- (1.) THIS is a revision by the accused Venkatesh in a complaint case under Sec. 500 IPC instituted on a complaint by the Public Prosecutor under sec. 198b Cr. P. C.
(2.) THE materia] facts briefly stated are these. THE accused Venkatesh is alleged to have published a hand note making allegation of bribe taking against Shri S. P. Mani, Sub-Divisional Magistrate, Fatehpur. As the revision petition was heard without calling for the record of the case, and as neither the judgment under revision nor the revision petition mention the date of the hand-note and give its details, they could not be assertained, nor are they necessary for the purpose of disposing of the present revision. It will be sufficient to say that the Rajasthan Government having treated the allegation as constituting an offence of defamation of a public servant in the discharge of his official duties, sanctioned prosecution and authorised the Public Prosecutor to file a complaint. THE Additional Sessions Judge, Sikar took cognizance of the offence on the complaint of the Public Prosecutor but during the course of trial, the accused made an application praying that as the complaint had not been signed by the Sub-Divisional Magistrate defamed, it was defective and the Additional Sessions Judge was not competent to take cognizance of the offence. THE learned Judge after referring to some conflicting decisions of some of the High Courts over-ruled the objection of the accused and dismissed his application (vide his order dated the 27th January 1960 ). THE accused has consequently filed his revision challenging the above decision. The question raised in the revision petition has been subject to judicial scrutiny in some cases and unfortunately the judicial opinion is sharply divided. It will be proper at the outset to briefly notice1 the relevant principles and the provisions of law for a proper appreciation of the controversial point. The general rules of criminal law following from the words of sec. 190 Cr. P. C. and the definition of the word "complaint" in sec. 4 (1) (h) Cr. P. C. is that any person whether aggrieved or not can file a complaint and set the criminal law into motion. The principle underlying is that the crime is conceived as a wrong against the society, and, therefore, every member of the public is interested in the punishment of the criminal and can make a move for that purpose. The rule, however is subject to a number of exceptions contained in Secs. 195 and 199 Cr. P. C. Section 199 with which we are concerned reads as follows : "198. Prosecution for breach of contract, defamation and offences against marriage. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XII of the Indian Penal Code or under secs, 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offences. Provided that. . . Provided further that. . . . . . . . . " It is obvious that the wrongs mentioned in sec. 198 are primarily against individuals although they have been categorised as offences. These offences illustrate the difficulty of a water tight division of public wrongs, that is, crimes and wrongs to the individuals. It appears that in consideration of the wrongs being essentially directed against the individuals, the Legislature thought it proper to relax the general rule that any body can set the criminal law in motion and imposed prohibition to the effect that no court shall take cognizance of the offence except on the complaint of the public servant. Section 198 Cr. P. C. came up for adverse comments by the majority of the Press Commission in relation to offence of defamation of public servants in respect of their conduct in discharge of public duties. It was pointed out that the dilatory procedure of the court, the inconvenience caused to the public servants in having to leave their legitimate duty and to attend court on the numerous dates, the labour involved in collecting evidence for the purpose of prosecution, the tendency of the court to impose nominal fines, hardly make it worthwhile for the public servants to launch prosecution for defamation. It was in consequences of these difficulties that the Legislature while passing the Criminal Procedure Code (Amendment No. XXVI of 1955) introduced sec. 198b to provide protection to some high dignitaries, ministers and public servants in respect of offences of defamation in connection with their conduct in the discharge of public functions. The relevant sub-sections of sec. 198b which have a bearing on the question raised may briefly be summarised as follows: Sub-section (1) provides that notwithstanding anything contained in the Code, a Court of Session may take cognizance of an offence of defamation (other than the offence of defamation by spoken words) upon a complaint in writing made by the Public Prosecutor without the accused being committed to it for trial. Sub-sec. (3) requires that the Public Prosecutor should obtain the previous sanction of the person specified therein before he can file a complaint. Sub-sec. (5) empowers the court of session to try the case without jury and to follow the procedure of warrant cases. It also requires that unless the Court of Session directs otherwise for reasons to be recorded, the person against whom the offence is alleged to have been committed should be examined as a witness. Sub-sees. (6) to (11) provide for and regulate the procedure for payment of compensation by the person against whom the offence was alleged to have been committed to the accused on the ground of the accusation being false and either frivolous or vexatious. Then follows the last and the 13th clause which is very important. It reads as follows: "the provisions of this section shall be in addition to, and not in derogation of, those of sec. 198. " The controversy has centered round the proper construction and effect of this sub-section. Other sub-sections have also been considered as aiding in arriving at a true meaning of the sub-section. The learned Deputy Government Advocate relying upon Muneshwarchand Vs. State of U. P. (1), State of Mysore Vs. P. K. Atre (2) and the opinion of Vaidialingum J. in R. Sanker Vs. Statc (3) contended that the purpose of the sub-section is merely to preserve to the aggrieved person the right, to file a complaint under sec. 198 but not to import the provisions of that section into sec. 198b. Stated in another way, it means that the remedy provided by sec. 198b is in addition to and not in substitution of the remedy provided in Sec. 198 Cr. P. C. The sub-section was introduced by way of abundant caution to meet a possible argument that the special provision of sec. 198-B over-rides the general provision so that if a person aggrieved happens to be any of the persons mentioned in sec. 198b, he is deprived of his ordinary remedy of making a complaint. As against this, on behalf of the defence, reliance has been placed upon C. B. L. Bhatnagar Vs. The State (4), and the opinion of Raman Nayar J. in R. Sanker Vs. State (3), and it has been contended that sub-sec. (13) of secs. 198-B having preserved in tact sec. 198 a complaint by the person aggrieved is not dispensed with even with regard to cases falling under that section and the prosecution must fail if the person aggrieved does not join in the complaint to be filed by the Public Prosecutor. In other words, the effect of sub-sec. (13) is that it not only saves the right of a person aggrieved to file a complaint under the general provisions but it further requires that if a public servant invokes the assistance of the Pub-lic Prosecutor for filing a complaint under sec. 198b, that complaint should comply with the provisions of not only 198b but also of 198 of the Code of Criminal Procedure. The complaint should be signed both by the Public Prosecutor as well as the person aggrieved. At the outset, it must be confessed that the point is a very intricate one and cannot be said to be free from ambiguity and difficulty. The usual and the normal approach will be to approach the matter on a consideration of the language of the sub-section. Before doing so, it must be pointed out that the power of the Court to take cognizance of offence and the right of a person to file a complaint are not provided for in sec. 198. They flow from sec. 190 Cr. P. C. according to which any person can file a complaint and set the criminal law in to motion. Sec. 198 merely seeks to limit this right and imposes a prohibition on courts for cognisance of offence mentioned therein except on the complaint of the person aggrieved. In the words of Raman Nayar J. in R. Sanker Vs. State (3), "it does not strictly speeking confer any power of cognizance on the court or a right of complaint on the person aggrieved. That is done by sec. 190 (1 ). " The learned Judge, further, observed that 'it is, therefore, wrong to think that sec. 198 either confers a power or provides a remedy. It only imposes a prohibition, doubtless with an exception". While considering the language of sub-sec. (13) of sec. 198b, the above consideration should be borne in mind. Now analysing the language of sec. 198b, it is obvious that in the first instance, the provisions of sec. 198b are declared to be in addition to sec. 198 Cr. P. C. Secondly, they are not intended to be in derogation of the provisions of sec. 198. In other words the provisions of sec. 198 remain unaffected and unimpaired. This is the proper conclusion to be reached on a plain and grammatical consideration of the language of sub-sec. (13 ). Sub-sec. (13) preserving the provisions of sec. 198 in tact and unimpaired deserves to be interpreted to maintain the prohibition with the exception. It follows that a complaint under sec. 198b must also satisfy the requirements of sec. 198, that is, it must-be joint in and signed by the person aggrieved. It will be difficult to accept a different interpretation to the effect that sec. 198b merely grants an additional remedy in addition to the one provided for by sec. 198. A. Narayan Pai J. of the Mysore High Court in the State of Mysore Vs. P. K. Atre (2) in adopting the different interpretation inter alia, relied on Yellond Vs. Pamell Duffrya Associated Collieries (No. 82) (1941) I. K. B. 5i9» where the expression 'in derogation of was interpreted to mean anything more than 'shall be in addition to". In that case, the expression 'the rights conferred by that Act' [the Law Reforms (Miscellaneous Provisions) Act, 1934] for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act of 1846' came up for interpretation. The plaintiff in that case contended that the expression meant that anything recovered under the 1933 Act shall not be allowed to diminish the full amount of damages that would be recoverable under the Act of 1846 if the Act of 1934 had never been passed. This contention was repelled and the court held that all that the expression meant was that the right to recover damages under the 1934 Act did not take away the right to recover damages under the 1846 Act and not that the plaintiff could have two sets of damages separately calculated under the two Acts independently of each other and that it is impossible to hold that the expression 'rights conferred by the Act shall be in addition to and not in derogation of any rights conferred by the Fatal Accidents Act' is equivalent to 'in assessing damages under the Fatal Accidents Act any sum recoverable under this Act shall not be taken into account'. In my opinion, no such assistance can be drawn from this case for two reasons. Firstly, the 1934 Act specially referred to the rights under the Act to be in addition to and not in derogation of. In the present case, the provisions are said to be in addition to. Secondly, the actual point decided in this case was that the expression was not taken as equivalent to that 'in assessing damages under the Fatal Accidents Act any sum recoverable under this Act shall not be taken into account. ' This was indeed the only proper conclusion to be reached on the peculiar language of that section. In those circumstances, the principle of that case cannot be a safe guide in interpreting sub sec. (13) where, as mentioned earlier, the expression is that 'the provisions of this section shall be in addition to, and not in derogation of those of sec. 198'. The learned Deputy Government Advocate contended that the interpretation relied upon by him should be preferred in view of the language of sub-sec. (1), specially the clause 'notwithstanding anything contained in this Code'. It was argued that sub-sec. (1) empowers the court of session to take cognizance of the offences specified in that section on a complaint by the Public Prosecutor and that it will be proper to extend the grip of the phrase "notwithstanding anything contained in the Code" to sec. 198 of the Code and not to confine it to other provisions of the Code such as sec. 193. It is true that sub-sec. (1) requiring as it does that the act of filing a complaint should be that of the Public Prosecutor in a way lends support for an argument that the prohibition contained in sec. 198 is being ignored to some extent. Indeed it was argued in the Kerla High Court in R. Sanker Vs. State (3) by the Advocate General that sec. 198-B (13) refers to and says the exception clause in sec. 198 and not the section as the whole, and it consequently meant that a complaint may be entertained from the person aggrieved and that the prohibition of the cognizance in the absence of such a complaint is not saved in the cases falling within sec. 198b. It may be conceded that there is no doubt some apparent inconsistency in simultaneously giving effect to the literal interpretation of the two sub-sections. Yet I find it difficult to go to the extent of completely ignoring the plain language of sec. 198b and to read it to save the exception clause only particularly in view of the fact that sec. 198 was introduced for imposing prohibition and not to confer any right and" the exception clause in effect giving no right need not and could not have been saved. It must be borne in mind that the right to file a complaint is given by sec. 190 and not by sec. 198 Sec. 198b cannot be interpreted to affect that right which can be exercised subject to the limination of sec. 198. The ordinary right remained unaffected and there was no necessity for this sub-section for preserving such a right. Besides it is very easy to harmonise and re-consile both the provisions. As stated by Raman Nayar J. in R. Sanker Vs. State (3) in practice, a complaint by the Public Prosecutor can hardly be made without reference to the victim of the offence and a practical way of ensuring compliance with both secs. 198 and 198-B would be for both the Public Prosecutor and the victim to sign the complaint. There is thus no difficulty in giving effect substantially to the literal meaning of sub-sec. (13) on the above mode and reconciling the provisions of the two subsections. This will avoid the possibility of two parallel litigations one at the instance of the person aggrieved and the other at the instance of the Public Prosecutor. It is true that the person aggrieved can file a complaint under the general law (sec. 190 read with sec. 198) but once he avails of the special right of lodging a complaint through the Public Prosecutor, it will not be open to him to lodge a complaint under the general law. In the case of rival interpretation, the person aggrieved having no necessary association with the complaint under sec. 198b (as it is implicit in that interpretation that the complaint under sec. 198b can be filed even against the wishes of the person aggrieved) the possibility of two parallel litigations cannot be avoided specially as there is no provision for the Sessions Judge to take over a complaint under sec. 198 and to try it without proper commitment. Therefore, both on a consideration of the language as also on the desirability of avoiding anomally, the interpretation favouring the importing of the provisions of sec. 198 into the provisions of sec. 198b deserves to be preferred.
(3.) IT will be proper at this stage to consider an argument adopted in the Mysore case (2) that sec. 198 contains no prohibition for cognisance by the court of of session. IT was observed that the word "court" having not been defined and the word "complaint" having been defined as a report of the allegation to a Magistrate the word "court" in sec. 198 should be confined to the courts of Magistrates and cannot be deemed to include the court of session, and, therefore, a prohibition under sec. 198 cannot be extended to the court of session. A further development of the argument may be that the prohibition of sec. 198 in the circumstances could no: and need not have been saved under the sub-sec. (13) of sec. 198b, and, therefore, it should be interpreted to merely preserve the remedy under sec. 198 in addition to the remedy created by sec. 198b. With respect, I feel unable to accept this argument. In the first instance, sec. 6 of the Code of Criminal Procedure while classifying the classes of courts mentions the court of session as one such court. Besides, the term "court of justice" as defined in sec. 20 IPC and extended to Criminal Procedure Code by sec. 4 (1) (b) clearly brings the court of session within the category of court and there is no justification for restricting the meaning of the word "court" in sec. 198. The dominant idea underlying sec. 198 is mainly the placing of restrictions on the general rights of the members of the public to present a complaint in respect of particular offences which are essentially directed against individuals, irrespective of the classes of courts where the complaint may be filed. Further it appears to me that the use of the word "magistrate" in connection with the definition of the word "complaint" deserves to be taken illustratively, at any rate, now after the introduction of sec. 198b contemplating a complaint by a public prosecutor to a court of session. To hold that there can be no complaint except to a Magistrate will be to make the provisions of sec. 198b self contradictory. Examining the other sub-sections of sec. 198b as aiding in the interpretation of sub-sec. (13), I may first take up sub-sec. (5 ). The requirement of this sub-section is that unless the court of session otherwise directs for reasons to be recorded, the person aggrieved shall be examined as a witness for the prosecution. The legislature clearly contemplates an identity of interest of the Government directing prosecution through the public prosecutor and the person aggrieved. Further, sub-sec. (6) provides that if the accused is discharged or acquitted, the court of session may by its order of discharge or acquittal direct the person against whom the offence was alleged to have been committed (certain dignitaries excepted) to show cause why he should not pay compensation. This can in all fairness and propriety be permissible only if the person aggrieved is responsible for initiating the complaint and joins in it. The defence which the person can take up in response to show cause notice can be that the complaint was not false or at any rate not frivolous or vexatious. The law does not contemplate a defence on his part to the effect that the complaint was not initiated by him and that it was made against his wishes. In this connection I may quote with approval the following observations of Raman Nayar J. in R. Sankar Vs. State (3) : - "that the complaint was not made by him, that it was, in fact, made against his will, would be no defence, for, under sub-sec. 7, the only considerations are whether the accusation was false and whether it was frivolous or vexatious. Although of course no one can have any sympathy for such a victim, it would nevertheless be manifestly unjust to require him to pay compensation for some thing for which he was in no way responsible. . . . . . . . . . The construction placed on sub-sec. 13 by the learned Advocate General apart from being opposed to its wording would mean that a person could be penalised for something he never did. This the legislature could never have intended, and hence the scheme of Sec. 198-B can only be that the person aggrieved must also be responsi ble for initiating the prosecution. Sub-sec. (9) also implies this, for it contemplates that the person called upon to pay compensation namely the victim of the alleged libel would be civilly and criminally liable in respect of the complaint. And this, namely, the joinder of the victim, is exactly what the sub-section in the natural and grammatical sense of the words it employs, ensures. " Lastly, the person called upon to pay compensation has been given the right of filing an appeal against an order directing payment of compensation as if he is a party to the proceeding. These provisions not only imply a close association of the person aggrieved with the complaint but practically go to make him the real complainant, and, therefore, give a sufficient clue for the proper interpretation of sub-sec. 13 in the manner indicated by me above. The learned Judges, particularly Vaidialingam J. of the Kerala High Court who adopted the contrary interpretation, have relied upon the expressions (1) 'the person against whom the offence is alleged to have been committed' occurring in sub-sec. (5); (2) 'in any case instituted under this section' occurring in sub-sec. (6); and (3) 'in respect of a complaint made under this section' occurring in sub-sec. (9), and concluded that they contemplated a complaint by the public prosecutor. According to them, these sub-sections have been introduced to speci-fically confer special power of directing compensation payable by the person aggrieved even though they may not be complainants. It is also added that when the Legislature in sub-sec. (3) specified the persons whose sanction should be obtained by the public prosecutor before filing a complaint, the ommission to refer to the concurrence of the person against whom the offence was committed is very significant. To me it appears that these expressions and omissions have been unduly emphasized and strained. The Legislature intended to give a right to the specified dignitaries, ministers and public servants to prosecute the offender through the public prosecutor so that they may not experience the difficulties already enumerated, and it was probably to prominently bring out that aspect and to emphasise that the acts of the complainant shall be considered the acts of the public prosecutor that the expressions have been used. But these expressions are quite compatible with the interpretation that the person aggrieved should join the public prosecutor in the act of the complainant. In fact, the substantial provisions of this sub-section are more in conformity with the interpretation favouring the joining of the person aggrieved in the complaint. A consideration of the object and legislative history of the provisions also lead to the same conclusion. Earlier, I have pointed out the various difficulties which the public servant faced in launching prosecution for defamation. The object of sec. 198-B is clearly to remove those difficulties and to give the right to the persons enumerated in sec. 198-B to avail of the services of the public prosecutor for filing a complaint and to vindicate their position. ;