B.R. James, J.
1. Muneshwara Nand Tyagi is the editor, printer and publisher of 'Chingari', a Hindi weekly newspaper issued from Bijnor. At the relevant time Dr. Ram Lal was the District Medical Officer of Health at Bijnor, and had been serving in that district for a little over three years. In its issue of 7-3-1956, 'Chingari' published a news-item referring to Dr. Ram Lal by name and stating that he had been transferred from the district and that with his transfer all the defects of the Health Department would disappear. The authorities took no notice of that news-item. Then, in the following issue, that of 14-3-1956, there appeared an article under the caption 'Samayak Charcha; transfer and staghan'.
This did not refer to any public servant by name but purported to be about 'a Health Officer of a district'. This article was considered highly defamatory to Dr. Ram Lal, hence the District Magistrate wrote to the State Government recommending that Muneshwara Nand's prosecution for an offence under Section 500 I. P. C. be sanctioned under Section 198B 'Cr. P. C. (which was inserted in the Code by Central Act No. XXVI of 1955). The required sanction was duly accorded, and consequent to it the Public Prosecutor, under the provisions of Clause (1) of Section 198B, filed a complaint in the Court of Session at Bijnor against Muneshwara Nand under Section 500 I. P. C. Dr. Ram Lal did not join in that complaint, nor did he lodge any himself. On the Public Prosecutor's complaint the Sessions Judge took cognizance of the offence.
The charge that he framed quoted certain passages from the aforesaid article of the 14th March and recited that by the imputations contained therein Muneshwara Nand intended to harm, or knew or had reason to believe that they would harm, the reputation of Dr. Ram Lal. Muneshwara Nand admitted publishing the article in question but the only defence he set up was that it did not refer to Dr. Ram Lal at all but to an imaginary Health Officer and that its object was simply to criticise the policy of the State Government with regard to transfers of Government servants. After a careful consideration of the evidence produced on behalf of the parties and the arguments addressed by their counsel, the learned Judge repelled the defence plea, found Muneshwara Nand guilty of the offence punishable under Section 500, I. P, C, and sentenced him to simple imprisonment for six months and to a Gne of Rs. 200/-.
He appealed to the High Court, and before the Hon'ble single Judge who initially heard the appeal contended that the trial and conviction were invalid inasmuch as the Public Prosecutor's com' plaint had not been joined by Dr. Ram Lal, the public servant allegedly libelled. Considering that an authoritative decision on this legal point was necessary, the Hon'ble Judge referred the case to a larger Bench. It was accordingly made over to us for hearing, and we have heard Mr. Asif Ansari for the convict appellant and Mr. J. R. Bhatt for the State at considerable length on the point raised before the Hon'ble single Judge and on other points as well.
2. The points raised by Mr. Ansari are four in number and are these :
(1) That by virtue of Clause (13), of Section 198B and Section 198 of the Code Dr. Ram Lal was bound to join the Public Prosecutor's complaint, and since he failed to do so cognizance of the offence on the sole complaint of the Public Prosecutor could not be taken;
(2) that Dr. Ram Lal, though a public servant, was not employed in connection with the affairs of the State of Uttar Pradesh, hence Section 198B did not apply and the Sessions Judge could not take cognizance of the offence;
(3) that the imputations were not in respect of Dr. Ram Lal's conduct in the discharge of his official functions, hence Section 198B did not apply;
(4) that the impugned article was not against Dr. Ram Lal, but against an imaginary person, hence no offence under Section 500 I. P. C, was committed.
We shall take up these points ad seriatim.
3. Point (1): On this point Mr, Ansari's contention is that on a true construction of Sections 198B and 198 the complaint made under Clause (1) of Section 198B should comply, not only with the provisions of that section, but, by virtue of Clause (13) of Section 198B, also with the provisions of Section 198, so that in addition to a complaint by the Public Prosecutor there should be a 'private' complaint by the public servant aggrieved. On the other hand, Mr. Bhatt submits that the purpose of Clause (13) is not to import into Section 198B the provisions of Section 198 but only to preserve the tight of the aggrieved public servant to, if he so chooses, directly approach the proper Court by himself making a complaint under Section 198, so that the complaint by the Public Prosecutor does not require to be joined by the victim,
4. At the very outset I should like to point to one circumstance which demonstrates the shakiness of Mr. Ansari's stand; questioned by us on the matter he was unable to say categorically where on the basis of his contention there should be (1.) two separate complaints, one by the Public Prosecutor before the Sessions Judge and the other by the victim before the Magistrate, or (2) a joint complaint by those two before the Sessions Judge, or (3) a joint complaint by the two before the Sessions Judge along with a separate complaint by the victim before the Magistrate. He has however argued his point on the footing that the requirements of the law would be satisfied by a complaint before the Court of Session signed jointly by the Public Prosecutor and the aggrieved public servant. Mr. Bhatt has pointed out, not without some glee, that Mr. Ansari's only escape from the dilemma lies in his assenting to only one complaint, viz., one by the Public Prosecutor before the Sessions Judge.
5. Now, we are aware of only six decided cases, four of them reported hitherto, on the question at issue. These are :
(a) C. B.L. Bhatnagar v. State : AIR1958Bom196 , decided in March 1957 by Bavdekar, J. of the Bombay High Court;
(b) State of Mysore v. P. K. Atre, AIR 1959 Mys. 65, decided in August 1958 by Narayana pai, J. of the Mysore High Court; (c) Shankar v. State, AIR 1959 Kerala 100, decided in November 1958 by Roman Nayar, J, and Vaidialingam, J., their judgments being at pages 101 and 108 respectively;
(d;) Nageshwar v. State : AIR1960All71 , decided in May 1959 by:Mukerji, J. of this High Court;
(e) Ramesh Sinha v. Public Prosecutor, Lucknow, Criminal Revision No. 265 of 1959, D/- 16-11-1959 : ( : AIR1960All763 ) by Misra, J. of the Lucknow Bench of this Court; and (f) Jhamatmal Gurnani v. State, Criminal Appeal No, 61 of 1959 D/- 28-11-1959 by myself atLucknow.
In cases (b) and (c) the pros and cons of the controversy have been discussed in considerable detail. The judgment in (a) and Raman Nayar, J.'s Judgment in (c) favour Mr. Ansari but all the other judgments are against him, so that the preponderance of judicial authority supports Mr. Bhatt's view point. Mr. Ansari concedes that the material observations in Bavdekar, J.'s judgment are in the nature of obiter dicta and are not supported, by reasons, but he relies strongly on the arguments of Raman Nayar, J. The views of that learned Judge will be considered presently.
6. In case (b) the conclusion reached by Narayana Pai, J. was ; 'The purpose of Sub-section (13) is not, in my opinion, to import into Section 198B the provisions of Section 198 but only to keep alive the provisions of Section 198 intact ....... Sub-section (13) of Section 198B only preserves to him (i. e., the public Servant defamed) his original right under Section 198 and does not require him to join in the complaint made by the Public Prosecutor under Section 198B'. With great respect to his Lordship, I agree with the reasoning that led him to this conclusion except that I cannot endorse the result he arrived at by a reference to Section 250 Cr. P. C., for that section applies exclusively to trials before Magistrates and has no bearing on proceedings before Sessions Judges, as those initiated under Section 198B must inevitably be.
7. In the Kerala case, case (c), the Bombay judgment was cited but not the Mysore one, evidently because it had not been reported till then. Raman Nayar, J. accepted the views of Bavdekar, J. but Vaidialingam, J. differed from them and reached the same conclusion as Narayana Pai, J. in the Mysore case. His Lordship's reasoning, if I may so with the utmost respect, is very sound,
8. In case (d) our brother Mukerji, J., before whom no. reported decisions were referred to, examined the plain, wording of the relevant sections and held; 'Section 193B of the Code engrafts a kind of exception on the general rule, namely, that only a person aggrieved by a defamatory statement should be permitted to move the Court for redress; the exception which has been engrafted on that general rule by Section 198B appears to have been with the object of saving the public servant from the embarrassment of a private prosecution in respect of a defamatory statement that was made against him in the discharge of his public duties. ......
The words in Clause (13) could not, in my opinion, mean anything except that if a complainant had the right to file a complaint for a defamation, whether that defamation was in respect of his official duties or was, so to speak, in respect of his non-official activities under Section 198, then that individual right of the complainant remained entirely unaffected by anything that was contained in Section 198-B'. With profound respect to our learned brother, I apprehend that in ruling that Section 198B engrafted an exception on the general rule contained in Section 198 he has stated the proposition unduly broadly and that his interpretation, in my opinion, would raise serious difficulties in construing Clause (13) of Section 198B; but if our brother merely intended to lay down that Clause (1) of Section 198B (in contradistinction to the entire section) engrafted an exception on Section 198, I would, with respect, be inclined to agree with him.
It should however be mentioned that the issue before him was the reverse of that before us, for what he was called upon to decide was whether it Was open to a public servant who felt defamed in the discharge of his public functions to lodge a 'private' complaint under Section 198. Nevertheless, the logical conclusion of our brother's judgment is that to the Public Prosecutor's complaint under Section 198B (1) the public servant concerned is not a necessary party.
9. In case (e) our brother Misra, after examining the decisions in cases (a), (b) and (c) above, agreed to adopt the reasoning of Narayana Pai, J. and Vaidialingam, J. To this reasoning he added a reason of his own. As I understand it, that reason was this. The offence of defamation has been divided into two classes, one where the State considers that the resultant injury to the larger interest of society is so slight that the individual harmed can be safely relied upon to bring the offender to justice himself, and the other where the defamation is Supposed, to be an injury to the State itself, thereby requiring the State to bring the offender to book Irrespective of the wishes of the individual harmed; accordingly the legislature has enacted laws to specify what offences shall be left for private, action considering the losser degree of the resultant harm and what are to be considered an injury to the State So that the prosecution for them, shall be initiated by the State itself; Section 198 applies to the former class of oifences and Section 198B to the latter class, although even in the latter class the right to initiate proceedings still remains preserved to the individual concerned.
With great respect to our brother, I feel reluctant to concur in this argument for the simple reason that the offence of defamation as defined in Section 498 I. P. C. continues to remain the same as before, as also does its punishment under Section 500 so that, in law, there is no justification for dividing the offence of defamation into two classes. But if what our learned brother meant was that a classification has been made purely for the purpose of procedure, I should be inclined to agree with him. I shall advert to this particular point later.
10. In the last case, case (f), I considered the decisions in (a), (b), (c) and (e) and found myself in agreement with the views of Narayana, Pai, J. and Misra, J. I might confess however that in view of the submissions made before me I did not think it necessary to add any reasons of my own.
11. Before us Mr. Ansari has reiterated all the arguments that were presented on behalf of the accused persons before the High Courts of Mysore and Kerala and has supplemented them with two arguments of his own. He has also relied strongly on the aforesaid decision of Raman Nayar, J. Except where further elucidation may be found necessary, no useful purpose will be served by my repeating the arguments addressed to those High Courts; they will be found adequately discussed in their appropriate judgments. I shall therefore confine my discussion to the main reasoning of Raman Nayar, J. and to the two fresh arguments of Mr. Ansari.
12. X shall first explore Raman Nayar, J.'s main reasoning. According to him, the words in Clause (13) of Section 198B, viz., 'The provisions of this section shall be in addition to, and not in derogation of, those of Section 198', mean that this clause enjoins a compliance not merely with Section 198B, but also with Section 198, and he goes on to declare that the argument that that clause provides by way of abundant caution that Section 198 remains unaffected, is untenable, for what Section 198 does is to prohibit cognizance except upon a complaint made by the person' aggrieved and does not confer a right of complaint on the aggrieved person.
With great respect to his Lordship, I should like to point out that there is no provision in the Code which might explicitly confer a right of complaint on any person, for such a right is an inherent one, and doubtless it was for this reason that the legislature thought statutory recognition of it to be redundant. Chapter XV of the Code, which embraces Sections 177 to 199B, deals with the jurisdiction of the Criminal Courts in Inquiries and Trials, while Sections 190 to 199B fall under the sub-heading 'Conditions requisite for initiation of proceedings'. Section 190 empowers specified Courts of Magistrates to take cognizance of offences, while Section 198, which is one of the exceptions to Section 190, places a lestric-tion on the power of these Courts to take cognizance of certain specified offences, including that of defamation.
The word 'Court' in Section 198, refers, not to any Court, but to the Courts of Magistrates enumerated in Section 190. No doubt, in terms Section 198 imposes a prohibition on the taking of cognizance of specified offences like defamation, nevertheless, save in the eyes of the legal purist, this section must be held! to clearly recognise the right of the aggrieved person to file a complaint, and it is scarcely necessary on my part to emphasise that a statute can confer rights both explicitly and impliedly.
His Lordship further thinks that the effect of Clause (13) can only be to save the prohibition in Section 198 from the non-obstante clause with which Section 198B opens and to confine the operation of that clause to other provisions of the Code such as, for example, Section 193, which says that no Court of Session shall take cognizance as a Court of original jurisdiction except on commitment. In my opinion, a sufficient answer to this argument is that had it been well-founded, Clause (13) would not have found place in Section 198B but instead that section would have opened with the words :
'Notwithstanding anything contained in this Code, but subject to the provisions of Section 198'. We have a right to assume that in framing the law the legislature exercised due economy in words and did not employ words or phrases unnecessarily or without purpose.
13. His Lordship then deals with the argument of the State counsel that it would be absurd for there to be two simultaneous complaints, one by the Public Prosecutor before the Court of Session under Section 198B (1) and the other by the aggrieved person before the Magistrate under Section 198. He thinks that this argument proceeded on a misreading of Section 198 and that there was nothing in that section to imply that the complaint by the person aggrieved must be to a Magistrate and cannot be to the Court of Session, and that the complaint in his Lordship's words 'can well be to a Court of Session, and if there is in addition a complaint by the Public Prosecutor under Section 198B then that Court gets the power of cognizance notwithstanding anything contained elsewhere in the Code', and he further points out that 'in practice' a complaint would be signed both by the Public Prosecutor and the victim, and that the Court of Session would take cognizance of the offence under the special provisions of Section 198B.
With great respect to his Lordship, in the face of Sections 190 and 198 I entirely fail to see under what provision of the Code a 'private' complainant becomes entitled to institute a complaint directly in the Court of Session. Indeed, there is no means by which a 'private' complainant can circumvent the well-defined provisions of Chaps. XVI, XX, XXI and XXII of the Code, a circumvention implicit in his Lordship's reading of the law.
14. His Lordship then considers the provisions of Clauses (6) to (9) of Section 198B and asks how the victim could be made to pay compensation if the complaint was found to be false, and either frivolous or vexatious unless he joined in the complaint and thereby took full responsibility for the prosecution, and he stresses that unless the defamed public servant was a party to the complaint it would often mean that he could be penalised for something he never did.
Before us the argument has been eloquently pressed into service by Mr. Ansari, who has vigorously contended that it would militate against all rules of natural justice, and would work great hardship, were a person compelled to pay compensation notwithstanding the fact that be refused to join in the filing of the complaint. To my way of thinking, there are several answers to the argument. In the first place, Laws cannot be so worded as to include every conceivable case, but it is sufficient if they apply to those things which most frequently happen. 'The Court', observes Maxwell in his 'Interpretation of Statutes' (10th Ed.) at page 208, 'ought not to be influenced or governed by any notion of hardship.
It must look hardship in the face rather than break down rules of law, and if, in all cases of ordinary occurrence, the law, in its natural construction, is not inconsistent or unreasonable or unjust, that construction is not to be departed from merely because it may operate with hardship or injustice in some particular case'. If the plain and grammatical meaning of a provision of law is sufficiently clear the argument of hardship remains a snare. Secondly, Clause (5) of Section 198-B makes an aggrieved person compulsorily a witness for the prosecution (save in the exceptional cases where the Court for reasons to be recorded may direct otherwise).
It is clear therefore that in all normal cases the aggrieved person will appear as a witness for the prosecution, so that, on the accusation being found false and either frivolous or vexatious, no principle of natural justice will be contravened by his being ordered to pay compensation for obviously that order will be passed after hearing everything he has had to say. If he is so ill-advised as to secure exemption from appearing in the witness-box the fault is clearly his and no sympathy need be wasted on him in the event of his being penalised. Third, we asked Mr. Ansari to give a concrete example where manifest injustice would be caused by penalising a defamed public servant who was not a party to the complaint, but he was unable to do so.
He essayed several illustrations, but none of these bore any relation to the practical realities of life, so that they may safely be ignored. In what we thought was almost a moment of desperation he said that it was conceivable for the Government through motives of political victimisation of one of Sts servants to sanction a prosecution knowing that it would be found false and vexatious and would culminate in an order to pay compensation. By way of answer it is sufficient to remark that the Court has a right to presume that the Government in sanctioning a prosecution would never act mala fide. Besides, the example attempted by Mr. Ansari is taken from the realms of fancy and the likelihood of its occurrence is remote. Nevertheless, Raman Nayar, J. has in his judgment given an illustration which calls for serious consideration.
His Lordship has described it in these words : 'It is quite conceivable that in a case falling under Clauses (b) and (c) of Sub-section (3) especially the latter, a complaint may be made by the Public Prosecutor without the consent, in fact against the will, of the person alleged to have been defamed. The victim may, for his own protection, deny the imputations even if they be true, and because they are true may be unwilling to embark on a prosecution. A complaint may nevertheless be made by the Public Prosecutor and even in such a case, where the complaint is made against his will, the victim will, still be liable to pay compensation if the complaint is eventually found to be false', and his Lordship emphasises that it would be 'manifestly unjust' to require him to pay compensation for something for which he was in no way responsible'.
With great respect, I am at a loss to understand how it would be 'manifestly unjust' to do so, for, on the facts recited by his Lordship himself, the victim falsely denied the imputations although they were true, and if through his false denial the State Government was induced to sanction the prosecution, it would be eminently fair to award compensation against such a dishonest person. Fourth by virtue of Clauses (6) and (7) of Section 198B, a show-cause notice is a condition precedent to the passing of an order of compensation against the aggrieved person, and it is mandatory for the Court to record and consider 'any' cause shown by him. The rule of natural justice is that no person should be condemned unheard, so that here this rule is fully acted upon.
It is worth mentioning that the award of compensation, is, as disclosed by the use of the word 'may' in Clause (7), not mandatory but only, directory, so that full discretion is left with the Court to award or not to award compensation as it thinks fit. (In this connection Mr. Ansari has argued that the word 'may' in Clause (7) is to be read as 'must'). Whether 'may' means 'must' in a given enactment depends on the subject matter to which the phrase is applied. Prima facie 'may' would be a discretionary and enabling phrase, and this ought to be the interpretation to be put upon it, unless the subject matter shows that it was unambiguously intended that the exercise of the power should be imperative upon the authority to whom the power is given.
The subject matter of Clause (7) by no means discloses such an intention, A similar 'may' occurs in the analogous Section 250, which has been part of the Code for many years, but in no reported case have I seen it argued that it should be read as 'must'' and that it is imperative for the Magistrate to direct payment of compensation if he finds the accusation false and either frivolous or vexatious. In my view, the words of Clause (7) are wide enough to oblige the Court to address itself to three issues: (1) whether the accusation was false and either frivolous or vexatious; (2) whether payment of compensation should be directed; and (3) if so, what should be its amount. It follows that it is entitled to refuse compensation if inter alia it comes to the conclusion that the person defamed was in no way responsible for the launching of the prosecution. Lastly, the analogy of an action for malicious prosecution would be rewarding.
In such an action the defendant becomes liable to damages, other conditions being fulfilled not only if he filed the criminal complaint himself or through his agent, but if it can be shown that the false prosecution by the State or by any other person was at his instance or on his information irrespective of whether or not he appeared as a prosecution witness, and it should be borne in mind that under the scheme of the Code the person aggrieved by an offence is not a necessary witness. It follows that no principle of justice, equity or good conscience can be said to be violated by awarding compensation against a person who has not been a party to the litigation. In the circumstances discussed in the foregoing I am unwilling to agree that the clauses in Section 198B which relate to compensation lead to the inference that the aggrieved Public servant must join the Public Prosecutor's complaint.
15. For the above reasons I regret I am unable to accept the main reasoning of Raman Nayar, J.
16. Turning now to Mr. Ansari's two fresh arguments, the first is based on Clause (1) of Section 345 of the Code whereby, according to him, the person defamed has been given the absolute right to compound an offence under Section 500 I. P. C., and he urges that the only inference to be drawn from this is that the person defamed must be a party to the complaint under Section 198-B (1) for otherwise it would be plainly unfair for him to be entitled to compound the offence despite the fact that the complaint is by the Public Prosecutor and the prosecution by the State.
17. This argument compels a digression on my part, for the debate before us has revealed a flaw in the law on the subject and it is first of all desirable to ascertain what the existing law is. Now, prior to the passing of Act XXVI of 1955, the Act which has amended the Code, Section 345 of the latter contained two clauses, Clause (1) giving a list of offences' which were compoundable by specified persons Without the intervention of the Court, and Clause (2) enumerating those which could be compounded only with the permission of the Court; defamation under Section 500 I. P. C. did not figure in Clause (2) but was listed in Clause (1) and was accordingly compoundable by the person defamed; also, the table in Sch. II of the Code mentioned 'Defamation' as 'compoundable'. Act XXVr of 1955 has left Clause (1) of Section 345 intact, but Section 63 of it has substituted a fresh list for the old one in Clause (2).
This list however makes no reference to defamation. Thus, Section 345 (1) continues in the same form as before, and in accordance with its terms every kind of defamation, still remains compoundable by the person defamed without the Court having any right of interference. But a complication has been introduced by Section 114 of the amending Act which has significantly altered Sch. II of the Code in respect of defamation under Section 500 I. P. C. Section 114 has divided that offence into two classes (a) and (b). In the section, and accordingly in Sch. II, defamation of class (a) is described in these words: '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', -- words obviously borrowed from Section 198B (1) -- and this class of defamation has been made compoundable 'with the permission of the Court before which the prosecution is pending'. Class (b) is portrayed as 'defamation in any other case' and remains compoundable as before. Thus, the unequivocal intention of Parliament, as disclosed from the wording of Section 114 of the amending Act, is to divide the offence of defamation into two classes and to make defamation covered by Section 198B (1) compoundable only with the permission of the Court and other kinds of defamation compoundable by the person defamed without the intervention of the Court.
Yet no corresponding modification has been made in Clauses (1) and (2) of Section 345. There is therefore a clear inconsistency between Section 345 and Sch. II as they exist in the statute book. The appropriate section of the Code manifestly omits to give expression to the declared intention of Parliament. I have little doubt that the conflict is due to inadvertence: It does not appear to have been brought to the notice of Parliament that in view of the intention unequivocally expressed by it in Section 114 of Act XXVI of 1955 it was necessary to further amend S. 345, retaining defamation of class (b) in the table in Clause (1) and transferring that of class (a) into the table in Clause (2) of that section. It will be necessary to bring this to the notice of the Ministry of Law, Government of India, to get the error rectified.
18. In view of the flaw aforesaid to wit, the existing conflict between Section 345 and Sch. II of the Code, the question arises as to what is the true state of the law. Now, it is well settled that Schedules form a part of the statute and must be read together with it for all purposes of construction. But expressions in the Schedule cannot control or prevail against the express enactment. If there is any appearance of inconsistency between the Schedule and; the enactment, the enactment shall prevail, and if the enacting part and the Schedule cannot be made to correspond, the latter must yield to the former. See 'The Interpretation of Indian Statutes' by Jagdish Swarup (1952 Ed.) page 169. It is clear therefore that Section 345 of the Code, as it stands, must take precedence over Sch. II.
In other words, whereas the latter makes defamation of the class which can form the subject-matter of a complaint under Section 198B (1) compoundable only with the permission of the Court, Section 345 (1) empowers the person defamed to compound even such an offence without reference to the Court, and it is the section that must override the Schedule. This is the correct state of the law and must remain so until such time as Parliament is pleased to make the amendment suggested above.
19. Having recorded a finding on the true state of the relevant law, I revert to Mr. Ansari's first argument. Of course, the unequivocal intention of Parliament, as proclaimed by Section 114 of Act XXVI of 1955 and the present Schedule II of the Code, is that the class of defamation which can constitute the subject-matter of a complaint under Section 198B (1) should be compoundable only with the permission of the Court, so that such an offence is in no way different from offences like those under Sections 324, 325 406, 408, 420, etc., its composition is not the unrestricted right of the person defamed but is subject to the discretion of the Court, doubtless judicially exercised, and Mr. Ansari concedes that to such offences his present argument is not attracted.
But he submits that inasmuch as in actual fact the law enacted in Section 345(1) of the Code does not give effect to Parliament's intention aforesaid but on the contrary confers on the person defamed the absolute right to compound every kind of defamation, we are bound to infer that the intention was to compulsorily make him a party to the complaint under Section 198B (1). Mr. Ansari's reading of the current law is no doubt correct, but I am not prepared to agree that the inference he asks us to draw is equally sound. Clause (1) of Section 345 lists over a score of offences in all of which the aggrieved person has been given' the unqualified right of compounding the offence. ,
But, as is clear from Sections 244, 251A and 252, the Code does not compel such a person to be a witness in the case, nor unless he has filed the complaint, even a party to the litigation; indeed, under Sections 244 (1) and 252 (1) of the Code that person, if not the complainant, has no right of appearance at all, and if the complainant, only the right to be heard, i.e., he has nothing more than a mere right of audience. If therefore in other offences the aggrieved person has a right of composition without being a witness or a party, I fail to see what justification there is for discriminating between those offences and defamation.
After all, the duty of the Court is to give effect to the intention of the legislature and this intention is to be sought for primarily in the language used in the appropriate enactment; where the language expresses the intention reasonably intelligibly and plainly it has to be accepted without modification by resort to speculation or conjecture; it is not for the Court to scan the wisdom or policy of the legislature,
Applying these principles, of construction to the Code, I find nothing in the latter to suggest that the legislature ever intended that only that person would be entitled to compound an offence who was a party to the litigation or a witness therein. It is not for the Court to question why the legislature chose to do so. Mr. Ansari's first argument must therefore be overruled.
20. His second argument runs thus. Section 198 of the Code prohibits the Court from taking cognizance of an offence under Section 500 I. P. C. except upon a complaint made by some person aggrieved by such offence, while Section 193 debars the Court of Session, from taking cognizance of any offence as a Court of original jurisdiction unless the accused has been duly committed to it by a Magistrate; since the purpose of the non-obstante clause with which Section 198B (1) opens has been disclosed by the inclusion of the expression 'without the accused being committed to it for trial', parliament intends the non-obstante clause to relate to Section 193 only; if the intention was to make it refer to Section 198 also, we would have found Section 198B (1) including the words 'and without there being a complaint by the person defamed'; in order to make the matter absolutely clear Parliament added Clause (13) to the section, which clause means with emphasis that Section 198 stands unaffected even in cases to which Section 198B applies; it follows that the person defamed must join the Public Prosecutor's complaint.
The argument, though plausible, is inherently unsound. The infirmity from which it suffers springs from the unwarranted assumption that the purpose of the non-obstante clause is to refer to Section 193 only. Had the intention been as that claimed by Mr. Ansari, viz., to make the non-obstante clause govern Section 193 only the opening words of Section 198B (1) would have been, not 'Notwithstanding anything contained in this Code', but 'Notwithstanding anything contained in Section 193', and it is well settled that unless absolutely unavoidable no clause, sentence or word in an enactment can be taken as insignificant or superfluous.
No doubt Section 198B (1) does contain the words 'without the accused being committed to it for trial', but, in my opinion, these words have been designed solely to underline the startling character of the new provision which authorises the Court of Session to act as a Court of original jurisdiction in respect of the offences mentioned in that clause, for it cannot be ignored that Section 198B(1) is the solitary provision in the Code which enables the Sessions Court to take cognizance of an offence without any commitment, and for this reason the words just quoted deserved special emphasis. It will have been noticed that had Mr, Ansari's argument been tenable, we would have found Clause (13) wholly omitted from Section 198B, while Clause (1) would have opened with the words: 'Notwithstading anything contained in Section 193 but subject to the provisions of Section 198.' But such an interpretation would immediately cnotravene the rule of giving effect to every clause, sentence and word in an enactment. I am therefore driven to the conclusion that Mr. Ansari's second argument too is ill founded,
21. Having dealt with the objections of Raman Nayar, J., and the various contentions advanced before us by Mr. Ansari I proceed to give expression to my own opinion, which sterns, firstly, from the intrinsic evidence of Section 198B itself, and secondly, from what it perhaps be a fresh approach to the controversy. With regard to the former it is apparent that if M. Ansari's contention that Section 198B remains subject to Section 198 be well founded there should either be two complaints, one by the Public Prosecutor and the other by the defamed public servant, or a joint complaint by those two.
But Clause (1) of Section 198B refers only to a 'complaint in writing made by the Public Prosecutor'. In its Clauses (2), (3), (4) and (9) which follow, the word 'complaint' is found repeated. But a reading of these clauses reveal that in the context in which the word has been used the reference is ineach case to the complaint in Clause (1), that is to say, the complaint by the Public Prosecutor. There is no suggestion in any of the Clauses (1) to (12) of the section that 'complaint' relates to two separate ones, one by the Public Prosecutor and the other by the public servant, or to a joint one by those two. Ift is scarcely possible to believe that having made this abundantly clear in Clauses (1) to (12) the legislature should suddenly introduce Clause (13) intending it to make Section 198 override Clauses (1) to (12) and thereby make it imperative, as advocated by Mr. Ansari, to have two separate complaints or a joint complaint. This would be contrary to all principles of interpretation and therefore cannot be accepted as the intendment of the legislature, Intrinsic evidence of the section flatly contradicts Mr, Ansari.
22. I turn now to indicate may own approach to the controversy. This approach derives from the special position of public servants in the body politic, the problems posed by recent events in respect of their defamation, and the solution devised by Parliament of the problem. Now, in all civilised countries servants of the State form a class by themselves, requiring on the one hand special protection of the law and deserving on the other specially rigorous treatment for abuse of power. Persons who are the embodiment of law and authority naturally possess many amenities and privileges, but are-visited with correspondingly severe penalties of law if they deviate from the course prescribed for them by their duties.
No Breach of the equal protection clause of Article 14 of the Constitution therefore occurs if public servants are made the special subject of legislation. Accordingly our laws have prescribed exceptional pains and penalties to provide for offences committed against, and by, public servants while engaged in the discharge of their public duty. There is even a special provision with regard to the offence of defamation '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', wherein good faith has been declared a perfect defence, vide, the Second Exception to Section 499 I. P. C.
Now, recent years have witnessed an increasing tendency, particularly on the part of the yellow press, to make false, baseless and reckless statements against public servants. Since the coming into force of the Constitution, which has conferred inter alia the privilege of freedom of speech on all citizens, this tendency has been accentuated, for the privilege is often grossly abused. Such abuse tends to demoralise public servants, and because it is detrimental to the proper discharge of their duties it is harmful to the interest of the State,
The State, having embarked on the establishment of a welfare state a policy which depends ilargely on the zeal and efficiency with which public functionaries implement it, thus found itself confronted with a serious problem. The problem was recognised in the Statement of Objects and Reasons which statement, according to the Supreme Court an T. K. Musaliar v. Venkatachalam : 29ITR349(SC) , may be referred to for the limited purpose of ascertaining the conditions prevailing at the time which necessitated the making of the law appended to the Bill which culminated in Act XXVI of 1955. 'The Statement observed:
'Often grossly improper, unfounded and defamatory allegations and charges are made against public servants in regard to their actions in the discharge of their official duties. It is desirable, in the public interest, that enquiries should be made into such charges'.
A defamed public servant desirous of vindicating his honour had, under the previous law, no choice to file a complaint before the Magistrate under Section 198 of the Code, but for reasons of embarrassment or expense or wastage of publid time such a course was frequently found impracticable.
And because action was refrained from, the transgressors became bolder. Yet in many cases the public interest demanded legal proceedings against the offender, both for the purpose of punishing him if found to have committed a wrong and for exposing the public servant if found at fault. Not unoften the conduct of the public servant concerned was due to his implementing the policy of the State or executing the orders of the State. This made the State itself the direct victim of the defamation, and in consequence gave it an unconcealed interest in bringing the offender to book. Nonetheless Section 198 prevented it from launching a prosecution.
23. These were the factors which must have weighed with Parliament for changing the prevailing law by inserting suitable provisions in the amending Act XXVI of 1955. Parliament in its wisdom decided to make no modification in the actual offence of defamation or in its punishment, for it left the existing Sections 499 and 500 I. P. C. intact. But what it did through Section 114 of the amending Act was to divide defamation into two classes, (a) and (b) (described earlier in this judgment), solely for the purpose of procedure (it is just in this respect that I venture to dissent from our brother Misra in : AIR1960All763 (supra). Class (a) embraced, defamation which the State, aside from the public servant concerned, was inevitable an injured party, while class (b) concerned defamation in which the State was not interested, or at least its interest was remote.
Accordingly the existing procedure for defamation of class (b) was left unaltered, and as before the aggrieved person was left to seek redress himself. But a completely new procedure for defamation of class (a) was introduced by inserting Clauses (1) to (12) of Section 198B in the Code, and these clauses were designed to enact a complete code of procedure for that class of defamation. For the first time the State was given the right (if it chose to exercise it) to itself initiate a prosecution for that type of offence, incidentally, saving the aggrieved public servant the harassment, time and expense of a private prosecution.
Simultaneously, Parliament, in order to guard against a possible abuse of the new law, circumscribed its ambit by stipulating strict conditions for its application to wit, that the defamation be of only specified categories of public servants, that it be other than oral, that it be related to the official's conduct in the discharge of his public functions, that the case be started on a complaint by the Public Prosecutor, that the complaint be in writing and recite material facts, that it be with the sanction of the Government, that its period of limitation be confined to sis months, that the case be tried directly by a superior Court without commitment, and that the aggrieved public servant (even though not a witness or a party to the case) be liable to pay compensation on the complaint being found to be false and either frivolous or vexatious.
Thus, through Clauses (1) to (12) of Section 198B Parliament made full provisions for a trial initiated by the State for a charge of defamation in respect of the conduct of a public servant in the discharge of his public functions, and because the procedure was new and self-contained those twelve clauses were purposely made independent of the other provisions of the Code. Nevertheless, Parliament appreciated that cases might occur where a complaint by the Public Prosecutor might not be practicable, for instance, where the Government refused to accord sanction, or where the Public Prosecutor's complaint was not filed within the period of limitation, or the aggrieved public servant might prefer to institute proceedings himself, for example, where he found that the defamation embraced both his private and public functions. It would be manifestly unjust if in such an event the target of the attack were deprived of an opportunity of vindicating himself.
Moreover, it was necessary to guard against the possible objection as indeed was raised before our brother Mukerji in the case of : AIR1960All71 (supra) that with the enactment of Section 198B the official concerned had lost his right of instituting a ''private' complaint. Consequently, at the close of the section Parliament added Clause (13) in order to reiterate his right as an ordinary citizen to file a complaint under Section 198 before the Magistrate. In law the phrases 'in addition to' and 'not in derogation of have an identical connotation, so that the use of both these phrases in Clause (13) was intended by Parliament to doubly emphasize that the public servant's right to make a complaint under Section 198 was being studiously preserved.
Incidentally, Parliament also intended that defamation of class (a) be compoundable only with the permission of the Court, but through oversight omitted to effectuate this intention by failing to make ah appropriate amendment of Section 345 of the Code. This error, I trust, will be corrected before long. This aspect of the matter however does not affect the force of the argument. It might be stressed that the new procedure did not prejudice the accused person in the slightest, for his rights under the earlier procedure remained intact; contrariwise, he was given the additional advantage of a trial before a superior Court, along with (in the event of conviction) an appeal to the High Court direct on both facts and law.
24. This approach, I believe, furnishes a most trustworthy guide to the correct interpretation of Sections 198B and 198. Apart from reaffirming the conclusion of Narayana Pai, Vaidialingam, Mukherji, and Misra JJ. in the decisions noticed earlier in this judgment, it follows the well established principles of interpretation of statutes that the words and phrases employed must primarily be given their ordinary and natural meaning, that they must be presumed to have been used in their ordinary grammatical sense, that they are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which it has in view, and that no clause, sentence or word is to be taken as insignificant or superfluous.
It accomplishes Parliament's intendment most reasonably, It effectively meets the various objections raised in the decisions mentioned in the foregoing and before us. On the strength of it I am unable to resist the conclusion that Mr. Ansari's view of Section 198B is erroneous and that there is nothing in the section to suggest that the defamed public servant must be a party to the Public Prosecutor's complaint made under Section 198B (1). On the contrary, the plain and grammatical meaning of the words in the section is that only one complaint is required, and that by the Public Prosecutor alone.
As I view the matter, a public servant who feels defamed in connection with his private functions has like any ordinary citizen no option but to make a complaint to the Magistrate under Section 198, but if the defamation happens to be of class (a), as defined by Section 114 of the Amending Act and incorporated in Section 198B (1) of the Code, two alternative courses are open for taking criminal proceedings against the offender; either the Public Prosecutor can, the various conditions prescribed by Section 198B being fulfilled, file a complaint under Clause (1) of that section in the Court of Session, or the defamed public servant can himself approach the Magistrate under Section 198. In the result point (1) must be decided against Mr. Ansari and in favour of Mr. Bhatt.
25. Point (2): It is common ground that Section 198B of the Code applies only to specified classes of Public servants, and not to, for instance, employees of local Boards. In raising the present point Mr. Ansari has evidently been labouring under the impression that Dr. Ram Lal was employed in connection with the affairs of the District Board of Bijnor. The impression is erroneous. Dr. Ram Lal, as already stated, was the District Medical Officer of Health at Bijnor.
The Uttar Pradesh Civil List shows that he is a gazetted officer and has been a member of the U. P. Public Health Service since September 1948. The subject of public health is found listed as item No. (6) in the State List of the Seventh Schedule of the Constitution. It is clear therefore that at the relevant time Dr. Ram Lal was employed 'in connection with the affiairs of the State of Uttar Pradesh'. Consequently Section 198B did apply and the Sessions Judge was entitled to take cognizance of the alleged offence against him. This point of Mr. Ansari is therefore wholly without foundation.
26. Point (3) : For purposes of discussion of this point I shall assume that Dr. Ram Lal was in fact the target of the attack in the appellant's impugned article. Now, one of the essential conditions for attracting the procedure prescribed by Section 198B of the Code is that the defamation of the public servant concerned must, as enjoined in Clause (1), be 'in respect of his conduct in the discharge of his public functions'. The appellant's article contains a number of allegations against Dr. Ram Lal in his personal capacity or concern his private life; they are irrelevant to this appeal.
But, according to Mr. Bhatt, the following imputations contained therein and embodied in the charge framed against the appellant, relate to his (Dr. Ram Lal's) official functions:
(1) 'Ever since the time of his posting in the district he does not do any work, except flatter the officers and M.L.As.'
(2) 'He is always to be found with his Begam Saheba; whether it be 12 noon or 3 p.m. he has to be called from inside his home'.
(3) 'During the period of his posting none has been happy except one Sanitary Inspector'.
(4) 'The truth is that D.D.T. and paludrine etc. are taken out of the stock and sold in Delhi'.
(5) 'When his successor arrived to take over charge .. the poor fellow was not only abused but was violently pushed out of the office'.
Mr. Ansari contends that these imputations cannot be deemed to have been in respect of Dr. Ram Lal's conduct 'in the discharge of his public functions' hence Section 198B did not apply and the trial before the Sessions Judge was without jurisdiction. This makes it necessary to understand what exactly the afore-quoted words in the section mean.
27. Now, these words have existed in our statutebook for many years; they will be found in thesecond exception to Section 499 I. P. C. but there donot appear to be any reported cases on their trueconnotation. We have therefore to seek the help ofauthorities grounded on similar words in analogouslaws. For the contention that he has advanced before us Mr. Ansari claims to receive support from thefollowing decisions, the first by the Federal Court,the next three by the Privy Council and the lastby the Supreme Court.
In understanding these decisions it will be necessary to bear in mind that they are based on the acts or offences of a public servant and not on their conduct, a distinction which it will be necessary to notice later on;-
(a) Hori Ram Singh v. Emperor
(b) H. H. B. Gill v. The King AIR 1948 FC 128;
(c) A. W. Meads v. The King ;
(d) P. C. Neogy v. The King ; and
(e) R. W. Mathams v. State of West Bengal : 1SCR216 . These cases involved the question of the necessity for sanction under Section 270 of the Government of India Act, 1935, the relevant words of which arc 'act done or purporting to be done in the execution of his (i.e., a public servant's) duty as a servant of the Crown', or under Section 197 (1) of the Code wherein the words employed are 'offence alleged to have been committed by him while acting or purporting to act in the discharge of his offcial duty'. The two sets of words were held to have precisely the. same connotation.
In case (a) the facts were that a Government doctor was charged under Section 409 I. P. C. with having dishonestly removed certain medicines from a hospital which was under his charge to his own residence, and under Section 477-A I. P. C. with having wilfully falsified their account in the stock-book. Sanction had not been obtained for his prosecution. Varadachariar, J. pointed out that the earlier decisions on the question were not uniform and, that only those were correct which held that sanction was necessary only when the act complained of attached to the official character of the person doing it.
The Court, after emphasising that the question whether the impugned act purported to have been done in execution of duty or not must depend on the special facts and circumstances of the case, held that the charge under Section 477-A required sanction as the official capacity was involved in the very act complained of as amounting to a crime, but that no sanction was required for the charge under Section 409 because the official capacity was material only in connection with the entrustment and did not necessarily enter into the later act of misappropriation or conversion which was the act complained of.
In cases (b) and (c) the Privy Council approved of case (a). Case (b) was of bribery, and their Lordships ruled that for such an offence sanction under Section 197 (1) was not needed, and by way of example mentioned that a Judge does not act as a Judge in receiving a bribe, nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom be examines. Case (c) was a public servant who was alleged to have fraudulently misapplied money entrusted to his care; their Lordships held that this could not be an act done by him by virtue of the office that he held, hence sanction was not required. Case (d) was also a case of bribery; the Privy Council affirmed the principles of case (b). Case (e) was another case of bribery by a public servant; adopting the view in cases (b) and (d) the Supreme Court ruled that sanction was not necessary. The result of these authorities was summed up by the Supreme Court in Amrik Singh v. State of Pepsu : 1955CriLJ865 , in these words:-
'It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) Cr. P. C.; nor even every act done by him while he is actually engaged in the performance of his official duties; but 'if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so irrespective of whether it was, in fact a proper discharge of his duties because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution'.
Relying on these decisions Mr. Ansari urges that the allegations that Dr. Ram Lal did not do any work, that he spent his whole time with his wife so that even at 12 noon or 3 p.m. he had to be called from inside his house, that during his period of posting none but one person had been happy, that medicines placed in his charge had been unlawfully disposed of and that he had used force on his successor when the latter came to take over charge, could not be claimed to be within the scope of his duties as a Health Officer.
28. I am of opinion that although there arc certain passages in the judgments aforesaid which lend some measure of support to this argument, the Supreme Court in later decisions have considerably broadened the ambit of the relevant words in Section 197(1) of the Code, and accordingly the law now has a much wider sweep than Mr. Ansari thinks, Three of these decisions are :
(f) Ramayya v. State of Bombay : 1955CriLJ857 ,
(g) Amrik Singh v. State of Pepsu : 1955CriLJ865 , (supra)
(h) Matajog Dobey v. H. C. Bhari : 28ITR941(SC) .
In the first case (f), the Court had to consider the necessity for sanction under Section 197 (1) when the charge was of misappropriation under Section 409 I. P. C. On behalf of the State it was argued that no sanction was necessary because by no stretch of imagination could the accused in committing misappropriation be said to have been acting, or even purporting to act, in the discharge of his official duty, and reliance was attempted to be placed on case (a) above and another similar decision of the Federal Court viz, --H. T. Huntley v. Emperor . In considering the argument their Lordships of the Supreme Court made the following highly instructive observations :-
'Now, it is obvious that if Section 197 Cr. P. C. is construed too narrowly it can never be applied, for of Course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.'
They proceeded to expound the law in the following terms:-
'The section has content and its language must be given meaning. What it says is: 'when any public servant ....... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty............'
We have therefore first to concentrate on the word offence.'
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against accused 2 are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; and fourth, that the disposal was 'dishonest'. Now it is evident that the entrustment and/or dominion here was in an official' capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity.'
On the facts their Lordships held that the several acts which were complained of were official acts hence the prosecution was bad for want of sanction.
29. In the second case, case (g), the issue again was whether sanction was necessary when the charge against the official was for the misappropriation of Government funds. It was contended on behalf of the State that misappropriation of funds could under no circumstance be said to be within the scope of the duties of a public servant, that he could not when charged with it, claim justification for it by virtue of his office, and that therefore no sanction under Section 197 (1) was necessary. Alter considering cases (a) and (c) referred to above the Supreme Court observed that these decisions 'when properly examined, do not support the extreme contention urged' on behalf of the State, and they pointed out that in those two cases no sanction had been held necessary because on the facts it was thought that no official act was involved. They stated the law in these words:-
'Whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as public servant. If they do, then the sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.'
30. The decision in the third case, case (h), makes the matter even clearer. The Supreme Court observed that the test laid down in AIR 1939 FC 4,31 and , that it must be established that the act complained of was an 'official' act appeared to unduly narrow down the scope of the protection afforded by Section 197 of the Code, and they declared :-
'The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty, There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of his official duty, though possibly in excess of the needs and requirements of the situation..........
There must be a reasonable connection between the act and the discharge of official duty, this act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful, claim that he did it in the course of the performance of his duty'.
31. Some help can also be derived from the decision in State of Ajmer v. Shivaji Lal : 1959CriLJ1127 , wherein their Lordships of the Supreme Court were called upon to interpret the words 'the offence of criminal misconduct in the discharge of his duty' occurring in Section 5(1) (d) of the Prevention of Corruption Act, The held that the offence under this provision consists of criminal misconduct in the discharge of a public servant's duty. In order that this offence be committed there should be misconduct by him in the discharge of his duty, he must do something in connection with his own duty and thereby obtain money for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. That is to say, 'criminal misconduct in the discharge of duty' occurs when the public servant concerned does something in connection with his own official duty.
32. Since the close of the arguments in the instant case the majority and minority judgments in Satwant Singh v. State of Punjab : 2SCR89 , a decision by five Judges of the Supreme Court, have been published. The case draws attention to another type of offence. The question before their Lordships was whether sanction under Section 197 (1) of the Code was required for the prosecution of a public servant under Section 420/109 I. P. C. After referring to : 1955CriLJ865 and : 28ITR941(SC) , the majority observed:-
'It appears to us to be very clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribes an offence punishable under Section 161 I. P. C., is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence oi cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty'.
It will have been noticed that stress is laid on the 'offence' or 'act' of cheating.
33. These later decisions go to confirm the view that the Supreme Court have substantially widened the extent of the relevant words in Section 197 (1) of the Code. Tests laid down in earlier cases unduly narrowed down the scope of the protection afforded by the section, and if this section were to be construed too narrowly it can never be applied, for it is no part of an official's duty to commit an offence. All the same it is not so much the duty as the act or offence that has to be examined, because an official act can be performed both in the discharge of an official duty as well as in dereliction of it. Whether OR not the impugned act or offence purports to have teen done in execution of duty must depend on the particular facts and circumstances of each case.
Certain offences like those under Sections 161 and 420 I. P. C. cannot by their very nature be regarded as offences committed by a public servant while acting or purporting to act in the discharge of his official duty. With respect to the others, the question whether sanction is necessary will depend on whether the act or offence complained of hinges on has duties as a public servant. The act and the official duty must be so inter-related that one can postulate that it was done by the public servant in the performance of his official duty, though possibly in excess of the needs and requirements of the situation. The act must bear such relation to the duty that he could lay a reasonable, but not a pretended or fanciful, claim that he did it in the course of the performance of his duty.
34. The preceding paragraph summarises the law declared by the Supreme Court with respect to aa act (which by virtue of Section 32 I. P. C. includes an illegal omission) or offence alleged to have been committed by a public servant 'while acting or purporting to act in the discharge of his official duty'. On its basis I venture to think that cases like and , if heard now would be decided in a way opposite to what was done by the Federal Court.
35. So much for the law with regard to the act/illegal omission or offence of a public servant in the discharge of his official duty. But in Section 198B we have to deal with his conduct. I am of opinion that Parliament's preference for this word over a word like 'act' is deliberate. Hence special weight must be given to it. The dictionary meaning of 'conduct' is 'behaviour, usually with more or less reference to its moral quality, good or bad; manner of conducting oneself or one's life;' quite obviously, its compass is very wide, and it is far more comprehensive than a mere act or illegal omission, incidentally, much more than an act, conduct can be in respect of performance of official duty as well as in dereliction thereof.
Hence for applying Section 198B to any imputation we must concentrate not so much on the public functions as on the alleged conduct of the official concerned, more so because the injury caused by defamation is essentially a moral one inasmuch as by its very nature this offence lowers the victim in the estimation of others. Now, if what Mr. Ansari contends is sound Section 198B will become a dead letter, for unworthy conduct, such as must be affirmed before it could amount to defamation, can be displayed by an official in the proper execution of his duty. It would therefore be absurd to think that such could have been the intention of Parliament.
In these circumstances the conclusion becomes irresistible that the phrase 'conduct in the discharge of Ms public functions' occurring in Section 198B covers; a vaster field than what has been held by the Supreme Court in examining Section 197 (1). It is the combined effect of the intendment oi Parliament, the use of the word 'conduct' as just explained and the extended meaning given by the Supreme Court to 'act in the discharge o official duty' that markedly augments the scope of Section 198B (1). Accordingly, in my judgment the true state of the law is that if there is any defamatory statement concerning the behaviour of a public servant which can be reasonably associated with the discharge or non-discharge of his official duty even if not strictly necessary for that discharge, or relating to his conduct which bears such rational though not pretended or fanciful relation to the duty that it appears to have been displayed in the course of the performance or non-performance of the duty, the behaviour or conduct having reference inter alia to its moral quality, it would immediately attract the operation of Section 198B.
To put it differently in the phraseology of Section 99 I. P. C, if in the imputation the conduct of the official is made to appear as stemming from the 'colour of his office' even if it 'may not be strictly justifiable by law', the provisions of Section 198B will, apply. On the other hand, if the imputation alludes to behaviour or conduct which relates to his life as a private citizen or which does not hinge on his public functions, even though his office might have furnished the excuse or occasion for it, the section will have no relevance. No hard and fast rules can however be laid down, and in each case the imputation will have to be dealt with on its own facts and circumstances.
36. It may be mentioned in passing that in applying these principles to a given defamatory allegation which happens to be the subject-matter of proceedings under Section 198B a distinction must be drawn, as enjoined by : 28ITR941(SC) between the Sessions Judge's right to take cognizance of the offence, that is to say, his jurisdiction, and his right to record an order of conviction for it. For conferring jurisdiction on him it is sufficient if prima facie the defamation falls within the terms of the phrase 'conduct in the discharge of public functions' as just expounded, but whether the conviction of the accused is justified or not will depend on whether after due investigation in the resulting trial the defamation is judged to come within those terms --if on the merits the finding is otherwise, the Court ot Session has no power to convict,
37. A few illustrations might help to focus attention on the practical application of these principles. Suppose the allegation is that an official is guilty of misappropriation of Government funds or breach of trust or falsification of records in his charge. These are allegations wherein the acts and the official duty are so inter-related that one can postulate with certainty that they were done in the performance of official duty. This conclusion follows from the later decisions of the Supreme Court referred to above. To such cases Section 198B will apply without question.
38. Then, it will be recalled that in (supra) the Privy Council pointed out that a Judge does not act as a Judge in receiving a bribe, nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he examines, and in : 2SCR89 (supra) the Supreme Court held the same with, regard to offences under Sections 161 and 420 I. P. C. That however was purely for purposes of Section 197 (1) of the Code. If therefore the allegations are: (1) Judge A took a bribe for deciding a law suit in a certain way; (2) Civil Surgeon B while examining a patient in the State hospital picked his pocket; or (3) Transport Officer C cheated a bus operator over the issue of stage carrige permit, and these allegations formed the subject-matter of criminal charges against these officials, it is now well settled that no sanction for their prosecution under Section 197(1) is needed.
Nevertheless, if these very allegations are made and are considered false and defamatory, the operation of Section 198B will, on the basis of the principles explained above, be attracted. The reason is briefly this. A Judge's duty is to decide a law-suit honestly and for no extraneous considerations: but in No. (1) A is accused of moral depravity in the discharge of it, A Civil Surgeon's duty is to ensure that every patient 'who attends the State hospital suffers no harm in mind, body or goods: therefore any false assertion that he has failed in this duty would relate to his conduct in the discharge of this duty, but in No. (2) B is alleged to be guilty of grave dereliction of duty, and also that he is so morally corrupt that be is willing to stoop to robbing a patient who is lying helpless in his hands.
A Transport Officer's duty is to see that for issuing a permit all rules and regulations of his Department arc followed and no trick played on the operator who seeks one; but in No. (3) C is falsely stated to have broken this rule of duty through an illegal and unethical act. In these three cases the imputations relate to the conduct of the officials concerned which bears a rational and not pretended relation to the discharge of their public functions and accuse them of both dereliction of duty and moral turpitude.
39. On the other hand, if the allegations, however false, are that Judge A took money from a person without his having any law-suit before him, or that Civil Surgeon B picked the pocket of a patient whom he examined privately at the Matter's house, or Transport Officer C cheated a man over a transaction unconnected with his official work, the allegations would appertain to behaviour or conduct of these officials which bears no reasonable relation to the discharge of their public functions, even though their official status might have furnished the excuse or occasion for that conduct; the allusion would plainly be to their private acts, so that Section 198B would not be available to them in the event of their desiring to prosecute their detractor.
40. Two other examples on a somewhat different aspect of the matter might prove rewarding. First: it is falsely asserted that police officer D (1) beat an arrested man for extorting a confession from him, and (2) beat his servant for negligently smashing his tea-set. No. (1) is conduct in the discharge of official functions, for a police officer's duty is to act in accordance with law, and the law forbids him to use coercion for any purpose whatsoever; hence Section 198B will govern the defamation. But No. (2) is a purely private affair and the section will have no application. Second, it is falsely affirmed that sentry E guarding the Government Treasury was asleep between 6 A.M. and 10 P.M. This would require some factual investigation if the period of E's duty was from 6 p.m. to 10 p.m. The false imputation that he was sleeping during that period would be of a clear dereliction of duty, for he must remain alert during his duty hours, hence Section 198B can be called in aid by him; but if it is found that his duly period was at some other time, the imputation would relate to his private life, and the section will have no relevance even though the purpose of the allegation was to defame.
41. Adverting now to the five imputations against Dr. Ram Lal catalogued in the opening paragraph of the discussion on the present pointy Point (3), I have to see how far they fall within the four corners of the principles adumbrated' above. Each imputation will have to be examined on its merits.
Imputation (1): Dr. Ram Lal's duty was to occupy a reasonable period of his time each day with preventing epidemics and alleviating pain and suffering in the district of Bijnor. This imputation unequivocally charges him with dereliction of this duty throughout the period of his posting in the district, The further assertion that he spent all his time fawning over influential personalities implies that his object was to ensure that they would shield him case he was taken to task for negligence in the discharge of his duty. This attributes moral' lapses to him.
Imputation (2): He was bound to devote a specified part of each day to the performance of the duties just mentioned and not to spend all the twentyfour hours in domestic ease; 12 noon or 3 p.m. are hours when every Government servant is normally required to be present in his office busy with his work, and his absence during those hems means that he is grossly negligent in performing his duty. Here again the accusation is of deliberate non-discharge of public functions.
Imputation (3): His duties as a Health Officer had to be performed with such enthusiasm, officiency and honesty that they gave satisfaction to the vast majority of the public of Bijnor. The allegation that he left distinct room for complaint for everyone in the district except one solitary subordinate implies that he ignored the interest of the general public. Also, as a superior officer he should have treated all his subordinates impartially, but here he is stated to be guilty of favouritism towards a particular individual. Both ways, not only dereliction of duty but moral turpitude is attributed to him.
Imputation (4): This embraces a direct accusation of criminal misappropriation of medicines committed to his charge by the Government. It is fully covered by the Supreme Court decisions in : 1955CriLJ857 and : 1955CriLJ865 and does not call for any comment on my part.
Imputation (5); The assumption or relinquishment of charge of an official's post has no relevance to his private life; it is an integral part ot his official duly, so that when he is required to hand over charge to his successor he must do so peacefully instead of resisting it with the use of violence. Here again the allegation is of failure to discharge duty coupled with moral depravity.
Each one of the five imputations against Dr. Ram Lal examined in the light of the principles that in my opinion should govern Section 198B is thus found to be what is denoted by the expression 'in respect of his conduct in the discharge of his public functions'. Consequently the section applied and the Court of Session had jurisdiction to take cognizance of the offence. And not only this: the Court was, assuming that other terms of Section 500 I. P. C. were satisfied, entitled to convict the appellant on that indictment.
42. Mr. Ansari's contention on this point is thus found to be untenable.
43. Point (4): This point is purely factual. The evidence thereon has been considered in detail by the trial Judge and decision given against Mr. Ansari. Accordingly I am relieved of the necessity of making an exhaustive examination of the evidence for myself. I shall rest content with a brief review of it. (After reviewing the evidence His Lordship proceeded.) On the basis of the direct and circumstantial evidence just reviewed the 'imaginary Health Officer' whom the appellant has attempted to hold out as a shield is found to be very much a real person, and I have not the slightest doubt that the impugned article refers to Dr. Ram Lal.
44. FINAL ORDER; The various points raised by Mr. Ansari are thus found to fail. Dr. Rani Lal has stated on oath that the various imputations made against him were false. Other prosecution witnesses too declare them to be defamatory to him. Moreover per se they were calculated to harm his reputation and lower his character in the estimation of others.
The appellant has made no attempt to bring them under any of the Exceptions to Section 499 I. P. C. His conviction tinder Section 500 I. P. C. is therefore correct. It only remains to decide the quantum of the sentence that should be passed on him. The trial Judge has awarded him six months' simple imprisonment together with a fine of Rs. 200/-, and Mr. Ansari had pleaded that the imprisonment be remitted. For a variety of reasons this plea deserves to be, rejected.
To begin with, the appellant's attack on Dr. Ram Lal was actuated by malice. This is made abundantly clear from the record, which discloses that the reason for his annoyance was that despite his pressing requests Dr. Ram Lal had declined to interfere with the transfer of two of his relatives. Second, there was not an iota of truth in the various charges he levelled, and it is noticeable that he has never raised any plea of justification by truth. Third, he has, unpardonably not even spared Dr. Ram Lal's wife or the Minister or the Department, both wholly innocent persons. Fourth, not only the issue of his newspaper which contains the impugned article but other issues too which arc on the record go to show that he is an unworthy representative of the profession of journalism; many articles in them are vindictive and in execrable taste -- indeed his paper rightly comes under the definition of the 'yellow press'. Fifth, as appears from a letter D/- 31-3-1956 which the District Magistrate sent to the U. P. Government, he has previously been convicted for defaming another Government official of the district, but evidently refuses to reform himself. Sixth, though given every chance of doing so, he declined to make amends by tendering an apology to Dr, Ram Lal; indeed in subsequent issues he published other matter derogatory to him. Lastly, he is not a raw youth but a man of mature age. It is necessary for a person like this to be awarded a substaintial sentence, not only for adequately punishing him for his offence but for deterring others who might feel tempted to act likewise. I would therefore unhesitatingly uphold the sentence of imprisonment and fine which the trial Judge has passed on him and dismiss this appeal.
45. I concur and have nothing to add.
46. For reasons given in the foregoing we find the various points advanced on behalf of the appellant to be untenable. Hence his conviction for an offence under Section 500 I. P. C. must be upheld. We are fully satisfied that for the offence he should be awarded a substantial sentence, not only for adequately punishing him for his offence but for deterring others who might feel tempted to act likewise. We therefore affirm the sentence of imprisonment and fine which the trial Judge has passed on him and dismiss this appeal. He shall surrender to his bail forthwith to serve out his imprisonment. He must also pay up the fire without delay.
47. We direct the Registrar to send to the Ministry of Law, Government of India, a copy of the passages in this judgment which deal with the flaw in Section 345 Cr. P. C.