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Section 499 of Indian Penal Code, 1860 – Explained!

February 2, 2019 0 Comment

All these factors have immensely contributed to the volume of the section. The section says that whoever, either by spoken words or by words that are intended to be read, or by signs or by visible representations, either makes or publishes any imputation which concerns any person, either with the intention to harm the reputation of such person or with the knowledge or having reason to believe that such imputation will harm the reputation of such person, is said to defame that person, except in the cases which have been provided as exceptions under this section.

The section contemplates that the offence of defamation can be caused only by spoken words or words that are intended to be read or by signs or by visible representations. In the absence of these, a charge of defamation fails. By any of these four ways stated above the offender must either make or publish any imputation which concerns any person.

This must be done either with the intention of harming the reputation of such person or with the knowledge or having reason to believe that such imputation will harm the reputation of such person. Whether the reputation of such person is really harmed or not is of no consequence as far as the liability of the offender is concerned. Under the ten exceptions provided in this section the accused is not guilty of this crime.

Four explanations have been attached to the main part of the section. According to the first, defamation of a dead person is also possible if the imputation against such person is such as would harm the reputation of that person if he were living and the intention of the offender is to be hurtful to the feelings of his family or other near relatives.

The second explanation says that imputation concerning either a company or an association or collection of persons as such may amount to defamation. The third explanation states that imputation in the form of an alternative or ironical expressions may amount to defamation.

According to the fourth explanation, a person’s reputation is not harmed by any imputation unless that imputation, whether directly or indirectly, lowers either the moral or intellectual character of that person, or his character in respect of his caste or his calling, or his credit, or causes it to be believed that the body of that person is either in a loathsome state, or in such a state as is considered disgraceful.

As many as ten exceptions have been provided under this section wherein guilt of the accused is negatived. According to the first, imputing anything true concerning a person is not defamation if it is made or published for the public good, and what is public good is a question of fact, which in effect means that facts and circumstances of each case would decide whether it is for public good or not.

The second exception states that expression of any opinion whatever with respect to the conduct of a public servant in the discharge of his public functions, or with respect to his character, so far as the same appears in his conduct and no further is not defamation provided it has been done in good faith, an expression defined under section 52 of the Code.

According to the third exception, which is worded like the second exception, an expression of any opinion whatever with respect to the conduct of any person, not restricted to that of a public servant as under the second exception, touching any public question and with respect to his character so far as the same appears in his conduct and no further, is not defamation provided it has been done in good faith.

The fourth exception states that publishing a substantially true report of either the proceedings of a court of justice or of the result of any such proceedings is not defamation. The explanation attached to this exception, explains that a justice of the peace or other officer who holds an enquiry in an open court before a trial is to begin in a court of justice, is a court under this section.

Thus, the meaning of the expression ‘Court of Justice’ used in this exception has been widened. The fifth exception says that expression of any opinion whatever with respect to the merits of any civil or criminal case decided by a court of justice, or with respect to the conduct of any person either as a party, witness or agent in any such case, or with respect to the character of such person as far as the same appears in that conduct and no further, is not defamation provided it has been done in good faith.

According to the sixth exception expression of any opinion with respect to the merits of any performance submitted by its author to the judgment of the public, or with respect to the character of the author so far as the same appears in such performance and no further, is not defamation provided it has been done in goods faith.

The explanation attached to this exception says that an author may submit a performance to the judgment of the public either expressly or by acts on his part which imply such submission. The seventh exception states that if a person has any authority over another, such authority having been conferred either by law or arising out of a lawful contract made with that other person, to pass any censure on the conduct of that other person in matters to which such lawful authority relates, is not defamation provided it has been done in good faith.

According to the eighth exception, to prefer an accusation against any person to any of those persons who have lawful authority over that person with respect to the subject-matter of accusation is not defamation provided the same is done in good faith. The ninth exception says that to make an imputation on the character of another person in good faith for the protection of the interest either of the maker of the imputation, or any other person, or for public good is not defamation.

According to the tenth exception, which is the last exception, to convey a caution in good faith to one person against another in good faith is not defamation provided the intention behind such caution is either the good of the person to whom it is conveyed, the good of some other person in whom that person is interested, or for the public good.

Composing, dictating, writing or contributing in any other way to the making of a defamation comes within the word ‘makes’ under this section, and thus, one who does any of these is a maker of it. The maker is the originator of the imputation.

The word ‘publishes’ means brings it to the knowledge of at least one more person than the person defamed. It means communicating the matter to another person. Communicating defamatory matter to the person defamed is not publishing the same because reputation is what others think about a person. A mechanic, compositor or press has been held not guilty of making or publishing the matter.

Communication between a husband and wife is not publication, not because they are one in the eye of law, but because their relationship is so delicate that it is not desirable to bring it before the court and also it is almost impossible to prove as to what transpires between them. But communication by someone to a husband about his wife, or to a wife about her husband, is a publication.

Communication in writing, however, by a husband to his wife which is defamatory to the wife’s father is a publication, and section 122, Evidence Act also does not prohibit proof of such communication. A privileged communication is not a publication. In other words, a communication between two persons where a privileged relationship exists between the two negatives liability for defamation, because there is no publication in the eye of law.

Communication between an advocate and his client, or officer and his confidential secretary etc. fall under this category. Communication of an official entry in a confidential report of a superior officer through the official channel cannot be held to be a publication. A notice sent by an advocate on behalf of his client is similarly protected.

The section nowhere writes that the publisher of an imputation must be its author too. Every repetition of a defamatory statement is a fresh publication and the principle of merger is unknown to criminal law. The Calcutta High Court has held that owner of a journal, by virtue of the fact that he is the owner, is not guilty of defamation unless he has direct responsibility in the publication of the defamatory matter. Same principle is applicable in case of the chairman of a company publishing newspaper. Where a complaint was made by a married woman who was not the aggrieved party, no action for defamation would lie.

In K. V. Ramesh v. H. C. Ramesh, a newspaper published extracts from a book written about a former Prime Minister of India alleging corruption by him. The extracts also contained imputations against his other family members including sons, daughter and wife. The Karnataka High Court observed that sons could thus be said to be persons aggrieved and so complaint filed by a son cannot be quashed.

The editor of the newspaper is liable for prosecution and his plea that he was merely a publisher and not an author of the matter is not tenable. Allegations of criminal conspiracy between the editor, executive editor, managing editor and the resident editor with clear intention of defamation of the complainant were made.

The court held that application for quashing of proceedings on the ground that only the editor was responsible for the said publication cannot be allowed. Publication of extracts of the book in the newspaper gives a fresh cause of action for prosecution against the publisher of the newspaper.

Innuendo

Where the natural and ordinary meaning of the words is not defamatory, or where the complainant wishes to rely upon additional defamatory meaning in which the words were understood by persons who had knowledge of particular facts, then he requires the help of an innuendo which is a statement by the complainant of the meaning which he attributes to the words, and existence of facts to support that meaning must be proved by him. Evidence showing two kinds of inferences cannot establish an innuendo, and evidence of additional facts must show that the complainant was the person who was intended by the words.

Where the accused described a medical practitioner as a ‘professional debauch’ and ‘of low moral character’, the complainant successfully proved that the statement was meant to attack him and the accused was held guilty of defamation. But where a girl was named as the source of inspiration in the biography of a poet, and the complainant bearing the same name sought to prove that her name was joined with the poet, which being wrong was defamatory, the court was not convinced.

Explanation 1

Where the accused allegedly defamed a dead person, and the complainant did not claim that he was a descendant of the deceased person allegedly defamed, and in fact, claimed that he was a devotee and admirer of the deceased person, it was held that this was not enough to sustain a case against the accused.

Explanation 2

Even though normally defamation of a class is no defamation, yet if the class is a well-defined one and the defamatory words refer to ascertained and ascertainable persons, they are entitled to seek remedy in the form of criminal complaint for defamation. Reference to advocates as ‘kajia dalals’, that is to say, dispute brokers, was held to be non-defamatory because it referred to the lawyers as a whole.

Or, showing them in a film ‘Naadaan’ through visuals and dialogues, as indulging in unfair and undesirable activities might be in bad taste but not defamatory as no reasonable conclusions from this part of the film could be drawn that advocates are pests and a despicable bunch. Charging ‘some’ leaders, without naming anyone in particular, as indulging in disgraceful conduct would not be defamatory as that word ‘some’ does not identify anyone.

Where a party organised a conference attended by its own members as well as by others, it does not remain confined to the party as there were separate organising secretary and other officers for the conference, and it would be wrong to conclude that defamation of a class or persons taking part in the conference would be defamation of the party.

In Vishwa Nath v. Shambha Nath Pandeya it was held that where in an article of a magazine imputations were made against a certain community in general and not any particular group, and nor were the said imputations related to the complainant, and the said community was also not found to be a definite identifiable body of people, continuance of the case after the death of the complainant under the representation of his advocate would not be proper.

In John Thomas v. K. Jagadeesan, the Supreme Court was faced with the question that if defamation pertains to an association of persons or a body corporate, who could be the complainant. The Court ruled that this could be answered by making a reference to section 199(1) of the Code of Criminal Procedure, 1973 which says that no court shall take cognizance of an offence under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.

The collocation of the words “by some person aggrieved” definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case.

If a company is described as engaging itself in nefarious activities its impact would certainly fall on every director of the company and he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. If K. J. Hospital is a private limited company, it is too farfetched to rule out any one of its directors, feeling aggrieved on account of pejoratives hurled at the company.

Hence, the appellant cannot justifiably contend that the directors of K. J. Hospital would not fall within the wide purview of the expression “some person aggrieved” as envisaged in section 199(1) of the Code of Criminal Procedure, 1973.

Explanation 3

Where the accused author through imaginary conversation between two parliamentarians of a political party brought out, through satirical and ironical expressions, confessions out of them about the misdeeds of the ministers belonging to that political party it was held to be defamation, especially because, even though the whole situation was imaginary, the imputation against the chief minister was very real and intended to harm the reputation of the complainant who had been shown to have amassed wealth by cheating the public and abusing political power.

Explanation 4

Mere vulgar abuse does not amount to defamation. Where, for instance, a woman had uttered the word ‘chhinal’ against another woman meaning thereby that she was a woman of easy virtue, no case was held to be maintainable as the use of such kind of a language in villages by women fighting with one another is not uncommon. But describing as being the keep of a named man is obviously defamatory. Or, imputing a woman with having paramours wherever she goes amounts to defamation. Where a photograph was published showing certain persons as soldiers of a goonda war, it was held to be defamatory.

Exception 1

The second accused who was the printer and publisher of a newspaper published a report of a speech delivered by the first accused criticising the labour policies of the then government. The then labour minister was projected as a salaried employee of the Communist Party (Marxist). It was held that in the absence of malice the second accused could not be held guilty of defamation and he was entitled to the benefit of the first exception as he had acted in public good by publishing a speech.

Similarly, where the competent authority of a bank suspended a branch manager on the ground of gross misconduct and all his powers were withdrawn and the bank management forewarned the public by issuing a public notice to this effect in newspapers with a view to protect the interest of the general public, it could not amount to defamation in view of exception 1 to section 499 of the Code.

Exception 2

The Supreme Court observed in Kartar Singh v. State that public men should not be thin skinned with respect to comments made against them in discharge of their official functions. The chairman and managing director of a company publishing a newspaper would not be held guilty of a defamatory matter published in their newspaper in the absence of their personal involvement. Similar principle would apply with respect to editor and publisher of a newspaper if a report sent by one of the trustworthy journalists is published.

In Jawaharlal Darda v. Manoharrao Ganpatrao Kapsikar, a minister when questioned about misappropriation of government funds replied that preliminary inquiry by the government disclosed that some misappropriation had taken place and he stated the names of persons involved including the complainant.

The accused published in his newspaper an accurate and true report of these proceedings in good faith. The Supreme Court ruled that the offence of defamation was not made out and the accused had not intended to harm the reputation of the complainant. In Sasikumar B. Menon v. S. Vijayan, the Kerala High Court held that where the allegation in the complaint was that Kerala Police had been defamed, the complaint is not maintainable as the Kerala Police is not a definite and determinable body and the complainant, a member of the Kerala Police, is not a person affected by the alleged defamatory statement.

Exception 3

Where the death of a married woman gave rise to much suspicion and rumours and the public was keen to know as to whether her husband and some others including some family members were involved in it or not, and a news item to this effect was published in the newspaper of the accused which brought the appellant within the area of suspicion, it was held that the whole matter having become a public question in the town, the accused was entitled to the benefit of the third exception.

Exception 4

A correspondent of a newspaper made available to the editor of a newspaper material for publication including a complaint made by a complainant against a person, the complainant in the aforesaid case, under sections 500 and 504 of the Code along with the allegations contained therein. These were published in the newspaper.

On a complaint made by the complainant in the present case, it was held that there was no liability for defamation since exception 4 is available to the accused persons. The court made it clear that this exception is also applicable to complaints or pleadings made by the concerned parties to a dispute besides being applicable to the judgments or order of the courts. The Supreme Court has clarified that this exception makes no concessions in respect of proceedings of the Parliament or State Legislatures.

Exception 5

The writers in public papers must be very careful about what and how they write about proceedings of a court of justice. While discharging their duty they must keep in mind the interest of others. Where a person choses to criticise, his judgment could perhaps be biased, but there should be no reflection whatsoever upon his good faith, which has been defined in section 52 of the Code, and thus commenting fearlessly but fairly does not give cause of complaint to anyone.

Exception 6

To blow a mere grammatical error out of proportions by suggesting the author to be a swindler or a libertine is to go much beyond what this exception permits one to go. Where the accused, while criticising the foreword of the book authored by the complainant, went beyond the domain of honest criticism and made imputations against the complainant author, it was held that it showed malice and absence of good faith.

Exception 7

Any confidential report about a public servant by his superior is protected by exceptions 2 and 7 of section 499. So an adverse entry with respect to the ability, integrity and suitability of an officer by his superior can be made without fear. If the subordinate officer has any grievance about the same, he is always entitled to move the superior officer’s superior to get the same cancelled or get the adverse remarks made against him expunged from his confidential report.

Exception 8

Where the accused tenant in an application for security proceedings made wild imputations against the complainant by writing that he was a rich, influential, frenzied type of man and a leader of a gang of miscreants and a dangerous goonda, it was held that he was guilty of defamation as he had led no evidence to prove good faith on his part, and also falsely stated that he had made no such application at all.

The accused acting as secretary of the postal employees union preferred a representation to the Director General of Posts and Telegraph against a Superintendent of Post Offices alleging omissions and commissions against him.

By way of an illustration he mentioned the case of the complainant without mentioning him by name, who had been given temporary charge of a wireless inspector in spite of a court attachment to his salary, he being heavily indebted and declared unfit to work in cash counters and was of intemperate habits. Holding the accused not guilty the court observed that exception 8 was available to him because he had not mentioned any name and the allegations were proved to be substantially true.

The Supreme Court has ruled that an accused would be entitled to get the benefit of this exception only when it is proved that the person to whom the complaint was made had lawful authority over the person complained against in respect of the subject matter of the accusation.

Where therefore, the accused, a member of the police force, wrote to the District Panchayat Officer that a lady who was his neighbour was a woman of loose character who had illicit connection with goondas and whose paramours used to come frequently at night and as a result of such immoral activities the whole neighbourhood suffered, it was held that the accused was guilty of defamation and this exception could not apply in view of the fact that the District Panchayat Officer had no lawful authority over the person complained against in respect of the subject matter of the accusation.

In P. M. Kathiresan v. Shanmugham a complaint allegedly having defamatory remarks filed by the accused before the Superintendent of Police to take necessary action against the respondents resulted into conviction. It was held that the case squarely comes under exception 8 of section 499, and the proceedings were quashed.

Exception 9

It has been held by the Supreme Court that the person alleging in good faith must establish the fact that before making any allegations he had made an inquiry and necessary reasons and facts given by him must indicate that he had acted with due care and attention and that he was satisfied about the truth of the allegation. Five important considerations must be kept in mind while establishing good faith and bona fides. First, the circumstances under which the letter was written or the words were uttered; secondly, whether there was any malice; thirdly, whether the appellant made any inquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution; and fifthly, whether there is preponderance of probability that the appellant acted in good faith.

Where the members of a community met to discuss about certain charges against the complainant, a fellow member, and they unanimously resolved that certain conduct on his part being reprehensible they would neither attend any function at his home nor would he be invited to functions at their homes, and the language used in the resolution was not per se defamatory, it was held that the ninth exception was attracted.

The Delhi High Court is of the view that when a question is put to a witness which he is compelled to answer, his answer could not make him guilty of defamation. But in the absence of such compulsion the provisions of section 132, Evidence Act, 1872 would not apply though even then he has a right to prove any other exception. Defamatory statements by way of answers to questions put by an investigation officer have been held to be outside the purview of this exception.

Where the accused made certain imputations against the complainant in a sworn affidavit to which the complainant protested, and he repeated the same, without having taken due care and caution, in his reply affidavit, he could not be protected under exceptions 9 or 10 of section 499, all the more so because the former is limited to expressions of opinion and does not apply to assertion of facts.

The press does not enjoy any special privileges as far as the law of defamation is concerned, and historians and journalists have also to rely like anyone else on what is written in section 499 since they enjoy no special immunities or privileges.

Where the appointment of a person as village munsif was objected to by a large number of villagers in writing including close relatives of the complainant on the ground that he was rowdy and a law-breaker, it was held that public interest and public good being the primary object of the accused persons they were entitled to the benefit of exception 9 to section 499 of the Code.

A dispute between the complainant-appellant and his brothers with regard to his paternity had been going on. Since his brother was getting married the complainant got wedding invitation cards printed and issued with the first respondent as his father. The accused respondent and his two sons-in-law gave a denial in the newspapers and printed leaflets disputing the paternity of the complainant and his brother denying the complainant to be his son, and that he had nothing to do with the printing and issuing of cards.

It was held that defamation was not committed as exception 9 was applicable in the case. Right to partition in the ancestral property belonging to the petitioner and his family was claimed by the complainant through a notice on the ground that he was his son by his first wife. The petitioner replied through his advocate asserting that the complainant was not his son, and that his mother, after she left him, had been leading an unchaste life and, therefore, he was the son of an unknown father.

It was held that since the statement was given while protecting the family interest of the petitioner and with due care and caution under the signatures of a lawyer under instructions that it was not to be published, the exception was held to be applicable. Making a false complaint of eve- teasing in a defamatory language would make the accused guilty of defamation.

In V. Rama Rao v. C. Venkat Rao, the accused who was the Regional Manager of a Bank issued a confidential circular to the Branch Managers of his region to the effect that they should be vigilant while dealing with the complainant and others mentioned therein in their business transactions. The circular was issued in his official capacity, in public interest and as per instructions of the Central and Zonal Office.

The Andhra Pradesh High Court held that the case would be covered by exception 9 to section 499 and that truth of imputation need not be proved by the accused while claiming privilege under exception 9 and so even if the allegations made in the complaint are true no offence under section 500 is made out against the complainant.

In Mangana Nand v. State of Uttar Pradesh, the accused postman who went to deliver a letter to the complainant did not find him at home. On the second day when the postman went there again, the complainant misbehaved with him and hurled abuses at him. On the third day the complainant again misbehaved and hurled abuses. The accused postman then made the following endorsement on the envelope : “Paanewale ka dimag kharab ho gaya hai. Woh har samay galian deta rehta hai aur uske ghar jana khatarnak hai. Atah patra r.i. dwara vitarit karaya jaye.” The Uttaranchal High Court held that the endorsement was made in good faith for the protection of his own interest and is covered under the ninth exception to section 499 and so the accused is not guilty of defamation.

Exception 10

In a caste meeting a member was punished by being branded as an outcaste on the ground that he had accepted water from the hands of certain other person. The accused asked other members not to accept water from the person outcasted. It was held that he was protected by exception 10 to section 499 of the Code.