MOHINI KAPUR, J. - (1.) IN this revision petition, the scope and meaning of some person aggrieved' in Section 199 Cr. P. C. is to be examined. The Additional C. J. M. , Kota, has taken cognizance, upon a complaint, filed by the non-petitioner one Shri Srinath Soni, who is the President of INstrumentation, Workers Union (INtuc) Kota, for the alleged defamation of the President and the Prime Minister of this Country. An article published in the Hindi version of 'india Today', dated 28th Feb. 1987, under the heading 'khatarnak Takrav' is the writing on basis of which the petitioners, who are the Senior Editor, Chief Editor and the Printer of the magazine, are being proceeded against for the offences under Sections 500, 501 and 502 IPC.
(2.) BY this order it is not to be decided whether the words written in the article amount to defamation or not, so the contents may be seen in brief only. The President of India is said to be merely a Rubber Stamp and the Prime Minister is said to be an inexperienced person. The strained relation between the President and the Prime Minister is the basis on which the political situation has been discussed. The learned Addl. C J. M. recorded the statement of the complainant Shrinath Soni and one Kuldeep Kapoor under Sections 200 and 202 Cr. P. C. before taking cognizance against the petitioners. In his opinion the allegations made in the article regarding the relationship of the President and the Prime Minister were baseless and the petitioners had no right to publish such material. The complainant in his statement said that on reading the article, he felt that it was written with the intention of devaluing the status of the President as well as the Prime Minister and that an effort had been made to show that the Constitution of India is meaningless. According to him the whole nation, public, President, Prime Minister and the Constitution had been defamed. The witness Kuldeep Kapoor has deposed that his feelings were hurt after reading the article and he felt that the same was objectionable and defamatory. The question which has not been considered by the learned Addl. C. J. M. , while taking cognizance on the complaint of the non-petitioner is whether cognizance for the offence of defamation of the President or the Prime Minister could be taken on basis of a complaint made by Non-petitioner No. 1. The learned counsel for the petitioner has contended that u/s 199 Cr. P. C, cognizance of an offence punishable under Chapter XXI of the Indian Penal Code, which includes the offence of defamation, can be taken only upon a complaint made by some person aggrieved by the offence. This according to him, means that, either a person who has been defamed can make a complaint or the complainant has to be a person who can be said to be directly or indirectly affected by the defamation of the other person. The exceptions to this rule have been given under the proviso and some other person can make a complaint in those circumstances with the leave of the Court Secondly, it is contended that under Sec. 199 (2) Cr. P. C. the procedure has been given when any offence falling under Chapter XXI of the l. P. C. is alleged to have been committed against the President, the Vice President of India the Governor of a State, the Administrator of a Union Territory or a Minister of the Union etc. and in this it is the Court of Sessions, which can take cognizance of the offence but such a complaint has to be made by the Public Prosecutor with the previous sanction of the State Government or the Central Government. Sub-clause (6) of Section 199 Cr. P. C. preserves the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate. In other words a person, other than a person against whom an offence is alleged to have been committed, can make a complaint when the person defamed is President, Prime Minister etc. and a Court of Sessions can take cognizance, but this complaint has to be made by the Public Prosecutor with the previous sanction of the Government. This condition does not stand satisfied in the present case and according to the learned counsel for the petitio-ner the Magistrate was not competent to take cognizance on the complaint moved by non-petitioner no. 1, who could not be said to be directly or indirectly aggrieved in any manner. A number of decisions have been cited by the learned counsel for the petitioner and they shall be seen presently. On the other hand the learned counsel for the non-petitioner has first of all contended that this revision is not maintainable as the petitioners should have first approached the Court of Sessions. Secondly, it is contended that cognizance on basis of the complaint could be taken as this is a case where the complainant's feelings have been hurt and he has been directly affected by the matter published in the article.
(3.) THE first objection of the non-petitioner may be disposed first. Section 397 I. P. C. provides for calling for records to exercise the power of revision and the same has been conferred on the High Court and also the Sessions Judge. Sub-clause (3) provides that if an application under this section has been made by any person, either to the High Court or to the Sessions Judge no further application by the same person shall be entertained by the other of them. This makes it clear that a person can either move the High Court or the Sessions Judge under this section and he has only one opportunity to do so and it is his choice whether he should move before the High Court or to the Sessions Judge. If a person first moves the Sessions Judge and is unable to get relief, he cannot have a second innings before the High Court, but there is no prohibition for approaching the High Court in the first instance. Coming to the merits of the case the relevant authorities may be looked into. In Hosseinbhoy Ismailji v. Emperor, (1) a complaint was made by a member of the Karachi Bohri Jamait alleging that an article in a daily ws-paper was highly defamatory of the spiritual head and High Priest of the Bohra Community. The Magistrate vacated the jurisdiction which he had assumed on the ground that the aggrieved person was the high priest and no one else and the complainant could not be said to be some person aggrieved, so as to make a complaint for the offence of defamation. While maintaining this order, it was observed that only such person as has directly or indirectly suffered for his own reputation by defamation complained of, can set the machinery of the Jaw courts into motion. The agreement of the complainant should not merely be the one shared by every member of an organized society. ;