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

                 [2025] 4 S.C.R. 1275 : 2025 INSC 502

                       Shahed Kamal & Ors.
                                 v.
              M/s A. Surti Developers Pvt. Ltd. & Anr.
                     (Criminal Appeal No. 2033 of 2025)
                                 17 April 2025
           [K.V. Viswanathan* and N. Kotiswar Singh, JJ.]


                            Issue for Consideration
       Whether the complaint filed by the respondent makes out a case
       for offences punishable under Section 500 read with Section 34,
       IPC against the appellants.

                                   Headnotes†
       Penal Code, 1860 – ss.499 Exception 9, 500 r/w 34 – Defamation –
       When not – Principle of qualified privilege – Scope of Exception
       9 to s.499 – Constitution of India – Articles 19(1)(a), (b) and (c) –
       Appellants-home buyers, not satisfied with the services
       provided by the respondent-developer, protested against the
       developer by erecting a banner visible to public at large –
       Complaint filed by the respondent u/s.500 r/w s.34 – Summons
       issued against the appellants – Appellants’ case, if falls within
       the exception 9 to s.499:
       Held: Yes – Under the 9th Exception to s.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 – In a
       business relationship like that of a builder and home-buyer, 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 – The language employed could be a clear
       pointer to decide whether the accused in the case has exceeded his
       privilege – One of the tests to decide whether the case falls within
       the 9th exception is the choice of words employed in the impugned
       publication – In the instant case, all that the banner depicts is
       what the appellants thought were their grievances against the
       respondent with whom they had a business relationship – Careful
       choice of the words, the conscious avoidance of intemperate, rude,
       offensive or abusive language and the peaceful manner of protest,


* Author
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    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 – Appellants did
    not transgress into the offending zone – Their case falls within
    the sweep, scope and ambit of exception 9 to s.499 – Their
    peaceful protest is protected by Article 19(1)(a), (b) and (c) of the
    Constitution of India – Impugned judgment of High Court, set aside –
    Complaint alongwith order issuing summons quashed and set aside.
    [Paras 17, 22, 24, 30, 35]
    Constitution of India – Articles 19(1)(a), (b) and (c); 19(2) –
    Dissent and Disagreement within permissible limits – Right
    to protest peacefully – Peaceful pamphleteering – Discussed.
    [Paras 27-29, 31-34]
    Penal Code, 1860 – 9th Exception to s.499 vis-a-vis 1st
    Exception – Discussed. [Paras 19, 20]

                              Case Law Cited
    Iveco Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya
    and Anr. [2023] 13 SCR 220 : (2024) 2 SCC 86 – relied on.
    Chaman Lal v. State of Punjab [1970] 3 SCR 913 : (1970) 1 SCC
    590; Harbhajan Singh v. State of Punjab and Another [1965] 3 SCR
    235 : 1965 SCC OnLine SC 118; Denman v. Bigg; S. Khushboo v.
    Kanniammal and Another [2010] 5 SCR 322 : (2010) 5 SCC 600;
    Subramanian Swamy v. Union of India, Ministry of Law and Others
    [2016] 3 SCR 865 : (2016) 7 SCC 221; Javed Ahmad Hajam v.
    State of Maharashtra and Another [2024] 3 SCR 317 : (2024) 4
    SCC 156; Anita Thakur and Others v. Government of Jammu and
    Kashmir and Others [2016] 4 SCR 50 : (2016) 15 SCC 525; Tata
    Press Ltd. v. Mahanagar Telephone Nigam Ltd. [1995] Supp. 2
    SCR 467 : (1995) 5 SCC 139 – referred to.
    Kuruppanna Goundan v. Kuppuswami Mudaliar, 1935 MWN 365;
    Valmiki Faleiro v. Mrs. Lauriana Fernandes and Others, etc.,
    2005 SCC OnLine Bom 1584; Ramachandra Venkataramanan v.
    Shapoorji Pallonji & Company Ltd. and Another, 2019 SCC OnLine
    Bom 524; Municipal Board Konch v. Ganesh Prasad Chaturvedi,
    1951 SCC OnLine All 117; Queen-Empress v. E.M. Slater (1891)
    ILR 15 Bom 351 – referred to.
    Organization for A Better Austin v. Jerome M. Keefe (1971) 402
    U.S. 415; Concerned Consumers League v. O’Neill, 371 F Supp.
    644 (E.D. Wis. 1974) – referred to.
[2025] 4 S.C.R.                                                               1277

    Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr.


                       Books and Periodicals Cited
     P. Ramanatha Aiyar’s Advanced Law Lexicon 3rd Edition –
     referred to.

                                 List of Acts
     Penal Code, 1860; Constitution of India; Code of Criminal
     Procedure, 1973; Maharashtra Ownership of Flats Act, 1963;
     Mumbai Metropolitan Region Development Authority Act.

                              List of Keywords
     Defamation; 9th Exception to Section 499, Penal Code, 1860;
     Principle of qualified privilege; Peaceful protest; Protest by erecting
     banner; Right to protest peacefully; Defame complainant’s image
     and reputation; Defamatory; No foul or intemperate language;
     Impugned publication; Article 19(1)(a), (b), (c) of the Constitution
     of India; Business relationship; Builder and homebuyer; Public
     good; Imputation with intent to harm; Peaceful pamphleteering;
     Imputation on character of another; Imputation made in good
     faith; Without any malice; Good-faith; Ignoring grievances; Abusive
     language; Freedom of speech and expression; Exception 1 and 3
     to Section 499; Protect legitimate interest; Exceeded privilege;
     Choice of words in the publication/language; Voices of dissent or
     disagreement; Article 19(2); Reasonable restriction; Article 19(1)(c);
     Abuse of process.

                             Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     2033 of 2025
     From the Judgment and Order dated 10.06.2024 of the High Court
     of Judicature at Bombay in CRWP No. 2099 of 2021

                          Appearances for Parties
     Advs. for the Appellants:
     Sureshan P., Ajay Panicker, Shivam Yadav, Ms. Lavnya Panicker.
     Advs. for the Respondents:
     Siddharth Luthra, Sr. Adv., Prasenjit Keswani, Sr. Adv., Nitin Sangra,
     Upmanyu Tewari, Syed Kamran Ali, Arjun Varma, Abhishek Sagar,
     Mrs. V. D. Khanna, Shashibhushan P. Adgaonkar, Siddharth
     Dharmadhikari, Aaditya Aniruddha Pande.
1278                                                     [2025] 4 S.C.R.

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               Judgment / Order of the Supreme Court

                               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 buyers decided to resort to a unique form of protest.
     They erected a 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             BROKEN PODIUM
         18 MONTHS
     •   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 ROAD

         WE 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
[2025] 4 S.C.R.                                                      1279

     Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr.


     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
     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 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
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     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. 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 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
[2025] 4 S.C.R.                                                             1281

    Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr.


     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 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
           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.
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          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 exception which has been considered by the High Court provides
    that it 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:-
          “60. What the law imposes on the Magistrate as a
          requirement is that he is bound to consider only such
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    Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr.


           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 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
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        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 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.”
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     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 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 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
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     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 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 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
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    Shahed Kamal & Ors. v. M/s A. Surti Developers Pvt. Ltd. & Anr.


     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.”

     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.
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    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 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
[2025] 4 S.C.R.                                                           1289

    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                                                       [2025] 4 S.C.R.

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          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.                                                            1291

    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
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         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.                                                          1293

    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
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    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.                                                         1295

    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                                                       [2025] 4 S.C.R.

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          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.                                                           1297

    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.
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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