Summary
Homebuyers who erected a banner listing, in temperate language, their grievances against the developer (non-formation of the society, defects, poor maintenance) did not commit defamation. Their protest fell within the Ninth Exception to Section 499 IPC (imputation made in good faith for protection of one's interests) and was protected by Article 19(1)(a), (b) and (c); the complaint under Section 500 read with Section 34 IPC and the summons were quashed.
Issues
- Whether the complaint disclosed an offence under Section 500 read with Section 34 IPC against the appellant flat purchasers for erecting a protest banner against the developer.
- Whether a Magistrate at the stage of issuing process, and the High Court under Section 482 CrPC, may consider whether the material discloses a complete defence under an Exception to Section 499 IPC.
- Whether the appellants exceeded the privilege of the Ninth Exception to Section 499 IPC, and whether their peaceful protest is protected by Article 19(1) of the Constitution.
Provisions considered
- Section 499 (with the Ninth Exception), Indian Penal Code, 1860Defamation requires an imputation made with intent to harm, or knowledge or reason to believe that it will harm, the reputation of a person, subject to the Exceptions. The Ninth Exception protects an imputation made in good faith for the protection of the interests of the maker or of another, or for the public good, and, unlike the First Exception, does not require truth to be proved. Applying Chaman Lal and Harbhajan Singh, good faith was tested by the nature of the imputation, the circumstances, absence of malice and the language used; the banner was found to fall within the Ninth Exception. (¶¶ 10, 11, 17, 18, 19, 22, 24, 30)
- Section 500 read with Section 34, Indian Penal Code, 1860The offences for which the Magistrate issued summons. As the imputation was excepted and the ingredients of defamation were not made out, no offence was disclosed and the complaint and summoning order were quashed. (¶¶ 3, 4, 34, 35)
- Section 482 (with Sections 200, 202 and 204), Code of Criminal Procedure, 1973Following Iveco Magirus, a Magistrate issuing process is not precluded from considering whether an Exception to Section 499 is attracted on the complaint, sworn statements and documents before him, and the High Court under Section 482 may interfere where on those materials no offence is made out and continuation would abuse the process. The High Court erred in dismissing the plea as a question of fact without reasons. (¶¶ 6, 13, 30, 34)
- Article 19(1)(a), (b), (c) and Article 19(2), Constitution of IndiaThe right to dissent and to protest peacefully, and the consumer's right to peaceful informational protest corresponding to the seller's right to commercial speech, are part of the freedoms under Article 19(1); defamation law is a reasonable restriction under Article 19(2), but sanctioning prosecution of a peaceful protest where the ingredients of the offence are absent would chill free speech. (¶¶ 25, 27, 28, 29, 30, 33, 34)
Held
- At the stage of issuing process, and when the High Court considers a quashing petition under Section 482 CrPC, the court may consider whether the complaint and the material accompanying it disclose a complete defence under any Exception to Section 499 IPC; what is excepted cannot amount to defamation on the very terms of the provision. (¶ 13)
- The Ninth Exception to Section 499 embodies qualified privilege: an imputation made in good faith to protect the real and legitimate interests of the maker or of others is not defamation, and, unlike the First Exception, truth of the imputation need not be proved. In a business relationship such as builder and homebuyer, some allowance in phraseology must be made so long as it is used in good faith, which is judged by a careful reading of the publication. (¶¶ 17, 18, 19)
- The language employed is a key test of whether the accused exceeded the privilege. A banner listing grievances in mild, temperate language, with no words such as fraud, cheating or misappropriation, erected as a peaceful protest to protect the legitimate interests of the flat owners, falls within the Ninth Exception; the appellants could not have said less to highlight their grievances. (¶¶ 16, 22, 24, 26)
- Peaceful and orderly protest and dissent within lawful limits are protected by Article 19(1)(a), (b) and (c); consumers have a right to protest peacefully corresponding to the seller's right to commercial speech, and attempts to treat such protest as a criminal offence when the ingredients are not made out are an abuse of process to be nipped in the bud, lest they chill free speech. (¶¶ 25, 28, 29, 30, 33, 34)
Result
Appeal allowed; High Court order dated 10.06.2024 in CRWP No. 2099/2021 set aside; complaint CC No. 2042/SS/2016 before the Metropolitan Magistrate, Borivali, Mumbai and the summoning order dated 04.10.2016 under Section 500 read with Section 34 IPC quashed.