1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal No. 168 of 2004

1. Dr. P.K.Niyogi, S/o. Late Dr. T.P.Niyogi, Proprietor- Niyogi Sonography

Centre, Manendragarh.
2. Dr. C.P.Karan, S/o. Dr. D.P.Karan, Dr. Naran Nursing Home, Ward No.15,
Manendragarh, Tehsil Manendragarh, District Koria, Chhattisgarh.
---- Appellants
Versus

Praveen Nishi, Publisher, Printer & Chief Editor & Title Holder “Ghoomta
Darpan” Fortnightly News Paper, Bus Stand, Manendragarh, District Koria,
Chhattisgarh.
---- Respondent
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For Appellant s : Mr. Nishikant Sinha & Mr. Shakti Raj Sinha,
Advocates

For Respondent : Mr. Ashish Beck, Advocate

---------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Goutam Bhaduri

Judgment On Board

03.12.2018

1. The instant appeal is against the judgment and decree dated

16.07.2004 passed in Civil Suit No.1-B/1998 by the Additional

District Judge, Manendragarh, District Koria, wherein the suit for

damages of Rs.1,00,000/- was dismissed by the learned Court

below for alleging defamatory publication made in newspaper on

the ground that justification of truth exists on the published news

item. After dismissal of the suit, in this appeal, the appeal value

was reduced to Rs.50,000/- for damages.

2. The plaintiffs' suit was that Dr. P.K.Niyogi carries on Sonography

Centre at Mahendragarh and Dr. C.P. Karan carries on Nursing

Home by name and style as Dr. Karan Nursing Home at

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Manendragarh. It was stated that both the Doctors have acquired

reputation and name by their work of extending different medical

help to the people and were popular amongst the public. It was

stated that they were respected in all the circles of the society.

However, the defendant Praveen Nishi, who was a Publisher,

Printer & Chief Editor of newspaper namely Ghoomta Darpan in

between the period from 16.10.1997 to 31.10.1997 published

news that the Doctors are committing dacoity with the poor in a

news captioned as "fpfdzRldksa ds }kjk pSuy fLkLVe ls xjhcksa dks ywVk

tk jgk gS^^ It was further published that the plaintiffs without any

reason used to give injection to the patient and used to recover

Rs.40-50/- fees, thereafter, used to prescribe medicine of Rs.40-

50/- and without any reason they were subjected to sonography

and were sent to a Sharma Pathology for blood & urine tests

thereby were looting poor people. The plaintiffs stated because of

such publication, the plaintiffs' image were tarnished which

ultimately caused damage to reputation and reduction of their

practice. The plaintiffs contended that they are competent Doctors

and only in case of need, injection were prescribed to the patient

and only on felt need patients were subjected to sonography and

blood & urine test. The plaintiffs further stated that they have

served the defendant a notice to apologies but despite service of

notice, the defendant neither replied it nor extended his apology;

therefore, a suit for defamation of damages of Rs.1,00,000/- was

filed.

3. The defendant in his reply denied the averments and averred that

the publication of news was made in the public interest and in all

bonafide without any intention of damaging the reputation of

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plaintiffs. It was stated that since the duty of a Doctor is related to

the public on day to day basis the publication of like nature were

made. It was stated that considering the plight of the general

public mainly the tribal backward people, considering their

problem, the publication of the news was made. It was stated that

because of the publication no damage was caused to the

profession of the plaintiffs and dismissal was prayed for.

4. On the basis of the pleading of the parties, the Court framed three

issues and dismissed the suit. Hence this appeal.

5. Learned counsel for the appellants would submit that the plaintiffs

have examined themselves as also the local residents of the area

and have explained the damage cause to the reputation. It is

stated that for the reason the plaintiffs refused to give an

advertisement to the newspaper of the defendant, as a revenge,

false publication of the news was made without any proof thereof.

He submits that the nature of the publication so made definitely

harms the reputation of a professional; consequently, the suit for

damages was filed. It is further contended that the dismissal of the

suit on the terminology of justification of truth is foreign to the

issue. It is stated the dismissal of suit is completely misapplication

of terminology and justification of truth is actually defence of

justification or truth. He submits the evidence categorically shows

that the damage is done to the reputation to which truth was

absent. Consequently, the Court should have decreed the suit in

favour of the plaintiffs.

6. Learned counsel for the defendant/respondent submits that taking

into nature of publication made the defence of good faith existed.

It was further stated that publication was made not to harm any
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individual but was made in public interest. Therefore, the order

passed by the Court below is well merited which do not call for any

interference. He relied on AIR 1970 SC 1372 & AIR 1961 M.P.

205.

7. I have heard learned counsel appearing for the parties at length,

perused the pleadings and the documents.

8. The pleading contains attacking the publication so made is

completely false. According to the averments of the plaint, the

plaintiffs stated that in between 16.10.1997 to 31.10.1997 in the

newspaper Ghoomta Darpan in the last page, captioned was

made “fpfdzRldksa ds }kjk pSuy fLkLVe ls xjhcksa dks ywVk tk jgk gS ” and

plaintiffs were named and pointed out as Doctors who were looting

the patients. The defendant completely denied the averments in

written statement. It was further stated that the publication of the

news so made were without any malice and was published with all

bonafide considering the welfare of the public at large and the

activities have been published because issue was related to the

general public and further the publication had not damaged the

image of the plaintiffs. The defendant further admitted the fact that

the patients were adviced by Doctors that something is developing

inside their human body and on such fear they were unnecessarily

subjected to sonography and different test and two Doctors were

also named. It was published that in public interest to save them,

the publication was made. The defendant so admitted the fact that

the publication of the news was made by him but it was in the

public interest and truth exists there.

9. Now coming to the statement of the plaintiffs, Dr. P.K.Niyogi,

plaintiff No.1, examined as PW-1 and Dr. C.P.Karan, plaintiff No.2

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was examined as PW-4. Both have stated that they know the

defendant Praveen Nishi, he is the Editor of the Newspaper

Ghoomta Darpan. PW-1, P.K.Niyogi further stated that he worked

as Block Medical Officer from 1988 to 1995 and he is MBBS &

MS. In respect of Dr. C.P.Karan, it is stated that earlier he was in

service, thereafter, after resigning, he started his private practice.

The statement of the witnesses PW-1 & PW-4, the plaintiffs, would

show that earlier they were both in government job, thereafter,

they started their own practice. Both the witness in chief stated

that in 1997 in the month of October, they came across in news

publication in paper namely Ghoomta Darpan whose Publisher &

Editor was Praveen Nishi. In the last page of the paper, the news

was published that by channel system the poor persons are

looted. The witness further stated that the sum and substance of

the order was that Dr. P.K. Niyagi used to refer the case to Dr. C.P.

Karan for income and likewise the patient was being referred to

one Sharma Phathology for test of blood & urine for income. It is

further stated that the result which was come out that for no

reason the patient was subjected to sonography, x-ray, blood &

urine test and used to commit loot from the patient with a channel.

Dr. C.P.Karan, PW-4, has also made the like statement that the

publication so made has damaged their reputation, which resulted

into fact of reduction of their practice.

10. The reliance is placed by the respondent in case of Chaman Lal

v. The State of Punjab reported in AIR 1970 SC 1372 and the

relevant part i.e. Para 10 is quoted herein under :

“10. In the background of these findings of fact the plea of

good faith of the appellant that he wrote the letter dated
2nd August, 1962, pursuant to the application and the
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resolution of the residents of Sujanpur loses all force and

has no foundation. In order to establish good faith and
bona fide it has to be seen first the circumstances under
which the letter was written or words were uttered;
secondly, whether there was any malice; thirdly, whether
the appellant made any enquiry before he made the
allegations; fourthly, whether there are reasons to accept
the version that he acted with care and caution and finally
whether there is preponderance of probability that the
appellant acted in good faith.”

11. Further the reliance is placed in case of Purushottam Vijay v.

State reported in AIR 1961 M.P. 205 wherein Para 16 is relevant,

which is quoted herein below :

16. In principle, our law on the subject is the same. On

the other hand, the statement of facts need only be
substantially correct and need not be micro-scopically or
photographically true: nor can the plaintiff in a civil suit or
the prosecutor in a criminal case, fasten himself on to an
inaccuracy in the detail, unless that detail itself is such as
to make substantial difference to the case. As stated in
Surajmal B. Mehta v. B.C. Horniman, 47 Ind Cas 449:
(AIR 1917 Bom 62) (SB):

“While a journalist is bound to comment on public

questions with care, reason and judgment, he is not
necessarily deprived of his privilege merely because there
are slight unimportant deviations from absolute accuracy
of statement, where those deviations do not affect the
general fairness of the comment. The articles must be
considered rather in their entirety than by separate
insistence on isolated passages, and the Court must
decide what impression would be produced on the mind of
an unprejudiced reader, who knowing nothing of the
matter beforehand, read the article straight through”.

Courts, in fact, have gone to the extent of saying that even

an exaggeration will not by itself disentitle the accused or
the defendant from this defence. In Murlidhar v.
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Narayandas, 27 Ind Cas 205: (AIR 1914 Sind 85) it was

observed:

“Mere exaggeration, or even gross exaggeration does not

make a comment unfair. Where in a newspaper report the
main aspersion of the accused against the complainant is
true, the fact that there is some exaggeration or departure
from strict truth dos not deprive the accused of the
protection provided in Exception 3 to S.499 Indian Penal
Code.

It is necessary, however, in the present case to go far. In

Dr. Khare v. M.R. Masani, AIR 1942 Nag 117 quoted by
the learned Sessions Judge in para 23 of his judgment,
we have the basic elements of this defence set out under
three headings.

12. Reading of the two judgment would show the good faith and

bonafide has to be seen when defence of like nature is advanced.

Under the circumstances, the words were written whether there

was any malice; whether any enquiry was made before allegations

were made; whether there are reasons to accept the version that

he acted with care and caution and whether there is

preponderance of probability that the appellant acted in good faith

are to be examined. Likewise another principle, which has been

relied on AIR 1961 M.P. 205, it says that the statement of facts

need only be substantially correct and any exaggeration thereof

would not be amount to defamation and the Court must decide

what impression would be produced on the mind of an

unprejudiced reader, who, knowing nothing of the matter

beforehand, read the article straight through.

13. The article of the newspaper which is admitted to have published

by the respondent is Ex.P-1 and the captioned of the newspaper

reads as under :
 8

“fpfdzRldksa }kjk pSuy fLkLVe ls xjhcksa dks ywVk tk jgk gS”

“nj vly bl flyflys dh 'kq:vkr dqN bl rjg ls gksrh gS fd ejht

viuh fljnj] lnhZ] [kklh] cq[kkj] 'kjhj nnZ ;k mYVh nLr tSlh ekewyh lh
chekfj;ksa dk bykt djkus ds fy;s MkW- dju fDyfud esa tkrk gSA MkWa
lkgc mldk ijh{k.k fujh{k.k djrs gS] ,d batsD'ku yxkrs gSa] dqN
nokbZ;ksa ds uke fy[k nsrs gS] rks dqN nokbZ;k vius ikl ls gh ns nsrs gS
vkSj cnys esa ml ls 40 :- viuh Qhl] 10 :- batsD'ku pktZ] 40&50 :-
nokbZ;ksa dh dher olwy ysrs gS lkFk gh ml ejht dks tkus ls igys
bruh lykg vo'; ns nsrs gS fd vkids isV esa veqd fodkl] ;k vkids
'kjhj esa dqN Li"V u le> esa vkus okyh chekjh dh Hkh 'kadk utj vk jgh
gS vr% vki ,d ckj lksuksxzkQh djok yhft, rks vkidks chekjh D;k gS
bldh iDdh tkudkjh fey tk,xh rRi'pkr lgh bZykt Hkh gks ik,xk vr
% vki MkW- fu;ksxh ds ;gka tkdj gekjk uke crk dj lksuksxzkQh djok
yhft,A
LoxZ ls fxjdj [ktwj esa vVdus dks etcwj ejht fdlh rjg iSlksa dh
O;oLFkk dj fu;ksxh lksuksxzkQh ls.Vj igqaprk gS] lksuksxzkQh djkdj lk<+s
rhu ls pkj lkS :i, dk [kpZ ogu djrk gS vkSj var esa mls ;g tkudkjh
ns nh tkrh gS fd vkidks dksbZ ?kkrd chekjh rks ugh gS fQj Hkh vki
**'kekZ iSFkkykWftdy ySc** esa tk dj vius jDr vkSj ew= dh tkap t:j
djk yhft, gks ldrk gS jDr ;k is'kkc esa dksbZ fodkl mRiUu gks x;k
gksA
bl rjg ls xjhc etcwj] vui<+] vatku ejht vius eu dh rlYyh
ds fy;s 'kekZ iSFkks ySc Hkh pyk tkrk gS vkSj ogka ij Hkh 100 ls 150 :-
dk pquk mls yxk fn;k tkrk gS] fnu Hkj esa nks VkbZe dh jksVh dk Hkh cM+h
eqf'dy ls tqxkM+ dj ikus okyk ,d xjhc ejht] viuh ekewyh lh chekjh
dk bZykt djkus esa gtkj :- dk [kpZ ogu djus dks foo'k gks tkrk gS
vkSj mldh vf'k{kk] vKkurk] xjhch vkSj Hkksysiu dk ykHk mBk dj gtkjksa
:i, izfrfnu voS/k :i ls dek jgs gSA”
14. Reading of Ex.P-1 further shows that it reflects the name of both

the appellants and stated that when the patient reaches to Doctor

Karan for treatment of headache, cold, cough, fever, body-ache,

omitting & dysentery, he is given some injection and Doctor takes

his fee apart from the injection. Thereafter advise him to go for
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sonography. Thereafter, the patient reaches to the Dr. Niyogi and

Dr. Niyogi thereafter conducts sonography, takes his fee of

Rs.300-400/- and at the end advise there is no terminal disease,

but advices further that patient may go to Sharma Pathology for

test of blood & urine. Therefore, the poor patient goes from one

Doctor to another and has to pay the different amounts. Apart from

this, the other facts have also been narrated.

15. The defendant DW-1, Praveen Nishi, has made statement that

one name of Bharti, the lady patient, came to him and disclosed

the above narration of fact. The hearsay evidence as disclosed

that patient disclosed that she went to Dr. Karan wherein she was

referred to Dr. Niyogi and subsequently she was referred to

Sharma Pathology and had paid the fees. The said patient Bharti

has not been examined before the Court. Likewise, DW-2 one

Vijay Laxmi has stated that she had been to Dr. C.P. Karan for

stomach ache wherein she was referred to Dr. Niyogi and

subsequently she was subjected to test for blood & urine and

eventually it was found that problem is because of gas formation.

One document Ex.D-1 is filed, which is a photocopy of one

prescription of Clinic of Dr. Karan Nursing Home. Nothing can be

read out from that as to what is the impact or diagnosed for that

patient. As against this, apart from the statement of PW-1 & PW-4

the plaintiffs got examined one Gopal Prasad Bunkar, PW-2, he

stated that after reading the news in the paper, he carried out the

impression that Dr. P.K.Niyogi and Dr. C.P.Karan are not good

Doctor, they are committing loot to the patient and he had

developed disrespect for them and stopped going to them.

Another statement of Satya Prakash Verma, PW-3, is on record.

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He had also made the similar like statement that after reading the

newspaper, he initially stopped to go to them for any treatment.

16. In view of the aforesaid evidence, the defence whether the

principles of good faith and no malice can be pressed into motion.

The defendant has pleaded that the publication was an honest

impression of facts made in good faith. The evidence however

would go to show that those facts of attributing allegation on

Doctors have not been established, it is only an impression of

opinion and a hearsay. What was the facts on it to publish the

evidence is missing. Reading of the paper Ex.P-1 would show it is

defamatory allegation of fact in absence of evidence.

17. The Bombay High Court in case of Radheshyam Tiwari v.

Eknath Dinaji Bhiwapurkar reported in AIR 1985 Bom 285

following the principles laid down in Parke B. in Toogood v.

Spyring (1834) 1 CM & R 181 stated that publication of

statements which are false and injurious to the character of

another gives rise to an inference of malice in law and make the

publisher liable in damages to the person affected. It is further

held that malice in common acceptance means ill will against a

person but in its legal sense means a wrongful act done

intentionally without just cause or excuse. Absence of proper

motive is termed malice in fact while term malice in law in taken to

mean that defamation was wrongful and intentional. It is further

held that inference of malice in law is successfully rebutted if the

publisher is able to show that statement was made in the

discharge of a public or private duty.

18. In the instant case, mere leveling the allegation against the Doctor

without any substance or proof, the presumption cannot be drawn

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that it was in the discharge of a public duty. It is also immaterial

whether that duty is a legal duty or a moral duty. An occasion can

be privileged only if it can be fairly stated that the person to whom

it has been made has a corresponding duty. Furthermore, the

statement of PW-2 & PW-3 which remains unrebutted on the facts

that the impression which has been made in mind of third person

who was knowing nothing but they have stated that after news

was published they stopped going to Doctor and started

disrespect. The defendant if was sanguine of the fact that the

incident happened with someone, it has to be proved beyond the

reasonable doubt and at least some acceptable evidence should

have been on record apart from opinion of the witnesses and mere

clamping charges and mud bungling will not help him to

substantiate the defence.

19. In respect of publication of news item, the Supreme Court in case

of Sewakram Sobhani v. R.K.Karanjia, Chief Editor, Weekly

Blitz & Others reported in (1981) 3 SCC 208 held as under :

11. The High Court appears to be labouring under an

impression that journalists enjoyed some kind of special
privilege, and have greater freedom than others to make
any imputations or allegations, sufficient to ruin the
reputation of a citizen. We hasten to add that journalists
are in no better position than any other person. Even the
truth of an allegation does not permit a justification under
the First Exception unless it is proved to be in the public
good. The question whether or not it was for public good is
a question of fact like any other relevant fact in issue. If
they make assertions of facts as opposed to comments on
them, they must either justify these assertions or, in the
limited cases specified in the Ninth Exception, show that
the attack on the character of another was for the public
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good, or that it was made in good faith : Per Vivian Bose,

J. in Dr. N.B.Khare v. M.R.Masani & Ors.

20. Therefore, the aforesaid principle would go to show that the said

privilege which has been claimed by the defendant as Editor

cannot be accepted consequently it can be completely insulated

by presumption or justification or truth.

21. The Calcutta High Court in Asoke Kumar Sarkar & Another v.

Radha Kanto Pandey & Others reported in AIR 1967 Cal 178

has drawn the definition of civil and criminal defamation and it was

held that the essence of the cause of action in the civil suit for

damages is the tortious liability for compensation for the damage

to or loss in reputation suffered by the aggrieved party. It was held

that harm to the reputation is common threat which passes even in

criminal defamation under Section 499 of I.PC. as also under the

civil defamation in criminal cases the conviction and sentence of

imprisonment are essential features while in civil the damages are

being granted. It is held that the exceptions to the criminal

defamation provided in Section 499 of Indian Penal Code are also

indicative of the test of civil and criminal defamation. Truth

necessarily is the defence both in civil and criminal defamation,

but the first exception to Section 499 of I.P.C. insists that in

addition to truth, the imputation must be shown to have been

made for public good. Public good therefore is an overriding

relevant consideration in a criminal defamation which is concerned

with the protection of the society unlike a private suit for damages

for defamation. The public test in a criminal defamation can be

traced in other exceptions like 4 th, 5th, 6th, 7th, 8th & 9th exceptions.

However, the public test as such is hardly a defence for a civil suit
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for damages in a private action. No doubt the normal public test in

a civil suit that the reputation must be lowered has to be satisfied.

22. Therefore, the defence which has been raised by the respondent

that it was in the public interest in a defamatory damages suit may

not be squarely applicable and accepted. Besides that no

evidence is on record that such public interest is exists. The

evidence is an opinion and is hearsay. Under the circumstances, I

am agreeable to the principles laid down in case of Md. Ayub

Khan v. The Editor, Dainik Sambad & Others by the High Court

of Tripura at Agartala on 07.03.2018, which is quoted herein

below.

“36. The law is well settled that the mere fact that the
defendants believed that what they stated was true by
itself will not sustain the case of good faith as simple belief
or actual belief by itself is not enough. It must be the belief
rested in the rational basis and not to be just a rational
belief. That apart, to come under such exception the
defendants had to plead the fact relating to good faith and
the burden to prove in this regard is to be discharged. It
means that the exercise of due care and caution is
essential to show that the imputation whatever is available
in the news items is made bonafide or in the public good.
Whenever, in a greater interest of public, a news item is
published with criticism, such criticism shall not always be
on a fine scale. If the foundation appears to have been
made on the relevant papers, then, the onus for the news
items if related to the public interest is on the defendants
to reveal the foundation on which such news item was
published.”

23. Having scrutinized the entire evidence on record, the defence

raised by the respondent cannot be accepted as he has failed to

discharge his onus and the paper publication so made when

compared against the statement of the plaintiffs do not allow the

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defamatory tortuous suit to tail. In view of discussion in the

foregoing para, I am of the opinion the justification or truth never

existed for which the suit was dismissed by the Court below.

24. In a result, the appeal is allowed. The suit is decreed for

Rs.50,000/- as against damages which to be paid and shared by

both appellants equally. The defendant shall also be liable to pay

the cost of the suit and appeal to the appellant/plaintiff.

Sd/-
(Goutam Bhaduri)
Judge
Ashok