CHHANGANI, J. - (1.)PETITIONER Durga Pershad Choudhary was convicted by the Additional Munsif-Magistrate, Ajmer City, Ajmer, of an offence under sec. 500, Indian Penal Code, and was sentenced to one year's simple imprisonment and a fine of Rs. 1,000/- vide his order dated 27th March, 1965, in Criminal original Case No. 24 of 1962. On an appeal by the petitioner, the Sessions Judge, Ajmer, maintained the petitioner's conviction but reduced the sentence to a fine of Rs. 250/-; in default, to one month's simple imprisonment. The petitioner has approached this Court in revision to challenge his conviction and sentence. The relevant facts may be stated as follows: -
(2.)ONE Vishwadeo Sharma, proprietor, Aditya Mudranalya, Ajmer, filed a complaint, on 21-6-1961, against the petitioner under sec. 500, Indian Penal Code, on the allegation that the accused-petitioner, publisher, printer and editor of the daily "navjyoti' published and printed certain matters concerning the complainant under the caption "press Karamcharyon men asantosh" on the back page of daily Navjyoti dated 23rd of May, 1961. The complainant alleged that the allegations of facts printed were false and defamatory and were published with intent, knowledge and belief that the same would harm the reputation of the complainant. The statement in the Navjyoti in respect of which the petitioner was prosecuted, as translated into English by the Sessions Judge, reads as follows: - "discontentment AMONG PRESS EMPLOYEES" These days press employees of Ajmer are being very much ill-treated. Such news has been learnt by us from a statement from press employees. It has been stated in a joint statement of these persons that unless some effective steps are taken against some press owners among whom Aditya Mudranalaya, Adarsh Press are worth mentioning, the economic condition of press workers of Ajmer would become all the more pitiable. The aforesaid press owners are bent upon annihilating the labour and they wish that press workers should not put forward their reasonable demands and should not even complain against ill-treatment meted out to them. There are many instances to support this. Recently, Shri Vishwadev Sharma, proprietor of Aditya Mudranalaya withheld payment of wages of three employees in spite of notice by them. On protest by certain other persons against this, the said gentleman (Mahashya) abused them and also told them that he would do as he pleased and that they might do whatever they desired. Further, he told them that he would not make their payment. Not only this, the proprietor of Aditya Mudranalaya went to the extent of telling these persons that they would be turned out by force and they should go to the Court if they wanted payment. There are many such incidents by the said press owners with the labour. There are some instances of press workers being turned out without serving them with notices while there are others where many workers have been forced to work in spite of service of notices by them. In Ajmer, there are so many such workers who are unemployed The main reason for this is that the said press owners behave in a dictatorial (Nadirshahi) manner by calling Railway employees in the night to work at lower rates. They assure them that no harm would befall them. This has resulted in making railway employees take leave from their workshops and work on election lists day and night. The result of this is that many press workers who depend on this work have become unemployed. They are not paid wages at the rate which should be given to them. It is also stated that a large number of these employees have presented a petition to the Collector, Superintendent of Police & Railway authorities with their signatures for enquiry into their complaint of tyranny.
The complainant examined himself and one witness on 15-9-1961 in support of the complaint. The accused was examined under sec. 342, Criminal P. C. on 16-9-1961. In that statement, he denied that he was editor, printer and publisher of the daily "navjyoti" and further denied that he printed or published the impugned statement. A charge under sec. 500, Indian Penal Code, was framed against the accused on 8-10-1961. The accused pleaded not guilty. The complainant and his witnesses were further cross examined under sec. 256, Criminal P. C. The complainant further examined Devi Singh (PW/3), Daulatram (PW/4), Kailash Barnwal (PW/5) and Jagdish Prasad (PW/6) and closed his evidence. The accused was again examined on 3-6-1964. He admitted his signatures on Ex. P-2 original declaration under the Press Act and on Ex. P-3 an application for the certified copy of the declaration. He thus admitted to be the printer, publisher and editor of the paper "navjyoti. "

The accused examined Gopalsingh (DW/1), Har Prasad (DW/2), Ramesh Chandra (DW/3 ). Om Prakash (DW/4) and Babu Lal (DW/5) in his defence.

The trial court found that the portion marked X to Y and G to D in the statement were defamatory of the complainant and convicted him under sec. 500, Indian Penal Code. The appellate court affirmed the conviction, although it reduced the sentence.

Mr. M. D. Bhargava appearing for the petitioner contended, in the first instance, that the petitioner could not be held responsible for the printing and publication of the statement in the Navjyoti and relied in this connection upon the statement of Gopal Singh as DW/1 has stated that he was the city correspondent of the Navjyoti daily paper and that some compositors of Ajmer presented a petition marked "o", and that after scrutiny he prepared the draft Ex. D/l and gave it to Navjyoti for publication. He further stated that the accused-petitioner was not present at Ajmer in those days. On the basis of this statement, it was contended that the alleged statement was published in the absence of the petitioner, and, therefore, the petitioner could not be held liable. Reliance was placed in this connection upon State vs. D. Packiaraj (l), Emperor vs. Mohammad Siraj (2) and Narayan Singh vs. Rajmal (3 ).

In State vs. D. Packiaraj (l), it was satisfactorily established that the editer was on leave and had entrusted his duties to a responsible person who had accepted the full responsibility for the publication of the libel and on these findings the editor was not held criminally liable even though the editor led no evidence to show that he was on leave when the libel was published.

In Emperor vs. Muhammad Siraj (2) the Allahabad High Court laid down the following principle : "absence from the place of printing in good faith, and without knowledge of the seditious articles, would be sufficient evidence to the contrary, but not absence in bad faith. When the declared printer of a newspaper pleads absence in good faith, he should prove who was in fact the printer of the newspaper in his absence. "

In Narayan Singh vs. Rajmal (3) the editor was absent from duty for a bonafide purpose and the work of editing was entrusted to a subordinate who occupied the position of a sub-editor. In this state of facts, it was held that the presumptive liability of the editor stood displaced and the editor was not held guilty under sec. 500, Indian Penal Code.

The decisions in the three cases rest on facts and the principles of these cases cannot govern the present case for the reasons given below.

When the accused petitioner was initially examined on 16-6-1961 under sec. 342, Criminal P. C. he even denied that he was the editor, publisher or printer of the Navjyoti daily paper. He also denied having got the statement published in the daily Navjyoti. He did not at that stage take the specific plea that even though he was the editor of the paper, he had nothing to do with the publication of the impugned statement and that he was absent from Ajmer on the date of the publication and that some other person was responsible for the publication of the statement. Even when he was examined on 3-6 64 he did not take any such plea. Ofcourse, he examined Gopalsingh (DW/1) who made a statement as detailed above and which is now being availed of for the above contention. Gopalsingh in his statement-in-chief merely described himself as a city correspondent and further stated that in the relevant period the accused petitioner was not at Ajmer. When cross examined, the witness stated that he could not say where the accused-petitioner was during the relevant period. He could not further say how many days before he left Ajmer and how many days after he returned. He also admitted that he was not the editor of the paper, although he added that he edited the news relating to Ajmer City and was entitled to get them printed and published in the paper without showing to the editor. He admitted that he had an instrument in writing giving him the above powers but the same was not produced. The two courts below did not rely upon the evidence of Shri Gopal Singh (DW/2 ). Having regard to the fact that the accused in his statements did not take any plea based upon his absence from Ajmer on the date of the publication of the statement and the features in the evidence of Shri Gopalsingh (DW/2) as noticed above, I am unable to place any reliance upon his evidence. Reference in this connection also deserves to be made to the following observations appearing at page 2, para 3 of the judgment of the Sessions Judge : "it seems that at later stage in the trial court, it was not contested that the accused was editor, printer and publisher of Navjyoti and that he printed and published the impugned statement. In this Court also, this position has not been disputed. " The petitioner having joined no controversy as to his responsibility for the printing and publishing of the statement, in the first appellate court, his contention is not at all tenable on this additional ground also.

Next, it was contended by Shri Bhargava that even though the accused is held responsible for the publication of the statement yet he is entitled to acquittal having regard to some of the Exceptions to sec. 499, Indian Penal Code. On the basis of some evidence led by him that the news item had been published after some care and attention by Gopal Singh he relied upon Exceptions to sec. 499, Indian Penal Code, in the lower appellate court. The Sessions Judge, after reviewing the evidence held that the allegations made in Ex. P-l that the complainant has withheld payment of wages of three of his employees in spite of notice by them, that on protest by certain other persons the complainant abused them and threatened them that they would be turned out by force had no foundation and were false. He further held that there was also no foundation that the complainant behaved in a 'nadir-shahi' manner by calling railway employees in the night to work at lower rates. He held that all these allegations were per se defamatory. It was also held that these statements were not published in good faith. On these findings, the first appellate court did not hold the petitioner entitled to the benefit of Exception 9 to sec. 499, Indian Penal Code, and maintained the conviction.

Challenging his conviction and the findings of the Sessions Judge, the learned counsel for the petitioner contended that there are some matters justifying an inference of withholding of wages by the complainant. In this connection, he emphasised the contents of Ex. P-4. It was further submitted that it was not obligatory for the accused to prove the absolute accuracy and literal truth of the statement and that on proof of substantial truth of the allegations the petitioner is entitled to acquittal. In other words, besides relying upon the truth of the allegations and that the publication was for the public good, he relied upon the principle relating to fair comment. Reference was also made to a journalist's right to disseminate news and views on matters affecting the public good. I went through relevant law including cases relating to alleged rights, privileges, duties and responsibilities of the news papers in respect of the publication of news item as also cases relating to the doctrine of fair comment. Without entering into a detailed discussion of these cases, I may sum up as follows the principles deductible from these cases : (1) That no kind of privilege attaches to the Profession of Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and his privilege is not higher than that of members of the public. The range of his assertions, criticisms or comments is as wide as, and no wider than, that of any other subject. (2) Even so, in the context of a welfare State aiming at social and economic justice to all one cannot afford to ignore the role of a news paper editor as a people's agent zealous to give outlet to public feelings, analyse public opinions and to ventilate public grievances to counteract complacency and above all, to create and educate healthy public opinion conducive to public welfare and it will be proper to bear in mind this consideration in judging factually the liability of the newspaper editor and its extent. In this connection, the observations of Sarjoo Prosad J. in Deobrat Shastri vs. Rang Bahadur Singh (4) may be quoted - However, "a news paper editor has a duty to ventilate abuses, and if an official is remiss in the discharge of his duties, a newspaper would be absolutely within its rights in publishing facts even derogatory to such official. But it must be said at the same time that the editor or publishers of the newspaper must get hold of probable facts. They should be watchful not to publish defamatory attacks upon individuals unless they have taken reasonable pains to ascertain that there are good grounds for believing the information sent to them to be true; in other words, they must act with due care and attention. But in judging the conduct of a newspaper editor a Court of law cannot weigh the materials too finely in the balance, and has to excuse a little exaggeration here or a small innuendo there. Newspapers are like the proverbial watch-dogs of national interest and public welfare. They may sometimes have to bark even on false alarm but the alarm must be there. The smile is not very felicitous but is at any rate quite expressive. " (3) The defence of fair comment applies only to expressions of opinion or imputations on character and not to assertion of facts. If the aspersions of facts are in themselves defamatory they can be justified only by their truth and publication for public good and with reference to Exceptions and a genuine belief in the reality of aspersions can be of no avail and no defence of fair comment can possibly arise. (4) If the opinion or imputations on character purport to be based upon and are integrally connected with facts, the person claiming benefit of exceptions must prove those facts. It is not enough for him to say that he believed those facts "fair comment" cannot justify a defamatory statement which is untrue in fact. A comment cannot be fair which is built upon facts which are not truly stated.

(3.)JUDGING the case in the light of the observations, I may say that the only material relied upon by the petitioner's counsel in support of his plea of the truth of the allegations is the receipt Ex. P-4 signed by Omprakash. The learned counsel emphasised the expression "unchit thanukhua" appearing in the receipt and contended that this expression shows that the wages of Omprakash must have been with held by the complainant. I do not find any justification for inferring a conclusion as to the withholding of wages from such a casual expression particularly when Omprakash as one of the defence witnesses admitted having received his wages in full. The truth of the allegations having not been established, the petitioner cannot claim the benefit of Exception I, the question of the public good apart.
As to the defence based on fair comment, I am clearly of the opinion that the accused cannot avail of it. In the present case, the allegations of facts are per se defamatory and the petitioner is prosecuted not for mere expression of opinion but also for the defamatory allegations of facts. As such, the pensioner cannot rely upon the defence of fair comment. It may also be added that in order to avail of the benefit of fair comment, the accused-petitioner must establish good faith and with reference to Exception 9 either the protection of his own interest or the interest of some other person or the public good. The first appellate court after a careful review of the evidence has arrived at the conclusion that the petitioner failed to prove good faith and I agree with that conclusion. There is no evidence to show that the accusation was made to protect the accused's own interest or the interest of some body else or the public good. Above all, it is remarkable that the accused-petitioner himself took no such defence in his statement at any stage and I very much doubt whether such a defence can be inquired into in the absence of express pleading. The contention of the learned counsel, therefore, has no substance and is rejected.

In the end, the counsel for the petitioner submitted that the burden to prove the Exception is not so onerous as the burden on the prosecution to prove the case. I agree and need only refer to in this connection the following observations made by the Supreme Court in Harbhajan Singh vs. State of Punjab (5) : "there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the prosecution has discharged its onus of proving the guilt of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where he is called upon to prove that his case falls under an Exception, law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. " However, considering the facts and the circumstances of the present case, I must hold that there is no reliable and acceptable evidence in support of the truth made in the statement the subject matter of prosecution and it is not a case where the accused can be said to have discharged the burden even of the type referred to in the Supreme Court's observation.

The conviction of the petitioner is justified and calls for no interference. The sentence is by no means excessive. The revision petition is dismissed. .

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