While going as far as to the extent of dismissing the writ filed by the petitioner that was seeking to quash the complainant proceedings against him under Section 499 of IPC, the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Harish Kumar Garg V/s. State of Maharashtra and Anr in Writ Petition No. 1798 of 2019 that was pronounced recently on April 25, 2023 and uploaded on May 9, 2023 in the exercise of its criminal appellate jurisdiction has refused to interfere in the detailed order passed by the Magistrate who had duly applied his judicial mind to reach a conclusion that the allegations in the newspaper would fall within the expression of “defamation” under Section 499 of IPC. Most laudably, while noting that the imputations in the present case are sufficient to attract provisions of Section 499 of IPC, a Single Judge Bench of Hon’ble Mr Justice Amit Borkar observed in no uncertain terms that, “Publication of truth as sufficient justification is available under exception (1) to Section 499, provided it is made for the public good. But when the truth is set up as a defence, it must extend to the entire libel, and it is not sufficient that only a part of the libel is proved to be true.” The writ petition of the petitioner was thus dismissed.
At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Amit Borkar of Bombay High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The petition is directed against the order of issuance of process dated 15th December 2018 passed in Criminal Complaint C.C. No.2379/SW/2018 filed in the Court of Additional Chief Metropolitan Magistrate, 38th Court at Ballard Pier, Mumbai, for the offences punishable under Section 500 of the Indian Penal Code, 1860 (hereafter “IPC”, for short).”
To put things in perspective, the Bench then envisages in para 2 that, “Respondent No.2 filed a complaint under Sections 499 and 500 of IPC, contending that the petitioner got published the following news item in Mumbai Mirror Edition Mumbai dated 29th September 2018. The extract quoted in the complaint reads as under:-
“Harish Kumar Garg president of the Club said that the elections were being held in a free and fair manner. There are absolutely no irregularities at all. We have followed all Rules and Bye law. The allegations are totally baseless. This is an attempt to malign the image of the Club and the Committee,” Garg said.
He explained that the Courts had not given any relief to Bhasin or Goenka “They first asked us to include them in our panel and when we rejected the they started making these allegations. No Court has given them any interim relief. They wanted to get the elections barred but they failed. All their attempts to defame us and cancel the elections have failed,” Garg said.”
As we see, the Bench then mentions in para 3 that, “It is contended that the reputation of the complainant has been adversely affected by such averments, as allegations and the words are read by peers in the profession as well as by the public at large through such newspaper. It is stated that respondent no.2/complainant believes that whatever was stated by the petitioner has jeopardized the complainant’s reputation in the profession, and he has been defamed. It is alleged that the petitioner tried to harm the reputation of respondent no.2/complainant by false and incorrect statements without any material or substance with the sole intention of defaming the complainant.” Needless to say, the Bench then states in para 4 that, “The learned Magistrate, by a detailed order dated 15th December 2018, issued a process against the petitioner. Aggrieved thereby, the petitioner has filed a present writ petition.” Simply put, the Bench observes in para 7 that, “Having heard learned counsel appearing for the parties and having considered the material on record, the only question that falls for my consideration is whether the complaint and the order of issuance of the process should be quashed.” Briefly stated, the Bench hastens to add in para 9 that, “In the case of Rohini Singh, D/o Late Mr M.B. Singh & 6 (supra) the Hon'ble Shri Justice J.B. Pardiwala (as he then was) in paragraphs 45, 51, 61, 72 and 77 held as under:-
- The gist of the offence of defamation is the publication of the defamatory matter. Although the gist of the offence of defamation lies in the dissemination of the harmful imputation, it is not only the publisher but also the maker thereof is liable for the offence. The gist of the offences of defamation lies in lowering the reputation of the person concerned or his family in the estimation of the others.
- To bring the publication of a scandalous imputation under the Penal Law, it is not necessary to prove that it was done out of any ill will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant. Every sane man is presumed to have intended the consequences which normally follow from his act. The accused, a journalist of some standing, can very well presume to know or to have reason to believe that the imputation published by him would harm the complainant’s reputation. Exception 1 to S.499 recognizes the publication of truth as sufficient justification if it is made for the public good. But when truth is set up as a defence, it must extend to the entire libel, and it is not sufficient that only a part of the libel is proved to be true. The accused has to prove that the publication was both in good faith and for the public good. Good faith contemplates an honest effort to ascertain the truth of the facts. Fair comments cannot justify a defamatory statement which is untrue is fact. A comment cannot be fair if it is built upon facts which are not truly stated. It cannot be stated that because the accused bona fide believes that he is publishing what is true, that is, any defence in point of law. Bona fide belief might, in such a case, have some bearing on the quantum of damages in a civil action; perhaps also on the question of sentence in a criminal prosecution, but otherwise, it is irrelevant. Good faith means good faith and also the exercise of due care and attention. Due care and attention mean that the libeler should show that he had taken particular steps to investigate the truth and had satisfied himself from his enquiry, as a reasonable man, that had come to a true conclusion. The conduct of the accused during the course of the proceedings in a court is a relevant factor in determining his good faith. If there are several imputations, good faith or truth must be proved with respect to every imputation, and if he fails in substantiating truth or good faith in respect of any one imputation, the conviction must stand. A publisher of a defamatory statement can only be protected if he shows that he has taken all reasonable precautions & then had a reasonable and well-grounded belief in the truth of a statement. The plea of ‘good faith’ implies the making of a genuine effort to reach the truth, and a mere belief in the truth, without there being reasonable grounds for such a plea, is not synonymous with good faith. (vide The Editor, Rashtra Deepika Ltd. v. Vinaya Raghavan Nair).
- The exception (1) to section 499 IPC recognizes the publication of truth as a sufficient justification if it is made for the public good. When the truth is set up as a defence, it must extend to statement. It is not sufficient that only a part of the statement is proved to be true.”
Most significantly, the Bench then minces absolutely no words to hold in para 12 that, “Publication of truth as sufficient justification is available under exception (1) to section 499, provided it is made for the public good. But when the truth is set up as a defence, it must extend to the entire libel, and it is not sufficient that only a part of the libel is proved to be true. In the facts of the case, prima facie, it appears that part of the statement that no Court has given them any interim relief is partly true.” Quite ostensibly, the Bench observes in para 13 that, “It is well settled that the inquiry while issuing process is extremely limited only to ascertain the truth or falsehood of the allegations made in the complaint based on the material on record. Therefore, the petitioner’s defence need not be gone into at this stage.”</code></pre>Most forthrightly, the Bench points out in para 14 that, “The judgments relied upon by the petitioner are of no help to the petitioner, as in the case of W. Hay and others (supra), it arose out of the civil suit. The said judgment is of no help for adjudicating the order of issuance of process. The next judgment in the case of MJ Zakharia Sait (supra) arises from an election petition on the grounds of corrupt practice, which is inapplicable to the present case.” Most remarkably, the Bench then mandates in para 15 that, “On reading of the impugned order, it discloses that the Magistrate has passed detailed order recording prima facie satisfaction that the allegations in the newspaper would fall within the expression of “defamation” under Section 499 of IPC. To determine whether imputations are sufficient to attract provisions of Section 499 of IPC, a judicial inquiry has been made prima facie by the Magistrate. On perusal, the impugned order indicates that the Magistrate has applied judicial mind. Therefore, in my opinion, no case for interference is made out.” Finally, the Bench concludes by directing in para 16 that, “The writ petition stands dismissed. No costs.” In essence, we thus see quite distinctly that the Bombay High Court has made it indubitably clear that truth set up as defence must extend to the entire libel and not merely part of it. It thus therefore merits no reiteration that all the Courts in similar such cases of defamation must abide fully, firmly and finally with what the Bombay High Court has held in this leading case so clearly, cogently and convincingly. There can be just no denying it!