G. NARASIMHAN ETC & Ors. v. T. V. CHOKKAPPA

M. Sri11ivasa Gopa/an, T. S. Rangarajan and Saroja Gopa/a Krishrum, for the appellants (in Cr. A. No. 18/72). Frnnk Anthony and W. C. Chopra, for the respondent in Cr. A. No. 18;72. M. C. Chag/a, A. R. Ramanolhan and Saroja Gopalakrislman, for the appellants (in Cr. As. Nos. 53 and 54/72). S. Doraiswami and A. Subhashini, for the respondent (in Cr. As. Nos. 53 & 54/72). The Judgment of the court was delivered by leave, SHELAT, J.-These appeals, founded on special directed against the judgment of the learned Single Judge of the High Court of Madras dismissing the applications appellants for quashing charges under ss. 500 and 501 of the Penal Code framed by the Presidency Magistrate, Madras. The com mon question raised in all these appeals is whether the respondent (the original complainant) was an aggrieved person competent to file the said complaints within the meaning of s. 198 of the ·Code of Criminal Procedure read with s. 499, Explanation (2) ol the Penal Code. filed by The complaint came to be filed in the following circumstances : The Dravida Kazhagam· a party having a platform for social reforms, has, according to counsel for the respondent, a member ship of about 4000 persons in Madras city and elsewhere. The aims and objects of the party are to bring about social reforms and in pa1ticular to eradicate certain customs and practices, which, ac cording to its promotors, are sheer superstitions. The party spon sored and organised a conferance, which held its sessions on Jan uary 23 and 24, 1971. The conference passed a number of resolu tions, the one relevant for these appeals was, as translated in Eng !i,h 1'v the High Court, as follows : "It should not be made an offence for a person's wife to desire another man." 8 c D E F G H I G. NARASIMHAN V. T. V. CHOKKAPPA (She/at, J.) A The object of this resolution, according to the respon~ent, was to achieve total emancipation of women and to establtsh absolute equality in social life between men and women. .. r B c D E F G ' ' H The appelants are and were at the material time the editors and publishers of three daily newspapers, the Dinmani, the Hindu and the Indian Express, all printed and published in Madras. In the issues of January 25 and 26, 1971 there appeared in the Hindu, 1s also in the other two papers, a news item under the caption ··Demonstration against the Obscene Tableau" in which among other things was published the following : "The Conference passed a Government to take suitable steps to see another man's wife is made an offence under Penal Code." resolution requesting the that coveting the India!\ The news item emanated firom a report from a corespondent, dated January 24, 1971. The news item reported that about 300· persons had staged a black flag demonstration against the pro cesssion taken out in connection with the said conference in which tableau alleged to be obscene and depicting certain Hindu deities and mythologlcal figures formed part. The processionists shouted anti-God slogans, which were replied to by the demonstrators with counter slogans. The news item further reported that E. V. Rama swami Naicker, the leader of the Dravida Kazhagam, seated in a tractor, was at the rear of the procession. He also presided over the said conference which was inaugurated by one C.D. Naidu. Th~ respondent's case was that what came to be published in the said news item was not the actual resolution passed by the conference. but the reverse of it. But the news item stated that it was the con ftre!1£e and not the Dravida Kazhagam which had passed resolution set out in it as aforesaid. On January 28, 1971, the respondent, signing as the chairman of the reception committee of the said conference, called upon the editor of the Hindu to publish a correction and clarification stat ing that the resolution published in that daily was distorted ver sion of the resolution actually passed by the conference, that the resolution passed by the conference was that "it should not be made an offence for a person's wife to desire another man". and not that a man coveting another man's wife should not be an offenee, and that those who were aware of the opinions of the said E. V. Ramaswami Naicker would find that the resolutiol' was in keeping with his views. namely, that marriage was a contract terminable a'! the instance of either party and not an interminable sacrament. and lastlv." that the resolution was in tended to highlight the disabilities of women which prevented them SUPllBMB COURT REPORTS . [1973] 2 S.C.R., from attaini~g their full stature. On February 5, 1971, Hmdu pubhshed the said clarification as demanded by the res-. pondent under the caption "Salem Conference Resolutions" to gether with the version of its own representative at Salem accord ing to which the resolution passed by the conference was the one published in the Hindu. On February 1, 1971, the respondent. by his Advocate's letter, called upon the editor to publish the correct text of the resolution stating that what was published in the Hindu was "not only a travesty of truth but also highly de famatory so as to tarnish the image of the conference'', of whose rcceJYtion committee he was the chairman and called upon the editor to express an apology. No such apology having been tendered, the resp~mdent filed complaints on February 9, 1971 against the editors and publish es of the thrc.~ dailies under ss. 500 and 501 of-the Penal Code in the Court of the Chief Presidency Magistrate, Madras. In these complaints, the respondent described himself as an import ant member of th.e Dravida Kaziu))lam and of the Self-respect ardent disdple Movement organised by that party· as also an of' its leader, the said E. V. Ramaswami Naicker. He further st~ted that the Dravida Kazhagam had organised the said con ference for the eradication of superstitious beliefs, that he was conference the chairman of its reception committee, that the passed several resolutions, one of which was the resolution ad vocating that it should not be an offence for a person's wife to desire .:mother nnm, that he was one of the members ;·esponsible "for sponsorinz and piloting that resolution", that the conference was attended "'bv a large numb.~r of leaders, members, followers. sympathisers of the Kazhagam, besides a large number of pub lic at lar,l!e, occupying varied strata of the society'·, and tha'I the Hindu published a wron,I!. version of the said resolution implying that the resolution advocated adultery, an offence under· Penal Code. The complaint further stated that the news item published in the newspaper was quite contrary to the actual reso lution passed by the conference, that it contained "imputations on the sponsors of the resolution" by publishing the rcsoluiion in a distorted and false form thereby lowering in the estimation of those 1vho read the said news item the complainant and other members of the party r.~sponsible for sponsoring the resolution, makin!! out by such imputation that the sponsors of the resolu tion "have stooped to the level of passing a resolution requesting the Government 1o legalise adultery which will tend to degrade social life". To the complaint was attached a list of witnesses. who, we were told by the respondent's counsel, were all 111.o::m hers of the Dravida Kazha,l!atn. It may be recalled that •though the complaint alleged that the impuj!neo news item contained imputations against the spon- - A I c D E F G H • • G. NARASIMHAN V. T. v. CHOKKAPPA (Shelat, I.) 45 A B sors of the said resolution, no such imputations, either against the respondent or the sponsors of the resolll'tion, are to bt: found therein. A persual of the news items shows that it concerned itself with the protest demonstrntion against the procession taken. out on that occasion and the tableau presented in the procession, the resolution in question passed at the conference held there- after and the fact of the said E. V. Ramaswami Naicker having presided over that conference. The news item, thus, did not mention either the respondent or any of the alleged sponsors of th€1' s~id resolution either by name or otherwise. c D E. F G In his sworn stalement before the Magis~rate at the itime when he presented the complain't on February 9, 1971. the res pondent himself stated that the conierenc.<; was organised hy the Dravida Kazhagam and that it was the cor1fcrence which had passed the said resolution. He, however, insisted that the im pugned news item was motivated and malacious and was calcu lated to affect the leader of the movement and its members, in- cluding himself, and was per se defamatory of the persons whl). sponsor-~<! the resolution. namely, the members of the Dravida In the evidence he gave before the Ma.2istrate on Kazhagam. May 22, 1971, the respondent claimed that it was he, who, as the chairman of the reception committee of the conference, had scrutinised and given shape to the ·draft resolution sent at resolu conference for being moved thereat, that the said draft tion was s.~nt by one Pariaswami, the Secretary of the Trichy District branch of the Dravida Kazhagam, and which he had s~ttled in the abridged fonn in which the conference on Janu ary 24, 1971 ultiniately passed unanimously. He also deposed· that the conference consisted of "comrades of our movement, and about 5000 other social reform minded sympathisers In regard to the conference and its set up, he said women". that on December 13, 1970 a meeting was held for organising the conference. At that meeting one or. two persons sugirested that he should be the chainnan of the reception committee, and· that was how he was selected as the chairman, One Pachai muthu and R. Natesan were appointed secretaries of the confer- ence and they were responsible for the proceedings. The object of the conference was "generally to do away with all supersti tious beliefs relating IQ reli~ion and relating .to society". The conference had its own office and it was there that correspond ence relating to its work was dealt with. He claimed thgt as the chainnan of the reception committee, the entire responsibility for the conference was his· bu't admitted that there was no record to show either his selection or his functions and duties or his responsibilities. Asked about the procedure followed at conferenc.<;, he said that "nobodv -spoke, proposed individually each resolution or seconded". Regarding resolution H t 46 SUPREME COURT REPORTS (1973] 2 S.C.R. question, he said that "after the President Pariyar proposed nobody announced opposition to 'the resolution. The meanine is, that all approved''. \ . A Two facts clearly emerge from this evidence, (I) that though the conference was organised by the Dravida Kazha~am. it was a separate body with its own organisation and office where correspondence relating to it was received and dealt with and had its own secretaries, and (2) that though the draft of the resolution was prepared and sent to the conference by the secr~­ tary of the Tricy District branch and was put in shape by th¢ respondent, it was moved by the president of the conference and pass.ed by the conference which, as testified by the n:spondenl. consisted of members of 'the Dravida Kazhagam, sy1111. ithisers of its social reform programme, other social reform leaders outsiders, including about 5000 women. The resolution was thus the resolution of the conference and not of the Dravida Kaz.hag.am, though it was organised by that party. The resolu tion having been moved by the President himself, there was also ·no question of the respondent or any other person having piloted it at the conference. B c The Magistrate, on the basis of the complaint and the el'i dencc he recorded, decided to issue process and to proceed with the trial. The appellants in all these appeals thereupon appro ached the High Court under s. 561A of the Code of Criminal E Procr, dure for quashing the said proceedings. The appellants main contention before the High Court was that the respondent was not an ag)!.rieved party within the meaning of s. 198 of th~ Code, that he had filed the complaint in his capacity as the chair man of the reception committee of the conference and not his individual capacity, that in the absence of any reference to him in the said news item he had no cause for complaint, and th~t the conference being an undefined and an amorphous body. the respondent ns a member or pa1t of such a body could not lodge the complaint. F A learned Single J ud~c 'of the High Court, who heard the G said applications. rejected the said contention in the followin~ words: • "The Dravida Kazhagam is an identifiable group, The complainant is a member of 1this · Kazhagam. H~ was the Chairman of the Reception Committee in the conference. He is active member of the Dravida Kazha gam. He was one of those who piloted and sponsored anricvcd the resolution. Certainly he is a person II I . ·. f G. NARASIMHAN v. T. V. CHOKKAPPA (She/at, J.) 47 within the meaning of st.:ction 19 B of the Criminal Procedure Code. The complaint by him is tent." The statement in this para that the respondent piloted and sponsored the resolution in question was factually incorrect, as the respondent's evidence itself showed tliat the resolution was moved not by him, but by the President of the conforence, who read it out and as no one opposed, i't was taken to have beea approved by all. The only thing which the respondent claimee to have done as the chairman of the reception committee was to itive shape to the draft resolution by abrid~ng rt. The respo11- dent may have been interested in the resolution and it> being passed, but the resolution certainly was neither moved nor pilot ed by him. Indeed, if any one could be said to have piloted it, it was the president of the conference. Furthermore, resolution was of the conference and the only contribution of the rO!!pondent to it was his having given shape to the original draft. Counsel for the appellants seriously challenged the correct acss of the paragraph from the High Court's judgment quoted above, that being the really operative and decisive pavt of the judgment, firstly, on the ground that those obscrvatitons were aot in consonance with s. 198 of the Code even when read with s. -499, Exp!. (2) of the Penal Code, and secondly, on the ground of the failure of the High Court to perceive the separate entitieo of the Dravida Kazhagam and the conference and its omission to realise that the resolution was t.be resolution of the ~onference and not of the Dravida Kazhagam. The news item in qur..stion referred to the conference and not to the Dravida Kazhagam, and therefore, if anybody was defamed by the said news item, it was the conference and not the Dravida Kazhagam which had only organised that confelence. Mr. Frank Anthony, on the other hand, urged that though it was the conference which had passed ihe resolution and though the news item referred to that conference and not to the Dravida Kazhagam and the res pondent was not mentioned or referred to therein, in substance and in effect it was the Dravida Kazhagam which was defamed. for, it was that party which had organised the conference and sponsored the resolutions passed the res pondent, as a leading member of that party and the chairman of the reception committee, could claim that the defamatory impu tations in the said news item were relatable to him and the other members of •he Dravida Kazhag-am, and he was consequently entitled to file the complaint. thereat. Therefore, On these contentions, the principal question for determina tion is whether the respondent could be said to be an aggrieved person entitled 'lo maintain the complaint within lhe meaning of B c D E F G H 48 SUPRBMB COURT REPORTS [1973] 2. s.c.1t: s. l 98 of the Code. That section lays down that no magistrate shall take cognizance of an offence falling inter alia under Ch. XX! of the Penal Code (that is, ss. 499 to 502) except upon a compluint made by some persons aggrieved of such offence. Sec. 198, thus, lays down an exception to the generaj rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modifies that rule by permitting only an aggrieved person to move a magistrate in cases of defamation. The 'ection is mandatory, so that if a magistrate were to cognizance of the offence of defamation on a complaint £led by one who is not an aggrieved person, the trial and conviction of an accused in such a case by the magistrate would b~ void and illegal. Prima facie, ther.~fore, if s. 198 of the Code were to be noticed by itself, the complaint in the present case would be unsustain able, since the news item in question did not mention the res pondent nor did it contain any defamatory imputation against him individually. Sec. 499 of the Penal Code, which defines defamation, laid down that whoever by words, either spoken or intended to be read or by signs etc. makes or publishes any imputation concerning any person, intending to harm or knowing or having 'reason to believe that the imputation will harm the reputation of such person, is said to defame that person. This part of the section lllakes 'defamation in respeel! of an individual an offence. But Explanation (2) to the section l~vs down the imputation rule that it may amount to defamation to make an concerning: a company or an association or collection of per sons as such. A defamatory imput~tion agalnsf a collection of persons thus falls within the definition of defamation. The langu aie of the Explanation is wide, .and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be ah identifiable body so that it is possible to say with definiteness that a group of parti cular persons, as. distinguished from the rest of the community, was defamed Therefore, in a case where Explanation (2) is re sorted to, the identitly of the company or the association or collection of persons must be established so as to be relatable to the defamatory w<1rds or imputations. Where a writing inveighs against mankind in a general, or against a particular ocder of men, e.g .. men of gown. it is no libel. It must descend to parti In England also. culars and individuals to make it a libel( 1). criminal proceedings would lie in the case of libel against a class provide'd such a class is. nof indefinite, e.g .. men of science, but a dcnnitc one. such as. the clergy of the diocese of Burham.. (I) (1699)3 Balk 224, cited in Ratanlal and Dhirajlal' Law ofCrimes(23nd ed.) BJ7. 1 A I c D F G H I , . I G. NARASIMHAN V. T. Y. CHOKKAPPA (She/at, J.) 49 A B c jusJices of the peace for the county of Middlesex. (see Kenny's Outlines of Criminal Law (19th ed.) 235. If a well-defined class is defamed, every p1rticulr m :m~'~r of that class can file a com imputation in question does not plaint even if the defamatory mention him by name. In this c01mection, counsel for the appellants leaned heavily on Knupfjer v. London Express Newspaper Ltd.('). The passage printed and published by the respondents and which was the basis of 1he section there read as follows : "The quisl\ngs on whom Hitler flatters himself he can build a pro-German movement within the Soviet Union .are an emigre group called Hlado Russ or Young Russia. They are a minute body professing a pure Fascist ideology who have long suitable Fuehrer-I know with what success." sought a F The appellant, a Russian resident in London, brought the action alleging that the aforesaid words had been falsely and maliciously D printed and published of him by the respondents. The evidence was that the Young Russia party ha_d a total membership of 2000, that the headquarters of the party were first in Paris but in 1940 were shifted to America. The evidence, however, showed the appellant had joined the party in 1928, that in 1935 he acted as the representative of the party and as the head of the branch in England, which had 24 members. The appellant had examined E witnesses, all of whom had said that when they read the said article their minds went up to the appellant. The House of Lords rejected the action, Lord Simon saying the.t :: was an essen:ial elemerlt of the cause of action in a libel action that the words complained of should be published of the plaintiff, that where he was not nam ed. the test would· be whe·ther the words would reasonably people acquainted with him to the conclusion that he was person referred to ... The question whether they did so in would not arise if they could not in law be regarded as capable of referring to'him, and that that was not so as the imputations were in regard respect of the party which was in Paris and America. Lord Porter agreed with the dismissal of the action but based his deci- sion on the ground t\rnt the ])ody defamed had a membership of 2000, which was considerable, a fact vital in considerin!l whether the words in question referred in fact to the appellant. The prin ciple laid down here was that there can be no civil action for libel if it relates to a class of persons who are too numerous and urrascer tainable to join as plaintiffs. A single one of them could maintain such an action only if the words complained of were published "of the plaintiff". that is to say, if the words were capable of a conclusion that he was the person referred to. (see Gatley on (1) [!944] A.C. 116. G .H 5-Ll~8SupCI 73 • • 50 SUPREME COURT REPORTS [1973) 2 S.C.R. 1 - Libel and Slander (6th ed.) 288. Mr. Anthony, however, was right in submitting that the test whether the members of a class defamed are numerous or not would not be apt in a criminal pro secution where technically speaking it is not by the persons in· jured but by the state that criminal proceedings are carried on and a complaint can lie in a case of libel against a class of persons provided always that such a class is not indeterminate or indefinite but a definite one. Kenny's Outlines of Criminal Law (19th ed.) 235. It is true that where there is an express statutory provision, as in s. 499, Expl. (2), the rules of the Common Law of Eng land cannot be applied. But there is no difference in principle between the rule laid down in Explanation (2) to s. 499 and the law applied in such cases in England. When, therefore, Expl. ( 2) to s. 499 talks of a collection of persons as capable of being defamed, such collection of persons must mean a definite and a determinate body . . This was the construction of Expl. (2) to s. 499 adopted in Sahib Sing/1 Mellra v. U.P. ( 1) and which guided the decision in 1hat case. The article complained of there was one printed and published in the appellant's newspaper called Ka/iyug of Aligarh which contained the following : ··How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into th·e pockets of public prosecutors and assistant public prosecutors and the extent to which it reaches and to which use it is put.'' This Court held that the prosecuting staff of Aligarh and even the prosecuting staff in the State of U.P. formed an identifiable group or "collection of persons" within the meaning of s. 499, Exp!. (2) in the sense that one could with certainty say that a group of persons has been defamed as distinguished from the rest of the community, and therefore, a complaint by the Public Pro-· secutor and eleven Assistant Public Prosecutors was a competent complaint. Following the test laid down in this- decision. the High Court of Allahabad in Tek Chand v. R. K. Karanjia(') held that the Rashtriya Swayam Sevak was a definite and an iden tifiable body, that defamatory imputations regarding it would be defamation within the meaning of s. 499, Exp. (2), that such imputations would be defamation of the individual memb~rs of that body or class and that a complaint by an individual member of such a body was maintainable. (see also the dictum of Kendall, .l. in Wahid Ullah Ansari v. Emperor('). (I) fl965] :! S.C.R. 8~~, 828. m [1969] Cr. L.J, 5)6. (3) A.LR. 1935 All. 743. A B c. [ F G H I " ; A B c D E F H G. NARASIMHAN v. T. V. CHOKKAPPA (Shtlat, J.) 51 This being the position in law, the question upon which these appeals must be decided is : which was the class or body in res pect of which defamatory words were used and whether tliat body was a definite and an identifiable body· or class so that the im putations in question can be said to relate to its individual com ponents enabling an individual member of it to maintain a com plaint? The High Court, after citing Tek Chand's case(') went on to say that the Dravida Kazhagam was an identifiable group, that the respondent was an active member of that body, that he was also the chairman of the reception committee of the con ference and that he was one of those who piloted and sponsored the resolution, which was sai.d to have been wrongly reproduced and distorted in the news item in question. Apart from the fact already mentioned by us earlier that neither the complaint nor the evidence oi the respondent indicated that the resolution was piloted by him, the news item nowhere referred to or even men· tioned the Dravida Kazhagam. As already pointed out, conference was a body distinct from that party, having its own organisation, its own secretaries who dealt with the correspond ence to and by the conference and its own office where its work was conducted. No doubt, the conference was org.anised by the Dravida Kazhagam, but that would not mean that both were the same or that the members of the Dravida Kazhagam and those of the conference or those who attended it were the same. Indeed, the principal function of the reception committee would be to enrol members of the conference and thus collect funds to defray it' expenses. respondent indicated that the conference was attended not only by members of the Dravida Kazhagam b~t also by outsiders who ir.cluded as many as 5000 women. say that dafamation of the identify one with the other- or to conference as a class or collection of persons was the defama tion of the Dravida Kazhagam. That was not and indeed could no( be the case of the respondent. In fact, the evidence of the It is therefore, wrong The news item complained of clearly stated that the resolu tion was passed by the conference and not by the Dravida Ka zhagam. In his very first letter, dated January 28, 1971, which the respondent signed describing himself as the chairman of the reception committee and not as an important member of Dravida Kazhagam, the respondent complained that the news item I.lad distorted the resolution passed by the conference and asked the editor to publish his "correction and clarification" of that resolution. There is no grievance there that the Dravida Ka zhagam suffered injury in reputation or otherwise by that alleged (!) [1969] Cr. L.J. 536. 52 SUPREME ·COURT REPORTS [1973] 2 S.C.R. \. A image of In his advocate's letter dated February 1, 1971, the distortion. respondent's complaint was that the news item was highly de the . conference of famatory and had tarnished the In his evid whose reception committee he was the chairman. ence before the Magistrate also as clearly stated that the reso lution was the resolution moved by the president of the committee and passed by the conference. Thus, his case throughout was . B that the publication of the said resolution repo1ted in the said news item in a distorted form had tarnished the' image not of the Dra vida Kazhagam but of the conference. That being so, the High Court completely missed the real issue, viz., whether the conference was a determinate and an identifiable body so that defamatory words used in relation to the resolution passoo by it would be defamation of the indivi duJ ls who composed it, and the respondent, as one such indivi duals and chairman of its reception commitke could maintain a complaint under s. 500 of the Penal Code. Whether the Dravida Kaghagam was an identifiable group or not was be'Side the point, for, what had to be decided was whether the confer ence which passed the resolution in question and which was said to have distorted was such a determinate body, like the Rashtriya Swayam Sevak in Tek Chand's case(') or the body of public prosecutors in Sahib Singh Mehra's case(') as to make defamation with respe'Ct to it a cause of complaint by its individual memb, ers. In our view the High Court misdirected itself by_ missing the real and true issue arising in the applications before it and deciding an issue which did not arise from those applications. The judgm·ent of the High Court, 1:>ased on an extraneous issue, therefore, can not be sustained. In this view of the matter, we would have ordinarily re'Illanded the case to the High Court. But such a procedure appears to hie unne'Cessary, as in our vie'V, the conference. was not such a deter minate class like the one in the cases referred to earlier, where complaints by its individual member or members were held main It is impossible to have any definite idea as to its com tainable. position, the number of persons who attended, the ideas and the idwlogies to which they subscribed, and whether all of them positively agreed to the resolution in question. The evidence simply was that the person presiding it read out resolution and be'Cause no one got up to oppose it, it was taken as approved of by all. The conference clearly was not an identifiable or a definitive body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would in their tum, be said to be defamed. ' (I) [1969] Cr. L.J. 535. (2) [1965] 2 S.C.R. 823, 828_ c D E F G H G. NARASIMHAN V. T. V. CHOKKAPPA (She/at, J.) 53 A In these circumstances and for the reasons set out above, we the High Court and allow these appeals, set side the order of quash the proceedings taken out by the Magistrate on the groun<1 that the respondent's compaint was not competent. B V.P.S. Appeals allowed.