Section 499, Indian Penal Code V

What is the meaning to be attached to the words ‘making of an imputation’ and ‘publishing of an imputation’? This question has been set out with clarity in Mohd. Abdulla Khan v. Prakash K., (2018) 1 SCC 615.

“The difference between ‘making’ of an imputation and ‘publishing’ the same is:

If ‘X’ tells ‘Y’ that ‘Y’ is a criminal — ‘X’ makes an imputation.

If ‘X’ tells ‘Z’ that ‘Y’ is a criminal — ‘X’ publishes the imputation.”

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.

If defamatory matter is published as to who published it, is a question of fact. Whether there is publication, indeed involves asking the question as to whether there was power and the right to remove any such matter. If despite such power, and also, ability to remove the matter, if the person does not respond, it would amount to publication. The said principle would hold good to determine whether there is publication under Section 499. The further requirement, no doubt, is indispensable, i.e., it must contain imputations with the intention to harm or with knowledge or having reasons to believe that it will harm the reputation of the person concerned. There may be publication within the meaning of Section 499 even in the case of an internet operator, if having the power and the right and the ability to remove a matter, upon being called upon to do so, there is a refusal to do so.”

Hon’ble Justice K.M. Joseph, Google India Pvt. Ltd. v. M/s. Visakha Industries, [Criminal Appeal No. 1987 of 2014].