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Defamation = Criminal Trial–Defamation of Public servant in respect of public function–Complaint before Sessions Judge by Public Prosecutor–If required to be signed by the Public servant also–Code of Criminal Procedure, 1898 (V of 1898), ss.198 and 198-B. =The Public Prosecutor, Kanpur, filed a complaint in the Court of Session, Kanpur, charging the appellants with having published a news item which was false and defamatory of the Chief Minister of Uttar Pradesh. The complaint complied with the requirements of s. 198-B, Code of Criminal Procedure. The appellants contended that the complaint should have complied with the requirements of s. 198 of the Code also and, as it was 64 not signed by the Chief Minister, the Sessions judge had no jurisdiction to entertain it. Held, that it was not necessary for the Chief Minister also to sign the complaint filed by the Public Prosecutor. The nonobstante clause ” notwithstanding anything contained in this Code ” in sub-s. (1) of s. 198-B excludes the operation of the other provisions of the Code relating to initiation and trial of the offence of defamation, including s. 198. Sub-section (13) of s. 198-B which provides that the provisions of s. 198-B shall be in addition to and not in derogation of s. 198 merely preserves the right of the person defamed to file a complaint under s. 198. The two sections provide alternative remedies. The provisions in s. 198-B relating to the award of compensation to the accused in case of false and frivolous or vexatious accusation do not affect this conclusion. Normally it is the public servant who moves the Government for taking proceedings and under subs. (5) he is required to be examined as a witness to support the prosecution, and it cannot be said that he has no concern with the lodging of a complaint under s. 198- B. C. B. L. Bhatnagar v. The State, A.I.R. 1958 Bom. 196 and R. Sankar v. The State, I.L.R. (1959) Kerala 195, disapproved.

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PETITIONER:

P.C. JOSHI AND ANOTHER

 Vs.

RESPONDENT:
THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT:
25/10/1960

BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
DAS, S.K.

CITATION:
 1961 AIR 387 1961 SCR (2) 63

ACT:
Criminal Trial--Defamation of Public servant in respect of
public function--Complaint before Sessions Judge by Public
Prosecutor--If required to be signed by the Public servant
also--Code of Criminal Procedure, 1898 (V of 1898), ss.198
and 198-B.

HEADNOTE:
The Public Prosecutor, Kanpur, filed a complaint in the
Court of Session, Kanpur, charging the appellants with
having published a news item which was false and defamatory
of the Chief Minister of Uttar Pradesh. The complaint
complied with the requirements of s. 198-B, Code of Criminal
Procedure. The appellants contended that the complaint
should have complied with the requirements of s. 198 of the
Code also and, as it was
64
not signed by the Chief Minister, the Sessions judge had no
jurisdiction to entertain it.
Held, that it was not necessary for the Chief Minister also
to sign the complaint filed by the Public Prosecutor. The
nonobstante clause " notwithstanding anything contained in
this Code " in sub-s. (1) of s. 198-B excludes the operation
of the other provisions of the Code relating to initiation
and trial of the offence of defamation, including s. 198.
Sub-section (13) of s. 198-B which provides that the
provisions of s. 198-B shall be in addition to and not in
derogation of s. 198 merely preserves the right of the
person defamed to file a complaint under s. 198. The two
sections provide alternative remedies. The provisions in s.
198-B relating to the award of compensation to the accused
in case of false and frivolous or vexatious accusation do
not affect this conclusion. Normally it is the public
servant who moves the Government for taking proceedings and
under subs. (5) he is required to be examined as a witness
to support the prosecution, and it cannot be said that he
has no concern with the lodging of a complaint under s. 198-
B.
C. B. L. Bhatnagar v. The State, A.I.R. 1958 Bom. 196 and
R. Sankar v. The State, I.L.R. (1959) Kerala 195,
disapproved.JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 130 of
1960.
Appeal by special leave from the judgment and order dated
April 28, 1960, of the Allahabad High Court in Criminal
Revision No. 1865 of 1959.
N. C. Chatterjee, D. P. Singh, T. S. Venkataraman, R. K.
Garg, S. C. Agarwal and M. K. Ramamurthi, for the
appellants.
G. S. Pathak, O. C. Mathur and C. P. Lal, for the
respondent.
1960. October 25. The Judgment of the Court was delivered
by
SHAH J.-Appellant No. 1 is the editor and appellant No. 2 is
the printer and publisher of the ',New Age "-an English
Weekly news sheet published in Delhi. On May 15, 1959, the
Public Prosecutor, Kanpur, filed a complaint in the Court of
Session, Kanpur, against the appellants charging them with
having published a news item in the issue of the " New Age "
dated November 16, 1958, knowing or having good reasons to
believe the same to be false and defamatory of the Chief
Minister of the State of Uttar Pradesh " in order to harm
his reputation in the eyes of
65
the public in general and among his acquaintances in
particular ". With this complaint was filed an order under
the signature of the Home Secretary to the Government of
Uttar Pradesh sanctioning under a. 198B(3)(b) of the
Criminal Procedure Code the filing of a complaint by the
Public Prosecutor for an offence under s. 500, Indian Penal
Code, against the appellants in respect of the news item
published on November 16, 1958, under the caption "
Explosive situation in Kanpur ". The learned Sessions Judge
took cognisance of the complaint. After six witnesses were
examined on behalf of the prosecution, he framed a charge
against the appellants for the offence of defamation in that
they had published the news item under the caption "
Explosive situation in Kanpur " intending to harm or knowing
that they were likely to harm the reputation of the Chief
Minister of Uttar Pradesh. The appellants then applied to
the High Court of Judicature at Allahabad praying that the
order of the Court of Session framing a charge for the
offence of defamation be set aside. They submitted that
there was no evidence that the Home Secretary to the
Government of Uttar Pradesh had applied his mind to the
facts of the case before sanctioning prosecution of the
appellants; that in any event, the publication was not
defamatory of the Chief Minister in respect of his conduct
in the discharge of his duties as Chief Minister and that
the complaint filed by the Public Prosecutor not having been
signed by the Chief Minister who was the aggrieved person,
the Sessions Judge had no jurisdiction to entertain the
complaint. The High Court rejected all the contentions
raised by the appellants. Against the order rejecting the
contentions, this appeal with special leave under Art. 136
of the Constitution is preferred by the appellants.
We may state that the observations made by the High Court
that whether the publication of the news item in the issue
of the "I New Age " dated November 16, 1958, under the
caption " Explosive situation in Kanpur " was defamatory of
the Chief Minister in respect of his conduct in the
discharge of his duties
66
deciding the application in revision submitted to them and
were not intended to record a final decision as to the
defamatory character of that publication. It will be for
the Trial Judge when the case is tried before him to arrive
at a conclusion on the materials placed before him whether
the publication is defamatory of the Chief Minister in
respect of his conduct in the discharge of his public
functions.
The plea that the sanction was accorded by the Home
Secretary to the filing of the complaint without applying
his mind is without substance. Siddiqi, an assistant in the
Home Department to the Government of Uttar Pradesh, has
deposed that he bad received the papers in connection with
the sanction for the prosecution of the two appellants from
the Superintendent, Rome Department, with " notings ", that
he had taken the " notings " and the relevant papers
including the offending issue to the Deputy Secretary, that
the Deputy Secretary had also made his note on those papers,
and that thereafter he-the witness had taken those papers to
M. G. Kaul, Home Secretary, who had perused the " notings "
and the note of the Deputy Secretary as also the article in
question and after looking into the papers had approved the
draft sanction.
It is not disputed that the Home Secretary was authorised to
sanction a complaint for defamation of a Minister of the
Government of Uttar Pradesh. The evidence clearly discloses
that the Home Secretary had applied his mind to all the
material facts before him and had then granted the sanction.
Mere production of a document which sets out the names of
the persons to be prosecuted and the provisions of the
statute alleged to be contravened, and purporting to bear
the signature of an officer competent to grant the sanction
where such sanction is a condition precedent to the exercise
of jurisdiction does not invest the court with jurisdiction
to try the offence. If the facts which constitute the
charge do not appear on the face of the sanction, it must be
established by hose facts were laced
67
before the authority competent to grant the sanction and
that the authority applied his mind to those facts before
giving sanction. In the present case, the facts
constituting the charge appear on the face of the sanction ;
and evidence has also been led that the facts were placed
before the sanctioning authority, that the authority
considered the facts and sanctioned the prosecution.
Section 198B which deals with a certain category of the
offences of defamation of high dignitaries of the State, and
of Ministers and public servants in respect of their conduct
in the discharge of public functions was incorporated in the
Code by Act XVI of 1955. Prior to the incorporation of s.
198B, the only condition precedent to the entertainment of a
complaint of defamation by a court competent in that behalf
was prescribed by s. 198, viz., that there had to be a
complaint by the person aggrieved before the court took
cognisance of that offence. By s. 198B, several conditions
precedent to the trial of offences falling within that
section are prescribed. The material clauses of s. 198B are
sub-ss. (1), (3) and (4). (1):- " notwithstanding anything
contained in this Code, when any offence falling under
Chapter XXI of the Indian Penal Code (Act XLV of 1860)
(other than the offence of defamation by spoken words) is
alleged to have been committed against the President or the
Vice-President, or the Governor or Rajpramukh of a State, or
a Minister or any other public servant employed in
connection with the affairs of the Union or of a State, in
respect of his conduct in the discharge of his public
functions, a Court of Session may take cognisance of such
offence, without the accused being committed to it for
trial, upon a complaint in writing made by the Public
Prosecutor.
(3):-No complaint under sub-s. (1) shall be made by the
Public Prosecutor except with the previous sanction,-
(a)in the case of the President or the Vice-President or the
Governor of a State, of any Secretary to the Government
authorised by him in this behalf
68
(b) in the case of a Minister of the Central Government or
of a State Government, of the Secretary to the Council of
Ministers, if any, or of any Secretary to the Government
authorised in this behalf by the Government concerned; (c)
in the case of any other public servant employed in
connection with the affairs of the Union or of a State, of
the Government concerned.
(4) :-No Court of Session shall take cognisance of an
offence under sub-s. (1) unless the complaint is made within
six months from the date on which the offence is alleged to
have been committed.
This section provides for a special procedure for the trial
of the offence of defamation of certain specified classes of
persons. The conditions necessary for the applicability of
sub-s. (1) of s. 198B are:
(1) that the defamation is not by spoken words;
(2) that the offence is alleged to have been committed
against the President, or the Vice-President, or the
Governor or Rajpramukh of a State, or a Minister or any
other public servant employed in connection with the affairs
of the Union or of a State;
(3) that the defamation is in respect of the person defamed
in the discharge of his public functions;
(4) that a complaint is made in writing by the Public
Prosecutor;
(5) that the complaint is made by the Public Prosecutor
with the previous sanction of the authorities specified in
sub-s. (3); and
(6) that the complaint is made within six months from the
date on which the offence is committed.
The Court of Session may entertain a complaint of defamation
of the high dignitaries and of Ministers and public servants
in respect of their conduct in the discharge of their public
functions only if these conditions exist. Section 198
require,% that a complaint for defamation may be initiated
by the person aggrieved and no period of limitation is
prescribed in that behalf. Such a complaint can only be
entertained by a Magistrate of the First Class. But s. 198-
B in the larger public interest, has made a departure from
that rule; the accusation is to be entertained not by a
69
Magistrate, but by the Court of Session without a committal
within six months of the date of the offence on a complaint
in writing by the Public Prosecutor with the
previous sanction of the specified authorities. It is
manifest that by the non-obstante clause, " notwithstanding
anything contained in this Code " in sub.s. (1), the
operation of diverse provisions of the Code relating to the
initiation and trial of the offence of defamation is
excluded and prima facie s. 198 is one of those provisions.
It is however urged on behalf of the appellants that sub-s.
(13) of s. 198-B makes the provisions of s. 198 applicable
to a complaint for defamation of persons specified in s.
198-B(1) and provides that cognisance of the offence of
defamation cannot be taken by a court except upon a
complaint by the person aggrieved, and that the Chief
Minister of Uttar Pradesh alleged to be the party aggrieved
not having signed the complaint the Court of Session,
Kanpur, had no jurisdiction to take cognisance of the
complaint. Sub-section (13) provides that " the provisions
of this section shall be in addition to, and not in
derogation of, those of s. 198 ". In our judgment, this
clause is enacted with a view to state ex abundanti cautela
that the right of a party aggrieved by publication of a
defamatory statement to proceed under s. 198 is not
derogated by the enactment of s. 198-B. The expressions, "
in addition to " and " not in derogation of " mean the same
thing-that s. 198-B is an additional provision and is not
intended to take away the right of a person aggrieved even
if he belongs to the specified classes and the offence is in
respect of his conduct in the discharge of his public
functions, to file a complaint in the manner provided by s.
198. " Derogation " means, taking away, lessening or
impairing the authority, position or dignity, and the
context in in which sub-s. (13) occurs clearly shows that
the provisions of s. 198-B do not impair the remedy provided
by s. 198. It means that by s. 198-B the right which an
aggrieved person has to file a complaint before a Magistrate
under s. 198 for the offence of defamation, even if the
aggrieved person belongs to the specified classes and the
defamation
70
is in respect of his conduct in the discharge of his public
functions, is not taken away or impaired. If sub-s. (13) be
construed as meaning that the provisions of s. 198B are to
be read as supplementary to those of s. 198, the non-
obstante clause with which sub-s. (1) of s. 198B commences
is rendered wholly sterile, and unless the context compels
such an interpretation, the court will not be justified in
adopting it. There is again inherent indication in ss. 198
and 198B, which supports the view that s. 198B was not
intended to be supplementary to s. 198, but was intended to
provide an alternative remedy in the case of defamation of
persons set out in that section. The expression " complaint
" as defined in s. 4, cl. (h) of the Code means " the
allegation made orally or in writing to a Magistrate with a
view to his taking action under this Code that some person,
whether known or unknown, has committed an offence..........
Every complaint of an offence has to be made to a
Magistrate competent to take cognisance thereof and not to a
Court of Session. A Court of Session under the Code of
Criminal Procedure unless otherwise expressly provided, is'
not competent to entertain a complaint; it can only try a
criminal case committed to it. The expression ,,complaint"
in s. 198 is manifestly used in the meaning as defined by s.
4(h). Even a superficial examination of the contention
raised by the appellants reveals that if effect be given to
it, the utmost confusion would result in working out the
provisions of the Code. If beside the complaint filed by
the Public Prosecutor under s. 198B, there must also be a
complaint by the person aggrieved, two courts would
simultaneously be seized of two distinct complaints for the
same offence. The complaint by the Public Prosecutor under
s. 198B would undoubtedly lie, in the Court of Session and
the complaint under s. 198 would lie in the court of a
Magistrate, because it is a Magistrate who alone can take
cognisance of the offence of defamation under s. 198.
Thereafter, the complaint under s. 198 may have to be
committed to the Court of Session by the Magistrate and it
is only after the
71
compliant filed by the Public Prosecutor, the case may
proceed. The Legislature could not have intended that in
respect of the same offence, there should be two complaints,
one in the Court of Session and another in the court of a
Magistrate-and either both should be tried, or the
proceedings should be consolidated after committal.
Reliance was placed on behalf of the appellants upon sub-ss.
(6) to 11 of s. 198B which provide for the award of
compensation to the person accused if the court is satisfied
that the accusation is false and either frivolous or
vexatious, and it was submitted that the Legislature could
not have intended that a person who was not the complainant
and who was not directly concerned with the proceedings may
still be required if so ordered by the court to pay
compensation. But sub-s. (5) which provides that a person
against whom the offence is alleged to have been committed
shall, unless the court for reasons to be recorded otherwise
directs, be examined as a witness for the prosecution,
clearly indicates that the question whether the complaint
was false and either frivolous or vexatious may fall to be
determined only if the person complaining to be defamed
actively supports the complaint. It cannot therefore be
said that s. 198B provides for compensation being awarded
against a person who is not concerned with the complaint.
Section 198B is enacted to provide machinery for vindicating
the conduct of high dignitaries, Ministers and public
servants when they are exposed to defamatory attacks. The
section contemplates the institution of proceedings for
defamation of two different classes of persons, (1) high
dignitaries like the President, the Vice-President, the
Governors and Rajpramukhs and (2) Ministers and public
servants. it is not disputed that a provision which enables
a prosecution to be launched by the State, and at State
expense for defamation of members of the first class, having
regard to their status in public life, is pre-eminently
designed in the public interest, and it would be entirely
appropriate that any question of awarding compensation
should be raised, even if the complaint for defamation
72
be found to be false and frivolous or vexatious. There can
be no doubt that in a democratic set up, in order to
maintain purity of public behaviour and administration,
charges of improper conduct against persons in the second
class, in so far as such charges relate to the discharge of
their public functions should be investigated. It is also
in the public interest that in vindicating his character or
conduct, the person defamed should not ordinarily be called
upon to bear the burden of what may turn out an expensive
and long drawn out proceeding, nor for obvious reasons
should he have control over the proceeding. In the
vindication of the character or conduct of a private
individual who is defamed, the State is primarily not
concerned: the party aggrieved may, if he is so minded, take
proceedings for obtaining relief. But in the investigation
of defamatory charges against Ministers and public servants
in the discharge of their public functions, the State is as
vitally concerned as the individual defamed. The
Legislature has therefore authorised the State to take upon
itself the power in appropriate cases to prosecute the
offenders. But lest this procedure be abused, provision has
been made for the examination of the person defamed and for
awarding against him compensation if it be found that the
complaint was false and frivolous or vexatious. Normally, a
Minister or a public servant defamed in respect of his
conduct in the discharge of his public functions would
himself move the Government under which he functions for
taking proceedings for vindicating his character or conduct.
The complaint eo nomine in cases under s. 198B, is
undoubtedly the Public Prosecutor, but the complaint may,
when the person defamed is a Minister or a public servant,
properly be regarded as filed at the instance of such
Minister or public servant. He has in any case to support
the accusation by evidence, and his conduct is exposed to
judicial scrutiny. In this context, it would be difficult
to hold that a person who has either been instrumental in
the initiation of a complaint, or in any event has to
support it by his evidence, has no concern with the lodging
of the complaint. The court
73
would obviously award compensation only if it is satisfied
that the claim made by the person posing to be aggrieved is
false and either frivolous or vexatious.
Section 198B does not provide that before taking cognisance
of a complaint, the complaint shall be signed by any person
other than the Public Prosecutor. In terms, it contemplates
a complaint in writing by the Public Prosecutor and of no
one else and it would be an unwarranted addition to sub-s.
(1) of the words " and also by the person aggrieved " if
the contention urged on behalf of the appellants were ac-
cepted. The Legislature not having chosen to provide that
the complaint of the Public Prosecutor shall also be signed
by the person aggrieved, we will not be justified in the
absence of compelling reasons to so hold.
The observation made by Mr. Justice Bavdekar in C. B. L.
Bhatnagar v. The State (1) " What s. 198B(13) .........
means...... is that any complaint which may be made under s.
198B must also satisy the provisions of s. 198, that is, the
complaint will have to be made both by the person aggrieved,
and by the Public Prosecutor ", and by Mr. Justice Raman
Nayar in R. Sanker v. The State (2) that a complaint by a
person aggrieved is not dispensed with even in regard to
cases falling under s. 198B, do not, in our judgment,
correctly interpret sub.s. (13) of s. 198B.
In the view taken by us, this appeal must fail and is
dismissed.
Appeal dismissed.
(1) A.I.R. 1958 Bom. 196.
(2) 1.L.R. (1959) Kerala 195-
74

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