Selvina Kom Peter Byarko vs Ganesh P and another. Criminal Appeal 2593/2020 decided on 18:8:2020. Justice M.G. Uma. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/340573/1/CRLA2593-11-18-08-2020.pdf
Relevant Paragraphs: 19. Under Section 499 of IPC, if any imputation concerning a person is published with an intention or knowledge or having reason to believe that such imputation will harm the reputation of such person, it amounts to defamation of that person, except under Ten Exceptions contained therein.
20. Section 105 of the Indian Evidence Act deals with the burden of proving existence of circumstances bringing the case within any of the general exceptions in the IPC or within special exception or proviso containing in other parts of the same Code or in any law defining the offence, on the accused and mandates the Court to presume the absence of such circumstances.
25. …Eighth Exception refers to such accusation made to the authorized person. But in the present case, since the article was published in the magazine, the said exception cannot be made applicable.
26….accused does not fall under eighth exception, since the article in question was published in a magazine but not a representation submitted to an authorized person.
27.To attract the Ninth Exception to Sec. 499 IPC, the imputation must be made in good faith for protection of his or other’s interest. It is not explained by the accused as to how their interest or interest of others was involved in the case and how they have protected it by publishing the news item.
28.The position of law with regard to defamation is very well settled. If once publication is proved to be defamatory in nature, harming the reputation of the complainant, the burden shifts on the accused to claim exemption under any of the exceptions under Section 499 of IPC. Even when the accused takes a defence that publication containing the imputation was a true fact, he is required to prove that the said publication was for the public good, in order to attract the first exception. If on the other hand accused seeks exemption under the ninth exception, he has to prove that the imputation was made in good faith for his protection or of any other person. Moreover the person who makes such imputation and his position will determine the standard of care and caution he has to take, while making such publication.
29.When we speak of right to life, it definitely includes the 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.
30.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.
34.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. 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.
Compiled by S.Basavaraj, Daksha Legal
Daksha Legal 