Code of Criminal Procedure, 1973 :
ss. 199(2), 199(4) & 199(6) – Prosecution for defamation – Complaint u/s. 200 CrP.C. filed by respondent-Deputy Chief Minister of Delhi against six individuals alleging commission of the offences u/s. 499 and 500 r/w. ss. 34 and 35 IPC – Allegation that the accused no.1-appellant held a press conference making false and defamatory statements as though the respondent was involved in corruption to the tune of Rs. 2000 crores, in the matter of award of contracts for building classrooms in Delhi Government Schools; that accused no. 2 to 4 shared platform with the accused no.1 during the press conference; and that accused no.5 and 6 tweeted defamatory contents against the respondent – Issuance of summons by ACMM to all accused holding that there exists sufficient grounds to proceed against the accused 1 to 4 u/s. 500/34 IPC and against 5 and 6 u/s.500 IPC – Challenged to, by accused no.1 and 5 by filing petition u/s. 482 – Dismissed by the High Court – On appeal, held:Plea raised by both the accused that the court ought not to have entertained a private complaint u/s. 200 CrPC especially from a person covered by s. 199(2) without following the procedure prescribed in sub-section (4) of Section 199 is rejected – A person falling under the category of persons mentioned in sub section (2) of s. 199 can either take the route specified in sub-section (4) or (6) of s. 199 – Sub-section (6) does not contain any conditions subject to which the right thereunder can be exercised – Special procedure 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 – Furthermore, whenever a person is prosecuted by a public servant in his individual capacity before a Magistrate by virtue of s.199(6), the accused can always fall back upon s.250, for claiming compensation on the ground that the accusation was made without reasonable cause – s.
237 cannot be used as a crutch to support the argument revolving around ss. 199(2) and 199(4) – As regards, accused no. 5, the statement contained in tweets made by him cannot be said to be defamatory within the meaning of s. 499 – Defamatory statement should be specific and not very vague and general – Essential ingredient of s. 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 – Statements contained in his tweets cannot be said to be defamatory, thus, order of summoning passed by the ACMM insofar as A5, is set aside – ss. 237 and 250 – Penal Code, 1860 – ss. 499, 500 and 35.
ss. 199(2), 199(4) and 199(6) – Legislative history – Discussed. Disposing of the appeals, the Court
HELD: 1.1. To say that the provisions of sub section (6) of Section 199 CrPC 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 sub-section (6). Sub section (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”. Sub-section (6) does not contain any conditions subject to which the right thereunder can be exercised. The non obstante clause in sub-section (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 sub-section (6). The word “nothing” appearing in sub-section (6) will include the non obstante clause in sub-section (1) also. [Para 45, 46][843-D-F]
1.2 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. Sub-section (6) of Section
199 which is a reproduction of what was recommended in the 41st Report of the Law Commission to be made sub-section (13) of Section 198B, cannot be made a dead letter by holding that persons covered by sub-section (2) of Section 199 may have to invariably follow only the procedure prescribed by sub-section (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 sub-section (2) of Section 199 can either take the route specified in sub-section (4) or take the route specified in sub-section (6) of Section 199. [Para 51][845-C-E]
1.3 Under sub-section (3) of Section 237, the Court is empowered to direct the public servant (other than the President, Vice-President 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. Section 237(3) is not a new invention. What was contained in sub-sections
(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 sub-section (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. [Para 53, 54][847-A-D]
1.4 Section 237 cannot be used as a crutch to support the argument revolving around Sections 199(2) and 199(4). [Para 55][848-H]
1.5 The argument revolving around sub-sections (2) and
(4) of Section 199 is rejected and also since this is the only argument on which A-1 has come up with the appeal. [Para 56][849-A]
1.6 It is a fundamental rule of criminal jurisprudence that if the allegations contained in the complaint, even if taken to be true, do not constitute the offence complained, the person accused should not be allowed to undergo the ordeal of a trial. [Para 58][849-D-E]
1.7 Admittedly and obviously the twenty four questions posed by A5 to respondent No.1 cannot be said to be defamatory as these questions seek answers to certain facts relating to the construction of some buildings. What is sought to be projected as defamatory, is only one statement namely “I am sure that your answer will disclose your scam in the construction of these rooms but you are avoiding to give answer but I will obtain the reply”. [Para 59][851-E]
1.8 It is not known how a statement in a tweet that the answers of respondent No.1 to the questions posed by the appellant will disclose his scam, can be said to be defamatory. 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. Therefore, the statement made by A5 to the effect “your answer will disclose your scam” cannot be considered to be an imputation intending to harm or knowing or having reason to believe that it will harm the reputation of respondent No.1. The summoning Order passed by the Additional Chief Metropolitan Magistrate, did not go into the contents of the tweets made by A-5. To that extent, there was no application of mind on the part of the Additional Chief Metropolitan Magistrate. [Para 60, 61][851-F-H; 852-A]
1.9 Though the High Court prima facie examined the tweets, it upheld the summoning order passed by the Magistrate, after simply extracting Section 499. 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. [Para 62][852-B-C]
1.10 The statements contained in his tweets cannot be said to be defamatory within the meaning of Section 499 of the IPC. The order of summoning passed by the Additional Chief Metropolitan Magistrate insofar as A5 is concerned, is set aside. However, the complaint may proceed in respect of other accused. [Para 63, 65][852-D, F[
P.C Joshi and Another vs. State of Uttar Pradesh AIR 1961 SC 387, Subramanian Swamy v. Union of India (2016) 7 SCC 221 : [2016] 3 SCR 865, K.K. Mishra vs. State of Madhya Pradesh and Another (2018) 6 SCC
676 : [2018] 5 SCR 315– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.