SHAHED KAMAL & ORS. versus M/S A. SURTI DEVELOPERS PVT. LTD. & ANR.

21. In Valmiki Faleiro v. Mrs. Lauriana Fernandes and Others, etc. 2005 SCC OnLine Bom 1584, the accused published a notice in [2025] 4 S.C.R.  Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr. a newspaper informing the public that the complainant is not the owner 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 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 1290 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 9th 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 9th exception and acquitting Mr. Slater, the Division Bench of the High Court of Judicature at Bombay held: – [2025] 4 S.C.R.  Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr. “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 1292 language actually used as not justified by the 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 acted maliciously, and with an intent to defame the plaintiff. To be sure, he could not lawfully, under colour and pretence of a confidential [2025] 4 S.C.R.  Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr. 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 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 1294 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 the 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 [2025] 4 S.C.R.  Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr. 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 the right to freedom of speech is not absolute and is subject to reasonable 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 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 1296 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, without using offensive language. Para 12 of the said judgment is set out 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 [2025] 4 S.C.R.  Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr. 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.” 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 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. 1298 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 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. Result of the case: Appeal allowed. †Headnotes prepared by: Divya Pandey