defamation

Supreme Court of India

Subramanian Swamy v. Union of India 13 May 2016

In 2014, Dr. Subramanium Swamy made corruption allegations against Ms. Jayalathitha, the then Tamil Nadu Chief Minister. In response, Tamil Nadu State Government filed defamation cases against Dr. Swamy. Dr. Swamy, joined by prominent politicians such as Rahul Gandhi and Arvind Kejriwal, filed a writ petition challenging the constitutionality of the Criminal Defamation law in India, i.e., Sections 499 and 500 of the Indian Penal Code (IPC). A two-judge bench of the Supreme Court comprising of Justices Dipak Misra and P.C. Pant decided the matter.

Section 499 IPC defines defamation. Section 500 IPC prescribes the punishment for defamation.

The challenge before the court was twofold – first, whether criminalising defamation is an excessive restriction on freedom of speech, and second, whether the criminal defamation law under Sections 499 and 500 is vaguely phrased and hence arbitrary.

The court has held that Section 499 is not an excessive restriction under Article 19(2). The society is a collection of individuals, and what affects individuals also affects the society as a whole. Hence, it is valid to treat defamation as a public wrong.

Further, criminal defamation is not a disproportionate restriction on free speech, because the protection of reputation is a fundamental right as well as a human right. The Court relied on judgments from the UK, USA, Canada, etc. and reaffirmed the right to reputation as a part of the Article 21 right to life.

Using the principle of ‘balancing of fundamental rights’, the court held that the right to freedom and speech and expression cannot be “allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”. Criminal defamation laws safeguard the constitutional values of human dignity flowing from the Preamble and the Fundamental Duties.

The court rejected the argument that the sections are vaguely worded and ambiguous. Using the Constituent Assembly Debates to understand what the framers of the Constitution meant by the word “defamation” in Article 19(2), the court held that the word has its own independent identity. It stands alone and defamation laws have to be understood as they were when the Constitution came into force.

In the case of Subramaniam Swamy v. Union of India- it was held that the right to honor, dignity and reputation are the basic constituents of the right to life under Article 21. It further categorically observed that “the reputation of one cannot be allowed to be crucified at the altar of the other’s right to free speech and that the balance of the two rights needs to be struck.” Right to reputation was considered to be an inherent component of Article 21 of the Constitution of India.

Supreme Court of India

Gambhirsinh R.Dekare vs Falgunbhai Chimanbhai Patel & Anr on 11 March, 2013

A news item has the potentiality of bringing doom’s day for an individual. The Editor controls the selection of the matter that is published. Therefore, he has to keep a careful eye on the selection. Blue- penciling of news articles by any one other than the Editor is not welcome in a democratic polity. Editors have to take responsibility of everything they publish and to maintain the integrity of published record. It is apt to remind ourselves the answer of the Editor of the Scotsman, a Scottish newspaper. When asked what it was like to run a national newspaper, the Editor answered “run a newspaper! I run a country”. It may be an exaggeration but it does reflect the well known fact that it can cause far reaching consequences in an individual and country’s life.

COMMUNICATION BETWEEN HUSBAND AND WIFE :-

In England the rule appears to be well settled that except in certain well defined matters. the husband and wife ,are regarded as one and in an action for libel disclosure by the husband of the libel to his wife is not publication. In Wennhak's case(1) Manisty, J., observed:

" ...... the maxim and principle acted on for centuries is still in existence viz., that as regards this Case, husband and wife 'are in point of law one person." The learned Judge examined the foundation of the rule and stated that it was, after, all, a question of public policy or, social policy.

But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence. In Queen Empress v. Butch() it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law. If the wife, removing the husband's property from his house, does so with dishonest intention, she is guilty of theft. In Abdul Khadar v. Taib Begum() the Madras High Court again held that there is no presumption of law in India that a wife and husband constitute one person for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India.

In Tiruvengadda Mudali v. Tripurasundari Ammal - a Full Bench of the Madras High Court observed that the exceptions to s. 499 I.P. Code must be regarded as exhaustive as to the cases which they purport to cover ,and recourse cannot be had to the English common law to 'add new grounds of exception to those contained in the statute. A person making libelous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception ,and the illustration to s. 499 the statements are privileged only when they are made in good faith. There is therefore authority for the proposition that in determining the criminality of an act under the Indian Penal Code the courts will not extend the scope of special exceptions by resorting to the rule peculiar to EngLish common law that the husband and wife are regarded as one.

Supreme Court of India

M.C. Verghese vs T.J. Ponnan & Anr on 13 November, 1968

Verghese has complained that he was defamed by the three letters which Ponnan wrote to Rathi Ponnan, however, says that the letters addressed by him to his wife are not--except with his consent--admissible in evidence by virtue of s. 122 of the Indian Evidence Act, and since the only publication pleaded is publication to his wife and she is prohibited by law from disclosing those letters. no offence of defamation could be made out. So stated the proposition is in our judgment, not sustainable. Section 122 of the Indian Evidence Act falls in Ch. IX which deals with evidence of witnesses in proceeding before the court. That section provides:

"No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall be permitted to disclose any such communication. unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other."

A prima facie case was set up in the complaint by Verghese. That complaint has not been tried and we do not see how, without recording any evidence, the learned District Magistrate could pass any order discharging Ponnan. Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the communication made by the husband to the wife. If Rathi appears in the witness box to give evidence 'about the communications made to her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Ponnan consents. That does not, however, mean that no other evidence which is not barred under s. 122 of the Evidence Act or other provisions of the Act can be given.

In a recent judgment of the House of Lords Rumping v. Director of Public Prosecutions [1962] All E.R. 256 , Rumping the mate of a Dutch ship was tried for murder committed on board the ship. Part of the evidence for the prosecution ,admitted at the trial consisted of a letter that Rumping had written to his wife in Holland which amounted to a confession. Rumping had written the letter on the day of the killing, and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at the port outside England. After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial, but the wife was not called as witness. It was held that the letter was admissible in evidence. Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy. Accordingly except where the spouse to whom the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act. 1898, (of which the terms are similar to s. 122 of the Indian Evidence Act though not identical), evidence as to communications between husband and wife during marriage is admissible in criminal proceedings.

The question whether the complainant in this case is an agent of the wife because he has received the letters from the wife and may be permitted to give evidence is a matter on which no opinion at this stage can be expressed. The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why inquiry into that complaint should, on the . preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of s. 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial 'and cannot be made the subject-matter of an enquiry at this stage. When the letters were written by Ponnan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be given in court.

We are, therefore, of the view that the appeal must be allowed and the order passed by the High Court set aside. The proceedings will be remanded for trial to the District Magistrate according to law.

Delhi High Court

Standard Chartered Bank vs Vinay Kumar Sood & Ors. on 6 February, 2009

The Civil Court in a suit for mandatory injunction and for damages decreed the suit of the complainant awarding damages to him against the bank. The observations of the Civil Court in the said suit that the persistent acts of the bank without any ground was defamatory in nature and harmed the reputation of the complainant might be relevant, however, they are not conclusive and binding on the Magistrate to be followed and accepted. The reason being the Civil Court has to appreciate the evidence of the plaintiff in a suit for damages based on defamation with a different yardstick and is not required to assess the evidence with a view to find out if any criminality was involved. In other words, the Civil Court is not concerned whether such acts of defamation were malafidely done with an intention to lower and harm the reputation of the plaintiff in the eyes of his family members and others. For inviting the provisions contained in Section 499/500 IPC which are penal in nature, a Magistrate has to consider if the requirement of mens rea which is a mandate for a criminal defamation punishable under Section 500 IPC was fulfilled. If mens rea or criminal intention is lacking or is missing in the act of the accused, he cannot be held guilty for an offence of defamation within the meaning of Section 499 IPC

For an offence of defamation as defined under Section 499 IPC, three essential ingredients are required to be fulfilled:-

(i) Making or publishing any imputation concerning any person;

(ii) Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations.

(iii) The said imputation must have been madenwith the intention to harm or with

knowledge or having reason to believe that it will harm the reputation of the person concerned.

Thus, it is clear that intention to cause harm is the most essential sine qua non for an offence under Section 499 IPC. An offence punishable under Section 500 IPC requires blameworthy mind and is not a statutory offence requiring no mens rea.

DEFAMATION IN COMMERCIAL SPEECH (advertisment) :-

Delhi High Court

Godrej Sara Lee Ltd. vs Reckitt Benckiser (I) Ltd. on 15 February, 2006

(I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.

(II) He can also say that his goods are better than his competitors', even though such statement is untrue.

(III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others.

(IV) He, however, cannot, while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible.

(V) If there is no defamation to the goods or to the manufacture of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.

SOME ILLUSTRATIONS OF DISPARAGING (primarily its a matter of civil domain but may cross into criminal if mens rea shown) :

What is disparagement. Black's Law Dictionary defines `disparagement' as well as `disparagement of goods' in the following manner:

Disparagement:

Matter which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another's property in land, chattels or intangible, things or upon their quality.

A falsehood that tends to denigrate the goods or services of another party is actionable in a common law suit for disparagement. The same conduct is also actionable under certain state statutes and can form the basis for an F.T.C. Complaint. There is no private federal cause of action for disparagement under the Lanham Act.

Disparagement of goods:

A statement about a competitor's goods which is untrue or misleading and is made to influence or tends to influence the public not to buy.

In De Beers Abrasive Products Ltd. and Ors. v. International General Electric Co. of New York Ltd. and Anr. 1975 (2) ALL ER 599, (which is quoted with approval by the Calcutta High Court as well as Delhi High court ), the court had given the example of disparagement in the following manner:

In that case a manufacturer of natural diamond abrasive sued a manufacturer of a competing abrasive made from synthetic diamonds on the ground that the latter has circulated a pamphlet containing a report of laboratory experiment of comparing the performance and qualities of those two products and wherein the goods of the plaintiff have been tainted. The Learned Judge at page 605 of the report held that the statement "My goods are better than X's" is only a more dramatic presentation of what is implicit in the statement, "My goods are the best in the world" and such a statement would not be actionable but if the statement is "My goods are better than X's, because X's, are absolutely rubbish" the statement would be actionable.

In Reckitt & Colman of India v. M.P. Ramachandran and Anr - the plaintiff was a manufacturer of whitener sold under the brand name Robin Blue. The defendants were also manufacturing a whitener and selling their product under the brand name Ujala. The advertisement of the defendants depicted that the colour blue (which was of plaintiff's product) was uneconomical and the average blue was the most expensive to whiten the clothes. Then it had been added `what is more, you have to use lots of blue per wash'. While making the said comment the container of the plaintiff had been shown upside down and it had further been shown that the liquid was gushing out. The court observed:

The object is obviously to show that the product of the petitioner priced at Rs.10/- gushes out as a quirt and not in drops while using and therefore, it is an expensive way to whiten clothes. The container of the petitioner as produced by Mr.Chakrabotry was put by me up-side-down and I found that the liquid packed in the container comes out drop unless one squeezes the container, which is made of plastic. It has then been shown in the advertisement that blue is a product of obsolete technology and therefore, it cannot dissolve completely in water and as such forms sediments at the bottom of the wash bucket. The said assertion it appears to me is not a presentation of a technological disadvantage of the product of the petitioner as was asserted by Mr.Chakraborty but an insinuation to the product Page 0729itself. The same is clarified by the last assertion contained in advertisements to the effect that blue leaves dirty blue patches on clothes because it forms sediments. The insinuation, therefore, is sediment of blue leaves blue patches on freshly washed clothes since blue cannot dissolve in water.

Thus it was the poor depiction of the plaintiff's product which was aimed at in the impugned advertisement and was found to be disparaging.

In Dabur v. Emami , in the commercial shown on TV projected Chayawanprash in a negative manner as the hero while holding bottle of Himani Sona-Chandi Chayawanprash (defendant's product) in his hands declares that GARMION MEIN CHYAWANPRASH BHOOL JAO, HIMANI SONA CHANDI AMRITPRASH KHAO (English translation- Forget Chyawanprash in summers, eat Amritprash instead). This was again a clear case of negative campaigning of the product of the plaintiff i.e. Chayawanprash.

In the case of Reckitt & Colman of India ltd. v. Kiwi T.T.K.Ltd.(supra), again, the product of the plaintiff, namely, Cherry Polish was shown in a disparaging manner as the advertisement showed a bottle of KIWI (defendant's product) which does not drip as against the bottle described as "OTHERS" which was held to be that of plaintiff's because of red blob on the serface which represents CHERRY which dripped.

in the case of Pepsi Co.- the Division Bench found that the plaintiff's product PEPSI was described as `Bachhon Wali Drink' and was mocked at in the commercial with the message `that the kids who want to grow up should drink "Thums Up". It was disparaging because the following feature in flier: The commercial shows that the lead actor asks a kid which is his favorite drink. He mutters the word "PEPSI", which can be seen from his lip movement though the same is muted. The lead actor thereafter asks the boy to taste two drinks in two different bottles covered with lid and the question asked by the lead actor is that "Bacchon Ko Konsi pasand aayegi"? After taste the boy points out to one drink and says that that drink would be liked by the children because it is sweet. In his words he says, "Woh meethi hain, Bacchon ko meethi cheese pasand hai". He discredited the drink one which according to his has a sweet taste. He prefers the other drink which according to him tastes strong and that grown up people would prefer the same. At that point, the lead actor lifts the lid from both the bottles and the one which is said to be strong taste reveals to be "Thums up", and one which is sweet, word "PAPPI" is written on the bottle with a globe device and the colour that of the "PEPSI". Realizing that he had at the initial stage given his preference for "PEPSI" and subsequently finding it to be a drink for kids, the boy felt embarrassed. This embarrassment gesture he depicts by putting his hands on his head. The court found that these advertisements were not only made in mocking manner but in fact denigrated the goods of the appellant when the lead actor said "Wrong choice baby" and that "Thums up" is a right choice. Saying of the lead actor " Kyo Dil Mange No More" in fact depicted the product of the appellant in poor and inferior form.

In Karamchand Appliances Pvt.Ltd -, the product of the plaintiff, namely, PLUGGY DEVICE which was deceptively similar to the defendant's device was shown in poor light by giving the message in the advertisement that " Pluggy devices used as mosquitoe repellents are old, obsolete and outdated method of chasing the mosquitoes and deserve to be discarded".

Supreme Court of India

Harbhajan Singh vs State Of Punjab on 2 March, 1965

"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 and 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."

THIRD AND NINTH EXCEPTION MAY OFTEN OVERLAP :-

(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 the 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.

Third and Ninth Exceptions to S. 499. Exception Third embodies the doctrine of fair comment. Where a writer makes the public conduct of a public man the subject of comment, and it is for the public good, the writer is not liable to an action if the comments are made honestly and he honestly believes the facts to be as he states them. However, an imputation or criticism cannot be justified on the ground of fair comment, the moment it is shown that the criticism is based upon a misstatement of facts. Whether or not it is for public good, is question of fact and like any other defense the onus of proving the same lies on the accused. It has been repeatedly held that the freedom of the press is not higher than the freedom of an ordinary citizen and is subject to the same limitations as are imposed by Art. 19(2) of the Constitution. The limitations, inter alia are to the effect that the freedom of speech and expression is not to be exercised in such a way as to constitute an infraction of the law relating to defamation. Just as every individual possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as property.)

Exception 9 - This exception affords protection when a defamatory statement is made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. This exception is wide enough to cover not only such allegations of fact as could be proved true but also expression of opinion and personal inferences.

Good faith is a question of fact. Public good is also a question of fact. So it will have to be found out whether the petitioners acted with due care and attention. Honesty of purpose would also been an essential ingredient in judging good faith. While dealing with the nature and scope of the onus of proof which the accused has to discharge in seeking the protection of Exception 9, the Supreme Court observed in Harbhajan Singh v. State of Punjab, that "simple belief or actual belief by itself is not enough. It must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. That is where the element of the due care and attention plays an important role". vide - S. Nihal Singh And Others vs Arjan Das, New Delhi on 24 September, 1982)

Supreme Court held in Sukra Mahto v. Basu Deo Kumar Mahto, "The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. 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 accent is on the enquiry care and objective and not subjective satisfaction".

in Chaman Lal v. State of Punjab, "In order to establish good faith and bona fide it has to be seen first the circumstances 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".

In Sewakram v. R. K. Karanjiya - an editor of a newspaper viz. the respondent was prosecuted under Section 500, I.P.C. for publication of a news item which was per se defamatory. The editor alleged that he published the news item on basis of an Enquiry Report submitted by a high official to the Government relating to certain irregularities committed in jail. He claimed protection under Exception Ninth to S. 499. The Report was made available to the High Court in a petition under S. 482 Cr.P.C. which was filed by the editor. The High Court on a perusal of the said Report quashed the prosecution on the ground that the editor was entitled to the protection under S. 499, Exception 9. On Special Leave to Appeal being granted the Supreme Court by a majority of two to one reversed the order of the High Court holding that the High Court has prejudged the whole issue without the trial of the person and the same has resulted in manifest miscarriage of justice. Sen, J. with whom Chinnappa Reddy, J. concurred made the following observations as regards the evidentiary value of 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 otherwise of the allegations or exercised due care and caution for bringing the case under the Ninth Exception. The Enquiry Report cannot by itself furnish the lacunae". Chinappa Reddy, J., in his separate judgment clarified the position still further as regards the concept of good faith. His Lordship observed that :

"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 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 S. 499 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 of evidence and not conjecture."

Balraj Khanna v. Moti Ram, , wherein too it was held that :-

"The question of applicability of the Exceptions to Section 499 I.P.C. as well as all other defenses that may be available to the appellants will have to be gone into during the trial of the complaint and not at the stage of enquiry under Section 202 of the Code."

Delhi High Court

S. Nihal Singh And Others vs Arjan Das, New Delhi on 24 September, 1982

Section 3 of the Press and Registration of Books Act, 1867 (for short the 'Act') provides that every book or paper shall have printed legibly on it the name of the printer and the place of printing and if the book or paper be published, the name of the publisher and the place of publication. Section 5 of the Act requires that every printer and the publisher of a newspaper shall make a statutory declaration before a competent Magistrate in the prescribed form. Further, the name of the owner and the editor have to be printed clearly on each copy. Section 6 contains provisions for authentication of a declaration made under Section 5. Lastly Section 7 lays down that :-

Section 7 : "In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declaration, (or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor) shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, (or printed on such newspaper, as the case may be) that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every (newspaper) whereof the title shall correspond with the title of the (newspaper) mentioned in the declaration (or the editor of every portion of that issue of the newspaper of which a copy is produced)."

In other words the printer or the publisher, as the case may be, who has made a declaration under the Act and the editor whose name appears on the copy of the newspaper shall be presumed to be aware of what is printed and published in the issue of the paper. The declaration is prima facie evidence of the publication by the editor of all the news items in the paper. He will not be absolved for the publication of objectionable matter by the mere fact that in the daily routine he had asked the editor/sub-editor etc. to select the news items. The term 'editor' is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper.

Revision allowed for issue of process?

Supreme Court of India

Rajendra Kumar Sitaram Pande & Ors vs Uttam & Another on 11 February, 1999

In Amar Nath & Ors. vs. State of Haryana 1978(1) SCR 222, this Court has held that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye vs. State of Maharashtra 1978(1) SCR 749, a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla vs. State 1980(2) SCR 380, this Court has held that the term "interlocutory order"used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub- section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code.

The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury Officer to hold inquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental inquiry had been initiated and the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the Treasury Officer in a drunken state which is the gravamen of the present complaint and nothing more, would be covered by exception 8 to Section 499 of the Indian Penal Code.

Abuse of the process of Court :

The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:

(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.

(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.

(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.

(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.

(vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.

(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

(vii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.

[Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].

037. Defamation

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