Supreme Court of India
Shahed Kamal vs M/S. A. Surti Developers Pvt. Ltd on 17 April, 2025
2025 INSC 502 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2033 OF 2025
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 9942 OF 2024)
SHAHED KAMAL & ORS. APPELLANT(s)
VERSUS
M/s A. SURTI DEVELOPERS
PVT. LTD. & ANR. RESPONDENT(s)
JUDGMENT
K.V. Viswanathan, J.
1. Leave granted.
2. Homebuyers and developers have not always been the best of
friends. Instances are innumerable where the two have been at daggers
drawn. This case presents one such instance. Not satisfied with the
services provided by the respondent-developer and when, according to
them, repeated entreaties did not elicit a response, the appellant-home
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.04.17
15:29:30 IST
Reason:
buyers decided to resort to a unique form of protest. They erected a
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board/banner visible to the public at large setting out in English and
Hindi languages the following statements. The English version is as
follows:-
“WE PROTEST AGAINST THE BUILDER
“A SURTI DEVELOPERS PVT. LTD.”
FOR NOT FORMING THE SOCIETY EVEN AFTER 18 MONTHS BROKEN PODIUM
NOT GIVING SOCIETY ACCOUNTS
NOT CO-OPERATING WITH THE RESIDENTS SHABBY GARDEN
NOT ATTENDING TO BUILDERS’ DEFECTS
NOT SORTING WATER ISSUE IGNORING GRIEVANCES
POOR LIFT MAINTENANCE
LEAKAGE PROBLEM NON-CO-OPERATION
PLUMBING ISSUES
DIRTY/BOUNCY APPROACH ROADWE PROTEST FOR OUR RIGHTS”
3. The respondent-developer hit back and threatened to sue them for
defamation unless an apology was tendered. When the appellants
refused, a criminal complaint was filed for offences punishable under
Section 500 read with Section 34 of the Indian Penal Code, 1860 (for
short ‘IPC’). The Metropolitan Magistrate Court, Borivali, Mumbai,
on 04.10.2016, after perusal of the complaint and the verification
statement of the complainant, issued summons against the appellants
for offences punishable under Section 500 read with Section 34 of the
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IPC. A challenge in revision having failed, the appellants approached
the High Court by way of a Writ Petition under Article 226 and 227 of
the Constitution of India read with Section 482 of the Code of Criminal
Procedure, 1973 seeking to quash the complaint as well as the summons
issued. The High Court having turned down their plea, the appellants
are before us.
4. The short question before us is whether the complaint filed by the
respondent makes out a case for offences punishable under Section 500
read with Section 34 of the IPC against the appellants?
5. Principally, the grievance in the complaint of the respondent was
that the appellants individually and in connivance with each other to
spread disharmony erected/fixed two banners/boards in Hindi and
English visible to the general public at large on 10.08.2015. The
contents of the banner have been set out hereinabove. According to the
complaint, the appellants have started a calculated campaign to defame
the complainant’s image and reputation, and the appellants are making
false propaganda and spreading rumours. The complaint alleges that
the banners have adversely affected and damaged the reputation of the
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complainant and have been put up with full knowledge that they are
false and frivolous. The complaint alleges that the banners have been
put up in the manner as to be visible to the public with the deliberate
intention to defame the complainant. The complainant further alleges
that it informed the Mumbai Municipal Corporation about the erection
of the two banners and that ultimately the banners were removed on
29.02.2016 under the supervision of the appellants 1, 2 & 7 and other
residents. The complaint alleges that the motive of the appellants was
to lower the reputation of the complainant in the eye of the public at
large and caused mental agony and injury to the reputation of the
complainant.
6. The High Court has refused to interfere with the summons issued
by holding that prima facie the imputation has propensity to cause a
dent in the reputation of the complainant. The High Court, even after
correctly noticing the legal position that the Court at the stage of issue
of summon is not in any manner precluded from considering whether
any of the exceptions to Section 499 were attracted, on facts, held
without any reasons that in the present case they were questions of fact.
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Holding so, the High Court rejected the plea of the appellants and
relegated them to face trial.
7. We have heard learned Counsel for the parties and perused the
records. Learned Counsel for the appellants submits that the complaint
has been filed to exert pressure on the appellants in order not to object
to the illegal construction of the second building on the same plot by
utilizing the additional FSI; that the additional FSI became available
after the completion of the building in which the appellants are
occupying and as such the additional building could not have been
constructed; that the civil dispute is being given a criminal colour; that
the defective and unfulfilled works listed out in the banner were breach
of contractual obligations and the same are pending adjudication in suit
no. 610 of 2019 pending before the High Court.
8. Learned Counsel for the appellants contends that the banner only
highlights the factual grievances of defective and unfulfilled works left
unattended by the respondent and the hardships being suffered by all
the 128 flat owners collectively; that there is not a single word or
statement in the banner, which can be termed as defamatory; that the
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appellants have the fundamental right of freedom of speech and
expression and the contents of the banner do not constitute defamation
as defined in Section 499 IPC read with the exceptions; that the
complainant has suppressed the material facts; that several letters have
been written by the ad-hoc committee of flat purchasers regarding the
grievances and some of the letters have been admittedly received by
the respondent and that these letters have been suppressed by the
complainant while approaching the Criminal Court.
9. The learned Senior Counsel for the respondent has reiterated the
averments in the complaint set out hereinabove. The learned Senior
Counsel contended that no civil or consumer proceedings have ever
been initiated by the appellants or any other flat purchasers as regards
the alleged deficiencies and that suit no. 610 of 2019 has been instituted
much later and that too primarily with regard to the alleged claim over
the FSI as increased by the notification dated 18.11.2015; that in the
suit the learned Single Judge, by order dated 25.11.2020, and the
Division Bench, by order dated 17.03.2022, have found that the
appellants and the flat purchasers do not have the right over the
increased FSI and that the provisions of the Maharashtra Ownership of
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Flats Act, 1963 (MOFA) are not applicable to the land in question; that
the land is owned by the Mumbai Metropolitan Region Development
Authority (MMRDA) and covered by the MMRDA Act and that the
complainant was under no obligation to register a society or convey
title under the provisions of the MOFA. It is further contended that in
the revision application, the appellants did not raise any contention
about their case being covered under any of the exceptions to Section
499 IPC and it was only in the writ petition that Exception 1 and 3 to
Section 499 were invoked, which has been rightly rebuffed by the High
Court. According to the learned Senior Counsel for the respondent, the
ingredients of Section 499 are clearly attracted and the appellants have
been rightly summoned to answer the charge for offences under Section
500 read with Section 34.
ANALYSIS AND REASONS:-
10. Section 499 of the IPC along with the 9th Exception is extracted
hereinbelow:-
“499. Defamation.- 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 reason to believe
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that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to
defame that person.
Explanation 1.- It may amount to defamation to impute
anything 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.
Explanation 2.- It may amount to defamation to make an
imputation concerning a company or an association or
collection of persons as such.
Explanation 3.- An imputation in the form of an alternative
or expressed ironically, may amount to defamation.
Explanation 4.- No imputation is said to harm a person’s
reputation, unless that imputation directly or indirectly, in
the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that
person in respect of his caste or of his calling, or lowers the
credit of that person, or causes it to be believed that the body
of that person is in a loathsome state, or in a state generally
considered as disgraceful.
Ninth Exception.- Imputation made in good faith by
person for protection of his or other’s interests.- It is not
defamation to make an imputation on the character of
another provided that the imputation be made in good faith
for the protection of the interests of the person making it, or
of any other person, or for the public good.”
11. As the Section indicates to constitute the offence of defamation
there should be imputation concerning any person with intent to harm
or knowing or having reason to believe that such imputation will harm,
the reputation of such person. This is subject to exceptions and the 9th
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exception which has been considered by the High Court provides thatit will not be defamation to make an imputation on the character of
another provided that the imputation is made in good faith for the
protection of the interests of the person making it, or of any other
person, or for the public good.
12. P. Ramanatha Aiyar’s Advanced Law Lexicon 3rd Edition
defines “imputation” to mean “the act or an instance of imputing
something, especially fault or crime, to a person: an accusation or
charge (an imputation of negligence)”.
SCOPE OF THE ENQUIRY: –
13. Before we proceed further, it is appropriate to notice the recent
pronouncement of this Court in Iveco Magirus Brandschutztechnik
GMBH v. Nirmal Kishore Bhartiya and Anr., (2024) 2 SCC 86
wherein this Court, while examining the question whether the
exceptions to Section 499 could be considered at the stage of issue of
process under Section 204 CrPC and equally for the High Court
examining a petition to quash under Section 482, had the following to
say:-
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“60. What the law imposes on the Magistrate as a
requirement is that he is bound to consider only such of the
materials that are brought before him in terms of Sections
200 and 202 as well as any applicable provision of a statute,
and what is imposed as a restriction by law on him is that he
is precluded from considering any material not brought on
the record in a manner permitted by the legal process. As a
logical corollary to the above proposition, what follows is
that the Magistrate while deciding whether to issue process
is entitled to form a view looking into the materials before
him. If, however, such materials themselves disclose a
complete defence under any of the Exceptions, nothing
prevents the Magistrate upon application of judicial
mind to accord the benefit of such Exception to prevent
a frivolous complaint from triggering an unnecessary
trial.
62. In the context of a complaint of defamation, at the stage
the Magistrate proceeds to issue process, he has to form his
opinion based on the allegations in the complaint and other
material (obtained through the process referred to in Section
200/Section 202) as to whether “sufficient ground for
proceeding” exists as distinguished from “sufficient ground
for conviction”, which has to be left for determination at the
trial and not at the stage when process is issued. Although
there is nothing in the law which in express terms
mandates the Magistrate to consider whether any of the
Exceptions to Section 499 IPC is attracted, there is no
bar either. After all, what is “excepted” cannot amount to
defamation on the very terms of the provision. We do realise
that more often than not, it would be difficult to form an
opinion that an Exception is attracted at that juncture
because neither a complaint for defamation (which is not a
regular phenomenon in the criminal courts) is likely to be
drafted with contents, nor are statements likely to be made
on oath and evidence adduced, giving an escape route to the
accused at the threshold. However, we hasten to reiterate
that it is not the law that the Magistrate is in any manner
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precluded from considering if at all any of the Exceptions
is attracted in a given case; the Magistrate is under no
fetter from so considering, more so because being
someone who is legally trained, it is expected that while
issuing process he would have a clear idea of what
constitutes defamation. If, in the unlikely event, the
contents of the complaint and the supporting statements on
oath as well as reports of investigation/inquiry reveal a
complete defence under any of the Exceptions to Section
499 IPC, the Magistrate, upon due application of judicial
mind, would be justified to dismiss the complaint on such
ground and it would not amount to an act in excess of
jurisdiction if such dismissal has the support of reasons.
63. Adverting to the aspect of exercise of jurisdiction by the
High Courts under Section 482 CrPC, in a case where the
offence of defamation is claimed by the accused to have not
been committed based on any of the Exceptions and a prayer
for quashing is made, law seems to be well settled that the
High Courts can go no further and enlarge the scope of
inquiry if the accused seeks to rely on materials which were
not there before the Magistrate. This is based on the simple
proposition that what the Magistrate could not do, the High
Courts may not do. We may not be understood to undermine
the High Courts’ powers saved by Section 482 CrPC; such
powers are always available to be exercised ex debito
justitiae i.e. to do real and substantial justice for
administration of which alone the High Courts exist.
However, the tests laid down for quashing an FIR or
criminal proceedings arising from a police report by the
High Courts in exercise of jurisdiction under Section 482
CrPC not being substantially different from the tests laid
down for quashing of a process issued under Section 204
read with Section 200, the High Courts on recording due
satisfaction are empowered to interfere if on a reading of
the complaint, the substance of statements on oath of the
complainant and the witness, if any, and documentary
evidence as produced, no offence is made out and that
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proceedings, if allowed to continue, would amount to an
abuse of the legal process. This too, would be
impermissible, if the justice of a given case does not
overwhelmingly so demand.”
The High Court has also noticed this judgment which holds that if the
materials disclosed in the complaint and the documents annexed
disclose a complete defence under any of the Exceptions, nothing
prevents the Magistrate upon application of judicial mind to accord the
benefit of such Exception to prevent a frivolous complaint from
triggering an unnecessary trial. It has been further held that what is
“excepted” cannot amount to defamation on the very terms of the
provision and that the Magistrate is not in any manner precluded from
considering if at all any of the Exceptions is attracted in a given case.
It has been further held that if the Magistrate on examination notices
that there is a complete defence made out under any one of the
Exceptions, the Magistrate would be justified in dismissing the
complaint. Equally, the High Court examining the case under Section
482, if it finds on a reading of the complaint, the substance of the
statements on oath of the complainant and the witness and the
documents produced by the complainant that no offence is made out
and if the High Court is of the opinion that proceedings if allowed to
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continue would be an abuse of legal process, the High Court is
empowered to interfere.
14. It is in this background that we have set out to examine the case
at hand after keeping in mind the main part of the definition and the
exceptions to Section 499. Before we take a closer look at the contents
of the banner carrying the imputation, certain peculiar facts obtaining
in the case at hand needs to be noticed.
RELATIONSHIP BETWEEN THE PARTIES:-
15. The appellants and the respondent have a business relationship in
the sense that the appellants are allottees of residential flats in the
building developed by the respondent under a registered builder-buyer
agreement with reciprocal obligations provided therein. It is not
disputed that in the building there are about 128 allottees and the
building itself has ground + stilt+ podium + 22 floors. The banner was
put on 10th of August, 2015 i.e. approximately a year and six months
after the flat purchasers were put in possession. The grievance raised
in the banner is with regard to A) not forming the society even after 18
months B) not giving society accounts C) not co-operating with the
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residents D) not attending to builders’ defects E) not sorting water issue
F) poor lift maintenance G) leakage problem H) plumbing issues I)
dirty/bouncy approach road, there is also a grievance with regard to
broken podium, shabby garden, ignoring grievances and non-
cooperation. There is a caption “we protest for our rights”.
LANGUAGE EMPLOYED IN THE PUBLICATION: –
16. At the very outset, what strikes us is that there is no foul or
intemperate language employed against the respondent. There is no
reference to any expression like “fraud, cheating, misappropriation
etc.” In mild and temperate language, certain issues, which the
appellants perceived as their grievances have been aired. It is the
appellants’ case that these issues have been raised in the form of letters
before though the respondent has denied receipt of all of the letters
attributed. Be that as it may, we are not deciding the issue based on the
letters. Equally, the appellants have a case that the respondent itself
has written letters promising to address grievances and it is only when
it failed to do so that they resorted to the protest by erecting the banner.
The appellants have a case that these letters have been suppressed. We
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are, for the moment, keeping these letters aside and deciding the issue
based on the averments in the complaint. Further admittedly, there is a
civil suit though filed much later in 2018 raising the issue of accounts,
non-formation of society and highlighting the deficiencies and seeking
reimbursement.
SCOPE OF THE EXCEPTION: –
17. In a business relationship like that of a builder and homebuyer,
certain allowances in the use of phraseology in communication should
be provided as long as the deployment of the phraseology in question
is based on good faith. Whether it is based on good faith or not, in a
case like the present, will be decided on a careful reading of the
impugned publication. The 9th exception to Section 499 engrafts the
principle of qualified privilege. It has been held by this Court in
Chaman Lal v. State of Punjab, (1970) 1 SCC 590, that under the 9th
Exception to Section 499 if the imputation is made in good faith for the
protection of the person making it or for another person or for the public
good it is not defamation. It has also been held that the interest of the
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person has to be real and legitimate when communication is made in
protection of the interest of the person making it.
18. Further in Harbhajan Singh vs. State of Punjab and Another,
1965 SCC OnLine SC 118, this Court has held that in considering the
question as to whether the person acted in good faith in publishing his
impugned statement, the inquiry is as to whether the person acted with
due care and attention. It was further held that:-
“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 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. Unfortunately, the learned Judge has rejected
the plea of the appellant that he acted in good faith, at least
partly because he was persuaded to take the view that the
evidence led by him did not tend to show that the
allegations contained in his impugned statement were true.
This naturally has to some extent, vitiated the validity of
his finding.”16
CONTRAST WITH THE FIRST EXCEPTION: –
19. Almost 9 decades ago, Justice Pandrang Row, speaking for the
Madras High Court in Kuruppanna Goundan vs. Kuppuswami
Mudaliar, 1935 MWN 365, dealing with exception 9 to Section 499
held that the truth of the imputations need not be proved by an accused
person claiming the privilege of the 9th exception. All that is required
is the imputation is made in good faith for the protection of the interest
of the person making it or of any other person. The contrast with the
1st exception would show how while truth is an essential ingredient of
first exception, it is not so of the 9th exception
20. In Municipal Board Konch vs. Ganesh Prasad Chaturvedi, 1951
SCC OnLine All 117, the Municipal Board brought a complaint against
Ganesh Prasad, the respondent therein, complaining of criminal
defamation for issuing certain leaflets which defamed the Board. The
High Court, while upholding the dismissal of the complaint, had the
following to say:-
“6. Having regard to the provisions of Section 499 read with
Explanation 2 and the definition of the word ‘person’ in
Section 11 of the Penal Code, 1860 it cannot (… sic) said that
a complaint for defamation is not maintainable at all by a
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corporation. But certainly the scope of such a complaint by
a corporation is not the same as that by individuals. The
municipal board per se has hardly a reputation. If the
management is good it will be said that the Board is being
run efficiently. But if the management is bad there is bound
to be accusation of inefficiency and nepotism etc. If a person
makes any imputation so as to cause any special injury to the
property of the board then the board can maintain a
complaint under Section 500. But where the minority party
in the board attacks the majority party for inefficiency then
such an attack does not amount to defamation.
7. Now Section 499 requires inter alia an intention on the
part of the accused to harm the reputation of the complainant
or the knowledge that the imputation made by him will harm
such reputation. Learned Sessions Judge has arrived at the
finding that there was no such intention because the holds
that the criticisms by Ganesh Prasad were not wrong.
Impliedly the learned Sessions Judge means that these
criticisms were intended to tune up the administration. In the
absence of such intention the complaint is not maintainable.
8. For the sound working of democracy it is necessary that
criticisms of the administration of the municipal boards,
within reasonable limits should (…sic) allowed.”
Though the case considered exception 1 to Section 499, the
observations do have a bearing as far as the present case is concerned.
HAVE THE APPELLANTS EXCEEDED THE PRIVILEGE?
21. In Valmiki Faleiro v. Mrs. Lauriana Fernandes and Others, etc.
2005 SCC OnLine Bom 1584, the accused published a notice in a
newspaper informing the public that the complainant is not the owner
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of a certain property and the real owners are the accused. The notice
also warned the public to refrain them from purchasing plots from the
complainant. While quashing the complaint, the High Court found the
following:-
“23. The essence of offence of defamation is the harm
caused to the reputation of a person. Character is what a
person actually is and reputation, is what neighbours, and
others say he is. In other words, reputation is a composite
hearsay and which is the opinion of the community against
a person. Everyone is entitled to have a very high estimate
of himself but reputation is the estimation in which a person
is held by others. The commission of offence of defamation
or publishing any imputations concerning any person must
be “intending to harm or knowing or having reason to
believe that, such imputation will harm, the reputation of
such person, (emphasis supplied.). The notice, in question
on the face of it does not contain any such imputation which
could be said to harm the reputation of the complainant. On
the other hand, a bare reading of the said notice shows that
it has been published by accused Nos. 1 and 2 with a view
to protect the right to the property which they believe they
have a right. A person reading the said notice may at first
flush be a little amused that the said accused are claiming a
set of villages rather than think that it is published with a
view to defame the complainant. All that the said accused
have conveyed by the said notice is that the
property/properties do not belong to the complainant but
belong to them and that anyone dealing with the complainant
will be doing so at their own risk. The contention that the
said notice is per se defamatory and that it attributes
dishonest intention that the complainant lacks business
character and propriety appears to be a figment of the
complainant’s imagination. Such a conclusion cannot be
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culled out by a normal prudent person from a reading of the
said notice which apparently was published by the said
accused Nos. 1 and 2 to protect a right which they believe
they have to the property and with a view to warn others that
in case they enter into any transaction of sale with the
complainant they would be doing so at their own risk and
consequences. A reading of the notice, on the face of it, does
not show that it was published with intention or knowledge
to harm the reputation of the complainant. In my view, the
learned Sessions Judge was right in exercising his discretion
to quash and set aside the Order issuing process against the
aforesaid accused.”
22. Language is the vehicle through which thoughts are conveyed.
Had the appellants exceeded their privilege in erecting the banner? We
do not think so. As set out earlier, all that the banner depicts is what
they thought were their grievances against the respondent with whom
they had a business relationship. The banner sets out that one of the
issues was “ignoring grievances” implying thereby that there have been
running issues between the two – something which is bound to occur
in a builder-buyer relationship. The careful choice of the words, the
conscious avoidance of intemperate, rude or abusive language and the
peaceful manner of protest, all point to the fact that to protect their
legitimate interests and the interest of the other homeowners and
without any malice and in good faith the erection of the banner was
done. One of the tests to decide whether the case falls within the 9 th
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exception is the choice of words employed in the impugned
publication.
23. An interesting case in point on this issue is Queen-Empress vs.
E.M. Slater, (1891) ILR 15 Bom 351. A sum of money was promised
to be paid as a condition precedent for a mortgaged vessel to be allowed
to sail. The money was not paid as promised. The accused therein one
Mr. Slater, the agent of the Bank, wrote to the Complainant for the
money and also sent for him five or six times. However, the
Complainant did not respond. Thereupon, Mr. Slater wrote to the
Complainant’s partner as follows:- “Haji Jusub Pirbhoy (i.e. the
Complainant) has misappropriated the Rs. 5,000/- which were to have
been paid to the Bank for allowing the “Tanjore” to go to Jeddah, and
is keeping out of the way.” Immediately after receipt of the letter, the
Complainant tendered the money to the Bank’s Solicitors and Mr.
Slater withdrew the statement made earlier. The Complainant filed a
complaint against Mr. Slater for defamation. Applying the 9 th
exception and acquitting Mr. Slater, the Division Bench of the High
Court of Judicature at Bombay held: –
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“In the present case, the letter was written in the conduct
of the applicant’s own affairs, in a matter in which not only
he was interested, but in which the person to whom the
letter was sent was also interested. And the question would
then remain whether the publication was fairly made. In
such a case, we can see no unfairness in the applicant stating
exactly what he believed to be the case. He believed that the
complainant was purposely keeping out of his way, in order to
avoid payment of the money, the punctual payment of which
was the condition on which the “Tanjore” had been allowed to
leave Bombay. By saying that he was keeping out of the way,
he did not, we think, mean to imply that the complainant had
absconded. He simply meant that he had not come to his office
to pay the money; that he was avoiding him; and that the
money had not been appropriated to the only purpose to which
it could be lawfully appropriated. If that money was not paid
by the complainant, then Baladina would be liable, as his
partner, to pay it. It was clearly necessary that Baladina should
know all the circumstances as they presented themselves to the
applicant’s mind, in order that he might either put pressure on
the complainant, or himself at once discharge the liability
resting on the partners in respect of the money they held in
trust. In such a case, any milder language than was actually
used might have failed to convey the writer’s meaning, and
perhaps the best indication of the necessity for the language
actually used is found in the fact that, immediately after the
letter was sent, a tender of Rs.3,000 was made by the
complainant…
In Tuson vs. Evans, 12 A. & E., at P.736, it was said: “Some
remark from the defendant on the refusal to pay the rent was
perfectly justifiable, because his entire silence might have been
construed into an acquiescence in that refusal, and so might
have prejudiced his case upon any future claim; and the
defendant would, therefore, have been privileged in denying
the truth of the plaintiff’s statement. But, upon consideration,
we are of opinion that the learned Judge was quite right in
considering the language actually used as not justified by the
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occasion. Any one, in the transaction of business with
another, has a right to use language bona fide, which is
relevant to that business, and which a due regard to his
own interest makes necessary, even if it should directly, or
by its consequences, be injurious or painful to another; and
this is the principle on which privileged communication
rests; but defamatory comments on the motives or conduct
of a party with whom he is dealing, do not fall within that
rule. It was enough for the defendant’s interest, in the present
case, to deny the truth of the plaintiff’s assertion: to
characterize that assertion as an attempt to defraud, and as a
mean and dishonest, was wholly unnecessary. This case,
therefore, was properly left to the jury: and there will be no
rule.”
Thereafter, the Court held:
“In the present case, as we have already said, it would
scarcely have been possible for the applicant to say less than
he did if he wished to convey in precise terms his real
impressions regarding the complainant’s conduct to a person
who was entitled to full information on the subject. In
Denman v. Bigg,1 Camp., PP. 260, 270, it was held that a
creditor of the plaintiff might comment on the plaintiff’s
mode of conducting his business to the man who was surety
to the creditor for the plaintiff’s trade debts. Lord
Ellenborough said: “I am inclined to think that this was a
privileged communication. Had the defendant gone to any
other man and uttered these words of the plaintiff, they
certainly would have been actionable. But Leigh, to whom
they were addressed, was guarantee for the plaintiff; and the
defendant had promised to acquaint him when any arrears
were due. He therefore had a right to state to Leigh what
he really thought of the plaintiff’s conduct in their mutual
dealings; and even if the representations which he made
were intemperate and unfounded, still if he really believed
them at the time to be true, he cannot be said to have acted23
maliciously, and with an intent to defame the plaintiff. To
be sure, he could not lawfully, under colour and pretence
of a confidential communication, destroy the plaintiff’s
character and injure his credit; but it must have the most
dangerous effects, if the communications of business are
to be beset with actions of slander. In this case the
defendant seems to have been betrayed by passion into some
unwarrantable expressions. I will, therefore, not non-suit the
plaintiff; and it will be for the jury to say, whether these
expressions were used with a malicious intention of
degrading the plaintiff, or, with good faith, to communicate
facts to the surety, which he was interested to know.” These
remarks have a distinct application to the present case.
We think that the communication made by the applicant
to Báládina was privileged, under exception 9 to section
499 of the Indian Penal Code. And that in all the
circumstances of the case the applicant cannot be justly
convicted of having exceeded his privilege. We reverse the
conviction and sentence, and direct that the fine be
refunded.”
24. What is significant, therefore, that in a given case, the language
employed could be a clear pointer to decide whether the accused in the
case has exceeded his privilege. We have already found that the
appellants could not have said anything less in the poster/banner as they
believed that this was rightful and legitimate to highlight their
grievances, which they contend were ignored earlier.
25. As was rightly observed in E.M. Slater (supra) quoting Denman
vs. Bigg, it will have the most dangerous effects, if the communications
24
of business are to be beset with actions for defamation, without the
necessary ingredients having been made out. Sanctioning such
prosecutions will, as was rightly observed in S. Khushboo vs.
Kanniammal and Another, (2010) 5 SCC 600 (para 47) tantamount to
using the law in the manner as to create a chilling effect on free speech.
26. Similarly, in Ramachandra Venkataramanan vs. Shapoorji
Pallonji & Company Ltd. and Another, (2019) SCC OnLine Bom 524
the Court, while quashing the proceedings for criminal defamation,
rightly observed that a lot would depend on the choice of words in the
impugned publication to decide whether it constitutes offence of
defamation or not. The judgment also highlights how the words used
in public are to be read in the context. Para 48 of the judgment, which
make useful reading is extracted hereinbelow:-
“48. Coming to the press note, the allegedly offending
words stated in it are ‘motivated’, ‘baseless’ and ‘smear
campaign’. Smear means damaging the reputation by false
accusation. These words are required to be read in the
entire context. The petitioner has made this statement with the
reference to earlier disputes. As mentioned in the beginning,
the matter carries a baggage of accusations, denials, claims and
disclaimer. Both the parties are from the business world.
Though they initially worked together, today, they are at
loggerheads. Their disputes are discussed publicly by the25
media and the people. When two persons are fighting, they are
bound to make some allegations against each other. If these
allegations are abusive, they create an impression of hatred,
contempt and ridicule against the person who is attacked. I am
of the view that these words do not constitute defamation. One
has to be careful in choosing the words while expressing his
feelings. To express and speak is an invaluable
fundamental right of an individual guaranteed under
Articles 19 and 21 of the Constitution of India to all the
citizens which is the soul of democracy. The law of
defamation is one of legally acceptable reasonable
restrictions in the Indian legal system. To oppose, deny,
reject, defend, etc. are the ways of expression. It manifests
emotional status and thinking process. However, it should
not lead to harm, damage, which is a rider to the freedom
of expression. Thus, one can disclaim, refuse, deny, reject
certain charges or allegations made against him or her
publicly with restrained words. Ultimately, it is a choice of
words which may constitute the offence of defamation.
VOICING DISSENT & DISAGREEMENT WITHIN PERMISSIBLE LIMITS: -
27. This Court, in Subramanian Swamy vs. Union of India, Ministry
of Law and Others, (2016) 7 SCC 221, while upholding the validity of
the provisions providing for criminal defamation, made certain
pertinent observations about the importance of freedom of speech and
the need to respect voices of dissent or disagreement. This Court
highlighted how dissonant and discordant expressions are to be treated
as viewpoints with objectivity while at the same time cautioning that
26
the right to freedom of speech is not absolute and is subject toreasonable restrictions under Article 19(2), which expressly
contemplates that a law providing for punishment for defamation
would constitute a reasonable restriction on the right to free speech.
Para 120 of the said judgment is extracted hereinbelow:-
“120. Be that as it may, the aforesaid authorities clearly
lay down that freedom of speech and expression is a
highly treasured value under the Constitution and voice
of dissent or disagreement has to be respected and
regarded and not to be scuttled as unpalatable criticism.
Emphasis has been laid on the fact that dissonant and
discordant expressions are to be treated as viewpoints
with objectivity and such expression of views and ideas
being necessary for growth of democracy are to be
zealously protected. Notwithstanding, the expansive and
sweeping ambit of freedom of speech, as all rights, right
to freedom of speech and expression is not absolute. It is
subject to imposition of reasonable restrictions.”
28. In similar vein, this Court recently in Javed Ahmad Hajam vs.
State of Maharashtra and Another, (2024) 4 SCC 156, observed that
the right to dissent in a legitimate and lawful manner is an integral part
of the rights guaranteed under Article 19(1)(a) and every individual
must respect the right of others to dissent. Though said in the context
of actions by government in the said judgment, this Court observed that
27
an opportunity to peacefully protest is an essential part of democracy.
Para 14 of the said judgment is extracted hereinbelow:-
“14. The right to dissent in a legitimate and lawful manner is
an integral part of the rights guaranteed under Article 19(1)(a).
Every individual must respect the right of others to dissent. An
opportunity to peacefully protest against the decisions of the
Government is an essential part of democracy. The right to
dissent in a lawful manner must be treated as a part of the right
to lead a dignified and meaningful life guaranteed by Article
21. But the protest or dissent must be within four corners
of the modes permissible in a democratic set up. It is
subject to reasonable restrictions imposed in accordance
with clause (2) of Article 19. In the present case, the
appellant has not at all crossed the line.”
29. Earlier, this Court in Anita Thakur and Others vs. Government
of Jammu and Kashmir and Others, (2016) 15 SCC 525 held that
holding peaceful demonstration in order to air their grievances and to
see that their voices are heard in relevant quarters is the right of the
people. This Court held that such a right can be traced to the
fundamental rights guaranteed under Article 19(1)(a) & 19(1)(b) (to
assemble peacefully and without arms) and 19(1)(c) (to form
associations or unions or cooperative societies). This Court recognized
the right to raise slogans al beit in a peaceful and orderly manner,
28
without using offensive language. Para 12 of the said judgment is setout hereinbelow:-
“12. We can appreciate that holding peaceful demonstration
in order to air their grievances and to see that their voice is
heard in the relevant quarters is the right of the people. Such
a right can be traced to the fundamental freedom that is
guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of
the Constitution. Article 19(1)(a) confers freedom of speech
to the citizens of this country and, thus, this provision ensures
that the petitioners could raise slogan, albeit in a peaceful and
orderly manner, without using offensive language. Article
19(1)(b) confers the right to assemble and, thus, guarantees
that all citizens have the right to assemble peacefully and
without arms. Right to move freely given under Article
19(1)(d), again, ensures that the petitioners could take out
peaceful march. The “right to assemble” is beautifully
captured in an eloquent statement that “an unarmed, peaceful
protest procession in the land of “salt satyagraha”, fast-
unto-death and “do or die” is no jural anathema”. It hardly
needs elaboration that a distinguishing feature of any
democracy is the space offered for legitimate dissent. One
cherished and valuable aspect of political life in India is a
tradition to express grievances through direct action or
peaceful protest. Organised, non-violent protest marches
were a key weapon in the struggle for Independence, and the
right to peaceful protest is now recognised as a fundamental
right in the Constitution.
13. Notwithstanding above, it is also to be borne in mind that
the aforesaid rights are subject to reasonable restrictions in
the interest of the sovereignty and integrity of India, as well
as public order. It is for this reason, the State authorities many
a times designate particular areas and routes, dedicating them
for the purpose of holding public meetings.”29
30. We find that the manner of the protest resorted to by the
appellants was peaceful and orderly and without in any manner using
offensive or abusive language. It could not be said that the appellants
crossed the Lakshman Rekha and transgressed into the offending zone.
Their case wholly falls within the sweep, scope and ambit of exception
9 to Section 499. Their peaceful protest is protected by Article 19(1)(a)
(b) and (c) of the Constitution of India. The criminal proceedings
levelled against them, if allowed to continue, will be a clear abuse of
process.
31. Peaceful pamphleteering has been held to be a form of
communication protected by the first amendment in the United States
of America. It has been held that by such peaceful activities the effort
was to influence the conduct of the respondent and such activities ought
not to be injuncted (See Organization for A Better Austin vs. Jerome
M. Keefe, (1971) 402 U.S. 415.
32. In an interesting judgment of the U.S. District Court for the
Eastern District of Wisconsin in Concerned Consumers League vs.
O’Neill, 371 F Supp. 644 (E.D. Wis. 1974), it was held that just as
30
sellers have access to consumers via advertising, peaceful
informational activities by consumer organizations must also be
protected.
33. This Court, in Tata Press Ltd. vs. Mahanagar Telephone Nigam
Ltd., (1995) 5 SCC 139, held that commercial speech was part of
freedom of speech guaranteed under Article 19(1)(a), subject to
reasonable restrictions under Article 19(2). This Court held that in a
democratic economy free flow of commercial information is
indispensable.
34. A right to protest peacefully without falling foul of the law is a
corresponding right, which the consumers ought to possess just as the
seller enjoys his right to commercial speech. Any attempt to portray
them as criminal offences, when the necessary ingredients are not made
out, would be a clear abuse of process and should be nipped in the bud.
35. For the reasons stated above, the appeal is allowed. The
impugned judgment and order dated 10.06.2024 in CRWP No.
2099/2021 passed by the High Court of Judicature at Bombay is set
aside. Consequently, the complaint in CC No. 2042/SS/2016 pending
31
on the file of the Metropolitan Magistrate Court, Borivali, Mumbai
along with the order dated 04.10.2016 issuing summons to the
appellants under Section 500 read with Section 34 of the IPC would
stand quashed and set aside.
…………………………….J.
[K. V. VISWANATHAN]
…………………………….J.
[N. KOTISWAR SINGH]
New Delhi;
17th April, 2025.
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