WWW.LIVELAW.IN IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 153 of 2003 along with Cross Objections No. 275 of 2003

.P .

Reserved on: 1.12.2017

1.

RFA No.153/2003

of H

Decided on: 11.12.2017 __________________________________________________________

The Publisher and Editor of Divya Himachal and anr. …..Appellants Versus

2.

ou rt

Parkash Chand and ors.

….Respondents

Cross Objections No.275/2003

C

The Publisher and Editor of Divya Himachal and anr. …..Appellants/Non-objectors Versus

h

Parkash Chand and ors. ….Respondents/Objectors

ig

Coram:

H

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1 Yes

For the appellant(s):

Mr. Anup Rattan, Advocate, for the appellants in RFA No.153/2003 and for the non-objectors in Cross Objections No.275/2003

For the respondent(s):

Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for

1

Whether reporters of the local papers may be allowed to see the judgment? Yes.

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …2…

.P .

respondent No.1 in RFA No.153/2003 and for objector in Cross-objections No. 275/2003 __________________________________________________________

of H

Tarlok Singh Chauhan (oral):

Since common questions of law and facts are involved in both – regular first appeal and cross-objections – therefore, the same were taken together for hearing and the same are being disposed

2

ou rt

of by a common judgment.

The appellants/defendants No. 1 and 2 happen to be

publisher and editor of Divya Himachal Newspaper, against whom a decree towards damages of Rs. 10,000/- has been for

publishing

C

fastened

defamatory

news

against

the

h

respondent/plaintiff. The parties shall be referred to as the plaintiff and

ig

defendants.

H

3

The plaintiff is a barber having his shop under the

name and style of M/s Today Hair Dressers, The Mall, Solan. Defendant No.5, Sanjay Azad, has a news agency under the name and style of M/s Azad News Agency at Chail, Tehsil Kandaghat,

District

Solan

and

also

happens

to

be

the

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …3…

.P .

correspondent of Divya Himachal Newspaper and ‘Nirala’ daily and weekly newspaper. 4

According to the plaintiff, the Barber’s Union at Solan

of H

had fixed the rates of hair cutting, shaving etc. and its rate list

was duly signed by the President of the Union and displayed in the shop. It was averred that on 11.8.1999, defendants No. 1 and 2 i.e. the appellants herein, published a news item in Divya ”. It was

ou rt

Himachal daily with the caption “

alleged that the said news was defamatory, libelous and affected the reputation of the plaintiff in the society and amongst his

C

colleagues. Similar publication was made in ‘Nirala’ weekly. However, since the defendants No. 3 to 5 have not filed any

h

appeal against the judgment and decree passed against them

ig

whereby they have been held liable to pay damages of Rs.

H

10,000/- for the defamatory article published by them, this court needs not to go into the contents of the publication made therein. 5.

The

defendants

contested

the

suit

and

raised

preliminary objections like locus standi, maintainability of suit, disputed cause of action, valuation of suit etc. On merits, the defendants denied having published the defamatory news as

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …4…

.P .

alleged, but according to them, they published the said news item after due verification and without any intention to malign anybody’s reputation including the plaintiff.

It was further

of H

averred that they did not even know the plaintiff personally and,

therefore, there was no animus against him nor was his business affected in any manner. 6.

On 14.4.2001, the learned trial court framed the

ou rt

following issues:-

1. Whether the news published in “Divya Himachal” on 11.8.1999 is defamatory qua the plaintiff on the grounds as alleged? OPP

2. If issue No. is held in affirmative, whether the

C

defendant No.1 and 2 are liable to pay the damages to the plaintiff, if so, what is the appropriate amount?

H

ig

h

OPP 3. Whether the news appearing on 23.8.1999 in the weekly newspaper named “Nirala” is defamatory qua the plaintiff on the grounds as alleged? OPP 4. If issue No.3 is held in affirmative, whether the defendants No. 3 and 4 are liable to pay the damages to the plaintiffs, if so, what is the appropriate amount. 5. Whether the defendant No.5 Shri Sanjay Azad is also liable to pay the damages in case issues No. 1 and 3 are held in affirmative, if so, to what amount? OPP 6. Whether the suit is not maintainable in the present form? OPD 1 and 2

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …5…

7. Whether the suit is not properly valued for the

.P .

purpose of court fee and jurisdiction? OP Parties

8. Whether the plaintiff has no locus standi to file the present suit ? OPD 1 and 2

of H

9. Whether the suit is bad for mis-joinder of necessary parties? OPD 3 to 5 10. Relief.

7

After recording the evidence and evaluating the same,

ou rt

the learned trial court held defendants No. 1, 2 and 5, who were the publishers, editors and correspondent of Divya Himachal liable to pay damages to the extent of Rs.10,000/- jointly and severally to the plaintiff.

As regards this appeal, this court is only concerned

C

8

with the findings recorded by the learned trial court qua issues

h

No. 1, 2 and 5 to 10.

ig

9

I have heard learned counsel for the parties and have

H

also gone through the record of the case. 10

At the outset, it may be observed that

this Court

while exercising its jurisdiction under Section 96 CPC being the first appellate court is the final court of facts and law, therefore, its findings must reflect due application of mind and have to be supported by reasons as held by the Hon’ble Supreme Court in

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …6…

.P .

Vinod Kumar vs. Gangadhar, 2015(1) SCC 391, which reads thus:

of H

“12) As far back in 1969, the learned Judge – V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of

the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate court of its duty as to how the first appeal under Section 96 should be decided.

ou rt

In his distinctive style of writing and subtle power of expression, the learned judge held as under: “1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The

C

defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The

H

ig

h

learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …7…

appear to agree with me in this observation…..” (Emphasis

.P .

supplied)

13) This Court in number of cases while affirming and then

of H

reiterating the aforesaid principle has laid down the scope and powers of the first appellate court under Section 96 ibid.

14) We consider it apposite to refer to some of the decisions 15) In Santosh Hazari vs. Purushottam Tiwari (Deceased)

ou rt

by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188189) as under: “.……..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on

C

questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of

H

ig

h

mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court……while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it…………”

11

Having delineated the legal position, I would now

proceed to discuss the evidence available on record.

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …8…

in

The plaintiff, Parkash Chand, appeared as PW1 and his

examination-in-chief,

reiterated

the

.P .

12.

averments

as

contained in the plaint by stating that he was running a barber

of H

shop under the name and style of M/s Today Hair Dresser at

Solan. He deposed that all the barbers of Solan have a union, which fixes the rates of various services. As per its rate list, rate for shaving was Rs.8/- and for special shaving was Rs.12/-. He

ou rt

further stated that he was working as barber for the last 15 years and enjoying a good reputation amongst his friends and relatives; and his business was also running well. Defendants

C

No. 1 and 2 who happened to be the editor and publisher of Divya Himachal had published the news item in Divya Himachal

h

on 11.8.1999, wherein it was mentioned that he was a

ig

pickpocket and was looting the people. The said news item was

H

Ext.PW1/A. The news item in circle ‘A’ published by defendants No.1 and 2 and sent by defendant No.5 was wrong. He further stated that the defendants were well aware that this news item was false and it would obviously affect his reputation and business in a social circle. He deposed that the news item was published deliberately to harass him. He further deposed that the publication of this news item adversely affected his

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …9…

.P .

reputation apart from causing mental tension to him. Therefore, the residents of Solan, his relatives and friends called him pickpocket. Despite notice, the defendants did not even care to

of H

issue a corrigendum or file reply to the notice and had published

incorrect news, which had adversely affected his reputation and profession in the estimation of others. After publication of news item, his relatives and friends severed their relationship with him

ou rt

and stopped visiting his house. Even in business, his customers started avoiding his services of shaving and hair cutting and as against 30 to 35 customers who earlier used to visit his shop,

C

hardly 10-12 customers were coming to his shop. Even his child was taunted by his school mates saying that his father was a The news item had lowered his reputation in the

h

pickpocket.

ig

eyes of his relatives living in Himachal Pradesh and Punjab and

H

they were not even ready to listen him. 13.

In cross-examination, the plaintiff admitted that the

rate list mark ‘A’ was not approved by any government department. He further stated that rates were increased with the increase of inflation and were normally increased after three years and currently the rate in force was fixed in 1998. He further stated that he did not maintain record of the shop with

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …10…

.P .

respect to number of customers visiting his shop. He further admitted that he did not keep any record of day to day income.

He further admitted that he had no documentary proof with

of H

regard to his income before Ext.PW1/A and thereafter further admitted that after publication of the news item, no relative,

friends or persons known to him had written any letter to him with regard

to publication of the news

item, Ext.PW1/A.

ou rt

However, he voluntarily stated that it is an era of telephones and many people called him over the telephone. He admitted that his name had not been published in the news item, but stated that

C

name of his shop as mentioned in the news item was “Today Hair Dresser” of which he was proprietor. He further denied the

h

suggestion that rate of shaving was Rs.5/-. He further deposed

ig

that person (Sanjay) named in the news item had never visited

H

his shop on the said date and even thereafter nor he knew any person by the said name. 14

The plaintiff examined PW2 Amar Nath, who is

proprietor of a barber shop at Saproon, Solan. He deposed that the government had not fixed the rates for services rendered by the barbers and the same were fixed through the Barber’s Union at Solan. Such rates were revised after 3-4 years. He further

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …11…

.P .

deposed that he was President of Barber’s Union and had brought the register pertaining to the resolution w.e.f. 1.9.1992. The Barber’s Union had passed the resolution dated 25.8.1998,

of H

whereby rates had been increased. He proved on record copy of rate list, Ext.PW2/A fixed by the Union. He categorically stated that the rates were never fixed by the government and were fixed by the Union keeping in view the increase of inflation.

In cross-examination, this witness feigned ignorance

ou rt

15.

regarding the news item having been published in either of the news paper and further stated that no such resolution regarding

C

this incident was recorded in the proceedings. He admitted that no meeting was held after 30.7.1996. He further feigned

h

ignorance about the relatives of the plaintiffs and their

ig

residences, rather voluntarily stated that he resides in village. He

H

further admitted that the Union had not passed any resolution nor the plaintiff had informed them about the news item. 16

The next important witness is Kanshi Ram, who

appeared as PW5 and deposed that he knew the plaintiff and his family members. He further stated that he had come across the news item published in Divya Himachal on 11.8.1999, wherein it was mentioned that Today Hair Dresser was charging excessive

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …12…

). This news item had

.P .

amount from his customers (

lowered the reputation of the plaintiff in his eyes. After reading the news item, the estimation of the plaintiff was lowered and he

of H

severed his relationship with the plaintiff. He further stated that

his family stopped visiting the house of the plaintiff, which they earlier used to visit. The villagers used to say that the plaintiff had earned a bad reputation and they would not keep any

ou rt

relationship with him. Even the relatives were discussing about the news item. 17.

In cross-examination, this witness admitted that he

C

had been visiting the plaintiff in the village and not in Solan. He further admitted that he did not have the newspaper, wherein

h

news item had been published. He admitted that he had not

ig

talked to the plaintiff or anyone else with regard to the news

H

item. He further admitted that he had no personal relations with the plaintiff and the relations were only those of a co-villager. He further stated that he severed all relations with the plaintiff after reading the news item as he believed the news item to be correct. 18

PW6,

Partap Singh, is the Medical Representative,

who deposed that he knew the plaintiff for the last 10-12 years and used to visit his house and the plaintiff in turn also used to

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …13…

.P .

visit him at his house, however, after reading the news item published in Divya Himachal on 11.8.1999, he severed his friendship with the plaintiff as it was mentioned in the news

of H

item that the plaintiff was over charging. After reading the news

item, the people used to call him by bad name and his reputation had lowered down in his estimation and estimation of many others.

Earlier he used to have his hair cutting in the

ou rt

shop of the plaintiff, but after reading the news item, he severed his relationship with him. 19.

In cross-examination, this witness admitted that after

C

publication of the news item, he had not made any endeavour to know as to why the news item was published so also to know the ” pickpocket as mentioned in the

h

meaning of expression “

ig

newspaper.

H

20

One Vikas, owner of the adjoining shop of the

plaintiff, appeared as PW7 and deposed that plaintiff being his neighbour.

he knew the

He had read the news item in

Divya Himachal in August, 1999, wherein the plaintiff had been named as “

”. He further deposed that he had been earlier

visiting the house of the plaintiff, but after reading the news item, he stopped visiting him. Earlier he had been getting his

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …14…

.P .

hair cut from the plaintiff, but that was also stopped. He further deposed that the plaintiff was now idle as very few customers used to visit his shop. He further deposed that the image of the

of H

plaintiff had been lowered down in his estimation and in the estimation of the others. 21.

In cross-examination, this witness admitted that after

reading the news item he believed that the plaintiff was having a He further admitted that he had not

ou rt

shallow character.

discussed this news item with any other. 22.

Adverting to the evidence of the defendants, it would

C

be noticed that the defendants examined one Sharda Anand Gautam, City Journalist with Divya Himachal, who deposed that

h

any news item which comes to their knowledge is initially

ig

checked

and

verified

and

thereafter

on

advice

of

the

H

correspondent, the same is forwarded for publication. The news item,

Ext.PW1/A carried in the column of Divya Himachal

newspaper in its edition dated 11.8.1999 was sent by defendant No.5 Sanjay Azad, correspondent. The news item was sent for publication after checking and verification and the same was published without any malice intention to cause damage to any person. The news item was published with the bona fide

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …15…

.P .

intention and this news had not caused any loss, mental agony and monitory loss to the plaintiff. No complaint was made with the news agency/administration in this regard. In cross-examination,

this witness categorically

of H

23.

stated that he himself had confirmed about the news item from defendant No.5 before

sending the same for publication. The

defendant No.5 had told him about the incident that had taken

ou rt

place with his friend. He admitted that he did not remember the name of such friend as told by defendant No.5. He further admitted that he was orally informed by defendant No.5 about

C

the news item, but he had not verified the same in writing. He further admitted that he had not verified this news item from

h

any other person nor any attempt was made in this regard. Sanjay Azad,

defendant No.5, appeared in the

ig

24.

H

witness-box as DW3 and deposed that he had visited the shop of the plaintiff, where he was charged Rs.8/- for shave against Rs.5, about which he had asked the person in the plaintiff’s shop, who had got his shave done. He further deposed that said person started abusing him by saying that it was his discretion whether to charge Rs.5/- or Rs.8/-. This witness further deposed that he had not seen the rate list and had to pay Rs.8/- for

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …16…

.P .

shave. He further deposed that he had told his overcharging was illegal. He sent the news item qua this incident to Divya

Himachal Daily Chandigarh and weekly ‘Nirala’, Solan, which

25.

of H

was accordingly published.

In cross-examination, this witness deposed that he

did not report the matter to the police since the said person had only abused him. He further deposed that he did not verify the

ou rt

rates and his idea was not to defame any person, but to make the people aware by publishing the news item. He was told that M/s Today Hair Dresser was charging Rs.8/- from other

26.

This is in entirety the evidence led by the parties. Now the moot question is as to whether the news

h

27.

C

customers also.

is in fact defamatory. However, before deciding the said

ig

item

H

question, it will be apposite to reproduce the said news item and the same reads as under:“ (

,

)!

! ! !

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…17…

.P .

!

!”

of H

,

28.

Winfield has defined defamation as follows:

“Defamation is the publication of statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or

ou rt

avoid that person. It is libel if the statement be in permanent form and slander if it consists in significant words of gestures.”

In view of the above definition of defamation,

C

29.

following are the essential ingredients of the tort of defamation:

H

ig

h

1. Malice. The words must have been published maliciously. 2. They must be defamatory. 3. The words must have reference to the plaintiff. 4. They must be published.

30.

Meaning

of

the

term

“defamation”

has

been

elaborately considered by the Hon’ble Supreme Court in its recent decision case titled as Subramanian Swamy vs Union of

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …18…

.P .

India, Ministry of Law and others, (2016) 7 SCC 221 wherein it was observed as under: 23. Meaning of the term "defamation"

of H

23.1. Salmond & Heuston on the Law of Torts, 20th Edn., Bata India Ltd. v. A.M. Turaz & Ors., 2013 53 PTC 536; Pandey Surindra Nath Sinha v. Bageshwari Pd.., 1961 AIR (Pat) 164, define a defamatory statement as under:-

"A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends,

ou rt

that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking member of society” 23.2. Halsburys Laws of England, Fourth Edition, Vol. 28, defines

C

'defamatory statement' as under:-

"A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of the

H

ig

h

society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business." 23.3. The definition of the term has been given by Justice Cave in the case of Scott v. Sampson, 1882 QBD 491 as a "false statement about a man to his discredit." 23.4.

Defamation,

according

to

Chambers

Twentieth

Century

Dictionary, means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Salmond:"The wrong of defamation, consists in the publication of a false and defamatory statement concerning another person without

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …19…

lawful justification. The wrong has always been regarded as

.P .

one in which the Court should have the advantage of the

personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against

of H

the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative" 1 . 23.5. Winfield & Jolowics on Torts 2 defines defamation thus:-

"Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person.

ou rt

23.6. In the book "The Law of Defamation" 3 , the term defamation has been defined as below:-

"Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name or reputation of another person."

C

23.7. In Parmiter v. Coupland, 1840 6 MLW 105 defamation has been described as:-

'A publication, without justification or lawful excuse, which is

h

calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule."

Cardie J in Myroft v. Sleight, 1921 37 TLR 646. It says:"a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which

H

ig

23.8. The definition of defamation by Fraser was approved by Mc

causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade." 23.9. Carter Ruck on Libel and Slander ( Manisha Koirala v. Shashi Lal Nair & Ors, 2003 2 BCR 136) has carved out some of the tests as under: "(1) a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …20…

shunned or avoided, or which has a tendency to injure him in

.P .

his office, professional or trade.

(2) a false statement about a man to his discredit.

(3) would the words tend to lower the plaintiff in the estimation

31

of H

of right thinking members of society generally"

It is more than settled that a newspaper is in no

different position from an individual and it cannot give currency to a defamatory statement and escape upon the ground itself that it did not believe

ou rt

that, it showed

that which it had

published. That may have some bearing on the question of damages

but

not

upon

the

question

of

liability.

The

responsibility in either case is the same. The degree of care and

C

attention is in no way less in the case of newspaper publications other than that required from ordinary men.

h

32

There can be no doubt that fair comments upon any

ig

matter of public interest in which are included the publications

H

in a newspaper are protected publications in the absence of malice. 33

As per Lord Shaw: “A newspaper has the right and no

greater or higher right to make comment upon a public officer or a person occupying a public situation than an ordinary citizen”. (Langlands v. John Leng Ltd., 1916 S.C.(H.L.) 102 at p. 110).

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …21…

A newspaper has no privilege beyond any other

.P .

34

member of the community in commenting any matter of public

interest and no privilege whatsoever attaches to his position.

of H

When the defendant in a case for damages, takes the plea of fair

comment, he is not required to justify the comment and it is sufficient

for him if he can satisfy the Court that it is “fair”

comment. If the words complained of, are justified as comment

ou rt

and the words also contain allegations of fact, the defendant is required to prove that such allegations of fact are true and it is not sufficient for him to plead that he bonafide believed them to

C

be true. In other words, the distinction between comment and allegations of fact must always be borne in mind in determining

h

whether the plea of fair comment can be sustained. As regards the publication by the editor, printer and

ig

35

H

publisher, it is the duty of an editor of a newspaper to check up the news of the information that is supplied to him, before publishing

the same in his paper, especially when the news

might be defamatory would make the editor responsible for publishing any defamatory material in his paper. 36

As regards the publisher, he would be liable for every

publication, wherein any imputation concerning another person

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …22…

.P .

intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the other person and would be guilty of defaming the other person.

Coming to the duties and rights of the journalists,

of H

37

the journalist like any other citizen has the right to comment fairly and if necessary, severally on a matter of public interest, provided that the allegations of facts he has made are accurate defamatory

ou rt

and truthful, however,

they may be otherwise.

Since his right to comment on matters of pubic interest is recognized by law the journalist obviously owes an obligation to

C

the public to have his facts right. Where the journalist himself makes an investigation, he must make sure that all his facts are

h

accurate and true, so that if challenged, he would be able to

ig

prove the same, so that the public interests are better served in

H

that

way.

(Rustom

K.

Karanjia

v.

Krishnaraj

M.D.

Thackersey, AIR 1970 Bom. 424 at p. 433) 38

Now as regards proof of cases of journalist, to bring

publication of a scandalous imputation under the penal law, it is not necessary to prove that it was done out of any ill-will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …23…

harm the reputation of the complainant.

.P .

or had reason to believe that the imputation made by him would Every sane man is

presumed to have intended the consequences, which normally

1964 K.L.T. 317 at p. 330) 39

of H

follow his act. (G.Chandrasekhara Pillai vs. G. Raman Pillai,

The newspapers are subject to the same rules as for

other media, and have no special right or privilege, and in spite

ou rt

of the latitude allowed to them, it does not mean that they have any special right to make unfair comments, or to make imputations upon the character of a person, or imputations

C

upon or in respect of a person’s profession or calling. (Mitha Rustomji Murzban vs. Nusserwanji, AIR 1941 Bom. 278 at

h

p. 283)

It is the duty of a journalist to only publish

ig

40

H

complaints which he is satisfied are true. If he publishes complaints of a defamatory nature, which are not true he must suffer the consequences. A journalist who publishes a statement about an individual is in the eyes of law precisely in the same position as is any other person. He is not specially privileged as to what he may say. But, on the other hand, he undoubtedly has a greater responsibility to guard against untruths; for the simple

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …24…

.P .

reason that his utterances have a far larger publication, than the utterances of an individual, and they are more likely to be believed by the ignorant by reason of their appearing in print.

of H

(Khair-ud-din vs. Tara Singh, AIR 1927 Lah. at pp. 22-23) 41

It is legitimate function of all newspaper in a

democratic set up to act as champions of a clean administration and sentinels of public interest, and as such they are well within

ou rt

their rights to expose and bring to the notice of the general public any lapse or malpractice in the administration including that of nepotism and favouritism. Where there is a genuine case

C

of favouritism and nepotism, a newspaper by bringing it to the notice of the general public would be acting for the public good. It is thus needless to emphasize that a free and

h

42

ig

healthy press is indispensable to the functioning of a true

H

democracy. In a democratic set up there has to be an active and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider and form broad opinion about the same and the way in which they are being managed,

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …25…

and

administered

by

the

Government

and

its

.P .

tackled

functionaries. To achieve this objective the people need a clear

and truthful account of events, so that they may form their own

of H

opinion and offer their own comments and viewpoints on such matters and issues and select their further course of action. The primary

function,

therefore,

of

the

press

is

to

provide

comprehensive and objective information of all aspects of the

ou rt

country's political, social, economic and cultural life. It has an educative and mobilizing role to play. It plays an important role in molding public opinion and can be an instrument of social

C

change. It may be pointed out here that Mahatma Gandhi in his autobiography has stated that one of the objectives of the

h

newspaper is to understand the proper feelings of the people and

ig

give expression to it; another is to arouse among the people

H

certain desirable sentiments; and the third is to fearlessly express popular defects. It therefore turns out that the press should have the right to present anything which it thinks fit for publication. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of speech and expression would amount to an uncontrolled license. If it

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …26…

.P .

were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood

as to be a press free to disregard its duty to be responsible. In

of H

fact, the element of responsibility must be present in the conscience of the journalists. In an organized society, the rights

of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency,

ou rt

morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings. If a newspaper publishes what is improper,

C

mischievously false or illegal and abuses its liberty it must be punished by Court of law. (See. In re Harijai Singh and another, )

h

The editor of a newspaper or a journal has a greater

ig

responsibility to guard against untruthful news and publications

H

for the simple reasons that his utterances have a far greater circulation and impact than the utterances of an individual and by reason of their appearing in print, they are likely to be believed by the ignorant. That being so, certain restrictions are essential even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez to the Economic and Social Council of the United Nations" If it is true that human

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …27…

.P .

progress is impossible without freedom, then it is no less true that ordinary human progress is impossible without a measure of regulation and discipline. It is the duty of a true and

of H

responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of

ou rt

the news should be truthful, objective and comprehensive without any false and distorted expression. (Surya Prakash Khatri vs. Madhu Trehan, 2001 (92) DLT 665) A large number of people tend to believe as correct

C

43

that which appears in the print or electronic media and for these

h

reasons alone, the mass media has to be circumspect while

ig

dealing with news. (Rajendra Sail vs. M.P. High Court Bar

H

Association, (2005) 6 SCC 109) 44

It cannot be denied that over the years, the

newspapers reach persons of all categories irrespective of age, literacy and their capacity to understand or withstand and impact

of

what

phenomenal. telecast

is

published

Unfortunately,

this

therein

on

the

uncontrolled

or

society

is

unedited

or propagation of news is resorted to in the name of

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …28…

.P .

exercise of right to freedom of speech and expression, or freedom of press and it is for this précised reason that the Press Council

of India on 21.1.1993 had issued following guidelines for

of H

guarding against the commission of the following journalistic improprieties and un-ethicalities:

1. Distortion or exaggeration of facts or incidents in relation to communal

matters

or

giving

currency

to

unverified

rumours, suspicions or inferences as if they were facts and

ou rt

base their comment, on them.

2. Employment of intemperate or unrestrained language in the presentation of news or views, even as a piece of literary flourish or for the purpose of rhetoric or emphasis.

3. Encouraging or condoning violence even in the face of provocation as a means of obtaining redress of grievance

C

whether the same be genuine or not.

4. While it is the legitimate function of the Press to draw

H

ig

h

attention to the genuine and legitimate grievance of any community with a view to having the same redressed by all peaceful legal and legitimate means, it is improper and a breach of journalistic ethics to invent grievances, or to exaggerate real grievances, as these tend to promote communal ill-feeling and accentuate discord.

5. Scurrilous

and

untrue

attacks

on

communities,

or

individuals, particularly when this is accompanied by charges attributing misconduct to them as due to their being members of a particular community or caste. 6. Falsely giving a communal colour to incidents which might occur in which members of different communities happen to be involved.

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …29…

7. Emphasizing matters that are apt to produce communal

.P .

hatred or ill-will, or fostering feelings of distrust between communities.

8. Publishing alarming news which are in substance untrue or

of H

make provocative comments on such news or even

otherwise calculated to embitter relations between different communities or regional or linguistic groups.

9. Exaggerating actual happenings to achieve sensationalism and publication of news which adversely affect communal harmony with banner headlines or distinctive types.

10. Making disrespectful, derogatory or insulting remarks on or

ou rt

reference to the different religions or faiths or their founders.

45

In India, since we have a written constitution, it is

C

recognized that freedom of speech is not an absolute unlimited right. Article 19(2) provides reasonable restrictions on what is

h

guaranteed by article 19(1)(a). Therefore, the mass media must

ig

maintain high professional standards and are obliged to verify the correctness of the news disseminated. Publication of false

H

news cannot be regarded as a public service, but a disservice to the public. Publication of very bit of news does not necessarily serve the public interest. 46

Adverting to the facts, it would be noticed that it was

the specific case of the plaintiff in the pleadings as also in the evidence so led in support thereof that he had displayed the rate

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …30…

.P .

list issued by the Barber’s Union, Solan on 1.9.1998, wherein the rate for ordinary shave had been fixed @ Rs.8/- and for

special shave @ Rs.12/-. Similar rates for hair cutting, shampoo,

of H

massage etc. had also been fixed. It was further his case that the

rates determined by the Barber’s Union were applicable to all the barbers of the Union, who were running the shops within vicinity of Solan Town. Here, it shall be apt to reproduce para 2 of the

ou rt

plaint, which reads thus:

“That there is a Barber’s Union in Solan and the plaintiff is a member of the said union. The union fixes the rates of hair cutting, shaving, massaging, shampoo etc. and rate

C

list duly fixed and approved by the Barber’s Union is being

H

ig

h

issued to the members thereof accordingly. The plaintiff is also in possession of the rate list being issued by the Barber’s Union on 1.9.1998 which is duly signed by the President of the Union and the same is displayed in the shop.

The rates are fixed separately

for different

categories of services rendered. The rate of simple shaving ahs been fixed at Rs.8/- and for special shave the same has been fixed at Rs.12/- by the Union since 1.9.1998 and similarly, rates for hair cutting, shampoo, massage etc. have been fixed accordingly. The rates as decided and

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

WWW.LIVELAW.IN …31…

.P .

fixed by the Barber’s Union are applicable to all the members of the union who are running their shops within the vicinity of Solan town.”

Now, it would be noticed that save and except

of H

47.

denying the said averments made in the plaint, there is no explanation offered by defendants No. 1 and 2 as would be evidently clear from the perusal of para 2 of the written

ou rt

statement, which reads thus: “That the contents of para No.2 denied for want of knowledge. The plaintiff is required the strict proof of the same.”

Likewise, even the other material averments made in

C

48.

the plaint, more particularly, with regard to loss of face and

h

reputation of the plaintiff have simply been denied.

ig

49.

As already observed above, the plaintiff has led

H

sufficient evidence to prove that the rate list issued by the Barber’s Union, Solan, had been duly displayed by him in his shop wherein the rate of simple shave as fixed by the Barber’s Union was Rs.8/- and for special shave was Rs.12/-, whereas in news item, Ext.PW1/A, published by defendants No. 1 and 2 and authored by defendant No.5, it has been specifically mentioned

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…32…

the

.P .

that the rate of shave was only Rs.5/- and, therefore,

plaintiff was fleecing the general public. However, the defendants

have led no evidence in support of such plea. Therefore, having

of H

failed to lead evidence with regard to rate of shave, that might have been fixed by any competent authority obviously, the news

item, Ext.PW1/A is clearly defamatory as it is not based on accurate and truthful facts.

After all, as I have already observed above, a

ou rt

50.

journalist in commenting any matter of public interest has no special privilege beyond any other member of community and it

C

was the duty of the publisher and editor to check the news of information that was supplied to them by defendant No.5 before it

h

publishing the same in the newspaper. In addition thereto,

ig

would be noticed that even though the author of the news item,

H

i.e. defendant No.5 appeared as DW3, yet he did not lead any evidence in support of his claim to prove that the rate of ordinary shave was Rs.5/- as against Rs.8/- that had been charged by the plaintiff. It shall be apposite here to reproduce the relevant portion of his statement, which reads thus:“I got myself shaved from the plaintiff. I do not know who performed the shaving. After the shave I was

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…33…

.P .

required to pay Rs.8/- for shaving work. I told him that rate is Rs.5/- why he was charging Rs.8/-. I do not know the person, but he stated abusive and told

of H

that it was his discretion whether to charge Rs.5/- or Rs.8/-. I did not see the rate list but the person

present in the shop had started abusing. I had to pay Rs.8/-. I had told him that his over charging was

ou rt

illegal. I sent this news item to Divya Himachal Daily Chandigarh and Weekly Nirala, Solan. The news was published. I did not have any ill will against M/s

51.

C

Today Hair Dressers.”

In his examination in chief, the plaintiff deposed that

h

he had published the news item only because he felt that the

ig

plaintiff had charged more than the fixed rates from him,

H

however, while being cross-examined he has specifically stated that he had not verified the rates of shave and his idea was not to defame

any person, but to make the people aware by

publishing the news item. Therefore, in absence of any material, whereby it can be gathered that the rate of simple shave was Rs.5/- and not Rs.8/- as was charged by the plaintiff, it can safely be inferred that defendant No.5 wanted undue favour by

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…34…

.P .

paying less and when the plaintiff insisted for the rate as fixed by the Barber’s Union, he tried to teach him a lesson by publishing the news item which obviously had then been published with

of H

malice and clear intent or else there was no reason for defendant

No. 5 to have not substantiated his claim by placing on record some material, which could have gone a long way to prove his bona fides.

Even though, this court finds it difficult to agree with

ou rt

52.

the findings of the learned trial court when it holds the plaintiff to have been defamed in the news item by being called as

C

pickpocket as it was not so, yet I see no reason to differ with the ultimate result and analysis of such findings as admittedly the

h

news item is false and it does refer to some serious mis-

ig

demeanour on the part of the plaintiff, whereby he was accused

H

of overcharging and fleecing his customers and the same is obviously

defamatory.

Such

wanton

and

reckless

unsubstantiated allegations have to be held defamatory. 53.

In addition thereto, it would be noticed that malicious

intent of defendant No.5 was absolutely clear when he abused his profession being a journalist by taking undue advantage and published a similar defamatory article in

‘Nirala’ weekly under

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…35…

”. Such unsubstantiated

.P .

the caption “

allegations obviously amount to defamation as it was the duty of the defendants to ensure that was being sought to be published

pubic to have its facts right.

of H

was accurate and truthful. A journalist owes an obligation to the

The allegations in news item,

Ext.PW1/A are scandalous and have obviously been made out of ill-will and malice and, therefore, it can be held that defendant

ou rt

No.5 knew the consequences thereof because every sane man is presumed to have intended the consequences, which normally follow his act. After all, he i.e. defendant No.5 did not enjoy any

C

special privilege, but rather had a greater responsibility to guard against untruth and that being so, he has to suffer the

h

consequences of acts along with defendants No. 1 and 2. It would be further noticed that Sharda Anand

ig

54.

H

Gautam, who happens to be City Journalist with Divya Himachal while being examined as DW1 has categorically stated that the incident that had been reported in the newspaper had in fact taken place with one of friends of defendant No.5, while this is not even the case of the defendant No.5, who in his examination in chief has clearly admitted that incident in question had taken

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…36…

.P .

place with him as is clearly evident from his statement as reproduced above. Cross Objections No. 275/2003:

Now, adverting to the cross-objections, it is more

of H

55.

than settled that no amount of money can compensate a person’s

reputation.

Normally

even

in

the

cases

where

defamation is proved only a token compensation is awarded, but

ou rt

that does not mean that a person is not entitled to live with dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to an individual by Part III of the

C

Constitution of India. Dignity is the core issue, which unites the fundamental rights because the fundamental rights seek to

h

achieve for each individual the dignity of existence. Dignity has

ig

both an intrinsic and instrumental value, yet dignity can never

H

be satisfactorily defined as it can be experienced and is only felt. It is difficult to define the dignity and has to be left in abstracts. 56.

In such like cases, it is not easy to quantify the

damages because the case property involved i.e. reputation is an intangible form of the property. The token damages are more of symbolic character. Therefore, to my mind the amount of

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP

…37…

.P .

Rs.10,000/- as awarded by the learned trial court calls for no interference. 57.

Having said so, I find no merit in this appeal as also

of H

in the cross-objections and the same are accordingly dismissed

leaving the parties to bear their own costs. The pending

ou rt

application(s), if any, also stands disposed of.

(Tarlok Singh Chauhan) Judge

11th December, 2017

H

ig

h

C

(pankaj)

::: Downloaded on - 12/12/2017 22:39:58 :::HCHP