Abdur Rouf & 2 Others vs State Of Assam

Heard learned counsel Mr. A. Roshid, for the revision petitioners and Mr. D. Das, Additional Public Prosecutor, Assam for the State/respondent.

None appeared for the respondent No.2.

The petitioners stood convicted under Section 500 IPC and sentenced to Simple Imprisonment for 6(six) months and fine of Rs.500/- each with

default stipulation by the learned SDJM(S) Goalpara. Aggrieved by the conviction and sentence, the petitioners preferred an appeal and by the

impugned judgment, learned Appellate Court, while upholding the conviction, modified the sentence to fine of Rs.1000/- only and imposed a default

sentence of 1(one) month in case of non-payment of the fine.

The judgment and order passed by the learned Appellate Court in Criminal Appeal No.1/2004 and 3/2004 has been put to challenge in this revision

petition.

Learned counsel for the petitioners sought to assail the impugned judgment broadly on the following 2(two) grounds:-

(i) The petitioners were entitled to protection of the Ninth Exception to Section 499 IPC.

(ii) No evidence was brought on record against the petitioners Sri Gangesh Kalita & Sri Abdur Rouf, who were not connected with the publication of

the alleged news item nor they were aware of the contents of the news item and therefore, the conviction and sentence of the petitioners Sri Gangesh

Kalita & Sri Abdur Rouf was perverse and illegal.

The prosecution case in a nutshell, which may be relevant for disposal of the revision may be stated thus- the complainant Abul Hussain Sarkar

lodged a complaint before the court of Chief Judicial Magistrate, alleging that a defamatory news article had been published in the local Assamese

Weekly entitled “Khabar†in its Vol 1 No. 23 dated 30.12.2002 under the caption “Widespread corruption in Goalpara Telephone Sub-Division,

Demand of Inquiryâ€. The complainant alleged that the said news item was false and defamatory and the imputation made in the news item harms the

reputation of the complainant.

On the basis of the said complaint, the learned Magistrate took cognizance and issue process. 3(three) witnesses were examined by the prosecution

and on conclusion of trial petitioners were convicted under Section 500 IPC and awarded sentence as indicated above.

The learned counsel for the petitioners contends, that the alleged news item was published in “good faith†for public interest and therefore, the

petitioners were immune from prosecution by virtue of Ninth Exception to Section 499 IPC. The Ninth Exception to Section 499 IPC read as under:-

Imputation made in good faith by person for protection of his or other’s interests - It is not defamatial to make 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

public good.

In order to bring the case under the ninth exception to Section 499 IPC, the accused must firstly establish that while making the imputation, he acted

in “good faithâ€. Secondly, the imputation is made for his own interest or public good. Unless all these requirements are established one cannot

claim immunity from the prosecution under the ninth exception.

The expression “good faith†has been defined in Section 52 of the IPC as under:- “nothing is said to be done or believed in “good faithâ€

which is done or believed without due care and attention. Thus, a person can be said to have done anything in “good faith†when it is done with

due care and attention. When the plea of any exception is taken by the accused, it is the burden of the accused to prove all the necessary ingredients

of the exception. True it is, the accused need not prove the defence plea by adducing evidence beyond reasonable doubt, as inasmuch as, burden on

the accused to prove his defence plea is not that strict as in the case of prosecution which is required to prove its case beyond reasonable doubt. The

plea of defence can be proved by the standard of preponderance of probability. It is also not necessary for the accused to adduce evidence to

establish the defence plea. The defence plea can also be proved from the evidence adduced by the prosecution or the complainant. In the instant case,

prosecution examined 3(three) witnesses to establish its case. However, the accused did not adduce any evidence. There is also no material on record

to show that the petitioners took due care & attention to ascertain the correctness or bonafide of the imputations made against the petitioner. It is no

doubt true, that standard of care and caution required by the expression “good faith†may varies in different circumstances or from person to

person depending on the intellectual capacity of the person concerned. When a news item is published making serious imputation concerning any

person, which is likely to harm the reputation of the person, the editor or publisher of the newspaper are under obligation to make some sort of enquiry

to ascertain the correctness of the reputation. A reference may be made to the decision of the the apex court in “Sukra Mahoto vs Basudeo

Kumar Mahato and another, AIR 1971 SC 1567†which was also relied by the learned Appellate Court, wherein the Apex Court held that- “the

person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to

indicate that he acted with due care and attention and was satisfied that the imputation was true.â€​

10.Neither the accused petitioners adduced any evidence nor there is any materials on record to suggest even remotely, that the petitioners acted with

due care and attention or made any enquiry to ascertain the correctness of the imputation before the publication. On the contrary complainant’s

witnesses clearly stated that the imputation was false. In absence of evidence of due care & attention, mere raising a plea of “good faith†is not

sufficient to get the protection of Ninth Exception to Section 499 IPC.

11.Upon consideration of the evidence and materials on record learned appellate court held that the accused failed to prove, that they acted in

“good faith†or with due care and attention and such finding is certainly a finding of facts. In my considered view such findings of the learned

court below holding that the petitioners failed to establish the “good faith†was quite reasonable and did not suffer from any impropriety, illegality

or unreasonableness. Once the defence failed to establish the “good faithâ€, accused shall not be entitled to the benefit of ninth exception, reason

being that the exception refers only to any imputation made in “good faithâ€. Thus, the first point raised by the petitioners to assail the impugned

judgment fails.

12.So far the second point raised by the learned counsel for the petitioners is concerned, the only evidence brought on record by the complainant is the

alleged publication containing the defamatory news item which has been proved as exhibit-1. PW2 & PW3 deposed that the imputation made in the

publication was not correct. Besides the above evidence, no other evidence was brought on record to prove, that all the petitioners were involved or

responsible for the alleged publication. Evidently, petitioner Rabiul Hoque was the editor of the newspaper as is evident from the Ext.-1, wherein the

name of the petitioner Rabiul Hoque had been printed as editor.

13.In order to convict a person for a criminal charge, prosecution has to prove beyond reasonable doubt that the accused has committed the offence.

On perusal of the evidence as well as the complaint, I find that there is no specific allegation against the petitioners namely, Abdul Rauf and Ganesh

Kalita. When the petitioner Rabiul Hoque was evidently the editor of the newspaper publishing the defamatory article, there was certainly a

presumption against the editor under Section 7 of the Press and Registration of Books Act, 1867, that he was aware of the contents published in the

news item, inasmuch as, the editor is a person who control the selection of the matter to be published in the newspaper. Therefore, in view of Section

7 of the Press and Registration of Books Act, 1867, there is a presumption of knowledge and awareness of the contents of the news item against the

editor and he may be liable for any civil or criminal action for the publication on the basis of presumption u/s 7 of the Press and Registration of Books

Act. Obviously such presumption is rebuttable like any other presumption. However, there is no such presumption of awareness of the contents of the

newspaper against the petitioners Abdur Rouf & Krishna Kanta Das under Section 7 of the Press and Registration of Books Act, 1867. Therefore,

unless there is specific allegation and evidence to rope in the petitioners namely, Abdul Rauf and Ganesh Kalita with the commission of the offence,

no conviction could have been recorded against the petitioner Sri Gangesh Kalita & Sri Abdur Rouf.

Evidently, no material was brought on record by the accused persons nor there was any material on record proving contrary or to rebut the

presumption against the petitioner Rabiul Hoque. Therefore, conviction of the petitioner Rabiul Hoque recorded by the learned Trial Court holding him

guilty of committing offences u/s 500 IPC for the publication of the defamatory news item and confirmed by the Appellate Court in my considered

view appears to be quite reasonable and has not suffered from any impropriety or illegality.

So far the petitioners Sri Gangesh Kalita & Sri Abdur Rouf are concerned, since, there was no presumption against them under Section 7 of the

Press and Registration of Books Act, 1867 , they could not have been convicted u/s 500 IPC in absence of incriminating evidence. On perusal of the

record, I notice that, the complainant did not adduce any evidence to show that the petitioner Abdul Rauf and Ganesh Kalita had any role in selection

of the news published in the newspaper or they were also responsible for the publication of the alleged defamatory news item. Not to speak of any

evidence, there was not even any specific allegation in the complaint against the petitioners Sri Gangesh Kalita & Sri Abdur Rouf and as such, the

conviction of these 2(two) petitioners in my considered view suffers from the vice of perversity. Therefore, in the facts & circumstances of the case

and the materials brought on record the conviction and sentence of the petitioners Sri Gangesh Kalita & Sri Abdur Rouf was illegal and warrants

interference by this Court.

For the reason stated above , the revision petition qua the petitioners Sri Gangesh Kalita & Sri Abdur Rouf stands allowed and the conviction and

sentence of these 2(two) petitioners under Section 500 IPC is hereby set aside.

17.So for the petitioner Rabiul Hoque is concerned, the conviction recorded and the sentence awarded by the courts below calls for no interference.

Accordingly, revision petition qua the petitioner Rabiul Hoque stands dismissed.

18.Bail bond if any relating to petitioner Sri Gangesh Kalita & Sri Abdur Rouf discharged.

19.Petitioner Rabiul Hoque is directed to appear before the learned Trial Court within 3(three) months and to pay the fine imposed by the Appellate

Court or served out the default sentence.

20.Send down the record along with the copy of the judgment.