# HARBHAJAN SINGH v. STATE OF PUNJAB

- **Citation:** [1965] 3 S.C.R. 235
- **Court:** Supreme Court of India
- **Decided:** 1965-03-02
- **Case number:** Criminal Appeal No. 53 of 1961
- **Bench:** P. B. Gajendragadkar, Raghubar Dayal, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harbhajan-singh-v-state-of-punjab-3473
- **Pages:** 19

## Headnote

Indian Penal Code (Act 45 of 1860) s. 499, Exception NineScope of.
The Government of Punjab issued a press note stating that certain dailies in the States were publishing false reports alleging the
complicity of a Nlinister's son in smuggling, that the allegations vvere
made with a view to malign the Government, and, that the name
of the son should be openly mentioned. In response to that challenge
the appellant, who was a public worker, publ'shed a statement in
the prei;s, naming the Chief Minister's son as the leader of the emui;-
glers, and as also responsible for a large number of crimes. ~c also
requested that the Government should appoint a committee of
independent Judges to inquire into the matter. The Ch'ef Minder's
son then filed a complaint of. defamation against the appellant. After
the complainant and his witnesses were examined, the appellcnt filed
a detailed written statement in answer to the questions under s. 342,
Criminal Procedure Code, ten months after he was questioned underl
that section. He claimed therein the protection of both the First
and Ninth Exceptions to s. 449 of the Indian Penal Code, 1860. At the
very commencement of the proceedings, he gave a list of 328 witnesses
to be examined on his behalf. He was allowed to summon only 35
and eventually he examined 2() defence witnesses. He also produced
several documents. After considering the oral and documentary
evidence, the trial Court convicted the appellant. In his appeal to
the High Court, he claimed only the protection of tee Ninth
Exception th'.t is, that he published the statement in good fcith and
for public good. The High Court dismissed the appeal, with a modification in the sentence.
In his appeal to this Court, the appellant contended that, in
appreciating his evidence in respect. of good faith, the High Court
had misdirected itself.
HELD: A broad survey of the evidence led by the appellant. and
the background in which the impugned statement was made, show
that the H'gh Court was in error in holding that the nppellant had
failed to show that he acted in good faith when he published thr,
statement. (253 B-C]
(ii) The High Court had misdirected itself in dealing with the
question about the nature and scope of the onus of proof which the
appellant had to discharge in seeking the protection of the Ninth
Exception, because, it held that in discharging the onus, the plea
should be proved by the appellant as strictly as if the complainant
was being prosecuted for the offence. Where the burden of an issuf'
lies upon the accused under s. 105 of the Evidence Act. he i' !tot
required to discharge the burden by lead'ng evidence to prove his
case beyond a reasonable doubt. It is sufficient if he succeeds .in
proving a preponderance of probability, for then, the burden is shifted
to the prosecution which has still to discharge its original onus that
never sh'fts, that is, to establish on the whole case the guilt beyond
a reasonable doubt. (240 H; 241 C-G; 243A-B]
R. v. Carr-Braint, [1943 J 2 All. E.R. 156, referred to.
(ii) While dealing with the appellant's claim for protection under
the Ninth Exception, the High Court had confused the requirements
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(1965] 3 S.C.Jlt
of the First Exception with those of the Ninth. It was not necessary
to consider whether the appellant had strictly proved the truth of
the allegation made by him, because, proof of truth of the impugned
statement is not an element of the Ninth Exception as .it is of the
First. What the Ninth Exception requires an accused person to prove
is that he made the statement in gcod faith. The question as to
whether the accused acted in good faith would depend 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 imputation; did he make any
enquiry before he made it; are there reasons

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HARBHAJAN SINGH
v.
STATE OF PUNJAB
March 2, 1965
(P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.]
Indian Penal Code (Act 45 of 1860) s. 499, Exception NineScope of.
The Government of Punjab issued a press note stating that certain dailies in the States were publishing false reports alleging the
complicity of a Nlinister's son in smuggling, that the allegations vvere
made with a view to malign the Government, and, that the name
of the son should be openly mentioned. In response to that challenge
the appellant, who was a public worker, publ'shed a statement in
the prei;s, naming the Chief Minister's son as the leader of the emui;-
glers, and as also responsible for a large number of crimes. ~c also
requested that the Government should appoint a committee of
independent Judges to inquire into the matter. The Ch'ef Minder's
son then filed a complaint of. defamation against the appellant. After
the complainant and his witnesses were examined, the appellcnt filed
a detailed written statement in answer to the questions under s. 342,
Criminal Procedure Code, ten months after he was questioned underl
that section. He claimed therein the protection of both the First
and Ninth Exceptions to s. 449 of the Indian Penal Code, 1860. At the
very commencement of the proceedings, he gave a list of 328 witnesses
to be examined on his behalf. He was allowed to summon only 35
and eventually he examined 2() defence witnesses. He also produced
several documents. After considering the oral and documentary
evidence, the trial Court convicted the appellant. In his appeal to
the High Court, he claimed only the protection of tee Ninth
Exception th'.t is, that he published the statement in good fcith and
for public good. The High Court dismissed the appeal, with a modification in the sentence.
In his appeal to this Court, the appellant contended that, in
appreciating his evidence in respect. of good faith, the High Court
had misdirected itself.
HELD: A broad survey of the evidence led by the appellant. and
the background in which the impugned statement was made, show
that the H'gh Court was in error in holding that the nppellant had
failed to show that he acted in good faith when he published thr,
statement. (253 B-C]
(ii) The High Court had misdirected itself in dealing with the
question about the nature and scope of the onus of proof which the
appellant had to discharge in seeking the protection of the Ninth
Exception, because, it held that in discharging the onus, the plea
should be proved by the appellant as strictly as if the complainant
was being prosecuted for the offence. Where the burden of an issuf'
lies upon the accused under s. 105 of the Evidence Act. he i' !tot
required to discharge the burden by lead'ng evidence to prove his
case beyond a reasonable doubt. It is sufficient if he succeeds .in
proving a preponderance of probability, for then, the burden is shifted
to the prosecution which has still to discharge its original onus that
never sh'fts, that is, to establish on the whole case the guilt beyond
a reasonable doubt. (240 H; 241 C-G; 243A-B]
R. v. Carr-Braint, [1943 J 2 All. E.R. 156, referred to.
(ii) While dealing with the appellant's claim for protection under
the Ninth Exception, the High Court had confused the requirements
236
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(1965] 3 S.C.Jlt
of the First Exception with those of the Ninth. It was not necessary
to consider whether the appellant had strictly proved the truth of
the allegation made by him, because, proof of truth of the impugned
statement is not an element of the Ninth Exception as .it is of the
First. What the Ninth Exception requires an accused person to prove
is that he made the statement in gcod faith. The question as to
whether the accused acted in good faith would depend 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 imputation; did he make any
enquiry before he made it; are there reasons to aocept his story, that
he acted 'Nith due care and attention and was satisfied that the
imputation was true; these, and other considerations would be
relevant in deciding the question. [243 B-E; 244 G'H]
(iii) The High Court also erred in holding that the appellant's
written s!atement should net be seriously considered, as he did not
make out hio case of good faith at the early stage of the trial, and
that the written statement was likely to have been influenced by
legal advice. If the wri'tten statement filed after a long delay· contained pleas which could otherwise be legitimately regarded as
matters of after-thought. that no doubt, would affect the value of the
pleas taken in the written statetnent. But, the fact that at the very
commencement of the proceedings, the a)')pellant called for a large
number of witnesses and documents, .and the evidence led by him as
well as the nature of the cross'examination to which he subjected
the comrlainant and his witnesses, make it difficult to reject his plea
of good faith, on the ground that the written statement was filed
very late and the pleas taken in it might be an after-thought.
[245 H, B-C; 246 E-F].
THkeshwar Singh and others v. State of Bihar, A.LR. 1956,. ~ C.
:239, Pxplair.ed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53
of 1961.
Appeal by special leave from the judgment and order dated
November JS, 1960 of the Puajab High Court in Criminal Appeal
No. 86-D of 1959.
T. R. Bhasin, S. C. Malik, Sushma Malik and Ram Behja Lal
Malik, for the appellant.
R. N. Sachthey, for respondent No. I.
Ram Lal Anand, Ajit Singh Johar, S. K. Mehta, and K. L.
Mehta, for respondent No. 2.
The Judgment of the Court was delivered by
Gajendragadkar, C. J. By this appeal, which has been brought
to this Ccurt by special
leave, the appellant Harbhajan
Singh challenges the correctness of his conviction for an offence
under s. 500 of the Indian Penal Code, and the sentence imposed
on him for tlie said offence. The criminal proceedings against the
appellant were started on a complaint filed by Surinder Singh
Kairon, son of S. Partap Singh Kairon, who was at the relevant
time the Chief Minister of the State of Punjab. In his complaint,
the complainant Surinder Singh alleged that the appellant had published in the Press a statement against him which was highly
defamatory of him. The said statement was published in the "Blitz",
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HARBHAJAN SINGH v. STATE OF PUNJAB (Gajendragadk "· C.J.)
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which is a weekly magazine of Bombay, on July 23, 1957. and
extracts from it were given publicity in the "Times of India" and
certain other papers. According to the complaint. the defamatory
statement was absolutely untrue and by publishing it. the appeJ.
lant had rendered himself liable to be punished under s. 500, I.P.C.
It appears that on July 22/23, 1957, the Punjab Government
issued a Press note in which it was averred that certain Urdu Dailies
from J ullundur were indulging in mischief and false pro·
paganda, alleging complicity of a Minister's son in smuggling on
the border. The Press note alleged that this was done with a view
to malign the Government and to cause suspicion in the mind of
public. Tbe Punjab Government categorically denied the said allegation. The Press note added that the papers which were publishing
the said false reports should come out openly with the name of
the son of the Minister instead of repeatedly publishing things in
a vague and indirect manner, and that they should not take shelter
behind anonymity and should net be afraid of the consequences of
the publication of these allegations. The Press note concluded with
the statement that the Punjab Government had already taken steps
to curb smuggling and they were determined to put it down with
a firm hand.
It was in response to the challenge thus issued by the Punjab
Government in its Press note that the appellant published the
impugned statement which reads:
"My attention has been drawn to a Punjab Government Press Ncte categorically denying the complicity
of a Minister's son in smuggling. That Press Note also
throws a challenge to some Urdu Dailies "to come out
openly V.ith the name of the son of the Minister" and then
fase the consequences. I don't know whether the newspapers concerned will take up this challenge of the Punjab
Government or not, but as one of those who have been
naming that son of the Minister as one of the leaders of
the smugglers from Public platform, I hereby name that
son as Surinder Singh ;Kairon son of S. Partap Singh
Kairon, Chief Minister. And I do so determined to face the
consequences of the charge being openly levied by me. I
further allege that the son of our Chief Minister is not only
a leader of smugglers but is responsible for ·a large number of crimes being committed in the Punjab. But because
the culprit happens to be Chief Minister's son the cases
are always shelved up.
If the Punjab Government accepts this challenge, it
should do so by appointing an independent committee of
impartial Judges from outside the Punjab and then Jet us
see who has to face the consequences. If the Pun_iab Government dare not do so, I would not.m;nd serving a term
in Jail for hav.ing had the courage to come out with the
238
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(1965] 3 B.O.ll.
truth. May I bring it to the notice of Punjab Government
that Chief Minister's son is being discussed in almost
every Punjabi house, but people are afraid of talking
·about him in public lest they be punished for that."
It is this statement which has given rise to the present criminal
proceedings.
After this statement was published, Mr. Ajaib Singh, Senior
Superintendent of Police, Amritsar, issued a statement on the 25th
July, 1957, which was published in the "Tribune" on the 26th July.
By this statement, Mr. Ajaib Singh assured the people that persons
concerned in sniu6giing cases had been interrogated and he was
satisfied that the a11egation that some Minister's son was involved
in smuggling was false and inaccurate. To this statement, the appel·
!ant issued a rejoinder which was published in the "Hind
Samachar", which is an Urdu Daily cf Jul!undur, on July 27, 1957.
Then, ·followed the complaint which was filed by the complainant
on August 17. !957. That, shortly stated, is the background of the
present criminal proceedings.
The complaint was filed in the court of the Magistrate, First
Class, Tarn Taran. Thereafter, the appellant moved this Court
under s. 527 of the Criminal Procedure Code for the transfer of
the said case from the court of the Magistrate where it had been
filed. This Court directed on October 4, 1957, that the case in
question ~hould be remitted to the Punjab High Court so that it
should be transferred by the said High Court from the court of
the Magistrate at :rarn Taran to a court of Sessions in Delhi. That
is how the case was transferred to the court of the Additional
Sessions Judge, Delhi, and was tried by him.
In support of his complaint, the complainant examined himself
and led evidence of three other witnesses. The purport of the oral
evidence led by the complainant was to show that the complainant
was a person of status and good reputation, was carrying on business
and had suffered in reputatian and character by the defamatory
statement published by the appellant.
When the appellant was examined under s. 342, Cr. P. C., he
told the learned Judge that he would prefer to file a detailed written
statement. Later, he did file his written statement and made
several pleas against the charge levelled against him by the comp,lainant. In substance, he alleged that the allegaticns made by
him in his impugned statement were true and he had published the
said allegations in the interest of public' good. In other words, he
claimed the protection of the First Exception to s. 499, IPC. He
also pleaded that the imputation which he had made against the
complainant had been made in good faith and for public good.
Thus, he also claimed the protection of the Ninth Exception to
s. 499, IPC.
l n support of his defence the appellant wanted to summon 328
witnesses and a large number of documents. The trial court allowed
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him to summon 35 witnesses in all, but eventuaJ!y he examined
only 20 defence witnesses. He also produced several documents.
After considering the oral and documentary evidence produced
before him, the learned trial Judge came to the conclusion that the
words used by the appellant in his statement, which was published
in the Papers, were defamatory per se, and he held that the appellant had failed to make out a case either under the First Exception or under the Ninth Exception. In the result, he convicted the
appellant and sentenced him to one year's simple imprisonment.
The appellant then preferred an ap11eal before the Punjab
High Court, challenging the correctness and propriety of the order
of conviction and sentence passed against him by the learned trial
Judge. Before the appeJlate Court, the appellant claimed the protection of the Ninth Exception only and did not press his case that
he was entitled to the protection of the First Exception as well. He
also urged that he had been materially prejudiced inasmuch as the
trial Judge h<id not given him a fair and proper opportunity to
lead his evidence both oral and documentary. The learned single
Judge, who heard his appeal, considered the a~uments urged before
him on behalf of the appellant and came to the conclusion that
the appellant had failed to prove his claim that the impugned
statement fell within the scope of the Ninth Exception to s. 499,
IPC. He took the view that the appellant had "completely failed to
s~tantiate the plea of good faith." The material which had been
placed before the trial Judge in support of defence of good faith
was, according to the High Court, of a very flimsy character and
could not sustain the plea. It may be pointed out at this stage that
the High Court found that in case the appellant had proved his
good faith, it would not have felt any difficulty in coming t0 the
conclusion that the publication of the impugned statement was for
the public good. But since, according to the High Court, good faith
had not been proved, the appellant was not entitled to claim the
protection of the Ninth Exception. Then, as regards the grievance
made by the appellant that he had not been given a reasonable
opportunity to lead his evidence, the High Court held that the said
grievance was not well-founded. In that connection, the High Court
referred to the fact that though the tria I Judge had allowed the
appellant to examine 35 witnesses, the appellant examined only 20
witnesses, :1nd it observed that the large m·1ss of documentary
evidence which had been produced by the appellant did not serve
any useful or material purpose even for the defence of the appellant; and so the c0ntention that prejudice had been
caus~d to
him by the failure of the learned trial Ju~ge to give hi'Tl a reasonable opportunity to lead evidence was rejected by the High Court.
In the result, the High Court confirmed the order of convicticn
passed against the appellant by the tri ·I Ju·l~e. but ordered th·1t
instead of undergoing one year's simple impriscnmrnt. the :tpDcllant shall undergo three months' simple :.,..,prisonment ?nrl pay a
fine of Rs. 2,000. In default of payment of fine, l)e, was directed to
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fl9fifi] 3 s.c.e.
undergo three months' siil]ple imprisonment. It is against this order
that the appellant has come to this Court by special leave.
Normally, we would not hav~ examined the correctness of the
finding recorded by the High Court in respect of !lie appellant's
plea of good faith, because that is a finding made by the High
Court o'n appreciating oral and documentary evidence and as it
happens, the said finding confirms the view taken by the trial Judge
himself. Whether or not good faith has been proved by an accused
person who pleads in his defence the Ninth Exception to a charge
of defamation under s. 500, IPC, would be a question of fact and
even if it is assumed to be a mixed question of fact and law, if
the courts below make a concurrent finding on such a question,
this Court generally does not ~e-examine the matter for itself while
exercising its jurisdiction under Art. 136 of the Constitution. But
in the present case, we cannot accept tlie finding of the High Court,
because it is plain that in dealing with the question of good faith
the High Court has misdirected itself materially on point of law.
Section 499 of the Code defines defamation. It is unnecessary to set out the said definition, because it is common ground that
the impugned statement published by the appellant is per se defamatory, and .so, we must proceed to deal with the present
appeal on the basis that the said statement would harm the reputation of the complainant. Exception 9 to s. 499 provides that it is
not defamation to make an imputation on the character of another,
provided the imputation be made in good faith for the protection
of the interest of the person making it, or for any other person,
or for the public good. In the present case, the ingredient of public
good is satisfied, and the only question which ·arose for decision in
the court below and which arises before us, is whether the imputation can be said to have been made in good faith. There is no
doubt that the requirements of good faith and public good have
both to be satisfied, and so, the failure of the appellant to prove
good faith would exclude the application of the Ninth Exception
in his favour, even if the requirement of public good is satisfied.
This position is not disputed by Mr. T. R. Bhasin who appears for
the appellant.
Mr. . Bhasin, however, contends that in appreciating the
evidence of the appellant and his arguments in respect of his good
faith, the High Court has•dearly misdirected itself, because it has.
expressly observed that in' <iischarging the onus of providing good
faith, it is necessary to remember Jl;lat the plea of good faith must
be proved "as strictly as if the complainant were being tried for
the offences imputed to him." The HighTourt has added that the
accused pleading justification virtually becomes the accuser, and that
is why the burden has been placed by law upon him both in England
and in India. The learned Judge of the High Court made his point
still clearer with the observation that in cases of criminal defamation, an accused has not only to justify the whole of his libel, but
the plea taken has to be proved as strictly as if the complainant
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was being prosecuted for the offence. The same observation" have
been repeated by the learned Judge in several places in his judgment. Mr. Bhasin contends that the approach which the learned
Judge has adopted in dealing with the plea raised by the appellant under l'xception 9 is clearly erroneous. In cur opinion,
Mr. Bhasi,1 is right.
lt is true that under s. 105 of ·the Evidence Act, if an accused
person claims the benefit of Exceptions, the burden of proving his
plea that his case falls under the Exceptions is on the accused. But
the question which often arises and has been frequently con5idered
by judicial decisions is whether the nature and extent of the onus
of proof placed on an accused person who claims the benefit of
an Exception is exactly the same as the nature and extent of the
onus placed on the prosecution in a criminal case; and there is
consensu; of judicial opinion in favour of the view that where tlm
burden of an issue lies upon the accused, he is not required to
discharge that burden by leading evidence to prove his case beyond
:i reasonable dnubt. That. no doubt, is the test prescribed while
deciding whether the prosecution has discharged its onus to prove
the guilt of the accused; but that is not a test which can be applied
to a.1 accused person who seeks to prove substantially his claim
that his case falls under an Exception, Where an accused person
is called upon to prove that his case falls under an Exception, iaw
treats the onus as discharged if the accused person succeeds "in
proving a preponderance of probability." As soon as the preponderance of probability is proved, the burderi shifts to the prosecution
which has still to discharge its original onus. It must be remembered that basic·:Jy, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused
beyond a reasonable doubt. As Phipson has observed, when the
burd.:n of an issue is upon the accused, he is not, in general,
called on to prove it beyond a reasonable doubt or in default to
incur a verdict of guilty; it is sufficient if he succeeds in proving
a preponderance of probability, for then the burden is shifted to
the prosecution which has still to discharge its original onus that
never shifts, i.e., that ~f establishing, on the whole case, guilt
beyond a reasonable doubt.
It will be recalled that it was with a view to emphasising the
fundamental doctrine of criminal Jaw that the onus to prove its
cas~ lies on the prosecution, that Viscount Sankey in W oolmington
v. Director of Public Prosecutions(') observed that "no matter what
the charge or where the trial, the principle that the prosecution
must prove the guilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained."
This principle of common law is a part of the criminal law in
this country. That is not to say that if an Exception is pleaded
by an accused person, he rs not required to justify his plea; but
the degre¢ and character of proof which the accused is expected
' (1935J A.C. 452.
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(1965] 3 S.O,B.
to furniSh in support of his plea, cannot be equated with the degree
and character of proof expected from the prosecution which is
required to prove its case.
In this connection, it may be relevant to refer to the observations made by Humphreys J. in R. v. Carr-Braint('): "Lord
Hailsham, L. C., [in Sodem® v. R. [ 19361- 2 All E.R. 1138] was in
agreement with the decision of the majority. of the Supreme Court
of Canada, in R. v. Clark [(1921) 61 S.C.R. 608] where Duff J., in
the course of his judgment, expressed the view that the necessity
for excluding doubt contained in the rule as to the onus upon the
prosecution in criminal cases might be regarded as an exception founded upon considerations of public policy. There can be
no consideration of public policy calling for similar stringency in
the case of an accused person endeavouring to displace a rebuttable
presumption." In R. v. Corr-Braint('), a somewhat similar question arose before the Court. In that case, the appellant was charged
with the offence of corruptly making a gift or loan to a person in
the employ of the War Department as an inducement to show, or
as a reward for showing, favour to him. This charge was laid under
the Prevention of Corruption Act, 1916, and in respect of such a
charge, s. 2 of the Prevention of Corruption Act, 1916, had provided .that a consideration shall be deemed to be given corruptly
unless the contrary is proved. The question which arose before the
Court was; what is the accused required to prove if he wants to
claim the benefit of tlie exception? At the trial, the Judge had
directed the jury that the onus of proving his innocence lay on
the accused and that the burden of proof resting on him to negative
corruption was as heavy as that ordinarily resting on the prosecution. In other words, the Judge in substance told the jury that the
accused had to prove his innocence beyond. a reasonable doubt The
Court of Criminal Appeal held that this direction did not correctly
represent the true position in law. According to the Court of Appeal,
the onus on the accused was only to satisfy the jury of the probability of that which he was called upon to establish, and if he
satisfied the jury that the probability was that the gift was made
innocently, the statutory presumption was rebutted ;md he was
entitled to be acquitted.
What the Court ofi Criminal Appeal held about the appellant in the said case before it is substantially true about the appellant before us. If it can be shown that the appellant has Jed evidence
to show that he acted in good faith, and by the test of probabilities
that evidence proves his case, he will be entitled to claim the benefit
of Exception Nine. In other words, the onus on an accused person
may well be compared to the onus on a party in civil proceedings,
and just as in civil proceedings the court trying an issue makes its
decision by adopting the test of probabilities, so must a criminal
court hold that _the plea made by the accused is proved if a pre-
• [1943] 2 All. E.!:. J.>1.
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ponderance of probability is established by the _evi?ence . led by
him. We are, therefore, satisfied that Mr. Bhasm 1s entitled to
contend that the learned Judge has misdirected himself in law in
dealing with the question about the ~ature an_d scop~ of the o~us
of proof which the appellant had to discharge m seekmg protectlrln
of Exception Nine.
There is another infirmity in the judgment of the High Court,
and that arise~ from the fact that while dealing with the appellant's claim for protection under the Ninth Exception, the learned
Judge has inadvertently confused the requirements of Exception
One with those of Exception Nine. The First Exception to s. 499
is available to an accused person if it is shown by him that the
impugned statement was true and had been made public for the
public good. In other words, the two requirements of the First
Exception are that the impugned statement must be shown to be
true and that its publication must be shown to be for public good.
The proof of truth which is one oi the ingredients of the First
Exception is not an ingredient of the Ninth Exception. What the
Ninth Exception requires an accused person to prove is that he
made the statement in good faith. We will presently consider what
this requirement means. But at this stage, it is enough to point out
that the proof of truth of the impugned statement is not an element
of the Ninth Exception as it is of the First; and yet, in dealing with
the appellant's case under the Ninth Exception, the learned Judge
in several places, lias emphasised the fact that the evidence led by
the accused did not prove the truth of the allegations which hQ
made in his impugned statement. The learned Judge has expressly
stated at the commencement of his judgment that the appellant
had not pressed before him his plea under the First Exception,
and yet he proceeded to examine whether the evidence adduced by
the appellant established the truth of the allegations made in his
impugned statement as though the appellant was arguing before
him his case under the First Exception. In dealing with the claim
of the appellant under the Ninth Exception, it was not necessary,
and indeed it was immaterial, to consider whether the appellant had
strictly proved the truth of the allegations made by him.
That takes us to the question as to what the requirement of
good faith means.
Good faith is defined by s. 52 of the fode.
Nothing, says s. 52, is said to be done or b~lieved in 'good faith'.
which is done or believed without due care and attention. It will
be recalled that under the General Clauses Act, "A thing shall be
deemed to be done in good faith where it is in fact done honestlv
whether it is done negligently or not." The element of honesty which
is introduced by the definition prescribed by the General Clauses
Act is not introduced by the definition of the Code; and we are
governed by the definition prescribed by s. 52 of the Code. So
in considering the question as to whether the appellant acted i~
good faith in publishing his impugned statement, we have to
enquire whether he acted with due care and attention. There is
L/B(N)3SCI-3
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SUPREME COURT REPORTS
(1965] 3 S.C.J.t.
no doubt that the mere plea that the accused believed that what
he stated was true by itself, will not sustain his case of good faith
under the Ninth Exception. Simple belief or actual belief by itself
1s not enough. The appellant must show that the belief in his
ii;npugned .statement. had a rational basis and was not just a blind
simple belief. That 1s where the element of due care and attention
plays an important role. If it appears that before making the
statement the accused did not show due care and attention, that
would defeat his plea of good faith. But it must be remembered
that good faith does not require logical infallibility. As has held
by the Calcutta High Court in the matter of the Petition of Shiba
Prasad Pandah('), in dealing with the question of good faith, the
proper point to be decided is not whether the allegations put
forward by the accused . in support of the defamation are in
substance true, but whether he was ·informed and had good
reason after due care and attention to believe that such allegations were true.
Another aspect of this requirement has been pithily expressed
by the Bombay High Court in the case of Emperor v. Abdool
Wadood Ahmed('). "Good faith", it was observed "requires not
indeed logical infallibility, but due care and attention. But how far
erroneous actions or statements are to be imputed to want of due
care nnd caution must, in each case, be considered with reference
to the general circumstances and the capacity and intelligence of
the person whose conduct is in question." "It is only to be expected", says the judgment, "that the honest conclusions of a calm
and philosophical mind may differ very largely from the honest
conclusions of a person excited by sectarian zeal and untrained
to habits of precise reasoning. At the same time, it must be borne
in mind that good faith in
the formation or expression of an
opinion, can afford no protection to an imputation which does
not purport to be based on that which is the legitimate subject of
public comment."
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 casewhat "is the nature of the imputation made; under what circum-
!ltances did it come to be made; what is the status of the person
who makes the imputation; was there any malioe in his mind
when he made the said imputation; did he maki; 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 the impu·
tation 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. Unfortu-
<'l I.L.·R. 4 Cal. 124.
(') 1.1 •• R. 31 Rom. 293.
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HARBHAJAN SINGH ~- STATE OF PUNJAB (Gajendragadkar, O.J.)
245
nately, the !'earned Judge has rejected the plea of the appellant
that he acted in good faith, at least partly 'because he was persuaded to take the view that the evidence led by him did not tend to
show that the allegations contained in his impugned statement
were true. This naturally has, to some extent, vitiated the validity
of his finding.
It also appears that the learned Judge was inclined to take
the view that the elaborate written statement filed by the appellant
nearly ten months after he had been exa;nined under s. 342, should
not be seriously considered, and that the appellant failed to make
out his case of good faith at the early stage of the trial. Indeed.
the learned Judge has passed severe strictures against the contents
of the written statement and has blamed the appellant's lawyer ·
for having advised him to make these contentions. In support of
his finding that written statements of this kind should be discouraged and cannot be seriously taken into account, the learned
Judge had referred to two decisions of this Court. One is the case
of Tilkeshwar Singh and others v. The State of Bihar('), where
this Court was called upon to consider the validity of the argument urged before it that there had not. been a proper examination
of the appellants under s. 342, and so, their conviction should be
quashed. In rejecting this argument, this Court pofoted out that
when the appellants were examined under s. 342, they said they
would file written statements, and in the statements subsequently
tiled by them, they gave elaborate answers on all the points
raised in the prosecution evidence. That is why this Court observed
that the appellants had not at all been prejudiced by reason of
the fact that all the necessary questions were not put to them
under s. 342. It is in this connection that this Court incidentally
observed that s. 342 contemplates an examination in court and the
practice of filing statements is to be deprecated. But that is not a
ground for interference unless prejudice is established. The learned
Judga has read this observation as laying down a general principl"'
that the filing of a written statement by an accused person should·
be deprecated and the plea made by him in such a written statement need not, therefore, be seriously considered, because they
a,re generally the result of legal advice and are no better than
afterthoughts. We do not think that the observation on which the
learned Judge has based himself in making this criticism justifies
his view. In many cases, the accused person would prefer to file
a written statement and give a connected answer to the questions
raised by the prosecution evidence.
Indeed, s. 256(2) of the
Cr. P. C., provides that if an accused person puts in a written statement, the ma~istrate shall file it with the record. If the written
statement is filed after a long delay and contains pleas which can
otherwise be legitimately regarded as matters of after-thought,
that no doubt would affect the value of the pleas taken in the
(1) [1955] 2 S.C.R. 1043.
2{6
SUPREME
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[1965] 3 s.c.R.
written statement. But we do not think that it would be possible
to lay down a general rule that the written statement filed by an
accused person should not receive the attention of the court
because it is likely to have been influenced by legal advice. In
our opinion, such a distrust of legal advice would be entirely unjustified.
The other decision the learned Judge has referred to is in the
case of Sidheswar Ganguly v. State of West Bengal('). In that case,
this Court has observed that there is no provision ·in the Code
of Criminal Procedure for a written statement of the accused being
filed at the Sessions stage, and it is in respect of written statements filed at the Sessions stage that it has made the further comment that in a case tried by the learned Sessions Judge with the
help of the Jury, if such a statement is allowed· to be used by the
Jury, it may throw the door open to irrelevant and inadmissible
matter- and thus throw an additional burden on the presiding
Judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the
writterr statement. In the present case, we are not dealing· with ~
statement filed at the Sessions trial properly so called, and so, we
need not pause to consider the effect of these observations.
In the· present case, the written statement is an elaborate
document and it gives the version of the appellant in great detail.
In considering the question .as to whether the allegations made in
the written statement could be dismissed as no more than an afterthought, we cannot ignore the fact that at the very commencement
of the proceedings, the appellant gave a list of 328 witnesses and
called for a large number of documents, and as we will presently
point out the witnesses whom he examined and some of the documents which he had produced, tend to show that the appellant
had received information at the relevant time which supported his
plea that the allegations which he was making against the complainant appeared to him to be true; otherwise, it is not easy to
understand how the appellant could have given a list of witnesses
and called for documents to show either that the allegations made
by him were true, or that in any event, in making the said allegations he acted in good faith and for the public good. If the
evidence led by the appellant as well as the nature of the crossexamination to which he subjected the complainant and his
witnesses are taken into account, it would be difficult, we think
to reject his plea of good faith on the ground that the written
statement was filed very late and the pleas taken in it are an
after-thought. It is because of these infirmities in the judgement
under appeal that we allowed Mr. Bhasin to take us through the
evidence in this case. We ought to add that Mr. Anand, who
appeared for the complainant, fairly conceded that having regard
to the fact that the learned Judge had misdirected himself in Jaw,
the appellant would be entitled to request this Court to examine
the evidence for itself before it accepted the conclusion of the
learned Judge on the question of appellant's good faith.
(1)(1958] S.C.R. 749.
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HARBHAJAN SINGH v. STAT;E OF PUNJAB (Gajendragadkar, C.J.)
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Before we proceed to refer to the broad features of <he
evidence, it would be relevant to mention one fact. The appellant
was at the relevant time the State Secretary of th~ Punjab Praja
Socialist Party. He is a public worker and belongs to an active
political party. He had stated that there was no animus
in his mind against the complainant and his father, and that is
not seriously disputed, Malice in that sense must, therefore, be
eliminated in dealing with the appellant's plea. It is quite true that
even if the appellant was not actuated by malice, it would not be
possible to sustain his plea of good faith merely because he made
the impugned statement as a public worker and he can claim that
he was not actuated by personal malice against the complainant.
Absence of perscnal malice may be a relevant fact in dealing with
the appdlant's plea of good faith, but its significance or importance cani1ot be exaggerated. Even in the absence of personal
malice, the appellant will have to show that he acted with due
care and attention.
Ther~ is another fact which must also be borne in mind. The
statement which the accused published was in response to the
challenge issued by the Government of Punjab. It is not easy to
understand why the Punjab Government thought it necessary to
issue a Press statement in regard to allegations which were made
by the Urdu papers against a Minister's son. But the Punjab Government appears to have entered the arena and issued a challenge
to the newspapers in question, and it was in response to this challenge that the appellant published the impugned statement. In this
statement, the appellant requested the Punjab Government to
appoint an independent Committee of impartial Judges to investigate the matter, and he undertook to prove the truth of his charge
if an independent committee was appointed. In that connection, he
stated that he wished to bring it to the notice of the Punjab Government that the Chief Minister's rna is being discussed in almost
every' Punjabi house, but people were afraid of talking about
him in public lest they be punished for that.