Neelamkavil Jacob Johnson v. K.K. Raveendran and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 9[th] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 CRL.A NO. 56 OF 2007 AGAINST THE JUDGMENT DATED 31.10.2006 IN CC 587/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHAVAKKAD ## APPELLANT/COMPLAINANT: NEELAMKAVIL JACOB JOHNSON, S/o JACOB, NEELAMKAVIL HOUSE, KADAVANTHARA, KOCHI-20. BY ADVS. S.RAJEEV S V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ANILKUMAR C.R. ## RESPONDENTS/ACCUSED & STATE: 1 K.K.RAVEENDRAN, SUB INSPECTOR OF POLICE, CHAVAKKAD. 2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.RAJIT, CGC BY PUBLIC PROSECUTOR SRI. SANGEETH RAJ N.R. THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.56 of 2007 2 ## **CR** ## **JUDGMENT** It is a case wherein, criminal law was set in motion at the instance of the complainant alleging offence punishable under Section 500 IPC. The court below found that though the imputation is _per se_ defamatory, it would come under Exception 9 to Explanation 4 of Section 499 IPC and hence acquitted the accused. It is against the said order of acquittal, the complainant came up in appeal. 2. The short facts of the case are as follows: The appellant, who is a lawyer by profession went to his native place at Chavakkad on 15.07.1999 to attend a festival in the native church and went to Youth Centre at Palayoor to see his old friends. While he was sitting along with his friends, the first respondent, the Sub Inspector of Police, Chavakkad came there along with some policemen and manhandled the appellant and took him to the Crl.Appeal No.56 of 2007 3 police station, then to a nearby hospital. The doctor, who attended the appellant issued a certificate that he was not intoxicated by alcohol. A crime was registered against the appellant alleging offences under Section 7 and 8 of the Kerala Gaming Act. It was challenged before this court in Crl.M.C. 8349/2001 and this court quashed the proceedings. It is thereafter the appellant preferred a complaint before the JFCM, Chavakkad against the first respondent alleging offence punishable under Section 500 IPC on the ground that a civil suit was instituted by the appellant as O.S.46/2000 before the Munsiff Court, Chavakkad claiming damages, in which a written statement was submitted raising false imputation against the appellant. The portion of the written statement which according to the appellant is defamatory was also extracted in the complaint, which runs as follows: “It is untrue to say that on 15/07/1999 the plaintiff went over to the youth centre at Palayoor with a view to meet some of his friends and his brother. He is specific intention behind the same was to get involved in gambling as usually he does, for making money easily and unauthorisedly.” Crl.Appeal No.56 of 2007 4 3. The trial court acquitted the accused on the reason that though the imputation is defamatory, it would come under Exception 9 attached to Explanation 4 of Section 499 IPC. It is against the said order of acquittal, the appellant came up. 4. The ninth exception to Explanation 4 of Section 499 IPC excludes any defamatory statement made in good faith for the protection of interest of the person making or of any other person or for the public good. When there is an imputation, if it is made in good faith to protect the interest of the maker or of any other person or for the public good, it would come under the purview of 9[th] exception, though the imputation is _per se_ defamatory. In order to bring the matter within the sweep of 9[th] exception, the cardinal ingredient which would constitute, the “good faith” must be satisfied. The expression “good faith” incorporated in the 9[th] exception, must always be read along with the definition clause, Section 52 of Indian Penal Code, which says that : **==> picture [343 x 12] intentionally omitted <==** Crl.Appeal No.56 of 2007 5 done or believed in “good faith” which is done or believed without due care and attention.” 5. The necessary ingredient which would constitute “good faith” is either the belief of or the exercise of due care and attention. The Apex Court in _**re**_ **,S.K.Sundaram (AIR** **2001 SC 2374)** has laid down that the expression “good faith” in criminal jurisprudence has a definite connotation. Its import is totally different from saying that the person concerned has honestly believed the truth of what is said. 6. A three-Judge Bench of the Apex Court in **Harbajan Singh v. State of Punjab (AIR 1966 SC 97)** had gone elaborately on the question what actually amounts to and what are the requirement of “good faith” and laid down in paragraphs 19 and 21, which are extracted below for reference: “19. That takes us to the question as to what the requirement of good faith means. Good faith is defined by Section 52 of the Code. Nothing, says Section 52, is said to be done or believed in “good faith” which is done or believed without due care and attention. It will be recalled that under the General Clauses Act, “A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is Crl.Appeal No.56 of 2007 6 done negligently or not”. The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Code; and we are governed by the definition prescribed by Section 52 of the Code. So, in considering the question as to whether the appellant acted in good faith in publishing his impugned statement, we have to enquire whether he acted with due care and attention. There is no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith. But it must be remembered that good faith does not require logical infallibility. As was held by the Calcutta High Court in the matter of the _Petition of Shibo Prosad Pandah_ [ILR 4 Cal 124] in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused in support of the defamation are in substance true, but whether he was informed and had good reason after due care and attention to believe that such allegations were true. ................ 21 **.** Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case — what is the nature of the imputation made : under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story Crl.Appeal No.56 of 2007 7 that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception.” 7. When it comes to Exception 9 attached to Explanation 4 of Section 499 IPC, the ingredients which would constitute “good faith” as defined under Section 52 IPC will stand subject to the three contingencies/requirements as incorporated under that Exception namely, (i) for the protection of interest of the maker (ii) or any other person or (iii) for the public good. Necessarily, the expression “good faith” as incorporated under the Ninth Exception has to ascertained and tested under the touchstone of the abovesaid three requirements. In other words, these three requirements i.e. for the protection of interest of maker, or any other person, or for the public good are inseparably connected with the expression “good faith” by the construction under Exception 9. Hence, the “good faith” as incorporated under that Exception shall always be understood with respect to any imputation under the touchstone of whether it was raised to protect the interest of maker or any other person Crl.Appeal No.56 of 2007 8 or for the public good. The corollary is that if it was done for any of the said three requirements, it would fall within the sweep of “good faith”, but it must be closely connected with the said requirements and hence the absence of malafides should be tested in relation to the exercise of due care and attention based on the said three requirements. In so far as a litigation is concerned, the pleading raised by the respective parties either by way of claim or defence and if it is for the purpose of protecting the interest of that party or any other person or for the public good, it will come under the sweep of “good faith”, in the absence of malafides. The existence of malafides or its absence can be tested whether the imputation raised by way of pleading forms an inseparable part of the claim or defence raised and whether it is having a nexus and close relation with the dispute involved and shall not be extraneous or unwarranted. If the answer is affirmative, it would fall within the sweep of “good faith” for the purpose of Exception 9 attached to Explanation 4 of Section 499 IPC. Hence, the expression “good faith” for the purpose of Exception 9 will stand subject to the interest to be Crl.Appeal No.56 of 2007 9 protected either of the maker or any other person or for the public good. 8. In the instant case, the pleading raised by the first respondent in his written statement that the intention of the appellant was “to get involved in gambling as usually he does for making money easily and unauthorisedly” stands closely and reasonably connected with the dispute involved in the suit and was taken to protect his interest in the said suit for damages. The arrest and detention and registration of crime are reasonably connected with the discharge of his official functions and he is not bound to disclose the source of information which he had received regarding the unauthorised gambling going on in the youth centre and involvement of persons. It is the well settled in criminal law that the investigating officer need not disclose the source of information invariably in all cases and what does the matter is the commission of offence or reliability of the information received. Admittedly, he went to the youth centre and found several persons engaged in gambling in 10 Crl.Appeal No.56 of 2007 consideration of money. Those persons were arrested in connection with the alleged incident. Necessarily, the pleading raised in answer to the suit claim for damages will stand closely connected with the crime registered in discharge of his official functions and is necessary for protecting his interest. Hence, it will fall under Exception 9 to Explanation 4 of Section 499 of the IPC, to which no action will lie, either civil or criminal. The order of the trial court hence deserves no interference. The Criminal Appeal fails, dismissed. Sd/- **P.SOMARAJAN JUDGE** sv