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State of Mysore Vs. P.K. Atre - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 6 of 1958
Judge
Reported inAIR1959Kant65; AIR1959Mys65; 1959CriLJ347; (1958)36MysLJ744
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 6, 37(1), 144, 185, 190, 190(1), 190(2), 190(3), 193, 193(1), 197, 197A, 198, 198B, 198B(1), 198B(3), 198B(4), 198N(6), 198B(7), 198B(8), 198B(9), 198B(10), 198B(11), 198B(13), 200, 250, 492, 492(1) and 493; Bombay Police Act - Sections 37(1); Indian Penal Code (IPC), 1860 - Sections 496 and 500; Law Reform (Miscellaneous Provisions) Act, 1934; Fatal Accidents Act, 1846
AppellantState of Mysore
RespondentP.K. Atre
Appellant AdvocateG. Shankar Chetty, Adv. for ; Adv. General
Respondent AdvocateV.K. Pai, Adv.
Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 6 (1): [n.k. patil, j] final notification under petitioner sought for acquisition of land for the development educational activities failure of the petitioner to deposit the acquisition cost as required under the relevant statute non-compliance of the mandatory requirement held, the final notification shall be issued on or before the expiry of one year from the date of issuance of preliminary notification and the cost of acquisition is to be deposited before issuance of final notification. as the petitioner could not deposit the cost of the acquisition proceedings within the prescribed time, the proceedings has been delayed and notification under section 6(1) could not be issued before the expiry of one year from the date of.....ordera. narayana pai, j.1. this revision petition raises an intricate point regarding the interpretation and effect of section 198-b of the code of criminal procedure introduced for the first time by the amending act xxvi of 1955. there is only one reported decision of a single judge of the bombay high court dealing with this section and that is found reported in c.b.l. bhatnagar v. the state, : air1958bom196 . the observations made in that judgment are relied upon by both sides in support of their respective contentions, although the decision itself does not finally conclude the controversy now before me for decision.2. the undisputed facts may be stated briefly. in the wake of the reorganization of states in 1956 there were some disturbances in belgaum in consequence of which orders.....
Judgment:
ORDER

A. Narayana Pai, J.

1. This revision petition raises an intricate point regarding the interpretation and effect Of Section 198-B of the Code of Criminal Procedure introduced for the first time by the amending Act XXVI of 1955. There is only one reported decision of a single Judge of the Bombay High Court dealing with this Section and that is found reported in C.B.L. Bhatnagar v. The State, : AIR1958Bom196 . The observations made in that judgment are relied upon by both sides in support of their respective contentions, although the decision itself does not finally conclude the controversy now before me for decision.

2. The undisputed facts may be stated briefly. In the wake of the reorganization of States in 1956 there were some disturbances in Belgaum in consequence of which orders were issued under Section 144 of the Criminal Procedure Code and also under Section 37(1) of the Bombay Police Act by the District Magistrate of Belgaum. Breaches of these orders were committed or attempted to be committed by certain agitators and some were arrested and remanded to custody.

One of them fey name Nagappa Dudappa Hosurkar died in custody. As suspicious were raised regarding the cause of his death further public commotion was feared. There appears to have been a large number of persons who wanted to take the body out in procession to the cremation ground, whereas the authorities had the body removed in a police van to which course it is stated the relatives of the deceased had agreed.

At the cremation ground the body could not be taken out of the van. At that time Sri S.Y. Ranade, I.A.S. the District Magistrate of Belgaum, is said to have proceeded to the spot and is reported to have given certain instructions to the police and made some observations about the behaviour of crowds and their leaders.

The District Magistrate is also said to have held a special press meeting to explain the correct position regarding the death of the undertrial prisoner 'Sri Hosurkar. With reference to this incident the Respondent Sri Pralhad Keshav Atre, Sanchalak of a weekly newspaper called 'Navyug,' wrote a leading article as 'Atre Uvacha' captioned 'Nagappa Hosurker murdered?'

3. It is in respect of the above article that the prosecution now in question was launched. The complaint in respect of it is made direct to the Court of Sessions at Belgaum under the provisions of Section 198-B of the Code of Criminal Procedure. The cause title of the complaint is as follows :

'The Public Prosecutor, Belgaum .... Complainant v. Pralhad Keshav Atre of Bombay ... Aicused. Section 500, I.P.C.'

4. The complaint begins with the words : 'In this, the Public Prosecutor begs to file a complaint as under:--'

5. It is signed as follows :

'V.A. Mujumdar

COMPLAINANT.

(Public Prosecutor)

23-10-1956).'

It is not signed by Sri S.Y. Ranade, the District Magistrate, against whom the offence is allied to have been committed. Sri Mujumdar was not the Public Prosecutor when the offence was committed, hut has been specially engaged by the Government for conduct of the case and for the said purpose appointed Public Prosecutor. The offending article appeared in the issue of the Navyug dated 13-5-1956. On 16-7-1956 the Government of Bombay in the Legal Department adopted a resolution No. 15929/C, reading :

'RESOLUTION : Sanction is accorded to the engagement of Shri V.A. Mujumdar, Pleader, Belgaum as a Special Council in the case to be filed by the District Magistrate, and Collector of Baigaum against the Editor of 'Navayug' for publishing a defamatory article in its issue, dated 13-5-1956 in regard to the death of undertrial prisoner Shri Nagappa Dudappa Hosurkar.' The remaining portion of the resolution dealing, with the fixation of Sri Majumdar's fee is irrelevant for our purpose. On 24-9-1956 the Government of Bombay in its Home Department (Political) adopted another resolution according sanction under Clause (c) of Sub-section (3) of Section 198-B of the Code of Criminal Procedure. After setting out the relevant circumstances in its preamble the resolution reads as follows : 'Now, therefore, in exercise of the powers conferred by Clause (c) of Sub-section (3) of Section 198-B of the Code of Criminal Procedure, 1398 (V of 1898) the-Government of Bombay is pleased to accord sanction to the Public Prosecutor, Belgaum, making a complaint under Sub-section (1) of Section 198-B of the said Code against Shri Pralhad Keshav Atre for the said offence.'

Thereafter on 6-10-1956 the Legal Department of the Government of Bombay issued a notification No. 22719/C reading as follows :

'No. 22719/C : In exercise of the powers conferred by Sub-section (1) of Section 492 of the Code of Criminal Procedure, 1898 (V of 1898), the Government of Bombay is pleased to appoint Shri V.A. Mujumdar, Pleader, Belgaum as Special Public Prosecutor, for filing and conducting the complaint on-behalf of District Magistrate and Collector of Belgaum against the editor of 'Navayug' for publishing a defamatory article in its issue, dated 13-5-1956 in regard to the death of undertrial prisoner Shri Nagappa Dudappa Hosurkar.'

The complaint itself, as already stated, was filed by Sri Mujumdar on 23-10-1956.

6. The counsel for the defence raised two preliminary objections to the maintainability of the complaint: (1) that the complaint made by Sri Mujumdar, Special Public prosecutor was unauthorised and also suffered from the defect of want of sanction and (2) that the complaint is bad for the reason that it has been signed only by Sri. V.A. Mujumdar and not by Sri S.Y. Ranade also.

These points were argued as preliminary points before the learned Sessions Judge of Belgaum, as they went to the root of the matter. On the first point the learned Sessions Judge repelled the contention of the defence; and held that Sri Mujumdar has been duly authorised as Public Prosecutor to make the complaint and that the complaint also had the necessary previous sanction of the Government.

On the second point however, the learned Sessions Judge took the view that the ruling in : AIR1958Bom196 had actually held that the signatures of both the Public Prosecutor and the aggrieved officer were compulsory and following that ruling concluded that the complaint was bad in law and therefore the Court had no jurisdiction to take cognisance of the offence complained of. Accordingly he dismissed the complaint and discharged the accused. The State as filed this criminal revision questioning the correctness of the view taken by the learned Sessions Judge.

7. As a decision in favour of the defence on any one of the points may conclude the matter, I have permitted both sides to address me fully on both the points. It will be convenient to deal with the points in the order stated.

8. On the first point the substantial argument is that under the Government resolution dated 24-9-1956 the previous sanction has been accorded to the Public Prosecutor of Belgaum, who at that time was Sri Patil and not Sri Mujumdar. Sri Mujumdar himself, although engaged as a special counsel by the resolution dated 16-7-1956, was appointed Public Prosecutor only subsequently under the notification of 6-10-1956. It is, therefore, contended that Sri Mujumdar cannot avail himself of the sanction accorded by the resolution of 24-9-1956 which, according to the learned Counsel, was granted only to the then Public Prosecutor of Belgaum and not to Sri Mujumdar.

9. According to Clause (t) of Sub-section (1) of Section 4 of the Code of Criminal Procedure 'Public Prosecutor' means any person appointed under Section 492 of the Code. Under Section 492 the State Government may appoint, generally, or in any case, of for any specified class of cases, in any local area one or more officers to be called Public Prosecutors. It will be seen, therefore, that there need not invariably be a single Public Prosecutor for a specified local area.

In the same local area there may be a Public Prosecutor appointed generally for cases arising within that local area, there may be a Public Prosecutor appointed for a specified class of eases or more than one in each category and there may be a Public Prosecutor appointed for a single case. It is not, therefore, possible to argue that by the mere description 'Public Prosecutor, Belgaum,' reference is restricted to any one particular person functioning as the Public Prosecutor in the District of Belgaum.

The sanction under Section 198-B (3) is not to an individual but in substance to the making of a complaint. It is wrong to read this provision regarding sanction as equivalent to conferment of authority on any particular individual. The appointment of a Public Prosecutor is really equivalent to the engagement of a lawyer by the Government.

In the case of private parties the engagement of a lawyer has to he done by executing a Vakalath or other appropriate document conferring authority on the lawyer engaged to act and/or plead on behalf of the party appointing him. In the case of a Government engaging a Public Prosecutor to conduct prosecutions, the appointment is made not by execution of a document like a Vakalath, but by an order of appointment in exercise of powers under the particular Section of the Code and like all other appointments by Government the order is notified in the Official Gazette.

Once such an order is made and notified, the Public Prosecutor by virtue of the provisions of Section 493 of the Code of Criminal Procedure is entitled to appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal.

Section 493 further states that even if any private person instructs a Pleader to prosecute in any Court any person in any case which is in charge of a Public Prosecutor, the-said Public Prosecutor alone is entitled to conduct the prosecution and such pleader engaged by a private party can act only under the directions of the Public Prosecutor.

10. Now, Sri Mujumdar has been appointed Public Prosecutor for this particular case; the notification of 6-10-1956 specifically states that he has been so appointed for filing and conducting the complaint now in question. As already stated, the sanction under Section 198-B(3) has reference to the making of the complaint and is distinct and different from the authorisation of a particular individual to act as Public Prosecutor.

The two matters are sourced on two different sections of the Code though they may refer to the same case. To correctly assess their effect on the case to which they relate it is necessary to read together the Government Resolution dated 24-9-1956 according the sanction to make the complaint and the notification dated 6-10-1056 appointing Sri Mujumdar as Special Public Prosecutor to file the complaint.

When so read together, they make it clear that. Sri Mujumdar alone and not any other Public Prosecutor or lawyer has the authority to make this complaint. In this view the sanction accorded under the Resolution of 24-9-1956 for the making of the complaint can be availed of only by Sri Mujumdar and not by any other person who answers the description of 'Public Prosecutor, Belgaum.'

The complaint itself was filed by Sri Mujumdar on 23-10-1956. When he did so, he was armed not only with the order of appointment dated 6-10-1956 putting him alone in charge of this case, but also with the sanction accorded by the Government under its Resolution dated 24-9-1956 to make the complaint in question. It may also be noted that even before the Government adopted the Resolution dated 24-9-1956 they had already made up their mind to engage Sri Mujumdar and fixed his remuneration under the Resolution dated 16-7-1956,

The granting of the necessary sanction under Section 198-B(3) and the formal appointment of Sri Mujumdar as the Special Public Prosecutor under the order notified on 6-10-1956 were only steps taken by the Government to comply with the relevant provisions of the Code of Criminal Procedure and therefore no question whether these several orders operate prospectively or retrospectively can arise. Having completed the preliminaries, the Government have had the complaint actually filed by Sri Mujumdar on 23-10-1956.

11. For these reasons I agree with the conclusion arrived at by the learned Sessions Judge and hold that the complaint has been duly made by Sri Mujumdar, who has been duly appointed as Public Prosecutor for this case and therefore had the necessary authorisation, and that the complaint has the requisite sanction of the Government.

12. On the second point considerable part of the argument is devoted to the value to be given to Sub-section (13) of Section 198-B, which, it is contended, gives the key for the proper understand-' ing of the section. That Sub-section (13) reads as follows :

'13. The provisions of this section shall be in addition to, and not in derogation of, those of. Section 198.'

It is contended that this means that a complaint under Section 198-B should comply with the provisions of not only that section, but also of Section 198 of the Code. Considerable reliance is placed upon the observations of Bavdekar J. in : AIR1958Bom196 already referred to.

13. At the commencement of this order I have already expressed the opinion that the judgment of Bavdekar J. does not really conclude the matter now before me. Nor can it be taken as expressing a final opinion on it. In that case Sri M. S. Prasad, an Income-tax Officer, was said to have been defamed in respect of his conduct in the discharge of his functions as Income-tax Officer, and a complaint regarding that was purported to have been made under Sub-section (1) of Section 198-B before the Bombay City Sessions Court.

The complaint was signed by Sri Prasad, who also affirmed it before the Registrar of the Sessions Court. At the bottom there was an endorsement that the con plaint was drawn by the Public Prosecutor for Greater Bombay but was not signed by anybody. The contention was raised that it was not a complaint by the Public Prosecutor within the meaning of Section 198-B(1).

Dealing with this contention His Lordship states clearly that for the purposes of that section the act of complaining must necessarily be an act of the Public Prosecutor himself and that it cannot be said that in such a complaint he need act merely as an Advocate or counsel for the aggrieved person, and after holding that in the particular case the public Prosecutor has clearly shown himself as merely the drafter of the complaint and not the complainant himself, His Lordship field that the complaint in question was not an act of the Public Prosecutor and not therefore a valid complaint made within the meaning of Sub-section (1) of Section 198-B.

This is the actual decision in the case. It clearly requires that the complaint should he a complaint by the Public Prosecutor himself and should be signed by him. It was unnecessary to decide whether the aggrieved person should also sign it and whether, if he signs, what value should be attached to his signature. From the decision it clearly flows that me complainant is the Public Prosecutor himself and certainly not the aggrieved person.

This is implicit in the decision that the Public Prosecutor should make the complaint as his own act and not as Advocate or counsel for the aggrieved party. The argument was addressed in that case on behalf of the accused that Sub-section (13) does not mean that the complaint should be signed by both the person aggrieved or defamed and also the Public Prosecutor. Dealing with that argument. His Lordship made the following observation :

'It is true that it is always open to a person defamed to lodge a complaint of defamation before a Magistrate; but that is not because Section 198-B (13) enables him to do so, but because when an offence of defamation is committed, the only limitation upon the ordinary law that any person can set the criminal law in motion, which is provided in Section 198, being satisfied, the complainant himself can make a complaint of the offence before a Magistrate. What Section 198-B (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 198-B 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 198-B 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 198-B so to speak repeals Section 198, or that a complaint for defamation could not he made even to a Magistrate by the person aggrieved without the intervention of the Public Prosecutor.'

This observation, as already stated, was unnecessary for the derision of the case. Apart from that, there is no discussion of any reasons or principles on the strength of which such a conclusion could have been reached. I, therefore, consider it necessary to discuss the matter on principle and to see whether the conclusion stated by Bavdekar J., necessarily follows from the wording of Sub-section (13) of Section 198-B.

14. Section 198-B was introduced for the first time by the amending Act XXVI of 1955. Before that the conditions for initiating proceedings for prosecution for defamation were contained only in Section 198. According to that section no court can take cognizance of an offence of defamation except upon a complaint made by some person aggrieved by that offence. Now defamation is a non-cognizable offence. The entry relating to it in Schedule II of the Code was also amended by the amending Act of 1955. Before the amendment, column 2 of the Schedule merely contained the word 'defamation' and column 8 indicated that it was triable by a Court of Sessions, Presidency Magistrate or a Magistrate of the First Class. After the amendment the entry in column 2 was split up into (a) and (b),--

(a) Defamation (other than defamation by spoken words) 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, when instituted upon a complaint made by the Public Prosecutor.

(b) defamation in any other case; and the entry in column 8 was so modified as to make a case falling under category (a) in column 3 triable only by a Court of Session, leaving a case falling under category (b) in the 2nd column triable as before by a Court of Session or a Presidency Magistrate or a Magistrate of the First Class.

Further whereas before the amendment offences of all categories of defamation were compoundable, after the amendment those falling within the category (a) of column 2 of the schedule are compoundable only with permission of the Court. As the learned Counsel on both sides have relied upon almost every sub-section of Section 198-B, it will be convenient to quote the entire section for a full and correct understanding of the arguments. That section reads as follows :

'198-B. (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 connexion 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.

(2). Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

(3). No complaint under Sub-section (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 or Rajprarmukh of a State, of any Secretary to the Government authorized by him in this behalf;

(b) in the case of a Minister of the Central Government or of a State Government, of the Secretary to the Council of Minister if any, or of any Secretary to the Government authorized in this behalf by the Government concerned;

(c) in the case of any other public servant employed in connexion with the affairs of the Union or of a State, of the Government concerned.

(4). 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.

(5) When the Court of Session takes cognizance of an offence under Sub-section (1), then, notwithstanding anything contained in this 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.

(6) If in any case instituted under this section, the Court of Session by which the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Court of Session may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice-President or the Governor or Rajpramukh of a State) to show cause why he should not pay compensation to such accused, or to each or any of such accused, when there are more than one.

(7) The Court of Session shall record and consider any cause which may be shown by the person so directed and if it is satisfied that the accusation was false and either frivolous or vexatious, it may, for reasons to he recorded, direct that compensation to such amount, not exceeding one thousand rupees, us it may determine, be paid by such person to the accused or to each or any of them.

(8) All compensation awarded under Sub-section (7) may ho recovered as if it were a fine.

(9) No person who has been directed to pay compensation under Sub-section (7) shall, by reason of such order, he exempted from any civil or criminal liability in respect of the complaint made under this section :

Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(10) The person who has been ordered under Sub-section (7) to pay compensation may appeal from the order, in so far as the order relates to the payment of the compensation, as if he had been convicted in a trial held by the Court of Session.

(11) When an order for payment of compensation to an accused person is made in case which is subject to appeal under Sub-section (10), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided.

(12) for the purposes of this section, the expression 'Court of Session' includes the High Courts at Calcutta and Madras in the exercise of their original criminal jurisdiction.

(13) The provisions of this section shall be in addition to, and not in derogation of, those of Section 198,'

15. It will he noted that the wording of category (a) in column 2 of the II Schedule is identical with the description of the offence under Section 198-B(1). On the whole, therefore, this particular category of the offence of defamation is taken up for special treatment by the new section.

16. The question now is what is the meaning of the expression 'in addition to and not in derogation of' occurring in Sub-section (13)? This expression commonly occurs in statutes. The ordinary dictionary meaning of the term 'derogate' is detract take away part from, sink in the scale, do something derogatory. The noun 'derogation' means lessening or impairment of law, authority, position, dignity.

It may also mean deterioration or debasement. In Wharton's Law Lexicon 'derogation' is said to mean the act of weakening or restraining a former law or contract. The expression that a donor is not permitted to derogate from his grant is well known to lawyers. It merely means that a donor having given something should not be permitted to take back portion of what he has granted or do something which would nullify the grant or render it valueless to the grantee.

Stroud's Judicial Dictionary refers to Yelland v. Powell Duffryn Associated Collieries (No. 2), (1941) 1 KB 519, in support of the proposition that the expression 'in addition to' means the same thing as the expression 'not in derogation of. The reference obviously is to the following observation of Lord Justice MacKinnon occurring at page 525 :

'The Truth is, as far as I can see, that 'and not in derogation of' means nothing more than 'shall be in addition to.' I have no idea why Parliament, or the draftsman, indulged in this unnecessary tautology, but I am quite satisfied that 'not in derogation of cannot bear the meaning suggested for the plaintiffs.' That was a case in which the expression in question occurred in the Law Reform (Miscellaneous Provisions) Act 1934 which said that the rights conferred by that Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons hy the Fatal Accidents Act of 1846.

The contention of the plaintiff in that case was that the expression in question occurring in the Act of 1846 meant that anything recovered under the 1934 Act shall not be allowed to diminish the full amount of damages that would be recoverable under the Act of 1846 if the Act of 1934 had never been passed. It is this contention that was repelled by the Court on appeal.

The Court held that all that the expression meant was that the right to recover damages under the 1934 Act did not take away the right to recover damages under the 1846 Act and not that the plaintiff could have two sets of damages separately calculated under the two Acts independently of each other, and that it is impossible to hold that the expression 'rights conferred by the Act shall be in addition to and not in derogation of any rights conferred by the Fatal Accidents Act' is equivalent to 'in assessing damages under the Fatal Accidents Act any sum recoverable under this Act shall not be taken into account'.

It follows from this decision that the expression in the 1934 Act only means that the rights conferred by the 1846 Act are not deemed to have been taken away by the rights conferred by the 1934 Act or that the rights under the 1934 Act do not take away any portion of the rights given under the 1846 Act or in any manner repeal, weaken or restrain those rights.

17. In the light of these principles it is necessary to examine the new Section 198-B of the Code of Criminal Procedure. That section, it will be noted, has been incorporated in the original statute itself and now forms part of that statute. It cannot, therefore, be interpreted as an independent or a separate statute, but must be understood in the general setting of the statute itself. The Supreme Court of India in Shama Rao Parulekar v. Dist. Magistrate Thana, has formulated the correct principle or interpretation as follows:

'The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.' See : 1952CriLJ1503 :

We are, therefore, to have regard to the general frame work of the Code of Criminal Procedure as it now stands amended and interpret Section 198-B in such a way as not to lead to any repugnancy, inconsistency or absurdity.

18. The Section occurs in portion B of Chapter XV of the Code of Criminal Procedure dealing with the jurisdiction of Criminal Courts. That portion concerns itself with the conditions requisite for initiation of proceedings. Section 190 contains the basic rule, according to which the Magistrates mentioned in that Section may take cognizance of an offence either upon receiving a complaint of facts which constitute such offence, or upon a report in writing of such facts made by any police officer or upon information received from any person other than a police officer or upon their own knowledge or suspicion that such offence has been committed.

Sub-sections (2) and (3) of that Section deal with the power of the State Government to empower Magistrates with the jurisdiction to take cognizance under one or other of the clauses of Sub-section (1). The Section itself opens with the words 'except as hereinafter provided'. The various Sections dealing with the particular offences requiring complaints by particular persons or with the sanction of Government are the several exceptions to this general rule.

The principle behind this classification is obvious. The administration of criminal law and punishment of offences is the exclusive responsibility of the State. It represents one of the essential characteristics of organized society with the establishment of which the right of private vengeance, which is a rule where the law of the jungle prevails, is finally abolished.

The Magistrates are to take cognizance generally upon information received by them or upon their own knowledge or suspicion. When any person gives the information to the Magistrate, whether he is- actually and personally aggrieved by the alleged offence or not, he is no more than a mere informer, the actual responsibility for the punishment being that of the State.

In all such cases the State acts as the duly constituted protector of the rights of its subjects. This is so in the case of all cognizable offences. Non-cognizable offences are those in which the person aggrieved is more interested in his private grievance than the State is interested in the maintenance of the public order.

Hence the actual intervention of the State to the exclusion of the private individual, is considered unnecessary. In certain particular cases, those for example falling within Section 198 the State is not interested at all unless the aggrieved person himself places his case before the State for action.

The offences mentioned in Section 198, it will be remembered, are breach of contract to attend on and supply wants of a helpless person described in Section 491 of the Indian Penal Code, certain offences against sexual morality and marriage described in Sections 493 to 496 of the Indian Penal Code and the offence of defamation.

The common characteristic of all these offences is that the grievance is primarily that of the aggrieved person and the offence need not necessarily result in any breach of public peace or order. It is also perhaps implicit in this provision that the acts constituting these offences also give rise to the civil remedy of recovering compensation and therefore the State feels that it need not interest itself in these offences if the aggrieved person feels satisfied with recovering compensation without getting the offender punished.

Over and above these categories of offences there are two other categories in which the State is specially and particularly interested not as the protector of the rights of its subjects but as State distinct and different from the subjects over which it rules.

Those offences are firstly offences committed by Judges and public servants in the discharge of their official duties or by Rulers of former Indian States (vide Sections 197 and 197-A of the Criminal Procedure Code) and secondly graver offences committed against the State itself described in Section 196 of the Code of Criminal Procedure which comprises such offences as promoting enmity or hatred between different classes of citizens, deliberate and malicious acts intended to outrage religious feelings of any class of citizens, publication of statements intended to cause disaffection in the army or to cause alarm whereby persons may be induced to commit offences against public tranquillity, etc.

In the light of these principles it is possible to understand that where any of the dignitaries or Ministers or public servants mentioned in Section 398-B of the Code of Criminal Procedure is defamed, such defamation will affect not merely the individual concerned but also the State as State.

If it were a mere question of private grievance of the individual, then the existing Section 198 is sufficient to meet the situation. It may be that the conduct of the public servant in discharge of his public functions which is the subject-matter of the defamation was one undertaken not by him alone in the exercise of his private discretion, but one dictated by a particular policy of the State itself.

In such a case the really aggrieved person would be the State itself, if such an expression can be used in connection with the impersonal idea of a State. The original Section 198 did not provide for such a situation or contingency. It seems to me, therefore, that the new Section 198-B was intended to supply this deficiency.

It does no more than give complete effect to the idea underlying Section 198 of requiring the aggrieved person to make the complaint. In cases where the State itself can be said to be the aggrieved person, the State itself has taken the power under the new Section 198-B to make the complaint through its own law officer, the Public Prosecutor.

19. To support the argument that the signature of the dignitary or the officer defamed is necessary the learned counsel for the respondent reads Section 198 along with Section 200 of the Code. Section 198 requires a complaint by the aggrieved person. A complaint is defined in Section 4(1)(h) as the allegation made orally or in writing to a Magistrate with a view to his taking action under the Code. Section 200 requires a Magistrate to examine the complainant at once upon oath and to reduce the substance of his examination in writing and to take the signature of the complainant to that writing.

The learned counsel argues that Section 198 itself opens with the words 'no Court shall take cognizance' and that I should interpret the term 'no Court' as inclusive of a Sessions Court which is empowered to take cognizance under Section 198-B. The term 'Court' is not defined in the Code; but Section 6 which gives the classes of criminal Courts does mention the Court of Sessions as one such Court.

On this basis it is argued that the Sessions Court taking cognizance under Section 198-B (1) is also disabled from taking cognizance without a complaint by the aggrieved person in compliance with Section 198. This argument cannot be accepted for two reasons. The term complaint in Section 198 must be read in the light of the definition of the term already cited.

It is information given to a Magistrate; hence the term 'court' in Section 198 can mean only a Magistrate and not a Court of Session. Further under Section 193 except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session can take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a jurisdictional Magistrate.

Hence the complaint under Section 198 can only be made to a Magistrate and not to a Court of Session. Section 198-B is a case where the Code has expressly provided otherwise within the meaning of Section 193 (1). Further Section 198-B itself opens with the words 'notwithstanding anything contained in this Code.' The clear effect of these various provisions is that when a Court of Session takes cognizance of an offence under Section 198-B (1), it is relieved of the prohibition contained in both Sections 193 and 198.

All that is required as conditions requisite for initiation of proceedings in a Court of Session under Section 198-B (1) is that the complaint should be made by the Public Prosecutor in writing with the previous sanction of the appropriate Government as provided in Sub-section (3) of the Section. I have already referred to the effect of Justice Bavdekar's judgment that the complaint under Section 198-B should be the act of the Public Prosecutor himself.

In other words the Public Prosecutor himself is the complainant for the purposes of that Section. The learned Additional Assistant Advocate-General has argued that a reading of the new Section makes it clear that the dignitary or officer defamed is not referred to in the Section either as an aggrieved person or as a complainant; the Section deliberately describes him as the person against whom the offence is alleged to have been committed.

The Section makes special provision for compulsory examination of that person as a prosecution witness, unless the Court of Session, for reasons to be recorded in writing, directs otherwise; this takes the place of the initial examination on oath of an ordinary complainant under Section 200 because by virtue of Sub-section (aa) of Section 200 the Public Prosecutor, who is the complainant, may not be one whose examination is compulsory.

The learned Counsel for the respondent has laid special emphasis on the provisions of Sub-sections (6) to (11) providing for a direction being made for payment of compensation to the accused by the person against whom the offence is alleged to have been committed in the event of the Court finding that the accusation was false and either frivolous or vaxatious.

He argues that this is a special provision made in substitution of Section 250 and that this indicates that even in a complaint under Section 198-B the person against whom the offence is alleged to have been committed is closely associated with the complaint and that this association itself suggests that he should sign the complaint and make himself responsible for the allegations contained therein.

To the extent this argument suggests the existence of some association with the complaint of the person against whom the offence is alleged to have been committed, there is no difficulty in accepting it. Ordinarily it may be expected that the public servant would have brought the matter to the notice of the Government for the purpose of taking action under the special provisions of Section 198-B (1).

It can also be stated that the possibility of such aggrieved person giving an exaggerated colour to the situation or actually making a false imputation cannot be entirely ruled out. Hence the provisions of Sub-sections (6) to (11) dealing with the compensation in cases of false accusations are perfectly understandable. But these provisions far from supporting the contention of the learned Counsel for the respondent are, in my opinion, actually against it.

If, indeed, the person against whom the offence is alleged to have been committed should himself be a complainant or a joint complainant along with the Public Prosecutor in the complaint made under Section 198-B (1), then it is unnecessary to make these special provisions in Sub-sections (6) to (11) of the Section because the case will be fully covered by Section 250.

But then, the learned Counsel states, the term 'complaint' in Section 250 may be said to comprise only complaints within the definition contained in Section 4 (1) (h), that is to say, information given to a Magistrate and not to a Court of Session. Whether such an interpretation is acceptable or not and whether in cases falling under Section 198B it may not be said that it would be an instance of the subject or context indicating an intention different from the one implicit in the definition need not be examined for our present purpose. It may even be suggested that a possible doubt like this furnishes the reason why special provision is made in Sub-sections (6) to (11) of Section 198-B.

20. After a careful consideration of all these aspects of the matter, I am unable to accept the argument that the person against whom the offence of defamation is alleged to have been committed and which offence is the subject-matter of a complaint under Section 198-B (1) should also figure as a complainant and sign the complaint.

The purpose of Sub-section (13) is not, in my opinion, to import into Section 198-B the provisions of Section 198 but only to keep alive the provisions of Section 198 intact. It is not as if that a case or class of cases covered by Section 198 has been removed from the purview of Section 198 and placed within the exclusive operation of Section 198-B and thereby the right of the aggrieved person of making a complaint under the provisions of Section 198 has been taken away.

Sub-section (13) of Section 198-B only preserves to him his original right under Section 198 and does not require him to join in the complaint made by the Public Prosecutor under Section 198-B. The real purpose of Sub-section (13) of Section 198-B will become obvious if we have regard to the limitation prescribed under Sub-section (4) of that Section.

According to that sub-section the Court of Session is not to take cognizance under Sub-section (1) unless the complaint is made within six months from the date of commission of the offence. If for any reason there is delay on the part of the Government and no complaint is made by the Public Prosecutor with the sanction of the Government under Sub-section (1) of Section 198-B, then in the absence of Sub-section (13) the aggrieved person would have lost his right because of the opening words of Section 198-B, which read 'notwithstanding anything contained in this Code.'

It is, in my opinion, to obviate this total destruction of the right of the aggrieved parly that Sub-section (13) has been added to Section 198-B. Read in this light it is perfectly clear that it does not derogate from the provisions of Section 198. This undoubtedly may lead to a possible situation where there may be a complaint with the sanction of the Government made by the Public Prosecutor to a Court of Session under Section 198-B (1) and there may be another complaint made by the aggrieved person himself to a jurisdictional Magistrate under the provisions of Section 198 and both may be pending at the same time.

I do not think, however, that this will lead to any difficulty or absurdity, because the question which will then urine as to which of the two Courts should hold the trial is capable of decision by an appropriate High Court under Section 185 of the Code or Criminal Procedure.

21. Hence the interpretation arrived at by me gives effect to all the provisions of the Code, including Sub-section (13) of the new Section 198-B and does not lead to any repugnancy, inconsistency or absurdity.

22. I hold that when a complaint is made by the Public Prosecutor under Sub-section (1) of Section 198-B with the requisite sanction under Sub-section (3) of the same section, such complaint must he signed by the Public Prosecutor concerned and need not be signed by the person against whom the offence is alleged to have been committed.

23. It must, therefore, be held that the complaint in this case cannot be rejected as bad in law for the reason that it does not contain the signature of Sri S.Y. Ranade.

24. The order of the Sessions Judge is, therefore, set aside and he is directed to readmit the complaint to his file under its original number and proceed to deal with it in accordance with law.

25. Order accordingly.


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