SEWAKRAM SOBHANI

R.K. KARANJIA, CHIEF EDITOR,

WEEKLY BLITZ & ORS.

May 1, 1981

[0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL ISLAM, JJ.]

Penal Code-Section 499-Ninth exception-Scope of-Respondent made imputations regarding character of appellant in an article published in his journal purporting to be based on confidential report of a high official of State Government- Government claimed privilege in regard to report-Magistrate proceeded to record plea of accused without seeing report-Government wuived privilege before High

Court-In revision High Court held te news item justified on the basis of report- High Court, whether competent to quash the order of Magistrate.

A news item published in the Blitz weekly of which the respondent was the Editor, stated that the appellant enticed a female detenu who alongwith him, D was detained in the Central Jail under the Maintenance of Internal Security 'Act and that she had conceived through him and that on getting released on parole she had had the pregnancy terminated. It was further stated that a confidential enquiry conducted by a senior officer of the Home Department revealed that it was the appellant who was responsible for the detenu's pregnancy.·

On release from jail the appellant lodged a criminal complaint against the E respondent. Before the Magistrate the respondent prayed that the report of the Enquiry Officer be sent for. But the report could not be obtained because the

State Government claimed privilege in respect of that report. When the Magistrate proceeded to record the plea of the accused under section 251 of the Code of Criminal Procedure, the respondent requested that his plea be recorded only after the enquiry report was produced; but the Magistrate rejected the request.

The respondent thereupon filed a revision before the High Court for setting aside the order of the Magistrate. Waiving privilege the State Government produced a copy of the enquiry report before the High Court.

A single Judge of the High Court quashed the proceedings on the view that the respondent's case clearly fell within the ambit of the ninth exception to section 499, I.P.C. because, ccording to him, the publication had been made honestly in the belief of its truth and also upon reasonable ground for such belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances.

On the question whether the High Court was right in quashing the order of H the Magistrate, remanding the case to the Magistrate.

A (Per majority : Chinnappa Reddy and A.P. Sen JJ-Baharul Islam J dissenting)

HELD : The order passed by the High Court should be set aside. The Magistrate should record the plea of the accused under section 251 Cr. P.C. and thereafter proceed with the trial according to law.

(Per Chinnappa Reddy, J.)

To attract the ninth exception to section 499, I.P.C. the imputations must be shown to have been made (1) in good faith and (2) for the protection of the person making it or of any other person or for the public good. The insistence of the section is upon the exercise of due care and attention. The standard of care and attention must depend on the circumstances of an individual case, the nature of imputation, the need and the opportunity for verification and so on.

In every case it is a question of fact to be decided on its particular facts and circumstances. [631 A-Bl

Harbhajan Stngh v. State of Punjab, [1965] 3 SCR 235 @ 244, Chaman Lal

v. The State of Punjab [1970] 3 SCR 913 @ 916 and 918.

Several questior>s may arise for consideration depending on the stand taken by the accused at the trial and how the complainant proposed to demolish the defence. In the instant case the stage for deciding these questions had not arrived yet. Answers to such questions, even before the plea of the accused was recorded, could only be a priori conclusions. [632 HJ

The respondent; s prayer before the High Court was to quash the Magistrate's order and not to quash the complaint itself as the High Court has done. But that was only a technical defect which need not be taken seriously in an appeal under Article 136 of the Constitution where the Court is concerned with substantial justice and not with shadow puppetry. [630 G]

(Per A.P. Sen /.}

The order of the High Court quashing the prosecution under section 482 of the Code of Criminal Procedure is wholly perverse and had resulted in manifest miscarriage of justice. The High Court has pre-judged the whole issue without a trial of the accused persons. The matter was at the state of recording the pleas of the accused under section 251 Cr. P.C. The circumstances brought out clearly showed that .the respondent was prima facie guilty of defamation punishable under section 500 of the Indian Penal Code unless covered by one of the exceptions of section 499 Indian Penal Code. [635 E-F]

The burden to prove that his case would come within the ninth exception to section 499, namely, that the imputation was in good faith and was for the protection of.the interests of the person making it or of any other person or for the public good was on the respondent. All that the respondent prayed for was that the Magistrate should not proceed to record his plea under section 251 Cr. P.C. without persuing the enquiry report. There was no application for quashing the prosecution itself. [636 F; 637 CJ

SEWAKRAM V. R.K. KARANJIA 629

The enquiry report in respect of which the Government claimed privilege had by itself no evidentiary value. The contents of that report could not be made use of unless the facts were proved by evidence aliunde. The report being per se defamatory, it was for the accused to plead the ninth exception in defence and discharge the burden of proving good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good. [637 E; G; HJ

 Sukro Mahto v. Basdeo Kumar Mahto and Anr. [1971] Supp. SCR 329 at 332, Harbhajan Singh v. State of Punjab [1965] 3 SCR 235, Chaman Lal v. State of Punjab [1970] 3 SCR 913, referred to.

The High Court appears to be labouring under an impression that journalists enioyed some kind of special privilege. Journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under the first exception unless it is proved to be in the public good, The question whether or not it was for public good is a question of fact like any other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or in the limited cases specified in the ninth exception, show that the attack on the character of another was for the public good or that it was made in good faith. [638 G-H]

Dr. N.B. Khare v. M.R. Masani and Ors., ILR 1943 Nag. 347, Arnold v.

D King Emperor LR (1913-14) 41 Ind. App. 149 at 169, referred to.

(Per Baharu/ /slum J.)

The Court did not commit any error in quashing the appellant's complaint.

[646 E] The High Court's judgment justifies the factual submission of the respon- E dents that their application wa~ under section 482 as wen as under sections 397 and 401 of Cr. P.C. and that they claimed and canvassed the protection under the ninth exception to section 499, I.P.C. The omission in the prayer portion of a petition, particularly in a criminal case, is not fatal. The High Court, in its revisional jurisdiction, can always grant suitable relief justified by law as wen as facts and circumstances of a particular case. [641 H; 642 DJ

The definition of "good faith" which is couched in negative terms indicates that lack of good faith has been' made a part of the offence which the prosecution has to establish beyond reasonable doubt. On the other Iland, proof by the accused of the report to be an authentic document is enough. It would create a doubt in the mind of the Court as to the Jack of "good faith" on the part of the accused. [644 F-G]

If on a complaint made by a citizen aneging laxity in the observance of jail rules, if the report submitted by a high Government official on the basis of an enquiry conducted by him was for public good and if the respondents had reasons to believe its contents to the true, they will be protected under the ninth exception even if the burden of proof of good faith is on the accused. Good faith need not be proved beyond reasonable doubt. [645 BJ

The report of the enquiry officer was exhaustive, reasoned and was based on evidence. The report leads one to believe the imputations. If that be so, it

630 SUl'REME COURT REPORTS

(1981] 3 S.C.R.

A cannot be said that the respondents published the report or its summary without due care and attention. This establishes good faith under the ninth exception to section 499. Therefore, the publication obviously was for public good. [646 B-C]

In the instant case even if the findings of the report be proved to be false, the respondents would be protected. Sending back the case to the Magistrate would be an exercise in futility and abuse of the process of the criminal court B as the High Court has pointed out. [646 D-E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 543-545 of 1979.

Appeals by special leave from the judgment and order dated the 15th April, 1978 of the Madhya Pradesh High Court in Criminal Revision No. 701/77, 105/78 & 103/78 respectively.

H.K. Puri for the Appellant.

R.K. Garg, Sunil Kumar Jain and V.J. Era for Respondents Nos. 1, 2, 5 & 6.

S.K. Gambhir and Vijay Mansaria for the State.

The following Judgments were delivered

CHINNAPPA REDDY, J. I agree with my brother A.P. Sen that the order passed by the High Court should be set aside and that the Magistrate should be directed to record the plea of the accused under Sec. 251 Criminal Procedure Code and, thereafter, to proceed with the trial according to law.

The facts leading to these appeals have been stated in the judgments of both my brethren A.P. Sen and Baharul Islam and it is unnecessary for me to state them over again.

The prayer in the application before the High Court was merely to quash the order dated November 30, 1977 of the learned Chief Judicial Magistrate, Bhopal and not to quash the complaint itself as the High Court has done.

But, that was only a technical defect and we do not take serious notice of it in an appeal under Art. 136 of the Constitution where we are very naturally concerned with substantial justice and not with shadow puppetry. The position now is this : The news item in the Blitz under the caption 'MISA Rape in Bhopal Jail' undoubtedly contained serious imputations against the character and conduct of the complainant. In order to attract the 9th Exception to Sec. 499 of the Indian Penal Code, the imputations must be shown to have been made (1) in good

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SBWAKRAM v. R.K. KARANJIA (Chinnappa Reddy, J.) 631

faith, and (2) for the protection of the person making it or of any other person or for the public good. 'Good Faith' is defined, in a negative fashion, by Sec. 52 Indian Penal Code as follows: "Nothing is said to be done or believed in 'Good faith' which is done or believed without due care and attention". The insistence is upon the exercise of due care and attention. Recklessness and negligence are ruled out by . the very nature of the definition. The standard of care and attention .must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation was made, the position of the person making the imputation, and a variety of other factors. Good faith, therefore is a matter for evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the _1st Exception of Sec. 499 Indian Penal Code expressly states "Whether or not it is for the public good is a question of fact". 'Public Good' like 'Good faith' is a matter for evidence and not conjecture.

In Harbhajan Singh v. State of Punjab, (1) this Court observed (at p. 244):

"Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test.

It would be a question to be considered on the facts and circumstances of each case ... what is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that fthe imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused person who Claims the benefit of the Ninth Exception".

Again in Chaman Lal v. The State of Punjab (2) this Court said (at p. 916):

(I) [1965] 3 S.C.R. 235 @244.

''In order to establish good faith and bona fide it has to be seen first the circumstance under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the appellant made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith".

Later the Court said (at p. 918):

"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 the person making the imputation will regulate the standard of care and caution".

Several questions arise for consideration if the Ninth Exception is to be applied to the facts of the present case. Was the Article published after exercising due care and attention? Did the author of the article satisfy himself that there were reasonable grounds to believe that the imputations made by him were true? Did he act with reasonable care and a sense of responsibility and propriety?

Was the article based entirely on the report of the Deputy Secretary

or was there any other material before the author? What steps did the author take to satisfy himself about the authenticity of the report and its contents? Were the imputations made rashly without any attempt at verification? Was the imputation the result of any personal ill will or malice which the author bore towards the complainant? Was it the result of any ill will or malice which the author bore towards the political group to which the complainant belonged?

Was -the article merely intended to malign and scandalise the complainant or the party to which he belonged? Was the article intended to expose the rottenness of a jail administration which permitted free sexual approaches between male and female detenus? Was the article intended to expose the despicable character of persons who were passing off as saintly leaders?

Was the article merely intended to provide salacious reading material for readers who had a peculiar taste for scandals? These and several other questions may arise for consideration, depending on the stand taken by the accused at the trial and how the complainant proposes to demolish the defence.

Surely the stage for deciding these questions has not arrived yet.

Answers to these questions at this stage, even before the plea of the

SEWAKRAM v. R.K. KARANJIA (Sen, J.) 633

accused is recorded can only be a priori conclusions. 'Good faith' A 'public good' are, as we said, questions of fact and matters for evidence. So, the trial must go on.

SEN, J. This appeal, by special leave, is directed against an order of the Madhya Pradesh High Court dated April 15, 1978 quashing the prosecution of the respondent, R.K. Karanjiya, Chief Editor, Blitz, for an offence under s. 500 of the Indian Penal Code for publication of a news-item in that paper which was per se defamatory, on the ground that he was protected under Ninth Exception to s. 499 of the Code.

During the period of Emergency the appellant, who is a senior lawyer practising at Bhopal, was placed under .detention under s.3 (I) (a) (ii) o(the Maintenance of Internal Security Act, 1971 and was lodged in the Central Jail, Bhopal. There were several other detenus belonging to the opposition parties lodged along with him in the same jail, including three lady detenus, viz., Smt. Uma Shukla,

Smt. Ramkali Misra, Advocate and Smt. Savitha Bajpai, later State Minister, Public Works Department. The husband of Smt. Uma Shukla, a practising advccate at Bhopal, was not detained. Smt. Shukla was released on parole for a week between June 10 and 18, 1976.

On her return to the jail it was found that she had conceived. She was examined on July 30, 1976, by a lady doctor, Dr. (Mrs) N.C.

Srivstava, Woman Asst. Surgeon and the pregnancy was reported to be six weeks old. Smt. Shukla was again released on parole in the month of August 1976 and on August 24, 1976, she got the pregnancy terminated by Dr. (Mrs) Upadhayay at the Zanana Hamidia Hospital, Bhopal with the written consent of her husband under s.3 of the Medical (Termination of Pregnancy) Act, 1976.

While the order of detention of the appellant was still in operation, there was an ex parte confidential enquiry held. by Shri S.R. Sharma, I.A.S. Deputy Secretary (Home) Government of Madhya Pradesh, into the circumstances leading to the pregnancy of Smt. Shukla. The Enquiry Officer by his report dated November 3, 1976, apparently held that the pregnancy was due to illicit relations between the appellant and SJ1?.t. Shukla, during their detention in the Central Jail.

On December 25, 1976, the Blitz, in its three editions in English, Hindi and Urdu simultaneously flashed a summary of the report and the story as given out was that (i) there was a mixing of male and female detenus in the Central Jail, Bhopal,

(ii) the appellant had the opportunity and access to mix with Smt.

Shukla freely, and (iii) Smt. Shukla became pregnant through the

A appellant. The news-item was per se defamatory. It is somewhat surprising that the Enquiry Report, which was a document of highly confidential nature, should have found its way to the Press.

With the revocation -of Emergency, the appellant along with the other political detenus was released from detention. On his release, the appellant lodged a criminal complaint for defamation against the respondent, R.K. Karanjia.

The respondent, on appearing before the Magistrate, moved an application under s. 91 of the Code of the Criminal Procedure, 1973, praying that the report of the Enquiry Officer be sent for as it was likely to be lost or destroyed. On August 23, 1976 the learned Magistrate allowed the app)ication and directed that ther eport with the concerned file be produced. The State Government, however, did not comply with the direction and by an application dated December 31, 1977, claimed privilege in respect of the Enquiry Report which still awaited consideration. On October 29, 1977 when the case was fixed for recording the plea of the accused under s. 251 of the Code, the respondent moved an application stating that the plea should be recorded only after the Enquiry Report was produced. The learned Magistrate by his order dated November 30, 1977, rejected the said application of the respondent as to the summoning of the records and directed the accused persons to appear in person or through counsel for explaining to them the substance of the accusation and also .for recording their pleas.

Thereafter, the respondent filed a rev1S1on before the High Court under s.397 of the Code for setting aside the order of the learned Magistrate and alternatively under s. 482 of the Code, if it were held to be an interlocutory order. The revision was heard by a learned Single Judge and it appears that the Government Advocate made available a copy of the Enquiry Report for the perusal of the learned Judge. The learned Judge by his order dated April 15, 1978, quashed the proceedings on the ground that the respondent's case "clearly falls within the ambit of exception 9 of section 499 of the Indian Penal Code". In reaching that conclusion, he observed that "it would be abuse of the process of the court if the trial is allowed to proceed which ultimately would turn out to be a vexatious

proceeding". . The reasoning advanced by him was as follows:

The real question to ask is, did the applicants publish the report for public good, in public interest and in good faith?

My answer is in the affirmative.

It was a publication

SEW AKRAM v. R.K. KARANJIA (Sen, J.) 635

of a report for the , welfare of the society.

A public institution like prison had to be maintained in rigid discipline; the rules did not permit mixing of male prisoners with female prisoners and yet the report said the prison authorities connived at such a thing, a matter which was bound to arouse resentment and condemnation. The balance of public benefit lay in its publicity rather than in hushing up the whole episode. Further, there was good faith in the publication. The source on which the publishers acted was the proper source on which they were entitled to act and they did so with care and circumspection.

The report further shows that the publication had been honestly made in the belief of its truth and also upon reasonable ground for such a belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances.

{emphasis added)

It is somewhat strange that the learned Judge should have made D public the contents of a document in respect of which the State Government claimed privilege.

The order recorded by the High Court quashing the prosecution under s.482 of the Code is wholly perverse and has resulted in manifest miscarriage of justice. The High Court has pre-judged the whole issue without a trial of the accused persons. The matter was at the stage of recording the plea of the accused persons under s. 251 of the Code. The requirements of s. 251 are still to be complied with. The learned Magistrate had to ascertain whether the respondent pleads guilty to the charge or demands to be tried. The circumstances brought out clearly show that the respondent was prima facie guilty of defamation punishable under s. 500 of the Code unless he pleads one of the exceptions to s. 499 of the Code. The offending article which is per se defamatory, is as follows:

MISA RAPE IN BHOPAL JATL (By Blitz Correspondent).

Blitz: A shocking sex scandal involving a top RSS leader of M.P. was discussed at a secret meeting of Jan Sangh MLAs and MPs here recently. The alleged escapades of 55 years old Sewakram Sobhani. a close confidant of RSS Chief Bhausaheb Devras. with the young wife of another RSS man in the Bhopal Central Jail, where both were detained under MISA, have rocked RSS Jan Sangh circles of the State.

According to a report submitted to the State Government by a Deputy Secretary in the Home Deptt. who inquired into the grfaly affair, Sobhani was reportedly responsible for making Mrs. Uma Shukla, 22 year old wife of a lawyer Yogesh Shukla, pregnant.

/.bortion?

When this was discovered she was quietly released on parole and, at her own request, taken for abortion to the Sultania Zanana Hospital. After discharge she refused to rejoin her husband but stayed during the remaining 'period of her parole in the hide-out of the 'total-revolutionaries' in the Professor's Colony. She returned to jail later and was transferred to the Hoshangabad Jail, while Sobhani was sent to the Raipur Central Jail.

The Official report throws light on how Sobhani allegedly enticed Mrs. Shukla with the help of a high official of the Bhopal Central Jail despite a ban on contacts between male and female detenus. The jail official, himself a close sympathiser of the RSS allowed Sobhani to meet her frequently in his office and their love sessions were in his anteroom. Yogesh Shukla has made a representation to the State Government alleging that Sobhani had committed adultery with his wife and demanded action against the jail authorities for permitting a "rape" of his wife.

It is for the respondent to plead that he was protected under Ninth Exception to s. 499 of the Code. The burden, such as it is, to prove that his case would come within that exception is on him.

The ingredients of the Ninth Exception are that ( 1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or any other person or tor the public good.

We are completely at a loss to understand the reasons which impelled the High Court to quash the proceedings. The respondent, in his revision directed against the order of the learned Magistrate dated November 30, 1977, asserted in paragraph 5 that the case pre-eminently a fit case for quashing the impugned order either in the revisional jurisdiction of the High Court or in the exercise of its inherent powers under s. 482 of the Code to prevent the abuse of

~'

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• SBWAKRAM v. R.K. KARANJIA (Sen; J.) 637

the process of law and to secure the ends of justice. The prayer A made in the revision was in these terms:

The applicants pray that the impugned order be quashed and the learned Magistrate be directed to persue the report which he has sent for under section 91, Criminal Pro. Code and pass suitable orders according to law.

All that the respondent wanted is that learned Magistrate should not proceed to record the plea of the accused persons under s. 251 of the Code without perusing the Enquiry Report under s. 91 of the Code. There was no application made before the High Court under s. 482 of the Code for quashing the prosecution itself.

The averment contained in paragraph 4 that the Blitz only published a concise summary from the findings reached by the Deputy Secretary (Home) who was the Enquiry Officer appointed by the Government and, therefore, it was the duty of the learned Magistrate, to go through the report for himself and hold that no accusation had been made and the question of explaining it to the accused did not arise and the proceedings were liable to be dropped because no ingredients constituting an offence under s. 500 of the Code had been made out, must be read in conjunction with paragraph 5 and in support of the limited prayer made in revision. This cannot be construed as invoking the High Court's powers under s. 482 of the Code for quashing the whole proceedings.

We have considerable doubt about the propriety of the High Court making use of the Enquiry Report which has no evidentiary value and in respect of which the Government claimed privilege.

The application made by the Government claiming privilege still awaited consideration.

While the Government claimed privilege at one stage, it appears to have waived the claim and produced the Enquiry Report and made the contents public. There was no factual basis for the observations made by the High Court underlined by me, except the Enquiry Report. The contents of the Enquiry Report cannot be made use of unless the facts are proved by evidence aliunde. There is also nothing on record to show that the accused persons made any enquiry of their own into the truth or other•wise of the allegations or exercised due care and caution for bringing the case under the Ninth Exception. The Enquiry Report cannot by itself fill in the lacunae.

A bare perusal of the offending article in Blitz shows that it H is per se defamatory. There can be no doubt that the imputation

made would lower the appellant in the estimation of others.

It suggested that he was a man devoid of character and gave vent to his unbridled passion. It is equally defamatory of Smt. Shukla in that she was alleged to be a lady of easy virtue. We need not dilate on the matter any further. It is for the accused to plead Ninth Exception in defence and discharge the burden to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good.

In Sukro Mahto v. Basdeo Kumar Mahto & Anr (1) this Court observed:

The ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact.

So is protection of the interest of the person making it. Public good is also a question of fact. ·

After referring to the two earlier decisions in Harbhajan Singh v.

State of Punjab (2) and Chaman Lal v. State of Punjf, b (3) the Court held that there must be evidence showing that the accused acted with due care and caution. "He 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 correct.

The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to s. 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true."

The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, G sufficient to ruin the reputation of a citizen.

We hasten to add that journalists are in no better position than any other person. Even

the truth of an allegation does not permit a justification under First Exception unless it is proved to be in the public good. The question

(1) [1971] Supp. S.C.R. 329 at 332.

SEW AKRAM v. R.K. KARANJIA ( Baharul Islam, J.) 639

whether or not it was for public good is a question of fact like any A other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith: per Vivian Bose, J. in Dr. N.B. Khare

v. M.R. Masani and Ors. (1) B

As the matter is of great public importance, it would, perhaps, be better to quote the well-known passage of Lord Shaw in Arnold

v. King Emperor (2)

The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher.

The responsibilities which attach to this power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful: but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject.

No privilege attaches to his position.

For these reasons, we must set aside the order passed by the High Court and direct the Magistrate to record the plea of the accused persons under s. 251 of the Criminal Procedure Code, 1973 and thereafter, to proceed with the trial according to law.

BAHARUL ISLAM, J. Had there been no subsequent development after the impugned judgment of the High Court, 1 could have persuaded myself to agree to the order proposed by my Brother Sen, J., but after the Inquiry Report bas been released by the Government and placed before us I regret my inability to agree to the order of sending back the case to the Magistrate as proposed by my Brother, and proceed to give my own judgment.

2. The facts material for the purpose of disposal of these appeals may be stated thus : During the peried of Emergency between June 1975 and March 1976 the appellant, Shri Sewakram Sobhani, an advocate, was one of the detenus under the Main-

(!) ILR 1943 Nag. 347,

(2) LR (1913-14) 41 Ind.App. 149 at l 69,

tenance of Internal Security Act, 1976 (hereinafter 'MISA') and lodged in the Bhopal Central Jail.

There were also three women detenus including Smt. Uma Shukla and Smt. Ramkali Mishra, Advocate. The husband of Smt. Uma Shukla was a practising advocate at Bhopal. He was not a detenu.

Smt. Uma Shukla became pregnant while in detention in the aforesaid Central Jail and abortion was carried out in the month of August, 1976 in the Zanana Hamidi Hospital to relieve her of the pregnancy. This circumstance created an uproar and an inquiry into . the affairs had to be held by Shri S.R. Sharma, Dy. Secretary (Home), Government of Madhya Pradesh, (hereinafter 'Sharma') who submitted his report dated 7.10.1976 to the Government.

Respondent No. 1 is the Chief Editor of the Blitz and respondent No. 5 was, at the relevant time, Bhopal Correspondent of the Blitz.

Respondents 2, 3 and 4 are persons connected with the Blitz Weekly publication. The Blitz weekly is published in three languages, viz., English, Hindi and Urdu. The Blitz weekly dated 25.12.76 published a news item purported to be a summary of the report submitted by Sharma in its Urdu and Hindi editions.

The appellant took exception to the publication and filed a criminal case for defamation against the respondents under Sections 500 and 501 of the Penal Code. The Magistrate issued processes to the respondents. The respondents appeared before the Magistrate and made an application on 23.8.77 under Section 91 of the Code of Criminal Procedure, 1973 (hereafter 'the Code') requesting the court, before arriving at a conclusion whether it should proceed further with the case or not, to call for (a) the original Enquiry Report submitted by Sharma on 7.10.76; (b) the statement of witnesses recorded by Sharma, (c) the original complaint; and (d) documents of the jail Department including letters from the Government to the Department (Vide para 4 of Annexure D to the Special Leave Petition). The Magistrate called for the original Inquiry Report dated 7.10.76 submitted by Sharma to the Government, and then posted the case for production of the said records by the Government and recording the plea of the respondents.

The Government failed to produce the inquiry report before the Magistrate whereupon the Magistrate issued a notice to the Government to show cause as to why contempt proceedings should not be initiated against them., The Magistrate, however, did not wait for the receipt of the report and wanted to record the plea of respondents.

SEW AKRAM v. R.K. KARANJIA (Baharul Islam, J.) 641

The respondents then filed an application before the High Court of Madhya Pradesh under Section 397/401 read with Section 482 of the Code. It was alleged by the respondents that the Deputy Home Secretary in his report came to the following conclusions :

(1) There was free mixing of male and female prisoners in the Bhopal Central Jail ;

(2) Shri Sewakram Sobhani had opportunity and also availed of the opportunity and mixed very freely with Smt. Uma Shukla ; and

(3) Smt. .Uma Shukla became pregnant through Shri Sewak

Ram Sobhani.

4. It may be mentioned that the Government later. on produced the inquiry report before. the High Court but claimed privilege. The learned High Court presumably perused the report D before passing the impugned order. It may also be mentioned that although the Government claimed privilege in respect of the report at that time, it appears, they subsequently, after the impugned order of the High Court, waived the claim of privilege, and released the inquiry report; for, in fact, a copy of the report has been annexed and is available in the paper book of these appeals before E -.a, us as Annexure 'A'.

The submission of the appellants is that the impugned order of the High Court is beyond its revisional jurisdiction. The submission is that the respondents prayed for quashing the order of the Magistrate proceeding to record their plea before the inquiry report was produced by the Government, but the High Court has wrongly quashed the complaint itself.

On the other hand the reply of the respondent is that although there was no specific prayer in the petition, the petition was also made for quashing the criminal case under Section 500/501 of the Penal Code pending before the Magistrate. The respondents' submission is that they are not guilty for the impugned publication in view of Exception 9 to Section 499 of the Penal Code.

A perusal of the respondents' petition before the High ff Court and its impugned judgment justifies the factual submission of the respondents, namely, that their application before the High

A Court (Copy Annexure C) was under Section 482 as well as Sections 397 and 401 of the Code, and that the respondents claimed and canvassed the protection under the Ninth Exception of Section 499 of the Penal Code. For, para 6 of the Judgment of the High Court reads :

"The applicants feeling aggrieved have come to this Court for quashing the complaint, since they contend that the publication would squarely fall within exception 9 of Section 499 of the Indian Penal Code.

The applicants further contend that the report of the Deputy Secretary (Home) is the document on the basis of which the reporting was done and unless that is got produced and inspected, the defence of exception 9 cannot be made out ......

(Emphasis added)

The omission in the prayer portion of a petition of a part of the claim, particularly in a criminal case, is not fatal.

The High Court in its revisional jurisdiction can always grant suitable relief justified by law as well as facts and circumstances of a particular case.

That a part, Article 136 of the Constitution of India gives wide powers to the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. The power is d; scretionary and therefore to be sparingly exercised. This power is to be exercised to meet ends of justice, to enhance justice and remove miscarriage of justice in a particular case. It does not exercise such powers for academic reasons but for practical purposes.

The High Court in the impugned order has held that G "it would be abuse of the process of the court if the trial is allowed to proceed or alternatively to turn out to be vexatious proceeding" and therefore quashed the complaint. Such an order would be warranted under Section 482 of the Code of Criminal Procedure if the merit of the case before the High Court justified it.

We have therefore to examine whether the respondents' case falls H within the ambit of the Ninth Exception to Section 499 of the Penal Code as held by the High Court.

SEW AKRAM v. R.K. KARANJIA (Baharul Islam, J.) 643

The appellant has not submitted before us that the A summary of the report published in the Blitz is not a correct summary of the Inquiry Report. The copy of the Report, Annexure A, shows that a complaint was received from one Shri Krishsan Gopal Maheshari, advocate, alleging certain objectionable activities and misconduct on the part of the appellant and Shrimati Uma Shukla.

Annexure A also shows that the Inquiry Officer Sharma, examined B several witnesses including Shri Yogesh Shukla, husband of Smt.

Uma Shukla.

Para 4 of the report reads :-

"The following points are in dispute :

(a) whether as alleged by the complainant there was free mixing of female members with male members detained under MISA;

(b) in case (a) is in the affirmative, whether Shri Sewakram D Sobhani had an opportunity to mix freely with Smt.

Uma Shukla;

(c) in case (a) and (b) are in the affirmative when, how and through whom Smt. Uma Shukla a MISA detenu conceived".

His findings are

"(a) There was a free mixing of male and female prisoners in the Bhopal Central Jail;

(b) Shri Sewakram Sobhani had opportunity and also availed of opportunity and mixed very freely v. ith Smt.

Uma Shukla;

(c) Smt. Uma Shukla became pregnant through Shri

Sewakram Sobhani".

It, therefore, appears that the impugned publication is a correct summary of the report and no submisson has been made to the contrary by the appellant before us.

I 0.

The only question is whether the publication falls within

the Ninth Exception to sction 499 of the Penal Code, as claimed H by the.respondents.

A Before we do that, we must not be oblivious of the fact that the Inquiry Report in question was a privileged document; it is now an unprivileged open document as indicated above. The High Court proceeded on the footing that if the document is not produced to be utilized by the accused, the benefit would go to him.

11. Section 499 defines •defamation'. It is as follows :-

"S. 499. Whoever, by words either spoken or intended to be read, or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said. except in the cases hereinafter defame that person".

The Ninth Exception reads:

"It is not defamation to make an 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 the public good.,.

The Ninth Exception requires, inter alia, that the imputation made must be in good faith for the public good.

12. 'Good faith' has been defined in Section 52 of the Penal Code as:

"52. Nothing is said to be done or believed in "good faith" which is done or believed without due care and

attention",

The definition is expressed in negative terms. Normally proof of an exception lies on the person who claims it; but the definition of the expression "good faith" indicates that lack of good faith has been made a part of the offence which the prosecution has to establish beyond reasonable doubt. On the other hand the mere proof by the accused of the report to be an authentic document is enough; it will create a doubt in the mind of the Court as to the lack of "good faith" on the part of the accused.

13. The inquiry was made and the report prepared by a highly responsible officer and submitted to the Government. It was in pursuance of a complaint made by one of the citizens pointing

SEWAKRAM v. R.K. KARAN1lA {Baharul Islam, J.) 645

out laxity in observance of jail rules and highly objectionable practices of some of the prisoners and seeking improvement in jail administration. The object was to see improved conditions, and maintenance of certain standard of moral conduct by prisoners, in jail. If the complaint and the consequent inquiry report be for public good, and the respondents had reasons to believe its contents to be true, they will be protected under the Ninth Exception. Even if the burden of proof of 'good faith' be on the accused 'good faith' need not be proved beyond reasonable doubt. Once this is done, whether the publication was for public good would be a matter of inference.

14. The Dy. Secretary (Home) examined Shri Bhandari, Editor of Prach who was a MISA detenu as witness No. I, complainant Maheshwari as witness No. 2, Smt. Ramkali Mishra, an advocate, and a member of Jana Sangha, another MISA detenu, as witness No. 4, Dr. Hamid Quireshi, another MISA detenu as witness No. 6, Shri Ramesh Chand Shrivastava an 'independent' witness as witness No. 7, and Shri Yogesh Shukla, husband of Smt. Uma Shukla as witness No. 3.

Most of the said witnesses, it appears, were the party colleagues of the appellant and his co-MISA detenus. I must not be understood to suggest the contents of the inquiry report are true; it is an exparte inquiry report; it might be the result of political rivalry, as alleged by the appellant, but i1: appears that political rivalry, if any, was between the members of the appellant's party and not between the party in power and party in opposition.

l 5.

The comment of Mr. Sharma on the evidence of witness No. 3 is as follows :

"Shri Yogesh Shukla witness No. 3 has categorically stated that he had no connection with his wife and that she became pregnant through Shri Sobhani, Advocate and got the child aborted. It is worth consideration as to why the husband will come up with such an open allegation against his own wife, unless there be no very strong reasons for such a conviction. Normally, no husband, even though his wife may have conceived through somebody else will like to see his name being scandalised.

Shri Yogesh Shukla witness No. 3 is an advocate, quite an educated person and we can safely presume that he knowa the consequences of his statement and also their legal and moral implications on his profession.

Such an open scandalous statement against

his own wife could not but be a result of very strong abhoration or an outcome of utter desperation. It could also be an expression of a naked truth."

The entire report is exhaustive, reasoned and based on evidence.

16. A perusal of the report will normally lead one to believe the imputations. If that be so, it cannot be said that the respondents published the report or its summary without due care and attention.

This establishes 'good faith' as required by the Ninth Exception to Section 499 of the Penal Code.

From what has been stated above, the publication obviously appears to be for public good.

17.

The appellant submitted that he wanted an opportunity to clear himself of the imputations made against him by adducing evidence before the Magistrate to establish the falsity of the imputations made in the publication. We are not concerned with the truth or falsity of the imputations published. Even if the findings _in the report be proved to be false, the respondents will. be protected.

Sending back the case to the Magistrate to record the respondents' plea after the perusal of the Inquiry Report will, in my opinion, be an exercise in futility and abuse of the process of the criminal court.

The appellant may seek his remedy, if any, in the Civil Court. The learned High Court, therefore, in my opinion committed no error in quashing the complaint.

18. The appeal is dismissed.

ORDER

In view of majority judgments, the appeals are allowed.

P.B.R.

Appeals allowed.

SEWAKRAM SOBHANI

0. CHINNAPPA REDDY

A.P. SEN

BAHARUL ISLAM, JJ.

Penal Code

Section 499

section 251

Code of Criminal Procedure

section 499

I.P.C

Chinnappa Reddy

A.P. Sen

Baharul Islam

section 251

section 499

I.P.C

[1965] 3 SCR 235

[1970] 3 SCR 913

Article 136

A.P. Sen

section 482

Code of Criminal Procedure

section 251

section 500

Indian Penal Code

section 499

Indian Penal Code

section 499

section 251

[1965] 3 SCR 235

[1970] 3 SCR 913

section 482

sections 397 and 401

section 499

I.P.C

section 499

H.K. Puri

R.K. Garg

Sunil Kumar Jain

V.J. Era

S.K. Gambhir

Vijay Mansaria

Sec. 251

Criminal Procedure Code

Baharul Islam

November 30, 1977

Chief Judicial Magistrate, Bhopal

Art. 136

Sec. 499

Indian Penal Code

Sec. 52

Indian Penal Code

Sec. 499

Indian Penal Code

[1965] 3 S.C.R. 235

SEN

April 15, 1978

R.K. Karanjiya

s. 500

Indian Penal Code

s. 499

Bhopal

Uma Shukla

Ramkali Misra

Savitha Bajpai

Uma Shukla

Shukla

June 10 and 18, 1976

N.C.

Srivstava

August 24, 1976

Upadhayay

Zanana Hamidia Hospital, Bhopal

S.R. Sharma

Government of Madhya Pradesh

November 3, 1976

Shukla

December 25, 1976

R.K. Karanjia

s. 91

August 23, 1976

December 31, 1977

October 29, 1977

s. 251

s. 482

section 499

Indian Penal Code

s. 251

s. 251

s. 500

s. 499

Jan Sangh

Sewakram Sobhani

Bhausaheb Devras

Bhopal Central Jail

RSS Jan Sangh

Sobhani

Yogesh Shukla

Sultania Zanana Hospital

Hoshangabad Jail

Raipur Central Jail

RSS

s. 499

s. 482

section 91

s. 251

s. 91

s. 482

s. 500

s. 482

s. 499

Vivian Bose

N.B. Khare

Shaw

s. 251

Criminal Procedure Code, 1973

Sen

Internal Security Act, 1976

Ramkali Mishra

Uma Shukla

Zanana Hamidi Hospital

Sharma

Sections 500 and 501

Penal Code

Section 91

Code of Criminal Procedure, 1973

High Court of Madhya Pradesh

Section 397

Section 482

.Uma Shukla

Sewak

Ram Sobhani

Section 500

Penal Code

Section 499

Penal Code

Section 482

Sections 397 and 401

Section 499

Penal Code

Section 499

Indian Penal Code

Article 136

Constitution of India

Supreme Court

Section 482

Code of Criminal Procedure

Section 499

Penal Code

Krishsan Gopal Maheshari

Shrimati Uma Shukla

Yogesh Shukla

Sewakram D Sobhani

Uma Shukla

Penal Code

Section 499

S. 499

Section 52

Penal Code

Bhandari

Maheshwari

Ramkali Mishra

Jana Sangha

Hamid Quireshi

Ramesh Chand Shrivastava

Section 499

Penal Code


, F ·-

MST. L.M.S. UMMU SALBBMA

B.B. GUJARAL & ANR.

May 4, 1981

( 0. CHINNAPPA REDDY, A.P. SEN AND

BAHARUL !SLAM, JJ. ]

Conservation of Foreign Exchange and Prevention of Smuggling Activities~Act

1974, S.3(1).

Detention under-Delay in disposal of representation-Whether vitiates detention.

Detaining Authority-Failure to consider prosecution under the ordinarvJicriminal /aw-Whether voids order of detention.

Constitution of India 1950, Art. 22(5)-Detaining authoritv-Failure of- To furnish copy of document to which reference is made in grounds of detention-

Whether fatal to order of detention. ·

Indian Evidence Act 1872, Ss. 16andI14-Detenu alleging despatch of communicatian under certificate of posting-Detaining authority contending non-receipt-

Court whether compelled to draw a presumpiion that communication reached the E addressee.

On August 6, 1980 the car in which the detenu was travelling was intercepted by Customs Officers and on a search of the car, wrist watches of foreign origin and semi-precious stones valued at Rs.2.95 lakhs were found ingeniously concealed in the panelling of the front doors and the cavity between the petrol tank and the steel plate covering the petrol tank. The goods were seized by the Customs Officers alongwith the Car. On 7.8.1980 the detenu was interrogated and a statement was recorded which incriminated himself and others. He was taken before the Magistrate on 8.8. 19d0 and was remanded to custody. On 12.8.1980 he was granted bail. On 14.8.80 the detenu was stated to have sent a communication addressed to the Assistant Collector of Customs, in which, according to him, he retracted from the statement made by him on 7.8.80 and claimed that

the statement.had been obtained by torturing him.

On 31.10.80. the first respondent made an order of preventive detention against the detenu under Section 3(1) of the Conservation of Foreign Exchange

and Prevention of Smuggling Activities Act 1974. The order of detention and the grounds of detention were served on 2.2.81, as the detenu was avoiding service and arrest. The detenu made a representation on 4.2.81, whih was rejected by H the detaining authority, the first respondent on 19.2.1981. ·

648 SUPREME COURT R.l!PORTS

[ 1981} 3 S.C.R.

In the writ petition to this Court it was contended on behalf of detenu : (1) that as material documents viz. record of investigation revealing the trunk telephone calls and the record of investigation relating to the petrol which was put into the jeep owned by the brother of the detenu, upon which reliance was placed in the order of detention were not supplied to the detenu along with the grounds of detention, the detenu was thereby prevented from making an effective representation and denied the Fundamen ta! Right guaranteed under Article 22(5). (2) The detaining authority was under obligation to supply alongwith the grounds, copies of all documents to which reference was made in the grounds irrespective of whether such documents were not relied upon in making the order of detention. (3). Although the detenu had retracted from his alleged original statement dated 7.8.80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority (4). There was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention, (5). The detaining authority did not apply his mind to the representation which made an express reference to the retraction. (6). The detaining authority had failed to consider the question whether a prosecution under the ordinary criminal law would not suffice to prevent the detenu from indulging in the alleged activities and whether preventive detention was necessary in the circumstances of the case.

Dismissing the petition the Court,

HELD : 1. (i) A perusal of the grounds of detention reveal that neither the record of Trunk Calls nor the record of investigation relating to the petrol put into the jeep were in any manner relied upon by the detaining authority in making the order of detention. [652 CJ

(ii) The reference to the reord of trunk calls was made for the purpose of verifying the trunk call which was received in the premises when the customs officers were there. The reference to the record of investigation relating to the petrol put into the jeep was to refute the statement of the detenu's brother that the jeep was not used during the previous year and was in the garage. [651 G, 651 E, 653 DJ

2. (i) The Constitutional requirement of Article 22(5) is insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. Every failure to furnish copy of a document to which reference is, made in the grounds of detention is not an infringment of Art. 22 (5), fatal to the order of detention. It is only a failure to furnish copies of such documents as were relied upon by the detaining authority making it difficult for the detenu to make an effective representation that amounts to violation of the fundamental right guaranteed by Article 22(5), [652 H-653 BJ

2. (ii) It is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.

[653C}

~.-"

--~-

L.M.S.U. SALl!BMA v. B.B. GUJARAL 649

Smt. Sha/ini Soni v. Union of India and Ors.AIR 1981 SC 431, lechu Devi A Choraria v. Union of India, AIR 1980 SC 1983, Khudiram Das v. The State Q/

West Bengal, [1975) 2 SCR 832 @ 848, 849, referred to.

In the instant case the two documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention.

Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaran• teed by Art. 22 of the Constitution. [653 D]

3(i). If the detenu was serious in his request that his retraction should be considered by the detaining authority while considering his representation one would expect him to send a copy of the letter of retraction alongwith his represen

talion instead of a copy of the certificate of posting. [ 654 A]

(ii) The Certificate of posting might lead to a presumption tethat a letr addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption. [654 BJ

(iii) Neither Section 16 nor section 114 of the Evidence Act compels the

Court to draw a presumption that a letter proved to be posted has reached the D addressee. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. [654 F)

In the instant case, the alleged letter of retraction was only a myth. No such letter of retraction was posted as claimed by the detenu. [654 E, G]

4. The representation made by the detenu has to be considered by the detaining authority with utmost expedition but the time imperative can never be absolute. or obsessive. The occasional observations made by this Court that each day's delay in the dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere. but despotic formulae. [655 B-C]

Pritam Nath Hoon v. Union of India and Ors. A. I. R. 1981 SC 92, Shanker Raju Shelly v. Union af India, W. P. 640 of 1980 decided on 26.6.80, Francis Coralie Mullin v. W.C. Khambra, [1980] 2 S.C.R. 1005, referred to.

In the instant case the representation was despatched on 5.2.1981 and was received in the office of the detaining authority on 13.2.1981. It was put up before the detaining authority on 19.2.81 and disposed of that very day. The detaining authority was not available from 13th to 16th as he had gone abroad.

He returned on 16th and considered the matter on 19th. There has not been any unaccontable or unreasonable delay in the disposal of the representation by the detaining authority. [655 D-G]

5. The note file shows that the detaining authority also considered the

question whether the alleged letter of retraction was posted. [656 BJ

A reading of the entire counter-affidavit makes it clear that in the opinion of the detajning authority prosecution or no prosecution, the only effective way of preventing the detenu from engaging himself in objectionable activities was to detain him. [656 G-H]

ORIGINAL JURISDICTION: Writ Petition No. 1745 of 1981.

(Under Article 32 of the Constitution of India.)

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.

M.M. Abdul Khader and MiH A. Subhashini for the Respondents.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. In this application under Art. 32 of the Constitution, we are concerned with the question of the legality of the detention of Jahaubar Moulana under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

On August 6, 1980, a car in which the detenu Jahaubar Moulana was travelling was intercepted by Customs Officers near Perumber-Kandigal diversion road on Tiruchirappalli- Madras G.S.T. Road. On a search of the car, 768 Wrist watches of foreign origin and l 560 semi-precious stones were found ingeniously concealed in the panelling of the front doors and the cavity between the petrol tank and the steel plate covering the petrol tank.

The goods which were valued at Rs. 2,95,188 were seized by the Customs Officers alongwith the car.

On 7.8.80 the detenu, Jahaubar Moulana, was interrogated and a statement was recorded which incriminated himself and others.

He was taken before the Magistrate on 8.8.80 and was remanded to custody.

He was granted interim bail on 12.8.80 and the bail was finally confirmed on 16.8.80.

On 14.8.80 the detenu claims to have sent a communi cation addressed to the Assistant Collector of Customs, Cuddalore, in which, according to him, he retracted from the statement made by him on 7.8.80 and claimed that the earlier statement had been obtained from him by torturing him.

According to the case of t'he detenu this communication was sent by him under Certificate of posting. Subsequently, on 31.10.80, Shri B.B. Gujral, Additional Secretary to the Govt. of India, Ministry of Finance made an order

of preventive detention against the detenu Jahaubar Moulana under S. 3 (I) of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act. The order of detention and the grounds of detention were served on Jahaubar Moulana on 2.2.8 I. According to the respondent they could not be served earlier as Jahaubar Moulana \vas not available and was avoiding service and arrest.

The detenu made a representation on 4.2.81.

The representation was rejected by the detaining authority, Shri

B.B. Gujral on 19.2.81.

Shri Ram Jethmalani, learned counsel for the detenu urged that material documents upon which reliance was placed in the order cf detention were net supplied to the detenu along with the grounds of detention and the detenu was thereby prevented from making an effective representation.

He was thus denied the Fundamental Right afforded to him under Art. 22 (5) of the Constitution. The two documents which according to Mr. Jethmalani were not supplied to the detenu were (l) record of investigation revealing the trunk telephone calls booked from Telephone No. 315 at Kila Karai totelephone No.27115 at Madras on 15.7.80, 18.7.80, 24.7.80, 26.7.80, 27.7.80, 29.7.80, 6.8.80, and 7.8.80; and (2) record of investigation relating to the petrol which was put into Jeep No. TMC 1850 owned by Shri Shamsuddin, brother of the detenu.

In paragraph 4 of the grounds of detention it is mentioned when premises No. 66, Malayappan St. Mannady, Madras was being searched on 7.8.80, a telephone call was received at telephone No. 27115 which was in the premises, from telephone No. 315 Kila Karai enquiring about the arrival of the detenu.

The information about the call was verified with reference to the record of trunk calls and it was found that on the various dated mentioned trunk calls had been booked from telephone No. 315 at Kila Karai to telephone No. 27115 at Madras.

The reference to the record of trunk calls was made for the purpose of verifying the trunk call which was received on 7.8.80 at telephone No. 27115 in the premises No. 66 Malayappan Street when the Customs Officers were there.

After carefully perusing the grounds of detention we find it impossible to hold that the record of trunk calls was one of the documents upon which the detaining authority had relied in making the order of detention.

The reference in the grounds of detention to the petrol put into Jeep No. TMC 1850 was made in the following circumstances.

Paragraph 5 of the grounds of detention refers to a statement made by the detenu's brother Shamsuddin on 20.9.80 in which he stated that his Jeep No. TMC 1850 has not been used during the previous years and that it was kept locked up in a garage. Paragraph 5 then recites that the investigation showed that during the period between

1.6.80 and 5.8.80, on as many as 36 occasions petrol had been put into the jeep at various petrol pumps.

Here again we are unable to say, on a perusal of the grounds of detention, that the record of investigation relating to the petrol put into the jeep was in any manner relied upon by the detaining authority in making the order of detention.

Shri Jethmalani's submission was that the detaining authority was under an obligation to supply alongwith the grounds, copies of all documents to which reference was made in the grounds irrespective of whether sucl:i documents were or were not relied upon in making the order of detention.

He submitted that the very fact that the documents were mentioned in the grounds established that the documents were relied upon in making the order of detention.

We are unable to agree with the submission of Shri Jethmalani. True, it was observed in some cases that copies of documents to which reference was made in the grounds must be supplied to the detenu as part of the grounds (vide Smt. Shalini Soni v. Union of India & Ors.).(1) But these observations must be read in the context in which they were made.

In Shalini Soni' s case, for example, the observations were made immediately after stating that "grounds" in Art. 22 (5) did not mean mere factual inferences but meant factual inferences plus factual material which led to such factual inferences.

In lcchu Devi Choraria v. Union of India(') the Court observed :

''It is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention."

The stress was upon the words "relied upon". In Khudiram Das v. The State of West Bcnga/(3) the Constitutional requirement of Art. 22 (5) was stated as insistence that basic facts and particulars which influenced the detaining authority in arriving at the requisite

(I) AIR 1981 SC 431.

(2) AIR 1980 SC 1983.

(3) [1975] 2 SCR 832@ 848, 849.

satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infrin3me:lt of Art. 22 (5), fatal to the order of detention.

It is only failure to for.1ish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an elfective representation, that amounts to a violation of the Fundamental Rights guaranteed by Art. 22 (5).

In our view it is unnecessary to furnish copies of documents to which casual or passing rf erec~ may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.

In the case before us we are satisfied that such wer~ the two documents, copies of which were not furnished to the detenu.

We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention.

Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art. 22 of the Constitution.

The next submission of the learned counsel for the detenu was that although the detenu had retracted from his alleged original statement dated 7.8.80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority before making the order of detention. The plain and simple answer of the respondents was that there was no such retraction as claimed by the detenu. According to the detenu as soon as he was released on bail, on 14.8.80, he addressed a letter to the Assistant Collector of Customs, Cuddaiore, retracting from his former statement. This communication was sent under Certificate of Posting, a photostat copy of which was produced before us. In support of the claim that he 'had retracted from his former statement and had communicated the retraction under Certificate of Posting, the detenu invited our attention to the reply sent by him to the show cause notice issued by Collector of Customs under the Customs Act, and to the representation made by him to the detaining authority, in both of which he made a reference to the alleged retraction. One curious feature which we must notice is that the detenu sent to the detaining authority alongwith his representation a photostat copy of the Certificate of Posting but carefully refrained from sending a copy of the letter of retraction

itself.

This is indeed extraordinary. If the detenu was serious in his request that his retraction should be considered by the detaining authority while considering his representation one would expect him to send a copy of the letter of retraction alongwith his representation instead of a copy of the certificate of posting.

One cannot help a suspicion that evidence was being brought into existence to support the assertion that a letter of retraction was sent on 14.8.80.

The detaining authority has stated in the counter that no such letter dated 14.8.80 was received by the Assistant Collector of Customs.

The entire file has been produced before us and on a perusal of the file we find that a thorough search was made, not once but several times, to find out if such a letter was received in the office of the Assistant Collector of Customs, Cuddalore but no such letter coul.d be traced.

The learned counsel urged that the detaining authority was not competent to state that the Assistant Collector of Customs had not received such a letter and that it was for the Asstt. Collector to say so.

There is no force in this submission. The file produced before us shows that the Asstt.

Collector of Customs had informed the detaining authority and the Collector of Customs that he had made a thorough search for the letter said to have been written on 14.8.80 and that no such letter had been received in his office.

We are satisfied that the alleged letter of retraction was only a myth.

The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption.

Neither Section 16 nor Section 114 of the Evidence Act compels the Court to draw a presumption. The presumption may or may not be drawn.

On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed.

After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu.

Another submission of the learned counsel was that there was considerable delay in the disposal of the representation by the

c:taining authority and this was sufficient to vitiate the detention.

L.M.S.U. SALEEMA v. B.B. G_UIARAL (Chinnappa Reddy, J.) 655

The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India & Others (1) and in Shanker Raju Shetty v. Union of India (2).

We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Francis Coralie Mullin v. W.C.

Khambra.(') "The time imperative can never be absolute or obsessive''. The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu.

Law deals with the facts of life.

In law, as in life, there are no invarible absolutes.

Neither life nor law can be reduced to mere but despotic formulae.

Considered in that light, can it be said that there was an unreasonable delay in the present case? The representation was despatched on 5 .2.1981 and was received in the office of the detaining authority on 13.2.1981.

Apparently it was in postal transitJrom 5th to 13th. It was put up before the detaining authority on 19.2.1981 and disposed of that very day.

From the records produced before us we notice that the detaining authority, Shri B.B.

Gujral, was not available from 13th to 1 <ith as he had gone abroad.

He returned on 16th and considered the matter on 19th. The learned counsel for the detenu urged that the absence of the detaining authority from India cannot be allowed to violate the fundamental right of the detenu to have his representation considered with the utmost expedition. We agree that in such cases appropriate arrangements must be made for considering the detenu's representation. Apparently, it was not thought necessary in the present case as Shri Gujral was returning on 16th, that is, within a few days.

After the 16th the delay, was for a period of three days only. It can hardly be described as delay though one wishes there was no room even for that little complaint. We are of the view that there has not been any unaccountable or unreasonable delay in the disposa1 of the representation by the detaining authority.

The learned counsel for the detenu further submitted that the detaining authority did not apply his mind to the representation.

(1) AIR J 981 SC 92.

(2) W.P. No.640 of 1980 decided on 26.6.80.

He argued that the representation made express reference to the retraction and yet the detaining authority did not enquire or send for the retraction which admittedly was not available with him. We have already found that no letter of retraction was sent to the Assistant Collector of Customs.

A perusal of the note file shows that the detaining authority also considered the question whether the alleged letter of retraction was posted. In the circumstances we are unable to hold that there was non-application of mind by the detaining authority.

Shri Jethmalani then submitted that the detaining authority had failed to consider the question whether a prosecution under the ordinary criminal law would not suffice to prevent the detenu from indulging in the alleged activities and whether preventive detention was necessary in the circumstances of the case.

Reliance was placed upon the observations made by this Court in Kanchanfal Maneklal Chokshi v. The Stute of Gujurat & Ors. (1) In the counter affidavit filed by the detaining authority, Shri B.B. Gujaral, it has been stated:

"Having regard to the nature of the activities in which the detenu was engaged and after having applied my mind very carefully to all the facts and circumstances of the case and the material placed before me, I arrived at the subjective satisfaction that it was necessary to detain Shri Jahaubar Moulana for preventing him from engaging in transporting smuggled goods. The adjudication of the case under the Customs Act and prosecution of the detenu are entirely on a different footing.

I say that the detention order was passed by me with due care and after careful consideration of all the materials placed before me".

The deponent may not have stated in express words that when he made the order of detention he also considered the question whether a prosecution under the ordinary criminal law would not meet the situation and would not be sufficient to prevent Jahaubar Moulana from engaging himself in the objectionable activities.

But a reading of the entire counter affidavit makes it clear that in the opinion of the detaining authority, prosecution or no prosecution, the only effective way of preventing Jahaubar Moulana from engaging himself in objectionable activities was to detain him.

(l) (1980] 1 S.C.R. 54.

Some other grounds were mentioned by the learned counsel A for the detenu but they were not pressed before us. In the result the Writ Petition is dismissed.

N.V.K.

Petition dismissed.

MST. L.M.S. UMMU SALBBMA

B.B. GUJARAL & ANR

0. CHINNAPPA REDDY

A.P. SEN

Constitution of India

Art. 22(5)

Indian Evidence Act 1872

Ss. 16

August 6, 1980

8.8. 19d0

Section 3(1)

Article 22(5)

Article 22(5)

Art. 22

Article 22(5)

AIR 1981 SC 431

AIR 1980 SC 1983

[1975) 2 SCR 832

Art. 22

Section 16

section 114

[1980] 2 S.C.R. 1005

Article 32

Constitution of India

Ram Jethmalani

Rani Jethmalani

M.M. Abdul Khader

MiH A. Subhashini

Art. 32

Madras

Cuddalore

B.B. Gujral

S. 3

B.B. Gujral

Ram Jethmalani

Art. 22

Jethmalani

Shamsuddin

Kila Karai

Shalini Soni

Art. 22

Art. 22

AIR 1981 SC 431

AIR 1980 SC 1983

[1975] 2 SCR 832

Art. 22

Art. 22

Art. 22

Cuddaiore

Section 16

Section 114

Chinnappa Reddy

B.B.

Gujral

India

Gujral

B.B. Gujaral

Customs Act

(1980] 1 S.C.R. 54

N.V.K.


GOKUL PARASHRAM PATIL

STATE OF MAHARASHTRA

May 4, 1981

[ A. D. KOSHAL AND BAHARUL ISLAM, , JJ. ]

Conviction under s. 302 Penal Code b2se-l on sole injury on non-vital part-If injury caused by the assailant was not intended to cause dearh clause thirdly of s.30 Penal Code will not be attracted and the conviction and sentence should be under Part I! of sertion 304 Penal Code.

The appellant attacked one Ania with a knife giving the latter a single blow above the left clavicle where it caused a muscle-deep incised wound having the dimensions 1-1/4" x 1 /3". The autopsy surgeon, while certifying the existence of that wound, also found that the superior venacava had been cut, the damage so caused being sufficient in the ordinary course of nature to cause death. The sessions court convicted the appellant of an offence under section 301 of the Penal Code and sentenced him to imprisonment for life. The High Court confirmed the conviction and the sentence in appeal. Hence, the appeal by special leave.

Allowing the appeal in part and substituting a conviction under Part II of section 304 and sentence of five years' rigorous imprisonment, the Court.

HELD : I. To attract clause thirdly of section 300 of the Penal Code and also illustration (c) appended thereto the injury in quesiion needs satisfy only two testsnamely, (a) the injury must be sufficient in the ordinary course of nature to cause death and (b) such injury must have been intended to heve been caused by the culprit. [661 A-BJ •

2. In the present case, the solitary blow given by the appellant to the deceased was on the left clavicle a non-vital part-and tte appellant cannot be said to know that the superior venacava would be cut as a result of that wound.

Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance. Therefore, it cannot by said to have been intended by the appellant. [660 A-Cl

Virsa Singh v. Srate of Punjab, A.I.R. 1958 S.C. 465, referred to.

Harjinder Singh v. Delhi Administration, A.I.R. 1968 S.C. 867 and Laxman A Kalu Nikalje v. The State of Maharashtra, A.I.R. 1968 S.C. 1390, followed.

CRIMINAL APPELLATE JURISDICATION: Criminal Appeal No. 512 of 1981.

Appeal by special leave from the judgment and order dated B the 8th September, 1980 of .the Bombay High Court in Criminal Appeal No. 664 of 1980.

V.N. Ganpule, A.B. Lal and Mrs.

V.D. Khanna for the Petitioner.

~ 0.P. Rana and R.N. Poddar for the Respondent.

The Judgment of the Court was delivered by

KosHAL, J. The appellant has been convicted of an offence

under section 302 of the Indian Penal Code (hereinafter referred to D as the Code) for causing the death of one Anita, and has been sentenced to imprisonment for life by the trial court as well as in appeal by the High Court.

2. The case of the prosecution was that the appellant attacked the deceased with a knife giving the latter a single blow above the E left clavicle where it caused a muscle-deep incised wound having the dimension 1-1/4" x 1/3". The autopsy surgeon, while certifying the existence of that wound, also found that the superior venacava had been cut, the damage so caused being sufficient in the ordinary course of nature to cause death.

3. The learned counsel for the appellant has contended that the case does not fall within the ambit of section 302 of the Code and that the two courts below erred in relying on Virsa Singh v.

State of Punjab. (1) The gist of the dictum of this Court in that case is that if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause thirdly of section 300 of the Code and that, therefore, its author would be liable to punishment under section 302 thereof. The question thus is whether the

(I) A.T.R. 1958 S.C. 465

SUPREME COURT REPORTS

[1981] 3 S.C.R.

particular injury which was found to be sufficient in the ordinary course of nature to cause death, in the present case, was an injury intended by the appellant. Our answer to the question is an emphatic no.

The solitary blow given by the appellant to the deceased was on the left clavicle ; a non-vital part - and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance. This was precisely the view taken in Harjinder Singh

v. Delhi Administration, (1) by Sikri, J., and in Laxman Kalu Nikalje

v. The State of Maharashtra, (2) by Hidayatullah, C.J. In the former of these cases, the injury in question was a stab wound on the left thigh which had cut the femoral artery and vessels.

In the latter, the damage caused consisted of a cut in the auxiliary artery and veins. In each of the two cases it was held that although the injury which was found to be sufficient in the ordinary course of nature to cause death had resulted from a blow with a sharp-edged weapon, the same could not be said to have been intended, that the only injury which could be regarded as intentional was the superficial wound resulting directly from the blow, that the assailant could not be held guilty of an offence under section 302 of the Code and that he was, on the other hand, guilty of a lesser offence falling under part II of section 304 thereof.

Mr. Rana, learned counsel for the State has drawn our attention to illustration (c) appended to section 300 of the Code and has contended on the basis thereof that the culpable act F attributed to the appellant is covered thereby. The illustration may be extracted :

"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary G course of nature. Z dies _in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death' .

(!) A.l.R. 1968 S.C. 867.

(2) A.LR. 1968 s.c. 1390.

The proposition propounded by Mr. Rana is that the illustra- 'tion, which is obviously relatable to clause thirdly of the section, postulates that the injury in question need satisfy only two tests to attract the provisions of that clause and that those tests are :

(i) The injury must by sufficient in the ordinary course of B nature to cause death.

(ii) Such injury must have been intended to have been caused by the culprit.

There is no quarrel with this proposition but then the injury which was found to be sufficient in the ordinary .course of nature to cause death in the present case does not satisfy test (ii) because, as already pointed out, it cannot be said to have been intended by the appellant. The illustration, therefore, does not advance the cause of the State.

5. Following the dicta in the two earlier decisions of this Court which have been cited above, we partially accept the appeal, set aside the conviction of the appellant for an offence under section 302 of the Code and substitute thereof one under part II of section 304 thereof. In consequence he shall suffer rigorous imprisonment for 5 years which punishment, in our opinion, will meet the ends of justice in the circumstances of the case. The judgment of the High Court is modified accordingly.

S.R.

Appeal partly allowed.

GOKUL PARASHRAM PATIL

STATE OF MAHARASHTRA

May 4, 1981

A. D. KOSHAL

BAHARUL ISLAM, , JJ.

s. 302

Penal Code

Penal Code

Penal Code

Ania

section 301

Penal Code

section 304

section 300

Penal Code

V.N. Ganpule

A.B. Lal

V.D. Khanna

0.P. Rana

R.N. Poddar

KosHAL

section 302

Indian Penal Code

Anita

section 302

section 300

section 302

Sikri

Hidayatullah

section 302

section 304

Rana

section 300

section 302

section 304