Law and You > Criminal Laws > Indian Penal Code > Criminal Defamation: Section (Ss. 499 and 500 of IPC)
In the last article, we have studied the concept of criminal defamation. In this article, we shall study provisions for the offence of criminal defamation under Section 499 of IPC. Chapter XXI of the Indian Penal Code, 1860 containing Sections 499-502 deals with the provisions and punishments related to offence of “Defamation”. Section 499 of the Indian Penal Code defines defamation with four Explanations and ten exceptions and a number of illustrations.
Definition of Defamation (Section 499):
Section 499 para 1 defines Defamation as “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 that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.
Essential Elements of Section 499:
- making or publishing any imputation concerning any person;
- such imputation must have been made by-
- words, either spoken or intended to be read; or
- signs; or
- visible representations.
- such imputation must be made with the intention (mens rea) of harming or with the knowledge or with reasons to believe that it will harm the reputation of that person.
- The imputation must not be covered by any one of the ten exceptions given in the Section.
From essentials and the use of phrase “makes or publishes” we can conclude that, when a defamatory statement is published, it is not only the publisher, but also the maker who becomes responsible and it is in that context that the word “makes” is used in Section 499 IPC.
In B. R. K. Murthy v. State of A.P., 2013 CrLJ 1602 (AP) case, the appellant was the Special Correspondent of the said weekly. The accused published an article, in their journal, regarding the conduct of the Sri A. Shiva Shankar, IPS, Inspector General of Police (Intelligence) in the discharge of public functions/duties, which have defamed Sri A. Shiva Shankar. In the judgment the Court observed that the essentials of defamation are firstly, the words must be defamatory; secondly, they must refer to the aggrieved party; thirdly, they must be maliciously published. In
Chandrasekharan v. State, 2014(4) KLJ 268 case, the Court held that in order to constitute an offence of defamation, the essential ingredient is to make an imputation, concerning any person, with an intention to harm or with knowledge or reason that such imputation will harm the reputation of such person. An imputation without knowing or having reason to believe that it will harm the reputation of such a person will not constitute an offence of defamation.
Section 499 of the Indian Penal Code defines defamation with Explanations and ten exceptions and a number of illustrations.
Explanations Attached to Section 499:
There are four explanations attached to this Section.
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.
According to this explanation, defamation of a dead person is also possible if the imputation against such person is such as would harm the reputation of that person if he were living and the intention of the offender is to be hurtful to the feelings of his family or other near relatives.
Where the accused allegedly defamed a dead person, and the complainant did not claim that he was a descendant of the deceased person allegedly defamed, and in fact, claimed that he was a devotee and admirer of the deceased person, it was held that this was not enough to sustain a case against the accused. The complainant must be a member of the family of the dead person or other near relatives.
In Luckumsey Rowji v. Hurban Nursey (1881) 5 Bom 580 case, the Court held that no suit for damages will lie in the case of defamation of deceased person hence the heirs cannot claim any damages, but criminal prosecution can be followed if the imputation made is intended to be hurtful to the feelings of his family or other near relatives.
In Broom v. Richie, (1905) 6 F 942 case, the widow of a warehouseman brought a defamation case against a newspaper for publishing that her husband had a habit of taking a drug called chloral and taking its overdose, her husband had committed suicide. She further plead that the statement was false and calumnious and was published wrongfully and illegally and that she had suffered grievously in her feelings and reputation, and she and her children would continue to suffer owing to the statement published. The Court held that an aspersion on a person after death cannot give the right to anyone else to recover damages as for a wrong done to the deceased. Court further observed that there may be right in persons to sue where the statement directly affects their status or patrimonial interest.
In Subramaniam Swamy v. Union of India, Ministry of Law, AIR 2016 SC 2728 case, the Court held that imputation can only be treated as defamatory if it directly or indirectly, in the estimation of others, lowers a person’s character or his credit. Court also held that the principle of grant of damage/ compensation cannot be equated with the principle of protection of the reputation of the family or 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.
Section 11 of the Indian Penal Code, 1860, lays down that the word “person” includes any Company or Association or body of persons, whether incorporated or not. Thus this explanation is intended to include a company or an association or collection of persons under this Section. According to this explanation, if a company or collection or association of persons as such is defamed, one of their members may make a complaint on behalf of the company or collection or association or company as such. For a collection of persons, such collection must be definite and a determinate body. Even a company or collection or association of persons can be prosecuted for an offence of defamation. Persons representing a company may commit offences punishable under provisions of the IPC in the name of the company itself. For the offence wherein corporal punishment is prescribed, an artificial body like a company can be prosecuted but it can only be punished with a fine.
In Standard Chartered Bank Vs. Directorate of Enforcement, AIR 2005 SC 2622 case, the Court observed: “There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal processes, although the criminal act is committed through its agents.”
In Iridium India Telecom v. Motorola, (2011) 1 SCC 74 case, the Court had categorically held that the companies and corporate houses cannot claim immunity from criminal prosecution on the ground that they are incapable of possessing the mens rea for the commission of criminal offences. By way of the principle of attribution, the criminal intent of the alter ego of the company/body corporate i.e. the persons or group of persons in control of the affairs of the company and at the helm of its affairs would be attributed to the company.
If defamation of a class of persons is alleged, then that class must be a small determinate body.
In Krishnaswami v. C. H. Kanaram, 1971 Ker LT 145 case, A member of the Communist Party of India (Marxist) brought a case of defamation against the defendant claiming that due to defamation of the party by the defendant, he (plaintiff) also get defamed. The Court observed that a large body of persons, the numerical strength of which is not known, nor could it be computed with any amount of precision, it cannot be said that each and every member of that group of persons constituting, such as a political party, each member of that party can be said to be defamed if the political group is imputed with any libelous imputation. But in the case of the Marxist Communist Party, as a collection of persons as such are defamed, the fact that in this case, the collection of persons is indeterminate and indefinite, it could not be said that each and every member of that body could maintain an action under Section 500 of IPC unless complainant was referred to as a person who had been defamed under the imputation.
In G. Narasimhan v. Y. V. Chokappa, AIR 1972 SC 2609 case, the Dravida Kazhagam sponsored and organized a conference. But the conference was a separate body with its own organization and office where correspondence relating to it was received and dealt with, and it had its own Secretaries. The conference passed a number of resolutions. These resolutions were published in newspapers. The news item however did not mention either the Dravida Kazhagam or the respondent. A few days later, a lawyer’s notice was sent to the appellants in which the respondent complained that the news item was defamatory and had tarnished the image of the conference and demanded an apology. Thereafter, the respondent filed a complaint under Ss. 500 and 501, I.P.C. against the appellants as they did not tender any apology. On the basis of the complaint and the evidence he recorded, the Magistrate issued a process. The appellants moved the High Court under s. 561 A, Cr. P.C., for quashing the proceedings. They contended that the respondent was not, an aggrieved party, within the meaning of s. 198, Cr.P.C., that he had filed the complaint in his capacity as Chairman of the Reception Committee of the conference and not in his individual capacity, that in the absence of any reference to him in the news item he had no cause for a complaint, and that the conference, ‘being an undefined and an amorphous body, the respondent, is a member or part of such body, could not lodge the complaint. The High Court, however, held that the respondent was a member of the Dravida Kazhagam which was an identifiable group, and was, therefore, a person aggrieved within the meaning of s. 198, Cr.P.C. The Court observed that a defamatory imputation against a collection of persons falls within explanation 2 to Section 499 of the Indian Penal Code, 1860. When the explanation speaks about the collection of persons as capable of being defamed, such collection of persons must be a definite and a determinate body so that the imputations in question can be said to relate to its individual members or components.
In Vishwa Nath v. Shambha Nath Pandeya, 1995 CriLJ 277 case, the Court held that wherein an article of magazine imputations was made against a certain community in general and not any particular group, and nor were the said imputations related to the complainant, and the said the community was also not found to be a definite identifiable body of people, the continuance of the case after the death of the complainant under the representation of his advocate would not be proper.
In John Thomas v. K. Jagadeesan, S.L.P. (Criminal) No. 1875 of 2001 case, A renowned hospital in the Metropolis of Madras (Chennai) has been caricatured in a newspaper as the abattoir of human kidneys for trafficking purposes. When the Director of the Hospital complained of defamation, the publisher of the newspaper sought shelter under the umbrage that the libel is not against the Director personally, but against the hospital only and hence he cannot feel aggrieved. The Court was faced with the question that if defamation pertains to an association of persons or a body corporate, who could be the complainant. The Court opined that the collocation of the words “by some person aggrieved” definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. The Court ruled that this could be answered by making a reference to section 199(1) of the Code of Criminal Procedure, 1973 which says that no court shall take cognizance of an offence under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.
Explanation 3:
Imputation in the form of an alternative or expressed ironically may amount to defamation.
An innuendo is a polite and innocent way of saying something on the surface but indirectly hints at an insult or rude comment, a dirty joke, or even social or political criticism. Thus, innuendo is a clever way to speak negative sentences in a very sarcastic way, which may appear to be positive at the surface of it. Innuendos are commonly used in everyday conversation as a socially acceptable way to be critical, mean, sexual, humorous, or even flirtatious. Under Section 499, defaming any person by innuendo is a form of criminal 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.
In Violet Wapsara v. Maureen Froud, 1970 Mad LW (Cr) 4 (Mad) case, the Court observed that explanation 4 to Section 499 of IPC seeks to explain the word “harm”. It relates to imputation on a man’s character made and expressed to others, so as to lower him in their estimation and anything which lowers him merely in his own estimation certainly does not constitute defamation.
This explanation is given to explain the word “harm”. Mere vulgar abuse does not amount to defamation. Where, for instance, a woman had uttered the word ‘chhinal’ (Commonly used word in quarreling women in villages) against another woman meaning thereby that she was a woman of easy virtue, no case was held to be maintainable as the use of such kind of a language in villages by women fighting with one another is not uncommon. But describing as being the keep of a named man is obviously defamatory.
Traditionally, there have been four general categories of untrue statements presumed to be harmful to one’s reputation (defamation per se) and therefore actionable as an injury claim. Typically, if the statements don’t fall into one of these categories, the plaintiff is required to prove their damages. If it does fall into one of these categories, damages are usually presumed.
The four general categories are:
- Indications that a person was involved in criminal activity
- Indications that a person had a “loathsome,” contagious, or infectious disease
- Indications that a person was unchaste or engaged in sexual misconduct
- Indications that a person was involved in behavior incompatible with the proper conduct of his business, trade, or profession
In J. Chelliah v. Rajeswari, 1969 CrLJ 571 case, the Court held that describing a woman that she has paramours wherever she goes is per se defamatory.
In K. S. Namjundiah v. Sethi Chikka Thipanna, AIR 1952 Mys 389 case, the Court held that describing one as a “black marketer” and that too in a public gathering is per se defamatory.
Examples
- A says-“Z is an honest man; he never stole B’ watch”, intending to cause it to be believed that Z did steal B’ watch. This is defamation unless it falls within one of the exceptions.
- A is asked who stole B’s watch. Points to Z, intending to cause it to be believed that Z stole B’s watch. This is defamation unless it falls within one of the exceptions.
- A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s watch. This is defamation unless it falls within one of the exceptions.
Exceptions to Section 499:
First Exception:
Imputation of truth which public good requires to be made or published:
It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception:
Public conduct of public servants:
It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception:
Conduct of any person touching any public question:
It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration:
It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.
Fourth Exception:
Publication of reports of proceedings of Courts:
It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation:
A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception:
Merits of a case decided in Court or conduct of witnesses and others concerned:
It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Illustrations
A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further.
But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he express of Z’s character, is an opinion not founded on Z’s conduct as a witness.
Sixth Exception:
Merits of public performance:
It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation:
A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Illustrations:
A person who publishes a book, submits that book to the judgment of the public.
A person who makes a speech in public, submits that speech to the judgment of the public.
An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.
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”. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further.
But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine”. A is not within this exception, in as much as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.
Seventh Exception:
Censure passed in good faith by person having lawful authority over another:
It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Illustration:
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception.
Eighth Exception:
Accusation preferred in good faith to authorised person:
It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Illustration:
If A, in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception.
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.
Illustrations:
A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.
A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
Tenth Exception:
Caution intended for good of person to whom conveyed or for public good:
It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
Section 500: Punishment for Defamation:
Section 500 of IPC prescribes punishment for criminal defamation as “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
The offence under Section 500 is non-cognizable, bailable, and non-compoundable and triable by Magistrate of the First Class. In all other cases, the offence is non-cognizable, bailable, and compoundable with the permission of the Court and triable by Magistrate of the First Class.
The offence is compoundable, meaning thereby that if the accused admits to the crime then he/she is acquitted on the basis that instead of punishment, the offender can bargain for an acquittal by payment of amounts determined by the court, tender an apology and such.
Section 501 prescribes punishment for printing or engraving matter known to be defamatory. The punishment prescribed for such offence is punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
The offence under Section 501 is non-cognizable, bailable, and non-compoundable and triable by Magistrate of the First Class. In all other cases, the offence is non-cognizable, bailable, and compoundable with the permission of the Court and triable by Magistrate of the First Class.
Section 502 prescribes punishment for Sale of a printed or engraved substance containing defamatory matter. The punishment prescribed for such offence is punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
The offence under Section 502 is non-cognizable, bailable, and non-compoundable and triable by Magistrate of the First Class. In all other cases, the offence is non-cognizable, bailable, and compoundable with the permission of the Court and triable by Magistrate of the First Class.
Section 501: Printing or engraving matter known to be defamatory:
Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Classification of Offence:
In the case of Public Servants, the offence is non-cognizable, bailable, and compoundable and triable by the Court of Session.
In all other cases, the offence is non-cognizable, bailable, and non-compoundable and triable by Magistrate of the First Class.
Section 502: Sale of a printed or engraved substance containing defamatory matter:
Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Classification of Offence:
In the case of Public Servants, the offence is non-cognizable, bailable, and compoundable and triable by the Court of Session.
In all other cases, the offence is non-cognizable, bailable, and non-compoundable and triable by Magistrate of the First Class.
Conclusion:
According to Section 499, “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 that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”. Thus the defamation involves harming the reputation of a person by making and publishing words either spoken or intended to be read, or by signs or by visible representations. There are ten exceptions to this definition attached to Section 499.