UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.A.LL.B (HONS.) WITH SPECIALIZATION IN CRIMINAL/ LABOR LAWS

SEMESTER V

ACADEMIC YEAR: 2018-19 SESSION: AUG-DEC

PROJECT
FOR
SENTENCING AND PRISON

UNDER THE SUPERVISION OF: DR. DEBASIS PODDAR

NAME: DIVYA SINGH

ROLL NO.: R154216041
SAP ID: 500055263
TOPIC: SECTION 499 OF IPC,1860

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 INDEX

CHAPTER

1. Introduction – Defamation………………….………....03

2. Essentials of Defamation……………………………….04

3. Defenses………………………………………………...12

4. Conclusion……………………………………………....18

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 CH 1-INTRODUCTION

From the definition given by Winfield it is clear that a tort is a breach of duty recognized
under law of torts, e.g. violation of a duty to injure the reputation of someone else results in
the tort of defamation.
One of the important intangible assets that a man possesses is the respect and esteem of
others. In other words it is the reputation of the person. A person’s reputation is the estimate
in which others hold him, not the good opinion which he has of himself.
In modern times, every person has a right to the preservation of his reputation as against the
whole world. An injury to the reputation is thus as much, or in many cases, more damaging
and disturbing than loss of wealth or property.
When a person injures the reputation of another person, he is said to have committed a tort of
defamation. The person who injures the reputation of another is called defamer and the
person whose reputation is injured by the defamer is known as defamed.
According to Winfield, “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.”
According to Section 499 of the Indian Penal Code, “Whoever by words, either spoken or
intended to be read or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm or knowing or having reasons to believe
that such imputation will harm, the reputation of such person, is said except in specified
cases, to defame the person”.
A defamatory statement is not necessarily made in words, either written or spoken. A man
may defame another by his acts, no less than by his words.
Defamation as an offence is dealt with in section 499 of the Indian Penal Code. The main
paragraph of the section defines what “defamation” is. In essence, it is an action causing
harm to the reputation o f a person, by making an imputation. Two explanations to the section
(the first and second) deal with defamation o f a deceased person and defamation o f a group
of persons, respectively. The third explanation to the section deals with an imputation in the
form of an alternative, or expressed ironically. The meaning of “harm to reputation” is dealt
with in the fourth explanation.

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 CH 2-LAW ON DEFAMATION IN INDIA I.E. SECTION 499 IPC

There is no statutory law of defamation in India except what is contained in Chapter 21,
Indian Penal Code. The Criminal Law in India does not make any distinction between
libel and slander. Both libel and slander are criminal offences under Section 499 of the
Indian Penal Code.
In. D. P. Choudhary Vs Manjulata1, the plaintiff, respondent, Manjulata about 17 years of
age belonged to a distinguished educated family of Jodhpur. She was a student of B.A. There
was publication of a news in a local daily, Dainik Navjyoti, dated 18th December, 1977 that
last night at 11 p.m. she had run away with a boy named Kamlesh, after she went out of her
house on the pretext of attending night classes in her college. The news item was untrue and
was published negligently. She was shocked and ridiculed by the persons who knew her and
her marriage prospects were adversely affected. It was held that the statement was
defamatory and hence defendant is liable and asked to pay compensation of Rupees 10,000.
Essentials of Defamation
1) The words must be defamatory.
2) The said statement must refer to the plaintiff.
3) The statement must be published.
1) The words must be defamatory
A statement is defamatory when it has a tendency to injure a person’s reputation. The test of
the defamatory nature of a statement is its tendency to excite against the plaintiff the adverse
opinions or feelings of others, such as hatred, ridicule or contempt.
In S.N.M. Abdi Vs Prafulla Kumar2, an article was published in the ‘Illustrated Weekly of
India’ dated the 8th September, 1990, made certain allegations of misuse of man and muscle
power by deposed Chief Minister of Assam, Prafulla Kumar Mohanta. The article was held to
be defamatory in nature and the plaintiff was awarded Rs 5,00,000 as damages.
In determining whether a statement is defamatory or not, the intention with which it was used
by the defendant is immaterial. Good faith or ignorance of the defamatory nature of statement
is no defence. In Morrison Vs Ritihie and Co3, the defendant company had published a
notice that on a certain date the wife of G. Morrison had delivered twin sons. But Mr. G.

1
{A.I.R. (1997) Rajasthan, 170
2
Mohanta A.I.R. { 2002} Gauhati 75
3
[{1902} 4 F 654 {A Scottish Court of Session decision}]

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Morrison and his wife had been married a little more than a month before the date announced
in the notice. Even though the defendants were ignorant of this fact, they were held liable.
The Innuendo
Certain statements are prima facie defamatory because their natural, obvious and primary
sense is defamatory. On the other hand there may be certain statements which are prima facie
innocent but may be proved to have a latent secondary defamatory meaning, from the
circumstances. Such a statement is called innuendo. The burden of proving innuendo lies on
the plaintiff.
In Cassidy Vs Daily Mirror Newspapers Limited4, the plaintiff Mrs. Cassidy was
generally known as the lawful wife of Mr. Cassidy, who was also known as Michael Dennis
Corrigan, an owner of race horses. Though the plaintiff and her husband did not live together,
he usually visited her in a shop where she was employed and stayed with her in her flat. At a
horse race meeting Mr. Cassidy posed, in company with a lady, to a racing photographer and
told the photographer that he was engaged to marry the lady and he might announce it. The
photographer, without any further inquiry sent the photograph to ‘Daily Mirror’ with an
inscription, “Mr. M. Corrigan, the race horse owner, and Miss X whose engagement has been
announced”. The ‘Daily Mirror’ published the photograph along with the inscription. Mrs.
Cassidy brought an action for libel on the ground that the inscription is the innuendo which
meant that she was an immoral woman who cohabited with Mr. Corrigan without being
married to him. The Court of Appeal held that the innuendo was established and the
defendant was held liable.
2) The statement must refer to the Plaintiff
In an action for defamation the plaintiff must prove that the statement could reasonably be
understood to refer to him. If the plaintiff is mentioned by name, there is usually no difficulty
about this. If there is nothing to connect the plaintiff with the publication he must fail. The
reason for this requirement is very simple one. In every tort the plaintiff has to prove the
injury he has suffered. He cannot build a tort case on the basis of a wrong done to someone
else. Unless the words are referred to the plaintiff his reputation cannot be affected thereby.
This reference may be made in various forms:-
a) Reference without any name: It is not necessary that the reference should be made
by name. In T.G.Goswami Vs The State of Pepsu5, the charge was made that
several thousand of rupees had been embezzled in the purchase of printing

4
[ {1929} 2 K.B.331]
5
[A.I.R. {1952} Pep. 165, 167]

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 machinery for a state press and the staff wagon. As the complainant, as the head of
the department, was the chief or the sole authority to effect the two purchases. Any
reasonable reader could know that the complainant was the person charged with
misappropriation but it was contended by the defendant that the complainant was
not specifically mentioned. The contention was rejected by Court and held that if
the reasonable persons who read the publication could know who was aimed at then
the fact that name was not specifically mentioned was immaterial.
b) Statement referring one person but defaming another: A statement referring to
one person may, under certain circumstances, be defamatory to some other person.
That other person will have a cause of action against the maker or publisher of the
statement, e.g. if A says to B that C is an illegitimate child, A defames C’s mother
and she can sue A for defamation.
c) Unintended reference: It is not necessary that the defendant should have intended
the defamatory statement to refer to the plaintiff. The question is whether persons
to whom the statement was published might reasonably think that the plaintiff was
the person referred to and not whether the defendant intended to do so. The
defendant can not plead that he never made reference to the plaintiff, or that he
never knew that any person of the name of the plaintiff really existed.
In Newstead Vs London Express Newspapers Limited 6, the defendant published
an article stating that “Harold Newstead, a Camberwell man” had been convicted of
bigamy. The story was true of Harold Newstead, a Camberwell barman. The action
for defamation was brought by another Harold Newstead, a Camberwell hairdresser.
As the words were considered to be understood as referring to the plaintiff, the
defendant was held liable.
In Indian Express Newspaper (Bombay) Private Limited and another Vs Dr.
Jagmohan Mundhra and another7, A journalist Ashwini Sarin who was working
for the plaintiff company did some extensive investigation into flourishing flesh
trade in Madhya Pradesh and purchased a woman named Kamla from village
Shivpuri in M.P. for Rs 2,300. Then he wrote a series of articles which were
published in Indian Express. In the meantime the defendant, a film producer made a
movie named Kamla. In the movie a journalist, who is shown as dominating
husband who treats his wife as a slave, purchased a woman named Kamla in order

6
[{1940} 1 K.B.377]
7
[A.I.R. {1985} Bombay 229]

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 to attract the attention of Government and the public at large towards the flourishing
flesh market in U.P., M.P and Rajasthan. The plaintiff claimed that the entire
sequence of events have been taken by the defendant from the articles as written by
Ashwini Sarin and converted into a movie, thus infringing the copy right of the
plaintiff in the said articles. The plaintiff also claimed that the public at large would
not know the truth and they would associate the twists and distortions, as shown in
the movie, with the plaintiff. It was also claimed by the plaintiff that the entire
characterization of the journalist is defamatory to him. The defendant contended
that the film is pure work of fiction and the characters in the film has no
resemblance to any real life characters. The Bombay High Court held that once the
identity of the journalist was established, the entire characterization of the journalist
in the movie is defamatory to the plaintiff. Thus the defendant was held liable even
though he did not intend to defame the plaintiff.
Thus a defendant may be held liable even though he did not intend to refer the
words to the plaintiff. This may cause hardship in some cases, particularly to the
writers of fiction and their publishers. With a view to remove this hardship, English
law has been amended by passing Defamation Act, 1952. Section 4 of the Act
provides that an innocent publisher may avoid his liability by publishing reasonable
correction and apology as soon as possible after he came to know that the words
published by him were considered to be defamatory to the plaintiff, and by paying
reasonable expenses incurred by the plaintiff as the result of the publication of the
defamatory matter concerned.
In T.V. Ramasubha Iyer Vs A.M.A. Mohindeen8 the defendant published a news
item in their daily “The Dinamalar” dated 18th Feb, 1961 that a person who was
exporting agarbathis to Ceylon, has smuggled opium into Ceylon in the form of
agarbathis and he was arrested and brought to Madras after opium was found in
some parcels. The plaintiff (respondent), who used to manufacture and export
agarbathis to Ceylon, brought an action for defamation against the defendant
(appellants). The defendant pleaded that they were not aware of the plaintiff‘s
existence and they did not intend to defame him. Further on coming to known that
the plaintiff was defamed due to their publication of news item, they had published
a correction in their issue dated 14th May, 1961 stating that the news item in

8
[A.I.R.{1972} Madras 398]

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 question did not refer to the plaintiff. The Madras High Court after referring to the
English Law as amended by Defamation Act, 1952, held that in India there was
no liability for the statements published innocently. Therefore the defendants in the
present case were not liable.
d) Defamation of a class of persons: When the words refer to a group of individuals
or a class of persons, no member of that group or class can sue unless he can prove
that the words could reasonably be considered to be referring to him. Thus, if a
person wrote that all lawyers were thieves, no particular lawyer could sue him
unless there was some thing to point to the particular individual.
In Partap Chander Vs King Imperor, it was held that the words, “The British
Government themselves and the superior officers including from District Magistrate
down to the Darogas and Chowkidars were all beasts” were held to be not
defamatory of any particular officer.
An individual member of the class can, however, sue for defamation in following
cases:-
1) Where the class is so small that what is said of the class is necessarily said of
each and every member of the class.
2) Where although words seems to refer to a class, yet in the circumstances of a
particular case they in fact refer to a particular individual. If it can be proved
that the words are directly applicable to a particular individual, a suit may be
filed by such individual. In Le Fanu Vs Malcolmson, the defendant published
in the newspaper a statement that cruelty was practiced upon employees in some
of the Irish factories. From the article as a whole including a reference to
Waterford itself, the Jury found that plaintiff’s Waterford was aimed at in the
article and the defendant was held liable for the defamation.
e) Corporations: The reputation of a corporate body differs from that of a natural
person. When an action is brought by a corporation for defamation it must prove
that :-
1) the words complained of are defamatory in the way of its business;
2) that they were published by the defendant; and
3) that they refer to the plaintiff.

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 In Union Benefit Guarantee Co. Ltd. Vs Thakorlal9, in a resolution passed by a
committee, the defendants recommended boycott of certain insurance companies
including the plaintiff company alleging that a large number of managing directors
of such companies were adventurers who filled their pockets at the cost of ignorant
poor people. The defendants were held liable for defamation and Rs 1000 and costs
were awarded to the plaintiff company.
f) Deceased person: Defaming a deceased person is no tort. However under Criminal
law it may amount to defamation to impute any thing to a deceased person, if the
imputation would harm the reputation of that person, if living and is intended to be
hurtful to the feelings of his family or other near relatives{Section 499,
Explanation-1 Indian Penal Code}.
If a statement, though relating to a deceased person affects the reputation of the
plaintiff, he may maintain an action; e.g. a statement alleging that X (the deceased
mother of the plaintiff) was a prostitute. The plaintiff can file a case for defamation
against the defendant.
In Prameela Ravindran Vs P. Lakshmikutty Amma10, the respondent (P.
Lakshmikutty Amma), who was the mother of deceased, disputed the marriage
between the applicant (Prameela Ravindran) and the deceased. The respondent had
been sending letters to various persons relating to the marital status of the applicant.
The applicant contended that she was the wife of the deceased Ravindran and she
produced a marriage certificate dated 10th November, 1984, issued by the Temple
Authorities showing the fact of marriage between Prameela and Ravindran. Apart
from that she also produced an agreement of marriage between the parties and also
the LIC policy and passport wherein the applicant has been described as
Ravindran’s wife. Thus the letters were held to be defamatory and the respondent
was restrained from making such statements and sending such letters.
3) The statement must be published
Publication in its legal sense implies making or communicating the defamatory matter to
some person other than the person defamed. It is not necessary that the communication be
made to more than one person. Publication need not be intentional nor it can be justified or
excused on the ground that it was made accidentally, by mistake or by honestly believing in
its truth. The concept of publication can best be understood by a simple example-sending a

9
[A.I.R.{1936} Bombay, 114]
10
[A.I.R. {2001} Madras, 225]

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defamatory article to the editor/ printer of a newspaper constitutes publication- the
appearance of the article in the paper is a second publication and constitute a separate cause
of action. Communication to the person defamed himself, however, is not sufficient
publication, though it is otherwise a case of criminal prosecution. A communication between
husband and wife does not amount to publication; domestic intercourse of this kind is
exempted from the restrictions of the law of libel and slander. But a statement by the
defendant to husband or wife of plaintiff is ground of action for defamation. The
communication between husband and wife is treated as privileged communication as per the
Indian Evidence Act.
In T.J.Ponnen Vs M.C. Verghese11, T.J. Ponnen wrote a number of letters to his wife Rathi,
containing defamatory matter concerning her father, M.C. Verghese. Rathi passed these
letters to her father. The father-in-law launched a prosecution against his son-in-law
complaining the defamatory matter contained in those letters. Ponnen contended that the
letters were written by him to his wife and as per the virtue of Section 122 of Indian
Evidence Act, these could not be treated as evidence against him. The Kerala High Court
agreed with the contention of Ponnen and he was not held liable. But the Supreme Court
reversed the decision of Kerala High Court and held that if the communications between the
husband and wife have fallen to his hands, he could easily prove the defamation. Since the
letters were in his possession and were available for being tendered in evidence the son-in-
law was liable for defamation.
Sending the defamatory letters to the plaintiff in a language supposed to be known to him, is
no defamation. If a third person wrongfully reads the letters meant for the plaintiff, the
defendant is not liable. If a defamatory letter sent to the plaintiff is likely to be read by some
body else, there is a publication. When the defamatory matter is contained in a postcard or
telegram, the defendant is liable even without the proof that some body else read it, because a
telegram is read by the post office officials who transmit and receive it, and there is high
probability of the postcard being read by someone. If the letter sent to the plaintiff is in a
language which the plaintiff does not understand the defendant is liable because he knew or
ought to have known that the letter will be read by some third person.
In Mahendra Ram Vs Harnandan Prasad12, the defendant sent a defamatory letter written
in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read
over by a third person in the presence of some other persons. It was held that in the absence

11
[A.I.R {1970} S.C. 1876]
12
[A.I.R. {1958} Pat. 445]

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of pleading and finding that the defendant wrote the letter in Urdu knowing that the plaintiff
did not known Urdu and therefore it would necessitate asking some body to read the letter to
him, the defendant was not responsible for the publication of defamatory matter.

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 CH 3-DEFENCES
When the plaintiff has proved that there has been publication of defamatory statement
concerning him the defendant in his turn can plead the following defences to escape the
liability:-
1) Justification or truth: Defamatory statement is presumed to be false and plaintiff
need not prove it. The defendant can plead justification or truth and if he can
establish it by evidence, he has a good defence even if the words were published
maliciously as per the Civil Law of a country. The reason is that the law will not
permit a man to get compensation for the injury to the character or reputation which
he does not possess. But in Criminal Law truth is a defence only if it is stated for
public good.
For the plea of justification it is not necessary that the defamatory statement should
literally be true, it is sufficient if it is true in substance. But it should be noted that
the erroneous details do not aggravate the defamatory character of the statement or
alter its nature. In Alexander Vs North Eastern Railway13, the plaintiff has been
convicted for traveling without a ticket in train and had been fined 1 pound or two
weeks imprisonment in default of payment. The defendants had published a
statement stating that the plaintiff was fined 1 pound or 3 weeks imprisonment in
default of payment. It was held that the defendants were not liable as the statement
was substantially true.
Section 5 of Defamation Act, 1952, “In an action for libel or slander in respect of
words containing two or more distinct charges against the plaintiff, a defence of
justification shall not fail by reason only that the truth of every charge is not proved
if the words proved to be true do not materially injure the plaintiff’s reputation
having regard to the truth of the remaining charge”. In India there is no such
provision yet generally English Law is followed.
In Abdul Wahab Galadari Vs Indian Express Newspapers (Bombay) Limited
and others14, a suit for damages was filed against the publisher, editor, printer and
author of three articles published in the newspaper to be defamatory of the plaintiff.
An application for interim injunction was submitted, pending the determination of
the suit, restraining the defendants from writing, publishing or re-publishing or
printing any article alleging that the plaintiff is smuggler of arms to India or an

13
[ (1865) 6 B and S 340]
14
[A.I.R. {1994} Bombay, 69]

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 agent of ISI ( Pakistan’s Inter Service Intelligence) and also requiring the
defendants to publish apology. The defendants claimed that the statements made in
the articles were true and they were in a position to justify the same before the
Court and they also submitted certain documents in the Court. The Bombay High
Court observed that it is true that the allegations are of very grave nature but the
defendants were justified in publishing the information as they gathered it from
authenticative source. The material so furnished also showed that the Government
Agencies have strongly suspected the involvement of plaintiff in smuggling
activities.Thus the Court did not find any merit in the application and refused to
grant interim injunction.
2) Fair Comment: The defence of fair comment is very essential for preserving
freedom of speech and expression. Honest criticism ought to be, and is, recognized
in any civilized system of law as indispensable to the efficient working of any
public institution or office, private persons who make themselves or their work the
object of public interest. It is taken as good defence in India also as is clear from
the remark of the Seervai (Constitutional Law of India, 3rd Edition, Volume 1, Page
495). Seervai says that existing law relating to defamation is a reasonable restriction
on a fundamental right of freedom of speech and expression conferred by Article 19
(1) (a) of the Indian Constitution.
Fair comment means honest criticism of a matter of public interest. The honest
criticism means that it must be made by a person, who believes the statement to be
true and is not actuated by malice. Thus, for fair comment to be a defence, the
following conditions must be satisfied:
a) It must be a comment: The comment is an expression of opinion – an
inference or conclusion from facts. If it is mere statement of facts, the only
defences available are justification and privilege. But comment being a matter of
opinion, and not capable of definite proof, the one who expresses it, is not called
upon by the law to justify it as being true, but is allowed to express it, even
though others disagree with it, provided it is fair and honest. Whether a
statement is one of fact or a comment depends upon the language, the context
and other circumstances. A simple illustration of the distinction is given by the
Indian Penal Code. It states that if A says of a book published by Z, “Z’s book
is foolish; Z must be a weak man; Z’s book is indecent; Z must be a man of
impure mind.” These are comments and will be protected, if they are not
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 malicious. If A says, “I am not surprised that Z’s book is foolish and indecent,
for he is a weak man and of impure mind.” This is not a comment, but a
statement of fact and A can not plead the defence of fair comment, but must
prove his words to be true.
In Joynt Vs Cycle Trade Publishing Co, the defendants, who were the
proprietors and editors of a trade journal published an article suggesting that the
plaintiff, a solicitor, had enriched himself at the expense of the shareholders in
certain companies and was unfit to be trusted. They were held liable as there
were no facts to support the imputations.
b) The comment must be fair: The comment to be fair must be based upon true
facts. A comment based upon invented and untrue facts is not fair. In Merivale
Vs Carson [{1887} 20 Q.B.D. 275], the review of a play was made and
immorality was imputed by suggesting that it contained an incident of adultery,
but in fact there was no such incident in the play. The plea of fair comment was
rejected.
The defence of fair comment can be taken even if some of the facts stated may
not be proved. Whether the comment is fair or not depends upon whether the
defendant honestly believes that particular opinion. It is not the opinion of the
Court as to the fairness of the comment but the opinion of the commentator
which is material. If due to malice on the part of defendant, the comment is a
distorted one, his comment ceases to be fair and he can not take such a defence.
In R.K. Karanjia Vs Thackersey15, the defendant published an article against
the ‘House of Thackersey’ a business organization, headed by the plaintiff. The
article suggested that the plaintiff had exploited his position in increasing his
wealth by unlawful and questionable means, involving tax evasion, financial
jugglery, import–export rackets by obtaining licenses in the name of bogus firms
and factories, and customs and foreign exchange violations. The plaintiff
brought an action for defamation. At the Trial Court the defences of
justification, fair comment on the matter of public interest were pleaded. All the
defences were rejected and it was held that the plaintiff had been grossly
defamed, and Trial Court passed a decree of Rs 3, 00,000 with costs and also
issued an injunction forbidding the publication of such articles. However the

15
[A.I.R. {1970} Bombay, 424]

14 | P a g e
 High Court reduced the amount of compensation from Rs 3, 00,000 to Rs 1,
50,000.
c) The matter commented upon must be of public interest : In order to support
the defence of fair comment, it is necessary that the circumstances exist which
make it a matter of public interest that the plaintiff’s ability, integrity, morality
or conduct should be subject to public criticism. There seems to be two classes
of cases in which fair comment is permissible:-
(a) Matters in which the public have a legitimate interest directly or indirectly,
nationally or locally, clear examples being the administration of justice, the
affairs of Parliament, the conduct of Government and of public servants, the
mode in which local authorities and other public bodies perform their
functions, the management of public hospitals and other public institutions.
(b) Matters which are expressly or impliedly submitted to public criticism or
attention, established examples being books, pictures, works of art, theatres,
concerts and other dramatic performances, but not including the private lives
of public performers. Here reference can be made to the case of Merivale
Vs Carson.
3) Privilege: The general rule is that a man who defames does so at his own peril. A
privileged statement is an exception to this rule. It is said that it is the occasion, in
which the statement is made is privileged and not the statement. There are occasions
on which freedom of expression of views, without fear of an action for defamation,
is considered more important than the protection of the reputation of the person. The
privileges may be of two types:
a) Absolute Privilege: A statement is absolutely privileged, if no action lies for it,
even though it is false and is made maliciously with a view of causing injury to
the plaintiff. Such privilege is available, where the communication is of such
paramount importance that nothing should defeat it. Here the individual’s
interest is completely subordinated to that of the community. Absolute privilege
is recognized in following cases:
1) Parliamentary Proceedings: Article 105 (2) of Indian Constitution
provides that statements made by members of either House of Parliament in
Parliament, and the publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings can not be questioned

15 | P a g e
 in a Court of law. A similar privilege exists in respect of State Legislatures,
according to Article 194(2).
2) Judicial Proceedings: No action for libel or slander lies, whether against
judges, counsels, witnesses or parties for words written or spoken in the
course of any proceedings before any Court of law, even though the words
were written or spoken maliciously, without any justification and from
personal ill will and anger against the plaintiff. This protection is granted by
the Judicial Officers Protection Act, 1850. If, however, the words are
irrelevant, not having any relevance to the matter before the Court, such a
defence can not be pleaded. In Jiwan Mal Vs Lachhman16, on the
suggestion of a compromise in a petty suit by Trial Court, Lachhman Das, a
witness in the case, said, “A compromise can not be effected as Jiwan Mal
stands in the way. He had looted the whole of Dinanagar and gets false cases
set up”. Jiwan Mal was a Municipal Commissioner of Dinanagr but he had
no relation with the suit under question. In an action against Lachhman Das
for slander, the defence was pleaded that there was absolute privilege as the
statement was made before the Court of law. The High Court considered
the remark to be irrelevant to the matter under inquiry and rejected the
defence of privilege and held the defendant liable.
3) State Communications: A statement made by one officer of the state to
another in the course of official duty is absolutely privileged for reasons of
public policy. Such privilege extends to reports made in the course of
Military and Naval Duties. Communications relating to state matters made
by one minister to another is also absolutely privileged.
b) Qualified Privilege: There are certain occasions, which are not so important
from the point of view of society as to warrant absolute privilege. But for
common convenience and welfare of society, communications made on such
occasions need protection. For such communications, law allows only qualified
privilege, which protects such statements as are made without malice. Such a
privilege is available either when the statement is made in discharge of a duty or
protection of an interest or a publication is in the form of parliamentary, judicial

16
Das [{1929} Lah. 486]

16 | P a g e
 or other public proceedings. Thus to avail this defence, the defendants have to
prove two points:
1) Statement was made on a privileged occasion; and
2) Statement was made without any malice.
In Radheshyam Tiwari Vs Eknath17, the defendant publish a series of articles
making serious allegation against the plaintiff. In the articles it was mentioned
that the plaintiff, a B.D.O.(Block Development Officer), issued false certificates,
accepted bribe, adopted corrupt and illegal means in making wealth. In an action
for defamation, the defendant pleaded three defences namely justification, fair
comment and qualified privilege. All the defences were rejected. The defence of
justification could not be available as the truth of the fact could not be proved.
The defence of fair comment was not allowed because there was statement of
fact, rather than expression of opinion. The defence of qualified privilege also
could not be availed because the publications were malafide and the editor
consciously tried to defame the B.D.O. The defendant was held liable in this
case.

17
[A.I.R. {1985} Bombay, 285]

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 CH 4-CONCLUSION

Defamation means publication of such statement, which tends to injure the reputation of other
person. In modern society, every person is entitled to his good name and has a right to claim
that his reputation will not be injured by any person by making defamatory statements about
him to a third person without any lawful justification. The primary aim of the law of
defamation is to prevent a person from indulging in unnecessary or false criticism arising
possibly out of malice & thereby laying down standards of speech and writing; and at same
time, to encourage and maintain honest, legitimate and true criticism for the benefit of the
society. In other words, the law of defamation protects reputation and the defences to the
wrong such as justification, fair comment and privilege protects freedom of speech.

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