Minister/Public Servant Can File Private Complaint Alleging Defamation; Need Not Follow Special Procedure U/Sec 199 (2) & (4) CrPC : Supreme Court

The Supreme Court observed that a minister or public servant (a person covered by Section 199(2)) can file a private complaint alleging defamation and need not follow the special procedure prescribed by Section 199(2) & (4) CrPC.

"The special procedure is in addition to and not in derogation of the right that a public servant always has as an individual. He never lost his right merely because he became a public servant and merely because the allegations related to official discharge of his duties", the bench of Justices S. Abdul Nazeer and V. Ramasubramanian said.

Section 199 CrPC

Section 199 provides that no Court shall take cognizance of an offence of defamation except upon a complaint made by some person aggrieved by the offence.

Section 199(2) provides a special procedure when the offence of defamation is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, 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. In such a situtation, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.  Section 199(4) further provides that such complaint can be made by the Public Prosecutor only with the previous sanction— (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government; (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State; (c) of the Central Government, in any other case.

Background

In this case, Manish Sisodia, a minister in Delhi Government, filed a complaint before Additional Chief Metropolitan Magistrate­, Rouse Avenue Courts, New Delhi, against Manoj Kumar Tiwari, Vijender Gupta and others alleging commission of the offences under Sections 499 and 500 read with Sections 34 and 35 of the Indian Penal Code. The accused challenged the order of summoning before the High Court of Delhi. As the High Court dismissed these petitions, the accused approached the Apex Court in appeal.

Before the Apex Court, the only contention raised by Manoj Tiwari was that the Court ought not to have entertained a private complaint under Section 200 Cr.P.C especially from a person covered by Section 199(2) of the Code, without following the procedure prescribed in sub­section (4) of Section 199. In response, Senior Advocate AM Singhvi contended that what is prescribed by Section 199(2) of the Code is a special procedure, which does not exclude the general procedure prescribed under Section 199(6) and that the right of a public servant, as an individual, to prosecute a person for defamation, is guaranteed by Section 199(6), to which the provisions of subsection (2) of Section 199 have no application.

The bench in its judgment discusses the legislative history of these provisions. Referring to these provisions, the court observed:

To say that the provisions of subsection (6) of Section 199 can be invoked by the individual public servant, only in cases where the State Government does not go to his rescue, could violate the plain language of sub­section (6). Subsection (6) of Section 199 begins with the words "nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed". Sub­section (6) does not contain any conditions subject to which the right thereunder can be exercised.

The non­obstante clause in sub­section (2) of Section 199 will also not go to the rescue of the appellants, as the said clause also stands eclipsed by the words "nothing in this section" appearing in sub­section (6). The word "nothing" appearing in sub­section (6) will include the non­obstante clause in sub­section (1) also.

The court observed that the right of an individual is saved, under sub­section (6), even if he falls under the category of persons mentioned in subsection (2). 

"The long history of the evolution of the legislation relating to prosecution for the offence of defamation of public servants shows that the special procedure introduced in 1955 and fine­tuned in 1964 and overhauled in 1973 was in addition to and not in derogation of the right that a public servant always had as an individual. He never lost his right merely because he became a public servant and merely because the allegations related to official discharge of his duties. Sub­section (6) of Section 199 which is a reproduction of what was recommended in the 41st Report of the Law Commission to be made sub­section (13) of Section 198B, 36 cannot be made a dead letter by holding that persons covered by sub­section (2) of Section 199 may have to invariably follow only the procedure prescribed by sub­section (4) of Section 199. Therefore, the common ground raised by both the appellants is liable to be rejected. A person falling under the category of persons mentioned in sub­section (2) of Section 199 can either take the route specified in sub­section (4) or take the route specified in sub­Section (6) of Section 199."

Another contention raised was that the protection available under Section 237 of the Code to the accused, will be lost if the public servant avoids the special procedure and lodges a complaint individually. In this regard, the court said:

"It is true that under sub­section (3) of Section 237, the Court is empowered to direct the public servant (other than the President, Vice­President or the Governor of a State or the Administrator of a Union Territory) to show cause why he should not pay compensation to a person accused of committing the offence of defamation, in cases where the Court not only discharges or acquits the accused, but is also of the opinion that there was no reasonable cause for making the accusation against him.

But Section 237(3) is not a new invention. What was contained in sub­sections (6) to (11) of Section 198B of the old Code of 1898 has taken a new shape in Section 237. Moreover, it is not as though there is no such safety valve against prosecution by an individual without reasonable cause, when he invokes sub­section (6) of Section 199. Whenever a person is prosecuted by a public servant in his individual capacity before a Magistrate by virtue of Section 199(6), the accused can always fall back upon Section 250, for claiming compensation on the ground that the accusation was made without reasonable cause"

Section 250 CrPC deals with compensation for accusation without reasonable cause. 

The bench therefore dismissed the appeal filed by Manoj Tewari who only raised this ground challenging the summoning order.

The appeal filed by another accused- Vijender Gupta was allowed on the ground that the statements contained in his tweets cannot be said to be defamatory within the meaning of Section 499 of the IPC.

Case details

Manoj Kumar Tiwari vs Manish Sisodia | 2022 LiveLaw (SC) 853 | CrA 1791 OF 2022 | 17 October 2022 | Justices S. Abdul Nazeer and V. Ramasubramanian

Headnotes

Code of Criminal Procedure, 1973 ; Section 199 - A person falling under the category of persons mentioned in sub­section (2) of Section 199 can either take the route specified in sub­section (4) or take the route specified in sub­Section (6) of Section 199 - The right of an individual is saved, under sub­section (6), even if he falls under the category of persons mentioned in subsection (2) - The special procedure is in addition to and not in derogation of the right that a public servant always had as an individual. He never lost his right merely because he became a public servant and merely because the allegations related to official discharge of his duties. (Para 50-51)

Code of Criminal Procedure, 1973 ; Section 199(6) , 237 , 250 -  Whether the protection available under Section 237 of the Code to the accused, will be lost if the public servant avoids the special procedure and lodges a complaint individually ? - Whenever a person is prosecuted by a public servant in his individual capacity before a Magistrate by virtue of Section 199(6), the accused can always fall back upon Section 250, for claiming compensation on the ground that the accusation was made without reasonable cause. (Para 52-55)

Indian Penal Code, 1860 ; Section 499 - Defamation - The claim made by a person involved in politics that the answers provided by his rival in public office to the questions posed by him, will expose his scam, cannot be per se stated to be intended to harm the reputation of the person holding office. The statements such as "I will expose you", "I will expose your corrupt practices" and "I will expose the scam in which you are involved, etc." are not by themselves defamatory unless there is something more - Even if a person belonging to a political party had challenged a person holding public office by stating "I will expose your scam", the same may not amount to defamation. Defamatory statement should be specific and not very vague and general. The essential ingredient of Section 499 is that the imputation made by the accused should have the potential to harm the reputation of the person against whom the imputation is made. (Para 60-64)

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