizable offence is made to the Police, the machinery of law is set into motion by the report and the criminal proceedings instituted within the meaning of section 211. Faiz Alam versus Emperor – AIR 1934 Pesh 112.

A person actually institutes criminal proceedings upon making a complaint as defined u/s 4(g) CrPC, and a person also institutes criminal proceedings upon reporting the commission of a cognizable offence to the Police who are empowered to investigate the allegations. Hidayatullah versus Emperor – AIR 1936 Pesh 66.

A false information to the Police is a proceeding instituted on a false charge within the meaning of section 211 as a charge laid down before the Police is a criminal proceeding. Parmeshwar Lal versus Emperor – AIR 1925 Pat 678.


The expression “Institutes or cause to be instituted any criminal proceeding” in section 211 postulates an intention to set criminal law in motion.

Section 211 requires a specific offence charged with the object of setting the criminal law in motion. The word “proceedings” is used in this section in the ordinary sense of a prescribed mode of action for prosecuting a right or redressing a wrong. It is not used in a technical sense of a proceeding taken in a court of law. In this case the specific question that felt for decision of Kerala High Court full Bench was whether an investigation under Chapter XIV of CrPC, 1898 (Chapter XII of CPC, 1973)  is a criminal proceeding or not. After review of a large number of earlier decisions, the Kerala full Bench held that the expression “criminal proceedings” in section 211 is wide enough to include a proceeding under Chapter XIV of CrPC, 1898 (Chapter XII of CPC, 1973). This is made clear in the fact that the expression “criminal proceeding” in section 211 is not qualified by the word “judicial” or to anything else that it is confined to a proceeding before a court of law or other tribunal.
Where, therefore, the criminal law is set into motion against a person by giving information to the Police that person has committed a cognizable offence, the person giving information institutes a criminal proceeding against that person within the meaning of section 211, for the reason that the Police are bound by law to investigate the accusation against that person whether they believe it or not and make a final report u/s 173 of CrPC 1973.
Albert versus State of Kerala – AIR 1966 Ker 11 (FB).


A person who sets the criminal law in motion by making to the Police a false charge in respect of a cognizable offence institutes criminal proceedings.
Jijibhai Govind (1896) 22 Bom 596;
Karim Buksh (1888) 17 Cal 574 (FB);
Parahu (1883) 5 All 598;
Nanjundo Rau (1896) 20 Mad 79;
Binia (1937) Nag 338.


The language of the statement made may be the determining factor if “false charge” is made. The Calcutta HC has held that the meaning of the expression “falsely charges” is simply “falsely accuses” and as the section stands there is no necessity of this false accusation being made in connection with a criminal proceeding. Dasrathi Mondal versus Hari Das – AIR 1959 Cal 293; AIR 1964 SC 1773.

The most important element in a proceeding under section 211 is falsity. The charge leveled must be false. So far as criminal proceeding is concerned to come under the mischief of section 211, it must be instituted with the knowledge that there exists no just or lawful ground for such proceeding.

Falsely charging means a false accusation made to any authority bound by law to investigate it or to take any step in regard to it as held by a Patna case. Banti Pandey versus Emperor – AIR 1930 Pat 550.

As soon as the charge is made, the offence u/s 211 is complete and the injured party can file a complaint against the informant u/s 211 irrespective of the fact that the latter files a complaint subsequently. Nga Ba Shein versus Emperor – AIR 1934 Rang 21.

When a false charge is made to the Police and not to a court, no sanction u/s 195(b)(i) is needed.
Bakshi versus Crown – AIR 1924 All 187;
Dujai versus State – (1962) 1 CrLJ 627.

As held in Patna case, there is no reason either in common sense or in law as why the accused should not be called to the enquiry. Ram Saran Singh versus Md. Jan Khan – AIR 1926 Pat 34.




ABUSE OF PROCESS:
Tort based on damages caused by the improper use of legal process – O.18, R.19.

CONTEMPT SIGNIFIES DISRESPECT



MAY

It is well settled that “may” is a discretionary and enabling word unless the subject matter shows that the exercise of powers given by the provisions using the word “may” was intended to be imperative.
Jagdish Kapoor versus New Education Society – AIR 1986 MP 1;
Bhanu Dutta versus State – AIR 1970 Cal 127;
Tarachand versus Misrimal – AIR 1970 Raj 53.

The use of the expression “may” is not decisive. Having regard to the context, the expression “may” used in a statute has varying significance. In some context  it is purely permissive, in others, it may confer a power and make it obligatory upon the person invested with the power to exercise it as laid down.
AIR 1964 SC 558, p.562;
AIR 1963 SC 1088;
(1963) (Supp) 2 SCR 745;
AIR 1979 SC 1029 : (1979) 4 SCC 85, pg. 90, 92;

Interest of justice imposes a positive and absolute duty –
State versus Ram Ratan Bhudan – AIR 1957 MB 7.

In section 190 of CrPC, the words “may take cognizance” in the context means “must take cognizance”. He has no discretion in the matter, otherwise that section will be violative of Article 14. A C Agarwal versus Ram Kali – AIR 1968 SC 1.

The word “may” always signifies a conferment of power. That power, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it, an obligation, which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in a certain way arises. It is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual may import the power to the obligatoriness.
Official Liquidator versus Dharti Dhan Pvt Ltd – AIR 1977 SC 740, p.744;
Wasim Beg versus State of UP – AIR 1998 SC 1291.

The word “may” is consistent with its being read as compulsive or as “shall” if the conditions postulated by the section are satisfied. Sundaram Iyer versus Dy Registrar Co-op Soc, Ramanathapuram – (1956) 2 Mad LJ 613 (DB).

There is no doubt that the word “may” generally does not mean “must” or “shall”. But it is well settled that the word “may” is capable of meaning “must or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority with an obligation, the word “may” when denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word “may” out of defence to the high status of the authority on whom the power and the obligation are intended to be conferred.
State of UP versus Jogendra Singh – AIR 1963 SC 1618.

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