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C.M. Trivedi Vs. C.B.L. Bhatnagar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 1055 of 1956
Judge
Reported in(1959)61BOMLR450
AppellantC.M. Trivedi
RespondentC.B.L. Bhatnagar
DispositionRevision application allowed
Excerpt:
criminal procedure code (act v of 1898), sections 198-b, 198-complaint filed by public prosecutor alone under section 198-b in court of session-validity of such complaint-jurisdiction of court to take cognizance of complaint-effect of section 198-b (13).;a court of session can take cognizance of a complaint filed by the public prosecutor under section 198-b of the criminal procedure code, 1898, notwithstanding the fact that 1 the public servant aggrieved by the alleged defamation has not joined in the com-1 plaint. the effect of section 198-b (13) of the criminal procedure code, 1898, is that the right of any public servant to file a complaint about an offence of defamation under section 198 of the code is not taken away by virtue of section 198-b of the code.;bhatnagar v. state of bombay..........of the code of criminal procedure has been raised in this revision application on behalf of the public prosecutor for greater bombay, who is the petitioner in this application. the revision has come to be filed in the following circumstances:2. on march 20, 1958, the public prosecutor for greater bombay, mr. c.m. trivedi, filed a complaint against the opponent under section 198b of the code of' criminal procedure, alleging that the opponent had published a defamatory article in the issue of a weekly, named 'congress' dated september 23, 1957, and thereby committed an offence of defamation against a public servant by name j.b. contractor, who is a selection grade sub-inspector of police. the complaint bears an endorsement of the same date to the effect that it was filed before the.....
Judgment:

Gokhale, J.

1. A question as to the interpretation to be placed on the provisions of Sub-section (13) of Section 198B of the Code of Criminal Procedure has been raised in this revision application on behalf of the Public Prosecutor for Greater Bombay, who is the petitioner in this application. The revision has come to be filed in the following circumstances:

2. On March 20, 1958, the Public Prosecutor for Greater Bombay, Mr. C.M. Trivedi, filed a complaint against the opponent under Section 198B of the Code of' Criminal Procedure, alleging that the opponent had published a defamatory article in the issue of a weekly, named 'Congress' dated September 23, 1957, and thereby committed an offence of defamation against a public servant by name J.B. Contractor, who is a Selection Grade Sub-Inspector of Police. The complaint bears an endorsement of the same date to the effect that it was filed before the Registrar, City Sessions Court, Bombay. On March 31, 1958, the Court of the Additional Sessions Judge for Greater Bombay ordered the issue of a bailable warrant against the opponent in the sum of Rs. 1,000 with one surety for a like amount, the returnable date given being April 23, 1958. The opponent applied for and obtained copies of the complaint, as also of the orders passed by the Additional Sessions Judge, the Government sanction and the warrant of arrest, on April 5, 1958. On April 7, 1958, he gave a notice to the Public Prosecutor that he proposed to move the Sessions Court on April 23, 1958, for the dismissal of the said complaint as the Court of Session had no jurisdiction to entertain it. On April 18, 1958, he filed a statement in Court raising several grounds which, according to him, would not entitle the Court to entertain the complaint made by the Public Prosecutor. In the first instance, he contended that the Public Prosecutor had not personally appeared before the Sessions Judge and verified the complaint. It was next contended that the copy of the complaint should have been served upon him with the warrant of arrest, which was not done. He also complained that no list of prosecution witnesses was filed by the prosecution along with the complaint, as required by Section 204(1A) of the Criminal Procedure Code. But his principal grievance was that the complaint had been made by the Public Prosecutor alone and the person aggrieved by the alleged defamation, namely, J. B, Contractor, the Selection Grade Sub-Inspector of Police, had not joined him in filing the complaint, and as such the Sessions Court had no jurisdiction to take cognizance of the complaint under the special provisions of Section 198B of the Criminal Procedure Code without commitment.

3. All the first three objections raised by the opponent were negatived by the learned Additional Sessions Judge, but he upheld the objection of the opponent as regards the non-joinder of the aggrieved party in the complaint and following a decision of this Court in Criminal Revision Application No. 1542 of 1956 decided by Mr. Justice Bavdekar on March 29, 1957, which is subsequently reported in Bhatnagar v. State of Bombay : AIR1958Bom196 , the trial Court dismissed the complaint on the ground that it had no jurisdiction to take cognizance of the complaint, to entertain it and try it. It was further directed that the opponent should be discharged and his bail bond cancelled. It is against this decision that the present revision application has been filed by the Public Prosecutor for Greater Bombay.

4. It may be mentioned that on behalf of the opponent the points which have been decided against him by the learned Additional Sessions Judge have not been argued before us, and the only point that has been agitated in this revision is whether the Additional Sessions Judge could not take cognizance of the complaint filed by the petitioner under Section 198B of the Code of Criminal Procedure, since the aggrieved person against whom the alleged defamatory article was said to have been published had not joined in the complaint. For examining this argument which has been urged before us, it would be necessary to consider briefly the relevant provisions of Section 198B of the Code. But before I deal with the provisions of that section, I may refer to the provisions of Section 198 of the Code, which provides that no Court can take cognizance of an offence falling under Chap, XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence. It is not necessary to refer to the two provisos to this section for the purpose of this revision application. Now, Section 198B(1) runs as follows:

Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (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 cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.

Section 198B was inserted in the Criminal Procedure Code by the amending j Act XXVI of 1955. Sub-section (1) of Section 198B deals with the subject of prosecution for defamation against public servants in respect of their conduct in the discharge of public functions. It excludes from its ambit the offence of defamation by spoken words, but as regards other kinds of defamation it provides that when such an 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, in respect, of his conduct in the discharge of public functions, the Court of Session is empowered to take cognizance of such offence, upon a complaint in writing by the Public Prosecutor without the necessity of the accused being committed to that Court. Under Section 193(1) of the Code, except as otherwise expressly provided by the Code or by aliy other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. Section, 198B(1) would, therefore, appear to provide an exception to Section 193 of the Code, because it enables the Court of Session to take cognizance of the offence of defamation against public servants upon a complaint in writing made by the Public Prosecutor without the accused being required to face committal proceedings. Under Section 198, as we have already seen, before a Court can take cognizance of an offence of defamation or other offences mentioned in that section, a complaint must be made by some person aggrieved by such offence, lint Section 198B(1) provides that the Court of Session may take cognizance of an offence of defamation other than by spoken words upon a complaint in writing made by the Public Prosecutor. The question for consideration in this case is whether in spite of the provisions of Section 198B(1), the Court of Session would not be competent to take cognizance of such offence upon a complaint made in writing by the Public Prosecutor alone, if the public servant aggrieved by the alleged defamation does not join in the complaint.

5. The argument urged on behalf of the petitioner is that Sub-section (1) of Section 198B starts with the non-obstante clause 'Notwithstanding anything contained in this Code' and, therefore, this sub-section is an exception also to Section 198. but in view of Sub-section (13), the aggrieved party is not deprived of his right to file a complaint under Section 198. As against, this, it is urged on behalf of the opponent that under Sub-section (13) of Section 198B it is provided that the provisions of this section shall be in addition to, and not in derogation of those of Section 198; and, therefore, it is urged that though no doubt a Court of Session may take cognizance of a complaint under Section 198B without the necessity of any prior committal proceedings, a complaint made in writing by the Public Prosecutor alone would not be sufficient to invest the Court of Session with jurisdiction, but the aggrieved party must also join in such a complaint so as to make it his complaint also as required, by Section 198 of the Code. As I have already stated, the objection urged on behalf of the opponent was accepted by the trial Court, reliance being placed on the ruling of this Court in Bhatnagar v. State of Bombay, Now, the facts in that case were that a criminal complaint was filed by the State of Bombay at the instance of one M.S. Prasad, an Income-tax Officer, against Bhatnagar, the present opponent, in respect of an article published by the latter in a weekly magazine known as 'Bombay City'. That complaint was filed under Section 500 of the Indian Penal Code read with Section 198B of the Criminal Procedure Code and was solemnly affirmed by M.S. Prasad, and at the foot of the affirmation were two unsigned remarks, viz., that the complaint was drawn by the Public Prosecutor for Greater Bombay and that M.S. Prasad, Income-tax Officer, would be the witness in respect of this complaint. An objection was raised to the competence of this complaint on behalf of the opponent on the ground that it was not a complaint in writing made by the Public Prosecutor as required by Section 198B of the Code and, therefore, the Sessions Court would have no jurisdiction to take cognizance of the offence without the necessary committal proceedings. That objection was rejected by the Sessions Court. The opponent came in revision and Mr. Justice Bavdekar held that in the circumstances of the case the act of making the complaint was riot the act of the Public Prosecutor and, therefore, as the complaint was not made by the Public Prosecutor as required under Section 198B of the Code, the Sessions Judge could not take cognizance of the offence. In arriving at this decision, the learned Judge made certain observations which are principally relied upon by the opponent in this case in support of his contention that the present complaint is also incompetent. Those observations are as follows (P. 366) :-.What Section 198B(13,) consequently means, when it says that the provisions of Section 198-B shall be in addition to, and not in derogation of the provisions of Section 198, is that any complaint which may be made under Section 198B must also satisfy the provisions of Section 198, that is, the complaint will have to be made both by the person aggrieved and by the Public Prosecutor. I do not think that the language that the provisions of Section 198B shall be in addition to, and not in derogation of those of Section 198 would be the correct language to use, if all that was intended was that it was not to be regarded that Section 198B so to speak repeals Section 198, or that a complaint for defamation could not be made even to a Magistrate by the person aggrieved without the intervention of the Public Prosecutor.

Relying on these observations, it is contended before us by the opponent that in view of Mr. Justice Bavdekar's decision in that ease that by reason of the provisions of Sub-section (13) of Section 198B the complaint will have to be made both by the person aggrieved as well as by the Public Prosecutor if the Sessions Court is to be competent to take cognizance of the offence of defamation under 8. 198B(1), the trial Court was justified in dismissing the present complaint. Now, as 1 have already stated, the facts in the case before Mr. Justice Bavdekar were different. In that case, the complaint was solemnly affirmed by the aggrieved party, but it was not the complaint in writing made by the Public Prosecutor because all that was stated in the endorsement was that the complaint was drawn by the Public Prosecutor for Greater Bombay and that endorsement was an unsigned endorsement. With respect, therefore, in our opinion, Mr. Justice Bavdekar was right when he held that it was not a complaint filed within Section 198B(1) as it was not a complaint in writing made by the Public Prosecutor. The question whether in view of the provisions of Sub-section (13) of Section 198B such a complaint will have to be made by both the person aggrieved as well as by the Public Prosecutor did not really fall to be considered in that case. But since the learned Judge has made an observation that in view of the provisions of Sub-section (13) of Section 198B the complaint must be made by the person aggrieved as well as by the Public Prosecutor, before the Court of Session can take cognizance of the complaint, and since this point has directly arisen in this revision, we must examine the correctness of this view.

6. Now, there can be no dispute that Section 198B was inserted in the Code of Criminal Procedure in 1955 by Parliament providing for special procedure with regard to prosecutions for defamation against public servants. Under Sub-section (1) of that section, as already stated, the Court of Session can take cognizance of such offence without prior committal proceedings, as required under a. 193 of the Code. Sub-section (1) of Section 198B itself provides for an exception in case of defamation by spoken words, the complaint in respect of which would, therefore, be governed by Section 198. Further, the alleged defamation must be in respect of the conduct of a public servant in the discharge of his public functions. Under Sub-section (3), a complaint made by the Public Prosecutor under Sub-section (1) must be made with the previous sanction of the authorities mentioned in that sub-section. Where the alleged defamation is in the case of the President or the Vice-President or the Governor of a State, the previous sanction of the Secretary to the, Government authorised by the persons concerned will have to be obtained under Clause (a) of Sub-section (3). Under Clause (b), in the case of a Minister of the Central Government or of a State Government, the previous sanction is to be obtained 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. Under Clause (c), in the case of any other public servant employed in connection with the affairs of the Union or of a State, the previous sanction of the Government concerned has to be obtained. Sub-section (4) of Section 198B provides r period of limitation within, which a complaint contemplated by Section 198B has to be made and it is provided that no Court of Session shall take cognizance of an offence under Sub-section (1) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. Under Sub-section (5), it is further provided that notwithstanding anything contained in the Code, the Court of Session shall try the case without a jury and in trying the case, shall follow the procedure prescribed for the trial by Magistrates of warrant cases instituted otherwise than on a police report and the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded otherwise directs, be examined as a witness for the prosecution. So that the accused in every case can test the correctness of the accusations made against him by cross-examining the aggrieved party. Regarding the. provisions for awarding compensation, exception is made in the case of very high dignitaries of the State like the President, Viee-President or the Governor or Rajpramukh of a State; but as regards other public servants, if the accusation is found to be false and either frivolous or vexatious, then compensation can be granted. It would appear, therefore, from these provisions that though the complaint itself is made by the Public Prosecutor, in case it is found to be false and either frivolous or vexatious, the accused when discharged will be able to get compensation from the person aggrieved, at whose instance possibly the complaint may have come to be made. The complaint made by the Public Prosecutor under Section 198B would not be a complaint of the aggrieved party though it may be a complaint at the instance of the aggrieved party, In inserting this section, the Legislature apparently seems to have been inspired, with the object of enabling the State to maintain and uphold the purity of public administration by prescribing a special and speedier procedure for high dignitaries of the State and other public servants to have their conduct cleared when defamatory statements are made in respect of their conduct in the discharge of public functions. The question is whether this object is likely to be fulfilled if it is further required that in such a complaint made by the Public Prosecutor the party aggrieved must also join. It is true that under Sub-section (13) of Section 198B, the provisions of Section 198B are to be in addition to, and not in derogation of, those of Section 198. In our opinion, the Legislature seems to have made it clear by enacting Sub-section (13) that the provisions of Section 198B would be an alternative provision to Section 198, so that the right of any public servant to file a complaint about an offence of defamation under Section 198 is not taken away by virtue of Section 198B. That, in our opinion, was to some extent necessary beeause of the non-obstante clause with which Sub-section (1) of Section 198B starts.

7. Now, against this construction it is urged by the opponent that when the amending Bill was introduced in the Lok Sabha, Sub-section (11) of Clause (25) of the amending Bill stood as follows: 'Nothing in this section shall be deemed to be in derogation of the right of the person aggrieved under Section 198'. But ultimately, instead of accepting the wording of this sub-section, Sub-section (13) came to be worded as it stands at present, namely, 'the provisions of this section shall be in addition to, and not in derogation of, those of Section 198', and it is contended before us that we must give some meaning to the expression 'in addition to'. In our opinion, there is no substance in this contention. As I have already indicated, in view of the non-obstante clause with which Sub-section (1) of Section 198B starts, it would have been possible to argue that in the ease of public servants who are defamed otherwise than by spoken words, in respect of their conduct in the discharge of public functions recourse can only be had to Sub-section (1) of Section 198B. In order to guard against such a possible construction, Parliament, in our judgment, made it clear by providing in Sub-section (13) that the provisions of Section 198B are to be in addition to, and not in derogation of, those of Section 198, with the result that even a public servant, though lie may be defamed in respect of his conduct in the discharge of public functions, can still avail himself of the remedy provided under Section 198.

8. Then it was contended by the opponent that in ease the Court of Session does not examine the aggrieved party as a witness under subs. (5) of Section 198B, as it is competent for the Sessions Court to do for reasons to be recorded, the accused person will have no remedy and will be considerably handicapped in proceeding against the party at whose instance the complaint was made in any civil or criminal proceedings launched against him. We are not prepared to accept this argument either. As I have already stated, under Sub-section (5), the aggrieved party has to be examined as a witness for the prosecution, though it would be open to the Court not to do so for reasons to be recorded. But as soon as the Court of Session comes to the conclusion that the accusation made against the accused is false and either frivolous or vexatious, then it has the power to direct the aggrieved person to show cause why he should not pay compensation to the accused, the only exceptions provided being the President, the Vice-President or the Governor or Rajpramukh of a State. In our opinion, under Sub-section (7), it would be open to the accused when discharged to cross-examine the person against whom such notice comes to be issued, when he shows cause against the notice.

9. Then it is also urged that under Section 345 of the Criminal Procedure Code the offence of defamation under Section 501 of the Indian Penal Code is compoundable and it can be compounded by the person defamed; and it is urged that if the real complainant does not join in the complaint at all, then it would be difficult for the Court of Session to permit the offence to be compounded because on our construction the person aggrieved would not be the complainant. In our opinion, there is no substance in this contention also. As against this it may be argued that though the complaint under Section 198B would be a complaint made by the Public Prosecutor, the aggrieved party, who will be examined as a witness, will be the person defamed and there is no reason why the provisions of Section 345 of the Criminal Procedure Code should not apply to a case tried by the Sessions Court under Section 198B of the Code, and why that Court cannot permit the offence to be compounded. We do not propose to express any opinion on this point because it does not affect the construction of Section 198B.

10. Then it is also argued that the prosecution in the present case should have applied to the learned Additional Sessions Judge to make a reference to this Court if it was not satisfied with the decision of Mr. Justice Bavdekar in Bhatnagar v. State of Bombay and that in fact the present petition is an attempt to have that decision revised by this Court. There is no substance in this argument. As already pointed out, the case decided by Mr. Justice Bavdekar was on different facts in respect of a different complaint, though against the present opponent, and it is contended before us on behalf of the petitioner that the view of Mr. Justice Bavdekar in so far as it contemplates that a complaint under Section 198B should be a complaint made both by the person aggrieved and the Public Prosecutor would require reconsideration. In our judgment, with respect to the learned Judge, the provisions of Sub-section (13) of Section 198B of the Criminal Procedure Code cannot be interpreted to mean that a complaint under Section 198B(2) should also satisfy the provisions of Section 198 of the Code, with the result that it must be made not only by the Public Prosecutor but also by the person aggrieved by the alleged offence. The complaint contemplated under a. 198B is a complaint in writing only by the Public Prosecutor. But the provisions of Sub-section (13) of Section 198B make it clear that the public servant defamed is not deprived of his remedy to file a complaint under Section 198 of the Code. Any other construction is likely to defeat, in our judgment, the object of Parliament in enacting Section 198B. In inserting this section it appears not merely to have been intended to provide a special and speedier procedure enabling the Court of Session to take cognizance of an offence of defamation, other than by spoken words, against public servants without committal proceedings, upon a complaint made by the Public Prosecutor. The provisions of Sub-section (3) of Section 198B, referred to already, regarding according of the sanction would appear also to indicate that in case of the holders of the highest offices in the State, such as the President, the Vice-President and the. Governor of a State, their authorization to the sanctioning authority would be necessary, but in ease of other public servants it is the Government whether of the Union or of the State, that would be primarily concerned in giving the sanction. This is undoubtedly a salutary provision as, in our view, the Government concerned might in suitable cases insist on the filing of a complaint in the larger interests of public administration itself, even though the public servant, who might be defamed in the discharge of his public; functions, might not desire it. This object is not likely to be achieved in case the public servant is also required to join the Public Prosecutor in a complaint under Section 198B.

11. The result is that we must hold that the present complaint filed by the Public Prosecutor, though it is not a complaint in which the person defamed has joined, is a valid complaint and the Court of Session would have jurisdiction to take cognizance of the complaint, to entertain it and try it. We therefore, allow the revision application and set aside the order of the learned Additional Sessions Judge dismissing the complaint and discharging the accused. The complaint will be restored and the Sessions Court will entertain it and try it in accordance with law. Rule made absolute.


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