1. These three revision petitions have come before us on reference by our learned brother, Basireddy, J. They are directed against the order, dated 18-9-1959, made by the Addl. Sessions Judge, Hyderabad, whereby he rejected the preliminary objections taken to the initiation of proceedings in C. C. Nos. 1 to 5 of 1959. The petitioners herein are concerned only with C. C. Nos. 1, 3 of 1959 and 5 of 1958. They call in question the legality and the correctness of the above order so far as it affects them.
C.C. Nos. 1/59 and 5 of 1958 out of which Cr. R. Cs. 598 and 599/59 arise were instituted against K. V. S. Padmanabharaju, the editor, printer and publisher of 'Navasakti' a Telugu Weekly which has a wide circulation in Andhra Pradesh especially in Hyderabad District including the twin cities of Hyderabad and Secunderabad. C. C. No. 1 of 1959 relates to the publication of an alleged defamatory statement in 'Navasakti' in the issue dated 12-10-1958 which affects Sri Balakrishna, Executive Engineer in the employment of the State of Andhra Pradesh and C. C. No. 5 of 1958 pertains to the publication of a like defamatory statement in two articles in the issue of 27-10-1957 and 9-2-1958 against B. R. Somayajulu, Chief Engineer, Electricity, Government of Andhra Pradesh.
C. C. No. 3/1959 out of which Cr. R. C. No. 523 of 1959 arises is brought against K. V. Ramanayya, the author oF the article under the caption of 'J. V. Bhagiratha Vikalpam' published in the issue dated 12-10-1958 of the above mentioned weekly in which a portion under the heading 'the accused in the enquiry committee' contains an alleged scurrilously del amatory attack inter alia on one Balakrishna, the Executive Engineer, Government of Andhra Pradesh in his capacity, as public servant employed in connection with the affairs of the State of Andhra Pradcsh.
It ig not necessary for the present purpose to set out in detail the alleged defamatory matter contained in the said articles. It may however be stated here that the persons defamed did not elect to file complaints themselves, though it was open for them to do so under the provisions of Section 198, Cr. P. C. Instead the Government, after being satisfied that they are false and frivolous decided to launch prosecution. Mr. N. S. Raghavan was appointed Public Prosecutor who, under the requisite previous sanction, lodged within time complaints in writing before the Sessions Judge Secunderabad.
Thus the matter came before the court in accordance with the provisions of Section 198-B Cr. P. C. which was introduced by the Central Act 26 of 1955. The Sessions Judge for Secunderabad and Hyderabad did not try the cases himself. He transferred them to the Additional Judge City Civil Court Hyderabad. But eventually these cases were transferred to the Chairman of the Sales Tax Appellate Tribunal who was appointed Additional Sessions Judge.
The accused raised several objections both as to the legality of the proceedings against them and to the constitutionality of Section 198-B Cr. P. C. The learned Judge repelled all the contentions. The accused therefore have come in revision to this court. As these petitions raise points of law on which there is conflict of opinion between some of the High Courts, the matter has been referred to this Bench.
2. The two legal points raised by Mr. Raghuvir the learned counsel in Cr. R. C. 523/59 are : (1) that Sri N. S. Raghavan was not competent to make a complaint under Section 198-B Cr. P. C. as he was not a public prosecutor appointed generally but a special prosecutor and was not in terms clothed with authority to file complaint; and (2) that the complaints are bad even because the aggrieved persons have not joined and signed as complainants. As the first point is raised mainly on terms of order of appointment, we may extract here the said order contained in G. O. Ms. 228 dated 29-1-1959 which is to the following effect :
'It has been brought to the notice of the Government that certain false and frivolous allegations have been made against Sri Balakrishna, Executive Engineer, by one Sri K. V. Ramaniah, in an article under the caption 'Herculean Scheming of J. V.' (J. V. Bhagiratha Vikalpam) published in ihe issue of Teligu Weekly 'Navasakti', Hyderabad, dated 12th October 1958. The Government after examination arc, satisfied that the attentions made are false and baseless and they have decided to launch necessary prosecution against Sri K. V. Ramaniah, the author of the offending article and Sri K. V. S. Padmanabha Raju, who is the Editor, Printer and Publisher of the paper 'Navasakti'. A copy of each of G. O. Ms. 226. G. O. Ms. 227, Home (Courts B) dated 29th January 1959 inwhich the prosecutions have been sanctioned is enclosed.
2. Under Section 492 of the Code of Criminal Procedure the Governor of Andhra Pradesh hereby appoints Sri N. S. Raghavan, Principal Government Pleader to be a Special Public Prosecutor, Hyderabad for conducting the Prosecution referred to in para 1 above.
3. Sri N. S. Raghavan will he paid fees. (By order and in the name of the Governor of Andhra Pradesh)
P. Venkateshwar Rao,
Deputy Secretary to Government.'
This order refers to three things ; that the Government has decided to launch necessary prosecution against the two accused, that the necessary sanction for prosecution has been duly accorded and that Sri N. S. Raghavan, Principal Government Pleader has been appointed to be Public Prosecutor for conducting the said prosecution. The implication of this order may be fully brought home if it is read with Section 198-B under which the said complaint was proposed to be launched and which so far as it is relevant for this purpose reads thus ;
'(1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 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 cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
(2) to (13). x xx xx'
The complaint contemplated by this section is acomplaint in writing rnade by the Public Prosecutor. It is therefore perfectly clear that if theGovernment had made up their mind to launchprosecution as is manifest from the order, theycould do so only by way of complaint in writingmade by the Public Prosecutor. There was noother course open to them under law,
To achieve this purpose, they in fact appointed Sri N. V. Raghavan to be Special Public Prosecutor with the specific direction to conduct the prosecution referred to in para (I) of the order. That reference is to the launching of prosecution which the Government had decided. In the context of Sub-section (1) of Section 198-B it necessarily means a direction to file complaints as well for Sri N. S. Raghavan was appointed under Section 492, and was a Public Prosecutor within the meaning of Section 4(t) of the Code of Criminal Procedure. Both the sections, so far as they are relevant read thus :
'Section 4(t) 'Public Prosecutor' means any person appointed under Section 492, and includes any person acting under the directions of a Public-Prosecutor and any person conducting a prosecution on behalf of Government in any High Court in the exercise of its original criminal jurisdiction. Section 492 (1). The State Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.
(2). xx xxx xx'
Sri N. S. Raghavan was indeed a Public Prosecutor within the contemplation of Section 198-B Cr. P. C., and was by virtue of his office competent to lodge a complaint. All that was required was the previous sanction of the concerned authorities provided in Sub-section (3) of Section 198-B which was duly accorded and which is not in dispute. Further the complaint had to be made within six months from the date on which the offence is alleged to have been committed and there is no controversy in relation thereto.
The only objection raised by the learned counsel is that the order of appointment does not in terms clothe the Public Prosecutor with the power to launch a complaint and that he being appointed for special cases shall be deemed to be a Public Prosecutor only after those cases have come before the court. The contention seems to be misconceived and is wholly ill-founded. What the learned counsel seeks to impress is that a Special Public Prosecutor appointed for the proposed cases, cannot in law, take steps for initiation of the proceedings.
There is no warrant for such a proposition. The expression 'the Public Prosecutor' used in Section 198-B is not qualified by any limitations. An officer appointed under Section 492(1) for any of the purposes mentioned therein to be a Public Prosecutor is a Public Prosecutor, within the meaning of Section 4(t) and also Section 198-B entitled to make a complaint. It is true that he was appointed for specified cases which were yet to be brought before the court but it is impossible to hold that tilt the case is instituted the appointee cannot be considered as the Public Prosecutor, especially when it is obvious that the case itself cannot come before the court except at the instance of the Public Prosecutor.
Besides, as already observed there is nothing in Section 492 which leads to the conclusion that when a Public Prosecutor is appointed for specified class of cases all or any of these cases must be before the court. The argument that there is no express authority to launch prosecution is equally devoid of force. Apart from the power conferred by the statute such authority to initiate proceedings arid conduct the same till its final conclusion is implicit in the expression' for conducting the prosecution referred to in paragraph 1 above' employed in the order. The argument of the learned counsel therefore fails.
3. Now we turn to the second contention raised. In order to appreciate this and. a constitutional point raised which will be referred to presently, it will be necessary to refer to Sections 198, 198-B and Section 4(h) Cr. P. C. which read thns:-
'198. No court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code (45 of 1860) or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence;
Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen. years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may with the leave of the Court, make a complaint on his or her behalf:
Provided further that where the husband aggrieved by an offence under Section 494 of the said Code is serving in any of the Armed forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (1) of Section 199-B may, with the leave of the court, make a complaint on his behalf:
198-B(1): Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 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 cognizance of such offence without the accused being committed to it tor 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 Vice-President or the Governor or Rajpramukh of a State, of any Secretary to the Government authorised by him in this behalf.
(b) in the case of a Minister, of the Central Government or of a Stale 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 cognizanceof an offence under Sub-section (1), unless the complaint is made within six months from the date onwhich the offence is alleged to have been committed.
5. When the Court of Session takes cognizanceof an offence under Sub-section (1), then notwithstanding anything contained in this Code, the Courtof Session shall try the case without a jury and intrying the case, shall follow the procedure prescribed for the trial by Magistrates of Warrant-cases instituted otherwise than on a police-report and theperson against whom the offence is alleged to havebeen committed shall, unless the Court of Session,for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.
6. I 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 of 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 be recorded, direct that compensation to such amount, not exceeding one thousand rupees, as 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 be 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, be 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 a 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 he in addition to, and not in derogafion of, those of Section 198.
4(h): 'Complaint' 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, but it does not include the report of a police officer.'
We are concerned mainly with Section 198-B. The language of Sub-section (1) thereof is clear and unequivocal. It says without any reservation that the complaint in writing must be made by the Public Prosecutor. It follows that it should be an act of the Public Prosecutor himself. Thus, on the clearlanguage of the provision there is no scope for the argument that the aggrieved person must join as a complainant.
The learned counsel nevertheless argues that it is implicit in the scheme of Section 198B itself that the person aggrieved must also be the complainant for otherwise, his examination as a witness under Sub-section (5) and penal sanctions as against him in compliance with Sub-section (6) to (9) would have been meaningless and further, even on general principles of law, it cannot be expected that any person can be penalised for the acts not attributable to him. It is further argued that in any event the clear language in Sub-section (13) warrants compliance with the provisions of Section 198 as well and that on that basis too the person aggrieved should also figure as complainant. We are unable to accede to this argument.
4. Section 198 and 198-B occur in Chapter XV of Cr. P. C. which deals with the conditions requisite for initiation of criminal proceedings. The basic rule for cognizance of cases by Magistrate is contained in Section 190, Cr. P. C. According to it cognizance may be taken on a complaint or on a report in writing by a police officer, or upon information from any other person, or on the knowledge or suspicion of the Magistrate himself.
Ordinarily complaints are made in non-cognizable cases. But there is nothing to prevent the preferring of a complaint even in a cognizable case instead of lodging information first to the police for investigation. Similarly, the police report under this section (Section 190) may either be of a cognizable case or even in respect of non-cognizable case Investigated under Section 155 Cr. P. C. Non-cogni-zable case, it may be noted, is ordinarily one in which the person aggrieved is more interested in his private grievance than the State, which is interested in the maintenance of public order.
Yet, the State in particular class of cases may feel bound to intervene as a duly constituted protector of the rights of its subjects. Section 190, it may be noted, opens with the expression 'except as hereinafter provided' and indeed we find in Sections 195 - 199 exceptions to the general rule, as under the definition of 'complaint' in Section 4(h), it is open to any person to make a complaint and such person need not be the aggrieved person.
Sections 195 - 199 having regard to the particular character of certain offences lay certain restrictions and the courts arc prohibited from taking cognizance of such offences unless the authorities or persons specified therein with or without requisite permission as the section may provide bring a complaint. These provisions indeed are based on a broad policy of administration of criminal law and punishment of criminal wrongs which is an essential responsibility of the State.
Section 198 deals with offences railing under Chapters 19, 21 and Sections 493 - 496 I. P. C. and In such cases, subject to the provisos in the section, the complaint should be made by person aggrieved. The wrong done in such cases, it may be seen is no doubt of criminal nature but a common feature of all these offences is that the grievance is primarily that of the aggrieved person. The State therefore has not interested itself therein in bringing the offenders to justice but has left the remedy open to the aggrieved person himself.
But Section 198-B relates to defamation of public servants not merely in their private capacity but in respect of their conduct in the discharge of public functions. Where the conduct in the discharge of public functions is brought in question, certainly the public also become interested and it does not become the exclusive concern of the victim. As observed by Cockburn C. J. in Campbell v. Spottiswoode (1863) 122 ER 288 at p. 291):
'The public have an equal interest in the maintenance of the public character of men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation.'
Thus Section 198-B which relates to prosecution for defamation differs from the provisions of Section 198 in that it relates to matters which concerns not merely the private individual but also the public and the State as well and which is bound to reflect on the purity of administration and good governance. A procedure therefore, to some extent different from what has Been provided in Section 198 for cognizance of cases, has been prescribed therein.
It is no doubt true that it is open for the public officer to proceed under Section 198 for such offences as he is the person defamed, but as already stated, since the matter has a bearing on the public administration as well, the State as such becomes interested in order to ensure efficient and smooth running of its administration by guarding against villification and scurrilous attacks on and unwholesome criticism of the public officers which has a deleterious effect on the administration.
That is the reason why an express provision has been made under Section 198-B. It may be noted that this section opens with the words 'notwithstanding anything contained in this code'. That means this provision stands by itself and is independent of any other provision. But as under Sub-clause (13) this section is not in derogation of Section 198, it is open to the aggrieved person to file a complaint himself before the Magistrate if he so elects for ordinarily it is he who should file it.
Thus the right of the person defamed is protected by Sub-clause (13). Sub-clause (13) in our judgment, does not go further than that. But it is contended that the expressions 'in addition to and not in derogation of in Sub-section (13) mean that while following the procedure laid down in Section 198-B compliance with the provisions of Section 198 also is necessary and that being the case the aggrieved person should also join as a complainant.
We are unable to accept this argument. The expression 'in derogation of' employed in this sub-clause read in the context means nothing more than 'in addition to.' It is an unnecessary tautology and is used only to lend force to the term 'in addition to.' The expression 'in addition to' cannot be construed to mean that both the provisions put together form a complete whole, nor in that context the expression 'in derogation of signifies that theprocedure to be followed under Section 198-B should in no way be a departure from or inconsistent with that of Section 198.
If such were the import or intention of Sub-clause (13) the procedure laid down in Section 198-B would not have been so inconsistent with that in Section 198 as to render the blending of the two provisions physically impossible. Section 198, it will be noticed, refers to a complaint before the Magistrate, But in Section 198-B the complaint is made to a Court of session, If the provisions of Section 198 are also introduced in Section 198-B, the conflict in forum will be irreconcilable.
Besides, the Sub-clauses (5) to (9) then would have been unnecessary as they are identical with Section 250 Cr. P. C. which provision is available for eases filed on complaint before a Magistrate. Then, again while Section 193 speaks of a complaint by an aggrieved person, subject, of course, to the proviso, Section 198-B unconditionally prescribes the complaint by the Public Prosecutor, The complaint should be exclusively his act and not by way of representing or on behalf of or in conjunction with any other including the person aggrieved.
There are in this behalf other points besides, which need not be detailed here. Suffice it to say that Sub-clause (13) was introduced because of the opening words of the provision, for, but for this sub-clause, the provisions of Section 198-B would have been the only available provision for the complaints in respect of offences of the description stated therein.
5. In order to demonstrate that there is intrinsic evidence in the provisions of Section 108-B itself to lead to the conclusion that the aggrieved person should join in the complaint, reliance has been placed on Sub-sections (5) to (11). Sub-section (5) provides inter alia for examination of the aggrieved person as a witness. This is evidently because the cognizance under vicarious complaint is an extraordinary, procedure and it was therefore deemed necessary that the bona fides of such a complaint should be tested by making the person said to have been wronged to face the witness stand.
The person has to come as a witness, save in exceptional circumstances and for reasons to be recorded by the court and a strong case has to be made out to enable the Judge to excuse his attendance at the trial. Sub-sections (6) to (11) provide for false and frivolous or vexatious complaints. Sub-section (6) starts with the expression 'if in any case instituted under this section.' This again shows that it is applicable only to a complaint filed by the Public Prosecutor.
It proceeds to state that if 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 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.
Be it noted that the direction is not to the person making the complaint. Of course, the President, Vice-president or the Governor or Rajpramukh of a State are exempt from the operation of this rule. The section is however clear on the point that though the complaint is filed by the Public-Prosecutor it is the person against whom the offence was alleged to have been committed who is liable to answer on question of compensation in case the accused is discharged or acquitted and the court is of opinion that the accusation is fake and frivolous. It must be borne in mind that the notice to such a person is only to show cause why he should not pay compensation to such accused.
He can therefore say that he was wholly unconcerned with the accusation or that there was reasonable ground for accusation and as such there can be no question of compensation. Sub-section (7) provides that 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, it may, for reasons to be recorded, direct that compensation to such amount not exceeding Rs. 1,000/- as it may determine to be paid by such person to the accused Or to each or any of them.
6. Two points emerge from these sub-clauses. One is the question of jurisdiction of the court to call upon the person alleged to be defamed to show cause why he should not pay compensation. The other is the duty of the court to record and consider the reasons shown and then to exercise its discretion on proof of the accusation being false and frivolous. In cases insituted under this section, it is possible that the person aggrieved, at the first instance, may himself move the Government for prosecution or it may be that the Government themselves being satisfied of the falsity and reckless nature of the imputations after an enquiry of the matter and ascertainment of facts from the person defamed ask the Public Prosecutor to launch a complaint.
It may also be that the Public Prosecutor after careful examination of the case on all aspects thinks it necessary to make a complaint and makes the same with previous sanction. In all such cases, of course, the complaint can be deemed to be made with due care and circumspection and likelihood of false and frivolous accusation may not, as a rule, be possible. Nevertheless, if in case it is found otherwise, the person defamed is made answerable for the same.
It is argued that as under the general principles of law the person defamed cannot be penalised if he took no part in filing the complaint, Sub-sections (6) to (9) by their implication must mean that the person aggrieved himself was also a complainant. It is difficult to give such a meaning to the clear language used in Sub-sections (6), (7) and (9).
In Sub-section (6) the words 'in any case instituted under this section' and in Sub-section (9) the expression 'in respect of the complaint made under this section' read with the expression in Sub-section (1), 'the complaint in writing made by the Public Prosecutor' leave no doubt that it is the complaint of the Public Prosecutor and Public Prosecutor alone that is contemplated by this provision; and that the person aggrieved is nevertheless made answerable for such a vicarious complaint canbe easily understood when we take the fact into consideration that ordinarily he would be the first person to move the Government.
At any rate, it is his explanation of facts at the time of inquiry which must lead to the filing of the complaint. Besides, it is open under the provision to the. person defamed, to assign reasons why he should not be directed to pay compensation and it is also the duty of the court to record and consider such reasons. Full discretion in matter of direction to pay compensation however is given to the court. In these circumstances, we cannot read into the words of the provision the meaning which they do not seek to convey.
The object of Sub-sections (6) to (11) was only to introduce provisions on the fines of Section 250 Cr. P. C. and no further. On a careful consideration of all the provisions, we are unable to reach the conclusion that either Sub-clauses 5 to 9 by themselves or Sub-section (13) can in any way, consistent with the other provisions, be construed to mean that the person aggrieved should also figure as a complainant.
The learned counsel referred us to the observations of R. Sankar v. State, AIR 1959 Kerala 100 and also to State of Mysore v. P. K. Atre, AIR 1959 Mysore 65. In AIR 1959 Kerala 100 the other Judge Vaidyalingam J. has not agreed with Raman Nair J., On this point. The second ruling cited by the learned Counsel does, not support his contention. He further referred to the observations of a single judge of the Bombay High Court in this behalf in C. B. L. Bhatnagar v. The State, : AIR1958Bom196 but they are only obiter.
The matter has been considered in AIR 1959 Mysore 65 wherein it Was observed as also in AIR 1959 Kerala 100 by Vaidyalingam J., that Section 198-B does not contemplate that the aggrieved person should figure as a complainant but that the 'complaint' within the meaning of that section is the 'complaint in writing of the Public Prosecutor'. As already discussed above, we find ourselves in respectful agreement with the reasoning and conclusions on this point in the above Cases. The objection taken is therefore rejected.
7. Now, we turn to the objections on constitutional grounds. The learned counsel Mr. Raghubir contends that Section 198-B is discriminatory in that it places the person accused of the offence of defamation against the public servants in a different position from a person accused of the same offence against an ordinary person. This provision thus being violative of Article 14 of the Constitution of India must be struck down, We feel it difficult to accept this argument.
Section 198-B is limited to the offences under chapter 12 committed against certain class of persons in respect of their conduct in the discharge of public functions, whereas Section 198 is much wider in amplitude and covers other offences also. What is vouchsafed by Article 14 to all persons within the territory of India is equality before law and equal protection of laws. Equality before law must imply absence of any privileged position in favour of any person but that does not mean absolute equality, for that is not physically possible.
It means equal subjection of all to ordinary law. The expression 'equal protection of the laws'connotes equality of treatment in equal circumstances. All that it contemplates is absence of arbitrary discrimination by the laws or in their administration. This Article has been the subject-matter of judicial consideration in more than one case even by the highest authority of the land. Its scope, ambit and effect now stand vell settled. In Budhan Chowdary v. State of Bihar, : 1955CriLJ374 referring to all the previous cases in which the provisions of this Article were considered by the Supreme Court, Das, J. (as he then was) summed up the position thus:
'It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible, classification two conditions must be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.'
In that case, the Supreme Court had to consider the constitutionality of Section 30 Cr. P. C. which empowered the State Government in certain areas to invest the District Magistrate or any Magistrate of the First Class with power to try as Magistrate all offences not punishable with death. Having regard to this provision, a contention was raised that inasmuch as the same accused person in respect of the same offences could be tried by District Magistrate specially empowered under Section 30 Cr. P. C. and by a Court of Session if the offence did not take place at a place where that section has no application, this discrimination offended against the equal protection clause of the Constitution.
But, in the light of the principle above stated, after a careful scrutiny of the provisions, it was held that there was no infringement of the fundamental rights vouchsafed by Article 14. In Matajog Dobey v. H. C. Bhari, : 28ITR941(SC) where the constitutionality of Section 197 Cr. P. C. was brought into question on the ground that it vested in the Government arbitrary power to grant or withhold sanction, it was held that the discretionary power is not necessarily discriminatory.
In Hanumantharao v. State of A. P. : 1957CriLJ1463 introduced by the Central Act 16 of 1955 in the Criminal Procedure Code were called in question as discriminatory for they lay down committal procedure Substantially different from that under Section 208 Cr. P. C. and the following sections which arc intended for proceedings instituted otherwise than on a police report.
The Supreme Court repelled this contention on the basis that the Legislature had provided for a clear classification between the two kinds of proceedings at the Committal stage based upon a very relevant consideration which was whether or not there was a previous enquiry by a responsible public servant whose duty it is to discover Crime that the basis of classification is clearly connected with the underlying principle of administration of justice that the alleged criminal should be placed On trial as soon after the commission of the crime as circumstances of the case permit.
Therefore the classification cannot be said to be unreasonable nor can it be said to have no relation to the object of classification, namely, to bring the offender to speedy justice without any avoidable delay. Thus applying the principles already laid down in the earlier cases, it was held that there was no discrimination and the provisions of Article 14 of the Constitution have not been violated. It must be noted that the procedure laid down in Section 207-A relating to commitment in cases investigated by a competent police officer who has submitted a charge sheet and a report is substantially different from that in cases where a competent magistrate takes cognizance of an offence on a complaint.
In the latter case, the procedure is more elaborate and the accused has advantage of a possibility of discharge at three definite stages, whereas in the procedure under Section 207-A such is not the ease. But their Lordships held that the difference was due to the fact that the Magistrate has to be more vigilant in seeing the private vendetta and that considerations other than those of vindicating justice are not allowed to interfere with the course of public justice,
In Section 208 Cr. P. C. and the following sections indeed greater facilities before the Magistrate for persons accused of an offence in order to vindicate their character are given. But such facilities may hot be necessary if the matter has been already investigated by competent police officers under a detailed procedure laid down in Chapter 14.
It was further observed that it is in the general interests of administration of justice that crime should be investigated and criminals brought to justice as expeditiously as the circumstances of the case would permit and that if a person has been falsely and wrongly accused of an offence, it is in his interests that he should get himself declared innocent by a competent court. Thus, having regard to the rational basis of classification and its relation to the object of the legislation, namely, more speedy trial of offences without any unreasonable delay, it was held that there was no violation of Article 14,
8. In the light of these principles, we have to see whether any question of infraction of right under Article 14 arises in the present case. Section 198-B as already pointed out, does not cover all the cases mentioned in Section 198 but only a few category of cases and only such as are alleged to have been committed against President, Vice-President, Governor etc. and against public servants in respect of their conduct in discharge of public functions.
Evidently, if it is mere question of private grievance, Section 198 is sufficient But a distinct provision has been made where public interests are involved. Having regard to the procedure laid down for either category of cases it is however obvious that the accused cannot complain of any serious departure from the usual procedure to his disadvantage. On the contrary, there arc definite safeguards in his favour.
The only departure from the procedure in Section 198-B is whereas in Section 198 a complaint subject to the proviso has to be filed by the aggrieved person before a Magistrate, in Section 198-B the complaint is to be filed by the Public Prosecutor before the Court of Session. The procedure to be followed by the court for trying the offence in either case is however the same i.e., procedure prescribed for trial by the Magistrate of warrant cases instituted otherwise than on a police report.
The offence in either case is non-cognizable and the punishment therefore in either event is the same. Thus the main difference, if any, is in the initiation of proceedings. But even that is to the advantage of the accused for the complaint is to be brought by a responsible person like the Public Prosecutor after a careful scrutiny of the matter. Further, he can file only after the sanction of the Government, This pre-requisite is a further safeguard in favour of the accused for, unless the Government is satisfied, it cannot accord its sanction.
Thus the complaint comes before the court only after the satisfaction of the Government and the Public Prosecutor. The Court which has to try this offence is a Court of Session. The appointment of a higher tribunal is indeed a protection for the accused and a great advantage to him in that he can expect speedy justice. Besides, the complaint can be taken cognizance of only if it is made within 6 months from the date on which the offence is alleged to have been committed. This time limit is a further protection for the accused.
The accused besides has opportunity to cross-examine the aggrieved person, for under the mandatory provisions of Sub-section (5), the person against whom the offence is alleged to have been committed has to face the stand of a witness in order to prove his bona fides. He can elicit from him that the imputations alleged were made in the interests of public good and that he, the accused, is not guilty of defamation. The accused besides has also the advantage of the provisions of Section 250 Cr. P. C. even though the case is tried by the Court of Session and at the instance of the Public Prosecutor with the sanction of the Government.
Thus, there is nothing in the provisions which may be a source of prejudice to the accused of which he can legitimately complain. The only complaint seems to be that the Public Prosecutor being the complainant all the resources of the State might be used against the accused. But such a contention is based on some misapprehension. No doubt the Public Prosecutor represents the State by the virtue of his office.
But in all prosecutions his duty is to assist the court in discovering the truth. It is no part of the duty of the Public Prosecutor to obtain conviction at all costs. On the contrary, his duty is to draw attention to all points in favour of the accused when omitted by defence advocate or, if they arisefrom the prosecution evidence. Thus, it is plain that Section 198-B does not subject the accused to any disadvantage or prejudice.
On the contrary, it affords substantial protection which Section 198 does not provide for. The accused therefore can have no cause for grievance. At any rate, as Sections 198 and 198-B rest on intelligible differentia and that differentia has a rational relation to the object sought to be achieved, namely, vindication of speedy justice, there is no question of infringement of Article 14.
9. Now, the last ground taken is that the prosecution of the accused violates the fundamental right guaranteed under Article 19(1) of the Constitution of India. It is argued that all citizens (and the accused are certainly citizens) have a right to freedom of speech and expression. This right includes the right to defame. It is absolute and if at all any restrictions are to be placed thereon, it can be done only under a statute provided such restrictions are reasonable. Further breach of such restrictions cannot entail penal sanctions, though it may be that the accused for such breach can be put to answer civilly.
That is the substance of the argument advanced by Chowdary relying on Gopalan v. State oE Madras, : 1950CriLJ1383 , Romesh Thappar v. State of Madras, : 1950CriLJ1514 and Raghubir Singh v. Court of Wards, Ajmer, : 4SCR1049 . It is difficult to accept this argument and the rulings cited also in no manner support the proposition that the freedom of speech and expression includes the right to defame or that the accused cannot be put to answer criminally for expressions in breach of restrictions under Article 19(2) which are punishable under the existing law.
In : 1950CriLJ1383 we have been referred to the observation of their Lordships in connection with the question whether Article 19 in its setting in part III of the Constitution deals with the deprivation, of personal liberty or imprisonment in prevention of crime committed or threatened. Patanjali Sastry, J. (as he then was) at p. 192 (of SCR) : (at pp. 69-70 of AIR) observed :
'But where, as a penalty for committing a crime or otherwise the citizen is lawfully deprived of his freedom, there could no longer be any question of his exercising or enforcing the rights referred to in Clause (1). Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of Article 19 at all but is dealt with by the succeeding Articles 20 and 21. In other words, Article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while Arts. 20-22 secure to all persons -- citizens and non-citizens -- certain constitutional guarantees in regard to punishment and prevention of crime. Different criteria are provided by which to measure legislative judgments in the two fields and a construction which would bring within Article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision. If imprisonment were to be regarded as a 'restriction' of the right mentioned in Article 19(1)(d), itwould equally be a restriction of the rights mentioned by the other Sub-clauses of Clause (1) with the result that all penal laws providing for imprisonment as mode of punishment would have to run the gauntlet of Clauses (2) to (6) before their validity could be accepted. For instance, the law which imprisons for theft would, on that view, fall to be justified under Clause (2) as a law sanctioning restriction of freedom of speech and expression.'
These observations evidently are not in support of the contention advanced but against it. In : 1950CriLJ1514 the provision of Article 19(2) in its unamended form came up for consideration before their Lordships and as a result of the decision, given thereon amendment of the provisions in the present form had been, effected and the words 'in the interests of public order' were introduced in substitution of the previous expression. This too does not support the contention of the learned advocate.
10. The learned Advocate General has taken us through the various authorities both American and Indian and argued that the expressions used in the Constitution should be construed bearing in mind that the Constitution makers at the time they framed the constitution had in view the then prevailing popular and legal notions of the expressions used by them. It is urged that the freedom of speech and expression as guaranteed by the Constitution does not confer an absolute right to speak or publish whatever one chooses and that it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom.
It has got its own limitations and the provisions of the Indian Penal Code contained in Section 499 which impose reasonable restrictions and provide for penalty are not hit by Article 19(2). M'Kean, C. J. in Rcspublica v. Oswald, (1788) 1 Law ED 155 : 1 Dall 319 at p. 323 while considering freedom of the Press under the Bill of Rights made the following remarks in relation to the destructive nature of slander and libel.
'And here, I must be allowed to observe that libelling is a great crime, whatever sentiments may be entertained by those who live by it. With respect to the heart of libeller, it is more dark and base than that of the assasin, or than his who commits a midnight arson. It is true that I may never discover the wretch who has burned my house, or set fire to my barn; but these losses are easily repaired, and bring with them no portion of ignominy or reproach. But the attacks of the libeller admit not of this consolation; the injuries which are done to character and reputation seldom can be cured, and the most innocent man may in a moment be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life. To what tribunal can he then resort, how shall he be tried, and by whom shall he be acquitted? It is in vain to object that those who know him will disregard the slander, since the wide circulation of public prints must render it impracticable to apply the antidote as far as the poison has been extended. Nor can it be fairly said, that the same opportunity is given to vindicate, which has been employed to defame him; for many will read the charge who may never see the answer; andwhile the object of accusation is publicly pointed at, the malicious and malignant author, rests in the dishonourable security of an anonymous signature. Where much has been said, something will be believed; and it is One of the many artifices of the libeller, to give to his charges an aspect of general support, by changing and multiplying the style and name of his performances. But shall such things be transacted with impunity in a free country and among an enlightened people? Let every honest man make this appeal to his heart and understanding and the answer must be -- no;'
Then he proceeded to consider the meaning of the Bill of Rights and observed that;
'the true liberty of the press is amply secured by permitting every man to publish his opinion; but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description it is impossible that any good Government should aftord protection and impunity.'
In J. M. Nearv. Appt. v. State of Minnesota Ex. Rel. Floyd B. Olson, (1931) 75 Law Ed 1357 it was held that liberty of speech under the Press is not an absolute right and the State may punish its abuse and that punishment for abuse of the liberty accorded to the Press is essential to the protection of the public and that the Common law rules that subject the libeller to responsiblity for public offence as well as to the private injury are not abolished by the protection extended in the, Constitution. At page 1376 reference is made to the observation of Justice Story, on the Constitution, (5th Edition) in relation to the first amendment which declares 'Congress shall make no law abridging the freedom of speech or of the press' which read thus:-
'That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatever he might please without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of every other citizen.... It is plain, then, that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever without any prior restraint, so always that he does not injure any other person in his rights, person, pro. perty or reputation, and so always that he does not thereby disturb the public peace or attempt to subvert the Government. It is neither more or less than an expansion of the great doctrine recently brought into operation in the law of libel. That every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty, and then, by rendering the most virtuous patriots odious through theterrors of the press, introducing despotism in itsworst form,'
To the same effect are the observations in Benjmin Gitlow v. People of the State of New York,(1923) 69 Law Ed 1138 at p. 1145 which readthus:-
'It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom..... Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free Government; without such limitation, it might become a scourge of the republic.'
In Arnond v. King Emperor, ILR 41 Cal 1023 at p. 1063 : (AIR 1914 PC 116 at p. 124) where the question as to the privileges of the press had arisen, the following are the observations of their Lordships of the Privy Council:
'The responsibilities which attach to his (journalist's) power of dissemination of printed matter may and in the case of a consicientious journalist do make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.'
In State of Bombay v. R.M.D. Chamarbaugwala, (S) : 1SCR874 where it was argued that the proper approach of our constitution is to start with absolute freedom and then to permit the State to cut it down if necessary, by restrictions which may even extend to total prohibition, their Lordships observed:-
'On this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be protected as fundamental rights until they are restricted by law. Thus there will be a guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, of house-breaking, of selling obscene pictures, of trafficking in women and so on until the law curbs or slops such activities. This appears to us to be completely unrealistic and incongruous'.
11. It is therefore impossible to accept the argument of the learned counsel for the revision petitioners that freedom of speech in Article 19(1) must be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without regard to any person's honour and reputation. The right guaranteed by the Constitution, it must be borne in mind, is to all the citizens alike. The right in one certainly has a corresponding duty to the other and judged in that manner also, the right guaranteed cannot but be a qualified one. Indeed the right has its own natural limitation. Reasonably limited alone, it is an inestimable privilege. Without such limitations it is bound to be a scourge to the Republic.
The American Jurists and Judges, as already discussed, have long understood the natural limitations and the evils of absolute unbridged freedom of speech and expression, Though the 1st and 14th amendments declare in clear terms that no law shall abridge the freedom of speech or of the press, thistight having regard to its natural limitations, has invariably been construed to mean a qualified right and for this purpose the doctrines such as doctrine of danger, present and clear, or of substantial evil sufficient to justify impairment of the right, have been invoked to place that right within limits. Our constitution framers taking benefit of the experience in America have in terms provided the necessary qualifications to this right. Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the right and it reads thus:-
'19(2). Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.'
12. Now the legal provision with which we are concerned is Section 499 I. P. C. which reads;
'Whoever By words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.'
Explanation 1 -- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2 -- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3 -- An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4 -- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his Caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in loathsome state, or in a state generally considered as disgraceful.
Illustrations (a) to (c) x x x x x
First Exception:-- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception:-- It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception:-- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct and no further.
Illustration. x x x x xFourth Exception:-- It is not defamation topublish a substantially true report of the proceedings of a Court of Justice, or of the result of anysuch proceedings.
Explanation: A Justice of the Peace or other officer holding an enquiry in open court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception: -- It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Illustrations (a) and (b). x x x x x
Sixth Exception :-- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation -- A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such, submission to the judgment of the public.
Illustrations (a) to (e) x x x x x Seventh Exception:-- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful Contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Illustration. x x x x xEighth Exception:-- It is not defamation to prefer in good faith an accusation against any personto any of those who have lawful authority overthat person with respect to the subject-matter ofaccusation.
Illustration. x x x x x. Ninth Exception:-- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any Other person, or for the public good.
Illustrations (a) and (b) x x x x x
Tenth Exception :-- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom, that person is interested or for the public good'. According to this section, not all imputations which may harm the reputation of a person shall constitute defamation for the section makes as many as 10 exceptions. The first exception makes it clear that if the imputations are true and for the public good they will not constitute defamation. Whether or not it is for public good is a question of fact. Under second exception too, expression of any opinion in good faith in respect of the conduct of a public servant in the discharge of public functions is not defamation. So also expression of any opinion in good faith in respect of the conduct of any person touching any public question is not defamation. There are further exceptions as well.
It is manifest that only such imputations as are malicious and reckless and not for public good, tranquillity, peace or public security or as are not made in good faith, have been brought within defamation which is but the abuse of freedom of speech and expression punishable under Section 500 I. P. C. Such being the case on no reasonable ground it can be said that the provisions of Section 499 place any unreasonable restriction on the freedom of speech or expression. It is therefore impossible to say that Section 499 I. P. C. is violative of Article 19 of the Constitution.
Nor is it possible to entertain the argument that the Constitution grants immunity from all punishments of abuse of freedom of speech. The argument that the accused cannot be put to answer criminally for the breach of reasonable restrictions on his freedom of speech or his abuse of the freedom of speech cannot be sustained. Punishment is of course not a restriction in itself but is indeed a consequence of the breach of restriction which the defaulter cannot escape. The last objection of the learned counsel thus fails. There are no merits in these Revision Petitions and they are therefore dismissed.