B. Mukerji, J.
1. This is an application in revision by Nageshwar Dwivedi, an M.L.A. of Jaunpur, against the concurrent orders of the Magistrate and the learned Sessions Judge of Jaunpur dismissing, his complaint on the ground that the complaint could not be filed in the Court of the Magistrate nor could it be tried by that Court but could only be filed and tried in the Court of Sessions and that too through the Public Prosecutor.
2. The facts giving rise to this petition may be shortly stated thus. Nageshwar Dwivedi was an M.L.A. from Jaunpur. He wished to contest the election on the Congress ticket again and therefore he appears to have applied to the 'High Command' for the necessary ticket to stand as a Congress candidate. Matabadal Singh who is a resident of the area from which Nageshwar Dwivedi had been elected to the Vidhan Sabha wrote an article or a letter in a Hindi weekly, named 'Tandava' which is printed and published by Sadanand Pande as the Publisher and Editor of the 'Tandava'. The writing scribed by Matabadal Singh and published by Sadanand Pande in the Tandava was enough to be defamatory to Nageshwar Dwivedi. Nageshwar Dwivedi, therefore filed a complaint in the Court of a Magistrate, 1st Class, Kerakat, in the district of Jaunpur. At the trial an objection was raised on behalf of either both or at least one of the accused to the effect that the complaint made by Nageshwar Dwivedi could not be tried by the Magistrate in view of the provisions of Section 198(B) of the Code of Criminal Procedure.
3. It was contended that an M.L.A. was a public servant. It was further contended that if there was a defamation then that defamation was in respect to the complainant's conduct in the discharge of his public functions.
4. The learned Magistrate came to the conclusion that an M.L.A. was a public servant and the Magistrate's finding on this question appears to me to have been determined by the definition of 'public servant' as contained in Section 21 I. P. C. wherein a 'public servant' has been said to 'denote' a person falling under any of the description confined in that section. In the view of the Magistrate and also the learned Sessions Judge, since an M.L.A. received remuneration in the shape of a salary, be came under the definition of Section 21(9) of the Penal Code. The learned Magistrate also came to the conclusion that the defamation by the article related to the discharge of the complainant's public functions. This view the Magistrate held because (1) the article was headed 'Congresi M.L. Aon ki kartooten' and (2) because of what was stated in paragraphs 3 to 8 of that article.
5. It is contended on behalf of the complainant-petitioner, that both the Magistrate and the Judge were wrong in their interpretation of Sections 198 & 198 (B) Cr. P. C. The applicant contended that he was not a public servant and that the emoluments that he got from the State were not 'pay' or 'remuneration by fees' or 'commission' for 'the purpose' of any public duty. It was further contended that the offence of defamation which had been committed by the opposite parties was not in respect of his conduct in the discharge of his public functions and that the view of the learned Magistrate in regard to this matter was erroneous. It was contended that the article did not refer to the petitioner's conduct in the Vidhan Sabha where alone he could legitimately be said to be discharging any public function. His activities outside could not relate to the discharge of any public function.
6. The questions that fall for determination, therefore, are (1) whether an M.L.A. is a public servant, (2) whether the alleged defamatory matter in the article was in respect of the discharge of the public functions of the complainant or not and (3) whether Section 198-B precluded She complainant from filing a complaint before a Magistrate. 1 may at the outset state that the view that I shall express in regard to the third point would make it unnecessary to determine the first two questions namely whether an M.L.A. is a public servant or not and whether the alleged defamation was in respect of the discharge of the applicant's public function. In regard to the second question, viz. whether the article contained defamatory matters which related to the complainant's discharge of his public functions or not, I wish however to say that in my view they do not, at any rate clearly.relate to the discharge of the public function of an M.L.A. I shall, therefore, now turn to determine the third point and the only important point in the case, viz. whether Section 198-B barred the complaint which had been made by Nageshwar Dwivedi in the Court of the Magistrate or not.
7. The relevant portion of Section 198 Cr. P. C. is in these words :
'No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI I. P. C. or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence. ......'
The rest of the section need not be quoted since it is not relevant for our purpose.
8. The relevant portion of Section 198-B of the Cr. P. C. is in these words :
'(1) Notwithstanding anything contained in this Code, when any offence falling under Ch. XXI I. P. C. (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) 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. .....'
It is not necessary to quote the Sub-sections. It is further not necessary to quote the other sub-sections except Sub-section (13) which is in these words:
'The provisions of this section shall be in addition to and not in derogation of those of Section 198.'
9. From the words of the two sections quoted above it would be clear that under Section 198 a person who has been aggrieved by a defamatory statement can file a complaint. There are no restrictions placed upon his right. There are also no words in Section 198 to indicate that this right of the complainant was only confined to defamatory words or defamatory writings which affect his 'private capacity' and that this section excludes from its purview those words of defamation and that defamatory writings which defame the complainant in respect of the discharge of his public functions, in case he was a public functionary or a public servant. It is important in this connection to note that Section 198B does not enure to the benefit of a public servant as such but it enures to the benefit of a public servant who is employed in connection with the affairs of the Union or of a State when he is defamed in respect of his conduct in the discharge of his public functions.
10. Section 198B of the Cr. P. C. 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 Cr. P. C. appears to have been with the object of saving a 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. As would be noticed by reading Sub-section (3) of that section, the Legislature placed some amount of check on the filing of complaints by the Public Prosecutor in respect of defamations of public servants in the discharge of their public functions by making it obligatory for the Public Prosecutor to obtain previous sanction of certain named persons before he could proceed with the prosecution or before he could make a complaint. Sub-section (13) of Section 198B, Cr. P. C, makes it perfectly clear that this section was not in derogation of what was provided for in Section 198, but it was in addition to it. The words of that Sub-section to me appear to be, perfectly plain in their meaning. The words could not, in my opinion, mean any thing 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 198B Cr. P. C.
11. In view of what I have stated above, the courts below were wrong in dismissing the complaint which had been filed by Nageshwar Dwivedi. That complaint, in my opinion, was entertainable and triable by the Magistrate in whose Court the complaint had been filed.
12. In the result, I allow this application in revision, set aside the orders of the Courts below and send back the case to the court of the Magistrate with the direction that the should entertain the complaint which was filed before him by Nageshwar Dwivedi and should dispose of the complaint in accordance with law.
13. The record of the case shall be sent down to the court of the Magistrate forthwith.