Sadasivan, J. -
(1.) APPELLANT Thiru P. Ramaswami, was the Editor, Printer, and Publisher of the Tamil Daily "Nathigam" on the relevant date, namely 27th March 1969, when the defamatory article Ex. P -3 (a) was published in the Daily Ex. P -3, under the caption "Accounts of Minister's Assests". The material part of the article is to the effect that Thiru Karunanidhi. who does not come from a wealthy family, had disclosed in his income tax returns that he has properties worth Rs. 57 lakhs, that he must have acquired this 57 lakhs, only after he became Minister of Public Works, because before that he was in very poor financial circumstances and he could not have earned this amount from his work in films, before he became a Minister, that after becoming the Chief Minister, the financial position of the State has not improved, but that his own financial position has improved greatly to the cavy of some D.M. K members and that he owns a building in Mount Road, a fine hotel in Aminilkarrai and some houses la Thousand Lights.
(2.) THE above allegations are per se defamatory. The City Public Prosecutor, Madras, filed a complaint under S. 198 -B Crl. P.C., against the appellant under S. 500 I. P.C. after obtaining the sanction, Ex. P -2 from the Secretary to the Council of Ministers. The learned Sessions Judge, Madras Division, accepted the prosecution case, convicted the appellant under S. 500 I.P. C. and sentenced him to R. I for three months and to pay a fine of Rs. 1,000, or is the alternative, to S.I. for three months. Thiru C.K. Venkatanarasimham appearing for the appellant urged only one point, namely, that the appellant is entitled to the benefit of Exception 9 to S. 499, I. P.C. In order to benefit of that exception, the appellant should prove that he acted in good faith. It is clearly stated in S. 52, I.P. C. that nothing is said to be done or believed in good faith, unless it is done after due care and sanction. It is quite clear from the evidence of P.W. 4, Thiru Seshadri, the Incometax Officer who dealt with the the Incometax returns filed by White Karunanidhi and who is the officer who should have dealt with his wealth tax, return; If he was liable to pay wealth tax, as wall as the evidence of P.W. 5 Thiru Jagadeesan, the Chartered Accountant, who prepared and submitted the incometax returns on behalf of Thiru Karunanidhi, that the statement in Ex. P -3 (a) that Thiru Karunanidhi has filed Incometax return showing that he has properties worth Rs. 57 lakhs la totally false. In fact, no attempt was made by the learned advocate for the appellant, to show that either the statement was true, at that the appellant, after bona fide enquiries, believed it to be true. Even during his examination under S. 342 Crl. P. C, the appellant Merely stated that the object of his publishing Ex. P -3 (a) was to compel Thiru Karunanidhi and other Ministers to file their property statements in the Legislature as promised by the mearlier. He examined himself as a defence witness. Even in his evidence, he has made no attempt to justify the statements in Ex. P -3 (a) on the ground that they are true or at least on the ground that he made bona fide enquiries and satisfied himself about the truth of the same. During his examination under S. 342 Crl. P. C the appellant has stated vaguely that Thiru Karunanidhi has purchased properties in the name of others, without disclosing specifically the individuals in whose name he has so purchased the properties.
(3.) THE learned advocate for the appellant commented on the fact that Thiru Karunanidhi has not been examined as a witness in this case. Ordinarily, it is open to anyone, whether aggrieved or not, to file a complaint in a criminal case. But in order to discourage frivolous prosecutions, it is provided in the Criminal Procedure Code, that courts shall not take cognisance eve certain offences unless the complaint is made by some person aggrieved by the offence. Thus in a case of defamation punishable under Chapter XXI, I.P. C. S. 198 Crl. P. C, specifically provides that no court shall take cognizance of an offence except upon a complaint made by some person aggrieved by such offence. S. 198 -B, Crl. P. C, however makes prevision for the Public Prosecutor to prefer a complaint in a Court of Session for the prosecution of the offence of defamation against the President or the Vice President or the Governor, or a Minister or any other public servant, in respect of his conduct in the discharge of his public functions. But Clause (5) of S. 198 -B provides a safeguard that the person supposed to have been wronged should be available as a witness in the case, to be cross examined. Even if his public duty prevents such high dignitary from coming to court without detriment to his public functions, there could be no difficulty for his being examined on commission. The failure to give due effect to the provision may lead to miscarriage of justice. If the Public Prosecutor does not examine the person against whom the offence is alleged to have been committed and the court considers that the evidence of the witness is necessary, there will be no alternative, but to acquire the accused. But S. 191 -B (5) Crl. P. C, provides that the court shall examine the person against whom the offence is alleged to have been committed, unless for reasons to be recorded, it directs otherwise.;