http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: P.C. JOSHI AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 25/10/1960

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K.

CITATION:  1961 AIR  387            1961 SCR  (2)  63

ACT: Criminal  Trial--Defamation of Public servant in respect  of public  function--Complaint before Sessions Judge by  Public Prosecutor--If  required to be signed by the Public  servant also--Code  of Criminal Procedure, 1898 (V of 1898),  ss.198 and 198-B.

HEADNOTE: The  Public  Prosecutor, Kanpur, filed a  complaint  in  the Court  of  Session,  Kanpur, charging  the  appellants  with having published a news item which was false and  defamatory of  the  Chief  Minister of Uttar  Pradesh.   The  complaint complied with the requirements of s. 198-B, Code of Criminal Procedure.   The  appellants contended  that  the  complaint should have complied with the requirements of s. 198 of  the Code also and, as it was 64 not signed by the Chief Minister, the Sessions judge had  no jurisdiction to entertain it. Held, that it was not necessary for the Chief Minister  also to  sign the complaint filed by the Public Prosecutor.   The nonobstante  clause " notwithstanding anything contained  in this Code " in sub-s. (1) of s. 198-B excludes the operation of  the other provisions of the Code relating to  initiation and  trial of the offence of defamation, including  s.  198. Sub-section  (13)  of  s.  198-B  which  provides  that  the provisions  of s. 198-B shall be in addition to and  not  in derogation  of  s.  198 merely preserves the  right  of  the person  defamed to file a complaint under s. 198.   The  two sections provide alternative remedies.  The provisions in s. 198-B  relating to the award of compensation to the  accused in  case of false and frivolous or vexatious  accusation  do not  affect  this  conclusion.  Normally it  is  the  public servant who moves the Government for taking proceedings  and under  subs. (5) he is required to be examined as a  witness to  support the prosecution, and it cannot be said  that  he has no concern with the lodging of a complaint under s. 198- B. C.   B. L. Bhatnagar v. The State, A.I.R. 1958 Bom. 196 and R.   Sankar   v.  The  State,  I.L.R.  (1959)  Kerala   195, disapproved.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 130  of 1960. Appeal  by special leave from the judgment and  order  dated April  28,  1960, of the Allahabad High  Court  in  Criminal Revision No. 1865 of 1959. N.   C. Chatterjee, D. P. Singh, T. S. Venkataraman, R.   K. Garg,   S.  C.  Agarwal  and  M.  K.  Ramamurthi,  for   the appellants. G.  S.  Pathak,  O.  C.  Mathur  and  C.  P.  Lal,  for  the respondent. 1960.  October 25.  The Judgment of the Court was  delivered by SHAH J.-Appellant No. 1 is the editor and appellant No. 2 is the  printer  and publisher of the ’,New  Age  "-an  English Weekly news sheet published in Delhi.  On May 15, 1959,  the Public Prosecutor, Kanpur, filed a complaint in the Court of Session,  Kanpur, against the appellants charging them  with having published a news item in the issue of the " New Age " dated  November 16, 1958, knowing or having good reasons  to believe  the  same to be false and defamatory of  the  Chief Minister  of the State of Uttar Pradesh " in order  to  harm his reputation in the eyes of 65 the  public  in  general  and  among  his  acquaintances  in particular  ". With this complaint was filed an order  under the  signature  of the Home Secretary to the  Government  of Uttar  Pradesh  sanctioning  under  a.  198B(3)(b)  of   the Criminal  Procedure  Code the filing of a complaint  by  the Public Prosecutor for an offence under s. 500, Indian  Penal Code,  against  the appellants in respect of the  news  item published  on  November  16,  1958,  under  the  caption   " Explosive situation in Kanpur ". The learned Sessions  Judge took cognisance of the complaint.  After six witnesses  were examined  on behalf of the prosecution, he framed  a  charge against the appellants for the offence of defamation in that they  had  published  the  news item  under  the  caption  " Explosive situation in Kanpur " intending to harm or knowing that  they were likely to harm the reputation of  the  Chief Minister  of Uttar Pradesh.  The appellants then applied  to the  High Court of Judicature at Allahabad praying that  the order  of  the  Court of Session framing a  charge  for  the offence  of  defamation be set aside.  They  submitted  that there  was  no  evidence  that the  Home  Secretary  to  the Government  of  Uttar Pradesh had applied his  mind  to  the facts  of  the case before sanctioning  prosecution  of  the appellants;  that  in  any event, the  publication  was  not defamatory  of the Chief Minister in respect of his  conduct in  the discharge of his duties as Chief Minister  and  that the complaint filed by the Public Prosecutor not having been signed  by the Chief Minister who was the aggrieved  person, the  Sessions  Judge had no jurisdiction  to  entertain  the complaint.   The  High Court rejected  all  the  contentions raised  by the appellants.  Against the order rejecting  the contentions,  this appeal with special leave under Art.  136 of the Constitution is preferred by the appellants. We  may state that the observations made by the  High  Court that  whether the publication of the news item in the  issue of  the  "I  New Age " dated November 16,  1958,  under  the caption " Explosive situation in Kanpur " was defamatory  of the  Chief  Minister  in  respect  of  his  conduct  in  the discharge of his duties 66

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

deciding  the application in revision submitted to them  and were  not  intended  to record a final decision  as  to  the defamatory  character of that publication.  It will  be  for the Trial Judge when the case is tried before him to  arrive at  a conclusion on the materials placed before him  whether the  publication  is  defamatory of the  Chief  Minister  in respect  of  his  conduct in the  discharge  of  his  public functions. The  plea  that  the  sanction  was  accorded  by  the  Home Secretary  to the filing of the complaint  without  applying his mind is without substance.  Siddiqi, an assistant in the Home  Department  to the Government of  Uttar  Pradesh,  has deposed  that he bad received the papers in connection  with the sanction for the prosecution of the two appellants  from the Superintendent, Rome Department, with " notings ",  that he  had  taken  the  " notings "  and  the  relevant  papers including the offending issue to the Deputy Secretary,  that the Deputy Secretary had also made his note on those papers, and that thereafter he-the witness had taken those papers to M. G. Kaul, Home Secretary, who had perused the " notings  " and the note of the Deputy Secretary as also the article  in question and after looking into the papers had approved  the draft sanction. It is not disputed that the Home Secretary was authorised to sanction  a  complaint for defamation of a Minister  of  the Government of Uttar Pradesh.  The evidence clearly discloses that  the  Home Secretary had applied his mind  to  all  the material facts before him and had then granted the sanction. Mere  production of a document which sets out the  names  of the  persons  to  be prosecuted and the  provisions  of  the statute  alleged to be contravened, and purporting  to  bear the signature of an officer competent to grant the  sanction where such sanction is a condition precedent to the exercise of jurisdiction does not invest the court with  jurisdiction to  try  the  offence.  If the facts  which  constitute  the charge do not appear on the face of the sanction, it must be established by hose facts were laced 67 before  the  authority competent to grant the  sanction  and that  the authority applied his mind to those  facts  before giving   sanction.    In  the  present   case,   the   facts constituting the charge appear on the face of the sanction ; and  evidence has also been led that the facts  were  placed before   the  sanctioning  authority,  that  the   authority considered the facts and sanctioned the prosecution. Section  198B  which deals with a certain  category  of  the offences of defamation of high dignitaries of the State, and of Ministers and public servants in respect of their conduct in the discharge of public functions was incorporated in the Code  by Act XVI of 1955.  Prior to the incorporation of  s. 198B, the only condition precedent to the entertainment of a complaint of defamation by a court competent in that  behalf was  prescribed  by  s. 198, viz., that there had  to  be  a complaint  by  the person aggrieved before  the  court  took cognisance of that offence.  By s. 198B, several  conditions precedent  to  the  trial of offences  falling  within  that section are prescribed.  The material clauses of s. 198B are sub-ss.  (1), (3) and (4). (1):- " notwithstanding  anything contained  in  this  Code, when any  offence  falling  under Chapter  XXI  of  the Indian Penal Code (Act  XLV  of  1860) (other  than the offence of defamation by spoken  words)  is alleged to have been committed against the President or  the Vice-President, or the Governor or Rajpramukh of a State, or a   Minister  or  any  other  public  servant  employed   in connection  with the affairs of the Union or of a State,  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

respect  of  his  conduct in the  discharge  of  his  public functions,  a Court of Session may take cognisance  of  such offence,  without  the  accused being committed  to  it  for trial,  upon  a  complaint in writing  made  by  the  Public Prosecutor. (3):-No  complaint  under sub-s. (1) shall be  made  by  the Public Prosecutor except with the previous sanction,- (a)in the case of the President or the Vice-President or the Governor  of  a State, of any Secretary  to  the  Government authorised by him in this behalf 68 (b)  in the case of a Minister of the Central Government  or of  a State Government, of the Secretary to the  Council  of Ministers,  if  any, or of any Secretary to  the  Government authorised  in this behalf by the Government concerned;  (c) in  the  case  of  any  other  public  servant  employed  in connection  with the affairs of the Union or of a State,  of the Government concerned. (4)  :-No  Court  of  Session shall take  cognisance  of  an offence under sub-s. (1) unless the complaint is made within six months from the date on which the offence is alleged  to have been committed. This section provides for a special procedure for the  trial of the offence of defamation of certain specified classes of persons.  The conditions necessary for the applicability  of sub-s. (1) of s. 198B are: (1)  that the defamation is not by spoken words; (2)  that  the  offence 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; (3)  that the defamation is in respect of the person defamed in the discharge of his public functions; (4)  that  a  complaint  is made in writing  by  the  Public Prosecutor; (5)  that  the  complaint is made by the  Public  Prosecutor with  the previous sanction of the authorities specified  in sub-s. (3); and (6)  that  the complaint is made within six months from  the date on which the offence is committed. The Court of Session may entertain a complaint of defamation of the high dignitaries and of Ministers and public servants in respect of their conduct in the discharge of their public functions  only  if  these conditions  exist.   Section  198 require,%  that a complaint for defamation may be  initiated by  the  person  aggrieved and no period  of  limitation  is prescribed  in  that behalf.  Such a complaint can  only  be entertained by a Magistrate of the First Class.  But s. 198- B  in the larger public interest, has made a departure  from that rule; the accusation is to be entertained not by a 69 Magistrate, but by the Court of Session without a  committal within six months of the date of the offence on a  complaint in    writing   by   the   Public   Prosecutor   with    the previous  sanction  of  the specified  authorities.   It  is manifest that by the non-obstante clause, "  notwithstanding anything  contained  in  this  Code "  in  sub.s.  (1),  the operation of diverse provisions of the Code relating to  the initiation  and  trial  of  the  offence  of  defamation  is excluded and prima facie s. 198 is one of those  provisions. It is however urged on behalf of the appellants that  sub-s. (13)  of s. 198-B makes the provisions of s. 198  applicable to  a  complaint for defamation of persons specified  in  s. 198-B(1)  and  provides that cognisance of  the  offence  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

defamation  cannot  be  taken  by  a  court  except  upon  a complaint  by  the  person aggrieved,  and  that  the  Chief Minister of Uttar Pradesh alleged to be the party  aggrieved not  having  signed  the complaint  the  Court  of  Session, Kanpur,  had  no  jurisdiction to  take  cognisance  of  the complaint.  Sub-section (13) provides that " the  provisions of  this  section  shall  be in  addition  to,  and  not  in derogation  of,  those of s. 198 ". In  our  judgment,  this clause is enacted with a view to state ex abundanti  cautela that  the  right of a party aggrieved by  publication  of  a defamatory  statement  to  proceed  under  s.  198  is   not derogated by the enactment of s. 198-B.  The expressions,  " in addition to " and " not in derogation of " mean the  same thing-that  s. 198-B is an additional provision and  is  not intended  to take away the right of a person aggrieved  even if he belongs to the specified classes and the offence is in respect  of  his  conduct in the  discharge  of  his  public functions, to file a complaint in the manner provided by  s. 198.   "  Derogation  " means,  taking  away,  lessening  or impairing  the  authority,  position  or  dignity,  and  the context  in in which sub-s. (13) occurs clearly  shows  that the provisions of s. 198-B do not impair the remedy provided by  s.  198.  It means that by s. 198-B the right  which  an aggrieved person has to file a complaint before a Magistrate under  s.  198 for the offence of defamation,  even  if  the aggrieved  person belongs to the specified classes  and  the defamation 70 is in respect of his conduct in the discharge of his  public functions, is not taken away or impaired.  If sub-s. (13) be construed  as meaning that the provisions of s. 198B are  to be  read  as  supplementary to those of  s.  198,  the  non- obstante  clause with which sub-s. (1) of s. 198B  commences is  rendered wholly sterile, and unless the context  compels such  an interpretation, the court will not be justified  in adopting it.  There is again inherent indication in ss.  198 and  198B,  which  supports the view that s.  198B  was  not intended to be supplementary to s. 198, but was intended  to provide  an alternative remedy in the case of defamation  of persons set out in that section.  The expression " complaint "  as  defined  in s. 4, cl. (h) of the  Code  means  "  the allegation made orally or in writing to a Magistrate with  a view to his taking action under this Code that some  person, whether known or unknown, has committed an offence.......... Every  complaint  of  an  offence  has  to be  made  to  a Magistrate competent to take cognisance thereof and not to a Court  of  Session.  A Court of Session under  the  Code  of Criminal Procedure unless otherwise expressly provided,  is’ not  competent to entertain a complaint; it can only  try  a criminal case committed to it.  The expression  ,,complaint" in s. 198 is manifestly used in the meaning as defined by s. 4(h).   Even  a superficial examination  of  the  contention raised by the appellants reveals that if effect be given  to it,  the  utmost confusion would result in working  out  the provisions  of the Code.  If beside the complaint  filed  by the  Public Prosecutor under s. 198B, there must also  be  a complaint   by  the  person  aggrieved,  two  courts   would simultaneously be seized of two distinct complaints for  the same offence.  The complaint by the Public Prosecutor  under s.  198B would undoubtedly lie, in the Court of Session  and the  complaint  under  s. 198 would lie in the  court  of  a Magistrate,  because it is a Magistrate who alone  can  take cognisance  of  the  offence of  defamation  under  s.  198. Thereafter,  the  complaint  under s. 198  may  have  to  be committed  to the Court of Session by the Magistrate and  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

is only after the 71 compliant  filed  by  the Public Prosecutor,  the  case  may proceed.   The Legislature could not have intended  that  in respect of the same offence, there should be two complaints, one  in the Court of Session and another in the court  of  a Magistrate-and   either  both  should  be  tried,   or   the proceedings should be consolidated after committal. Reliance was placed on behalf of the appellants upon sub-ss. (6)  to  11  of  s. 198B which  provide  for  the  award  of compensation to the person accused if the court is satisfied that  the  accusation  is  false  and  either  frivolous  or vexatious,  and it was submitted that the Legislature  could not have intended that a person who was not the  complainant and who was not directly concerned with the proceedings  may still  be  required  if  so ordered  by  the  court  to  pay compensation.   But sub-s. (5) which provides that a  person against  whom the offence is alleged to have been  committed shall, unless the court for reasons to be recorded otherwise directs,  be  examined  as a witness  for  the  prosecution, clearly  indicates that the question whether  the  complaint was  false and either frivolous or vexatious may fall to  be determined  only  if the person complaining  to  be  defamed actively  supports  the complaint.  It cannot  therefore  be said  that s. 198B provides for compensation  being  awarded against a person who is not concerned with the complaint. Section 198B is enacted to provide machinery for vindicating the  conduct  of  high  dignitaries,  Ministers  and  public servants  when they are exposed to defamatory attacks.   The section  contemplates  the institution  of  proceedings  for defamation  of  two different classes of persons,  (1)  high dignitaries  like  the President,  the  Vice-President,  the Governors  and  Rajpramukhs  and (2)  Ministers  and  public servants. it is not disputed that a provision which  enables a  prosecution  to be launched by the State,  and  at  State expense for defamation of members of the first class, having regard  to  their status in public  life,  is  pre-eminently designed  in the public interest, and it would  be  entirely appropriate  that  any  question  of  awarding  compensation should be raised, even if the complaint for defamation 72 be found to be false and frivolous or vexatious.  There  can be  no  doubt  that  in a democratic set  up,  in  order  to maintain  purity  of public  behaviour  and  administration, charges  of improper conduct against persons in  the  second class, in so far as such charges relate to the discharge  of their  public functions should be investigated.  It is  also in the public interest that in vindicating his character  or conduct, the person defamed should not ordinarily be  called upon  to bear the burden of what may turn out  an  expensive and  long  drawn  out proceeding, nor  for  obvious  reasons should  he  have  control  over  the  proceeding.   In   the vindication  of  the  character  or  conduct  of  a  private individual  who  is  defamed, the  State  is  primarily  not concerned: the party aggrieved may, if he is so minded, take proceedings for obtaining relief.  But in the  investigation of defamatory charges against Ministers and public  servants in the discharge of their public functions, the State is  as vitally   concerned   as  the   individual   defamed.    The Legislature has therefore authorised the State to take  upon itself  the  power  in appropriate cases  to  prosecute  the offenders.  But lest this procedure be abused, provision has been made for the examination of the person defamed and  for awarding  against him compensation if it be found  that  the complaint was false and frivolous or vexatious.  Normally, a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

Minister  or  a  public servant defamed in  respect  of  his conduct  in  the  discharge of his  public  functions  would himself  move  the Government under which he  functions  for taking proceedings for vindicating his character or conduct. The  complaint  eo  nomine  in  cases  under  s.  198B,   is undoubtedly  the Public Prosecutor, but the  complaint  may, when  the person defamed is a Minister or a public  servant, properly  be  regarded  as filed at  the  instance  of  such Minister  or public servant.  He has in any case to  support the  accusation by evidence, and his conduct is  exposed  to judicial  scrutiny.  In this context, it would be  difficult to  hold that a person who has either been  instrumental  in the  initiation  of  a complaint, or in  any  event  has  to support it by his evidence, has no concern with the  lodging of the complaint.  The court 73 would  obviously award compensation only if it is  satisfied that the claim made by the person posing to be aggrieved  is false and either frivolous or vexatious. Section 198B does not provide that before taking  cognisance of a complaint, the complaint shall be signed by any  person other than the Public Prosecutor.  In terms, it contemplates a  complaint in writing by the Public Prosecutor and  of  no one  else and it would be an unwarranted addition to  sub-s. (1)  of the words " and also by the person aggrieved  "  if the  contention urged on behalf of the appellants  were  ac- cepted.   The Legislature not having chosen to provide  that the complaint of the Public Prosecutor shall also be  signed by  the  person aggrieved, we will not be justified  in  the absence of compelling reasons to so hold. The  observation  made by Mr. Justice Bavdekar in C.  B.  L. Bhatnagar  v.  The State (1) " What  s.  198B(13)  ......... means...... is that any complaint which may be made under s. 198B must also satisy the provisions of s. 198, that is, the complaint will have to be made both by the person aggrieved, and  by  the Public Prosecutor ", and by Mr.  Justice  Raman Nayar  in R. Sanker v. The State (2)  that a complaint by  a person  aggrieved  is not dispensed with even in  regard  to cases  falling  under  s. 198B, do  not,  in  our  judgment, correctly interpret sub.s. (13) of s. 198B. In  the  view  taken by us, this appeal  must  fail  and  is dismissed. Appeal dismissed. (1) A.I.R. 1958 Bom. 196. (2) 1.L.R. (1959) Kerala 195- 74