The Judgment of the Court was delivered by
Kumarayya, J.
2. These three revision petitions have come before us on reference by our learned brother, Basi Reddy, J. They are directed against the order, dated 18th September, 1959, made by the Additional Sessions Judge, Hyderabad, whereby he ??? the preliminary objection taken to the initiation of proceedings in C.C ??? 1 to 5 of 1959 (Sic). The petitioners herein are concerned only with C.C ??? 1, 3 of 1959 and 5 of 1958. They call in question the legality and the ??? of the above order so far as it affects them. C.C Nos. 1 of 59 and 5 of ??? of which Crl. R.Cs 598 and 599 of 1959 arise were instituted against K.V.S ??? Raju. The Editor, Printer and Publisher of ‘Navasakti’, a Telugu ???, which has a wide circulation in Andhra Pradesh especially in the Hyderabad District including the twin cities of Hyderabad and Secunderabad. C.C No. ??? relates to the publication of an alleged defamatory statement in ‘??? in the issue, dated 12th October, 1958, which affects Sri Balakrishna, ???, in the employment of the State of Andhra Pradesh and C.C ??? 1958 pertains to the publication of a like defamatory statement in two ??? in the issue of 27th October, 1957, and 9th February, 1958, against ??? Chief Engineer, Electricity, Government of Andhra Pradesh. ??? 3 of ??? out of which Crl. R.C 523 of 1959 arises is brought against ??? author of the article under the caption of ‘J.V Bhagiratha ???’ published in the issue, dated 12th October, 1958, of the ??? Weekly in which a portion under the heading “the accused in the enquiry ???” contains an alleged scurrilously defamatory attack inter alia on one ???, the Executive Engineer, Government of Andhra Pradesh, in his ??? servant employed in connection with the affairs of the State of ??? Pradesh. It is not necessary for the present purpose to set out in detail ??? defamatory matter contained in the said articles. It may, however, ??? here that the persons defamed did not elect to file complaints themselves; ??? was open for them to do so under the provisions of section 198, Criminal ??? Code. Instead, the Government, after being satisfied that they ??? and frivolous, decided to launch prosecution. Mr. N.S Raghavan was ??? Public Prosecutor who, under the requisite previous sanction lodged ??? complaints in writing before the Sessions Judge, Secunderabad. ??? matter came before the Court in accordance with the provisions of section ??? B, Criminal Procedure Code, which was introduced by the Central Act ??? 1955. The Sessions Judge for Secunderabad and Hyderabad did not try ??? cases himself. He transferred them to the Additional Judge, City Civil Court, ???. But eventually these cases were transferred to the Chairman of the ??? Tax Appellate Tribunal who was appointed Additional Sessions Judge. ??? accused raised several objection both as to the legality of the proceedings ??? them and to the constitutionality of section 198-B, Criminal Procedure Code. The learned Judge replied all the contentions. The accused therefore have come in revision to this Court. As these petitions raise points of law on which there is conflict of opinion, between some of the High Courts, the matter has been referred to this Bench.
3. The two legal points raised by Mr. Raghuvir, the learned counsel in Cr. R.C 523 of 1959 are:
(1) That Sri N.S Raghavan was not competent to make a complaint under section 198-B, Criminal Procedure Code, as he was not a public Prosecutor appointed generally but a Special. Prosecutor and was not, in terms clothed with authority to file complaint; and
(2) that the complaints are bad even because the aggrieved persons have not joined and signed as-complainants.
4. As the first point is raised mainly on terms of order of appointment, we may extract here the said order contained in G.O.Ms 228, dated 29th January, 1959, which is to the following effect:
“It has been brought to the notice of the Government that certain false and frivolous allegations have been made against Sri Balakrishna, Executive Engineer, by one Sri K.V Ramaniah, in an article under the caption Herculean Scheming of J.V’ (J.V Bhagiratha ??? the Vikalpam) published in the issue of Telugu Weekly ‘Navasakti” Hyderabad, dated 12th October, 1958. The Government after examination are satisfied that the allegation made are false and baseless and they have decided to launch necessary prosecution against Sri K.V Ramaniah, the author of the offending article and Sri K.V.S Padmana ??? Raju who is the Editor, Printer and Publisher of the paper ‘Navasakti’. A copy of each ??? the G.O.Ms 226 and G.O.Ms 227, (Home) (Courts-B) dated 29th January, 1959 ??? which the prosecutions have been sanctioned, is enclosed.
2. Under section 492 of the Code of Criminal Procedure, the Governor of Andhra Pradesh hereby appoints. Sri N.S Raghayan, Principal Government Pleader, to ??? Special Public Prosecutor Hyderabad, for conducting the prosecution referred to in ??? above.
3. Sri N.S Raghavan will be paid fees.
(By order and in the name of the Governor of Andhra-Pradesh).
P. Venkateshwar Rao
Deputy Secretary to Government
5. This order refers to three things that the Government had decided ??? necessary prosecution against the two accused, that the necessary sanction ??? section has been duly accorded and that Sri N.S Raghavan, Principal ??? Pleader, has been appointed to be the Public Prosecutor for ??? said prosecution. The implication of this order may be fully brought ??? it is read with section 198-B under which the said complaint was ??? launched and which so far as it is relevant for this purpose reads thus:—
“(1) Notwithstanding anything contained in, this Code, when any offence ??? under Chapter XXI of the Indian Penal Code (XLV of 1960), (other than the ??? defamation by spoken words) is alleged to have been committed against the President ??? 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, ??? respect of his conduct in the discharge of his public functions, a Court of Session ??? take cognizance of such offence, without the accused being committed to it for trial, upon ??? complaint in writing made by, the Public Prosector……………….”
6. The complaint contemplated by this section is a complaint in writing made by the Public Prosecutor. It is, therefore, perfectly clear that if the Government had made up their mind to launch prosecution as is manifest from the order, they could do so only by way of complaint in writing made by the Public Prosecutor. There was no other course open to them under law. To achieve this purpose, they in fact appointed Sri N.S Raghayan to be Special Public Prosecutor with the specific direction to conduct the prosecution referred to in para (1) of the order. That reference is to the launching of prosecution which the Government had decided. In the context of sub-section (1) of section 198-B, it necessarily means a direction to file complaints as well for Sri N.S Raghavan was appointed under section 492 and was a Public Prosecutor within the meaning of Section 4(t) of the Code of Criminal Procedure. Both the sections, so far as they are relevant, read thus:—
“4. (t) ‘Public Prosecutor’ means any person appointed binder section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of Government in any High Court in the exercise of its Original Criminal Jurisdiction:
“492. (1) The State Government may appoint, generally, or any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutes……….”
7. Sri N.S Raghavan was indeed a Public Prosecutor within the contemplation section 198-B, Criminal Procedure Code and was to virtue of his office comment to lodge a complaint. All that was required was the previous sanction of ??? authorities provided in sub-section (3) of section 198-B which was accorded and which is not in dispute. Further the complaint had to be ??? within six months from the date on which the offence is alleged to have committed and there is no Controversy in relation thereto. The only objection ??? by the learned counsel is that the order of appointment does not in ??? the Public Prosecutor with the power to launch a complaint and being appointed for special cases shall be deemed to be a Public Prosecution after those cases have dome before the Court. The contention seems to conceived and is wholly ill-founded. What the learned counsel seeks to ??? is that a Special Public Prosecutor appointed for the proposed cases can law, take steps for initiation of the proceedings. There is no warrant for Proposition. The expression ‘Public Prosecutor’ used in section 198-B is ??? by any limitations. Ah Officer appointed under section 492(1) for ??? the purposes mentioned therein to be a Public Prosecutor is a Public ??? within the meaning of section 4(t) and also section-198-B entitled to ??? complaint. IT is true that he was appointed for specified cases which ??? were brought before the Court, but it is impossible to hold that till the case ??? the appointee Cannot be considered as the Public Prosecutor, especial ??? it is obvious that the case itself cannot come before the Court except at ??? of the Public Prosecutor. Besides as already observed there is nothing ??? 492 which leads to the conclusion that when a Public Prosecutor is for specified class of cases all or any of these cases must be before the ??? The argument that there is no express authority to launch prosecution is ??? of force. Apart from the power conferred by the statute ??? such to initiate proceedings and conduct the same till its final conclusion is ??? in the expression “for conducting the prosecution referred to in paragraph ???” employed in the order. The argument of the learned counsel therefore.
8. Now we turn to the second contention raised. In order to appreciate this constitutional point raised which will be referred to presently., it will be ??? to refer to sections 198, 198-B and section 4(h) Criminal Procedure which read thus;—
“198. No Court shall take cognizance of an offence falling under Chapter XIX, or Chapter XXI of the Indian Penal Code (XLV or 1860) or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:
Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of 18 years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf;
Provided further that where the husband aggrieved by an offence under section 494 of the said Code is serving in any of the Armed forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (1) of section 199-B may, with the leave of the Court, make a complaint on his behalf.
198-B. (1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (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 respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
(2) Every such complaint shall set forth the facts which constitute the offence alleged ??? the nature of such offence and such other particulars as are reasonable sufficient to give ??? notice to the accused of the offence alleged to have been committed by him.
(3) No complaint under sub-section (1) shall be made by the Public Prosecutor ??? pt with the previous sanction,—
(a) in the case of the President or the Vice-President or the Governor or ??? of a State, of any Secretary to the Government authorised by him in this behalf;
(b) in the case of a Minister of the Central Government or of a State Government ??? 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 ??? the Union or of a State, of the Government concerned.
(4) No Court of Session shall take cognizance of an offence under sub-section ??? unless the complaint is within six months from the date on which the offence is allege ??? have been committed.
(5) When the Court of Session takes cognizance of an offence under sub-section ??? then, notwithstanding anything contained in this Code, the Court of Session shall ??? case without a jury and in trying the case, shall follow the procedure prescribed ??? trial by Magistrates of warrant cases instituted otherwise than on a police-report ??? person against whom the offence is alleged to have been committed shall, unless the ??? of Session, for reasons to be recorded otherwise directs, be examined as a witness for ??? prosecution.
(6) If in any case institituted under this section the Court of Session by which ??? case is heard discharges or acquits all or any of the accused, and is of opinion that ??? accusation against them or any of them was false and either frivolous or vexatious, ??? Court of Session, may, by its order of discharge or acquittal, direct the person again ??? whom the offence was alleged to have been committed (other than the President, Vice ??? President, or the Governor or Rajpramukh of a State) to show cause why he should ??? pay compensation to such accused or to each or any of such accused, when there are ??? than one.
(7) The Court of Session shall record and consider any cause which may be shown by the person so directed and if it is satisfied that the accusation was false and either frivolous or vexatious, it may, for reason? to be recorded, direct that compensation to such amount, not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
(8) All compensation awarded under sub-section (7) may be recovered as if it were a fine.
(9) No person who has been directed to pay compensation under sub-section (7) shall by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section.
Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(10) The person who has been ordered under sub-section (7) to pay compensation may appeal from the order, in so far as the order relates to the payment of the compensation, as if he had been convicted in a trial held by the Court of Session.
(11) When an order for payment of compensation to an accused person is made in ??? case which is subject to appeal under sub-section (10), the compensation shall not be ??? to him before the period allowed for the presentation of the appeal has elapsed or, if ??? appeal is presented, before the appeal has been decided.
(12) For the purposes of this section, the expression “Court of Session” includes the High Court at Calcutta and Madras in the exercise of their Original Criminal Jurisdiction.
(13) The provisions of this section shall be in addition to, and not in derogation of ??? of section 198.”
“4. (h) ‘Complaint” means the allegation made orally or in writing to a Magistrate ??? a view to his taking action under this Code, that some person whether known or ???, has committed an offence, but it does not include the report of a police officer;”
9. ??? are concerned mainly with section 198-B. The language of sub-section ??? is clear and unequivocal. It says without any reservation that the ??? in writing must be made by the Public Prosecutor. It follows that it ??? an act of the Public Prosecutor himself. Thus, on the clear language ??? there is no scope for the argument that the aggrieved person ??? as a complainant. The learned counsel nevertheless again argues that ??? in the scheme of section 198-B itself that the person aggrieved must ??? complainant, for, otherwise his examination as a witness under sub ??? and penal sanctions as against him in compliance with sub-sections (6) ??? have been meaningless and further, even on general principles of law, ??? expected that any person can be penalised for the acts not ???. It is further argued that in any event the clear language in sub-section ??? warrants compliance with the provisions of section 198 as well and ??? basis too the person aggrieved should also figure as complainant. We ??? to accede to this argument.
10. ??? 198 and 198-B occur in Chapter XV of the Criminal Procedure Code ??? with the conditions requisite for initiation of criminal proceeding, ??? rule, for cognizance of cases by Magistrate is contained in section 190, ??? Procedure Code. According to it cognizanee may be taken on a com ??? or on a report in writing by a police officer, or upon information from any ??? person, or on the knowledge or suspicion of the Magistrate himself. ??? complaints are made in non-cognizable cases. But there is nothing to prevent the preferring of a complaint even in a cognizable case instead of lodging information first to the police for investigation. Similarly, the police report under the section (section 190) may either be of a cogninable case or even in respect of non-coghizable case investigated under section 155, Criminal Procedure Code. Non-cognizablc case, it may be noted, is ordinarily one in which the person aggrieved is more interested in his private grievance than the State, which is interested in the maintenance of public order. Yet, the State in particular class of cases may feel bound to intervene as a duly constituted protector of the rights of its subjects. Section 190, it may be noted, opens with the expression “except as hereinafter provided” and indeed we find in sections 195 to 199 exceptions to the general rule, as under the definition of ‘complaint” in section 4(h) it is open to any person to make a complaint and such person need not be the aggrieved person. Sections 195 to 199, having regard to the particular character of certain offences, lay certain restrictions and the Courts are prohibited from taking cognizance of such offences unless the authorities or persons specified therein with or without requisite permission as the section may provide bring a complaint. These provisions indeed are based or a broad policy of administration of criminal law an punishment of criminal wrongs which is an essential responsibility of the ??? Section 198 deals with offences falling under Chapters XIX, XXI, and section 493 to 496, Indian Penal Code, and in such cases, subject to the provisos in ??? section, the complaint should be made by person aggrieved. The wrong ??? such eases, it may be seen, is no doubt of criminal nature but a common ??? of all these offences is that the grievance is primarily that of the aggrieved ???. The State therefore has not interested itself therein in bringing the ??? justice but has left the remedy to the aggrieved person himself. But section ??? relates to defamation of public servants not merely in their private ??? in respect of their conduct in the discharge of public functions. Where the ??? in the discharge of public functions is brought in question, certainly the ??? also become interested and it does not become the exclusive concern of the ???. As observed by Cockburn, C.J, in Campbell v. Spottiswoode . 1863 122 E.R 288 @ 291.:
“The public have an equal interest in the maintenance of the public character of ??? and public affairs could not be conducted by men of honour with a view to the welfare ??? the country, if we were to sanction attacks upon them, destructive of their honour ??? character, and made without any foundation”.
11. Thus section 198-B which relates to prosecution for defamation, ??? the provisions of section 198, in that it relates to matter which ??? merely the private individual but also the public and the State as well ??? is bound to reflect on the purity of administration and good government ??? procedure, therefore, to some extent different from what has been ??? section 198 for cognizance of cases, has been prescribed therein. It is ??? true that it is open for the public officer to proceed under section 19 offences as he is the person defamed, but as already stated, since the a ??? bearing on the public administration as well, the State as such become ??? in order to ensure efficient and smoooth running of its administration ??? against vilification and scurrilous, attacks on and unwholesome ??? public-officers which has a deleterious effect on the administration. ??? reason why an express provision has been made under section 198-B. ??? noted that this section opens with the words “notwithstanding anything ??? in this Code.” That means this provision stands by itself and is ??? of any other provision. But as under sub-clause (13) this section is derogation of section 198, it is open-to the aggrieved person to file a himself before the Magistrate if he so elects for, ordinarily it is he who should file it. Thus the right of the person defamed is protected by sub-clause (13) Sub-clause (13), in our judgment, does not go further than that. But it is contended that the expressions “in addition to and not in derogation of” in sub-section (13) mean that while following the procedure laid down, in section 198-B compliance with the provisions of section 198 also is necessary and that being the case the aggrieved person should also join as a complainant. We are unable to accept this argument. The expression ‘in derogation of’ employed in this sub-clause read in the context means nothing more than ‘in addition to. It is an unnecessary tautology and is used only to lend force to the term “in addition to.” The expression ‘in addition’ cannot be construed to mean that both the provisions put together form a complete whole, nor in that context the expression ‘in derogation of’ signifies that the procedure to be followed under section 198-B should in no way be a departure from or inconsistent with that of section 198. If such were the import or intention of sub-clause (13) the procedure laid down in section 198-B would not have been so inconsistent with that in section 198 as to render the blending of the two provisions physically impossible. Section 198, ??? will be noticed, refers to a complaint before the Magistrate. But in section 198-B the complaint is made to a Court of Session. If the provisions of section ??? are also introduced in section 198-B, the conflict in forum will, be ???. Besides, the sub-clauses (6) to (9) then would have been unnecessary as they ??? identical with section 250, Criminal Procedure Code, which provision is ??? for cases filed on complaint before a Magistrate. Then again, while ??? 198 speaks of a complaint by an aggrieved person, subject of course to the ???, section 198-B unconditionally prescribes the complaint by the Public ???. The complaint should be exclusively his act and not by way of ??? or on behalf of or in conjunction with any other including the person ???. There are in this behalf Other points besides, which need not be ??? here. Suffice it to say that sub-clause (13) was introduced because of ??? words of the provision, for, but for this sub-clause, the provisions, of ??? 198-B would have been the only available provision for the complaints ??? of offences of the description stated therein.
12. ??? order to demonstrate that there is intrinsic evidence in the provisions of 198-B itself to lead to the conclusion that the aggrieved person should ??? the complaint, reliance has been placed on sub-sections (5) to (11). ??? on (5) provide inter alia for examination of the aggrieved person as a ???. This is evidently because the cognizance under vicarious complaint is ??? ordinary procedure and it was therefore deemed necessary that the ??? such a complaint should be tested by making the person said to have ??? to face the witness-stand. The person has to come as a witness ??? circumstances and for reasons to be recorded by the Court ??? case has to be made out to enable the Judge to excuse his attendance ??? Sub-sections (6) to (11) provide for false and frivolous or vexatious ??? Sub-section (6) starts with the expression “if in any case instituted ??? section”. This again shows that it is applicable only to complaint ??? Public Prosecutor. It proceeds to state that if the Court of Sessions ??? case is heard discharges or acquits all or any of the accused, and ???, that the accusation against them or any of them was false and ??? or vexatious, the Court of Session may, by its order of discharge ??? direct the person against whom the offence was alleged to have been ??? show cause why he should not pay compensation to such accused ??? any of such accused when there are more than one. Be it noted section is not to the person making the complaint. Of course, the ??? Vice-Present or the Governor or Rajpramukh of a State are exempt from the operation of this rule. The section is however clear on the point that though the complaint is filed by the Public Prosecutor, it is the person against Whom the offence was alleged to have been committed who is liable to answer on question of compensation in case the accused is discharged or acquitted and the Court is of opinion that the accusation is false and frivolous. It must be born in mind that the notice to such a person is only to show cause why he should not pay compensation to such accused. He can therefore say that he was wholly unconcerned with the accusation or that there was reasonable ground for accusation and as such there can be no question of compensation. Sub-section (7) provides that the Court of Session shall record and consider any cause which may be shown by the person so directed and if it is satisfied that the accusation was false and either frivolous or vexatious, it may, for reasons to be recorded, direct that compensation to such amount not exceeding Rs. 1,000 as it may determine to be paid by such person to the accused or to each or any them.
13. Two points emerge from these sub-clauses. One is the question of jurisdiction to call upon the person alleged to be defamed to show cause why he should not pay compensation. The other is the duty of the Court to record and consider the reasons shown and then to exercise its discretion on proof of ??? accusation being false and frivolous. In cases instituted under this section, ??? possible that the person aggrieved, at the first instance, may himself move ??? Government for prosecution, or it may be that the Government themselves ??? satisfied of the falsity and reckless nature of the imputations after an enquiry ??? the matter and ascertainment of facts from the person defamed ask the ??? Prosecutor to launch a ???. It may also be that the Public ??? after careful examination of the case on all aspects thinks it necessary to ??? a complaint and makes the same with previous sanction. In all such ??? course, the complaint can be deemed to be made with due care and ??? and likelihood of false and frivolous accusation may not, as a ??? possible. Neverthless, if in case it is found otherwise, the person ??? made answerable for the same. It is argued that as under the general ??? of law the person defamed cannot be penalised if he took no part in ??? complaint, sub-sections (6) to (9) by their implication must mean that the ??? aggrieved himself was also a complaint. It is difficult to give such a ??? clear language used in sub-sections (6), (7) and (9). In sub-section the words “in any case institute under this section” and in sub-section ??? expression “in respect of the complaint made under this section” read ??? expression in sub-section (1) “the complaint in writing made by the ??? Prosecutor” leave no doubt that it is the complaint of the Public ??? Public Prosecutor alone that is contemplated by tills provision; and ??? person aggrieved is nevertheless made answer lable for such a vicarious ??? can be easily understood when we take the fact into consideration that ??? he would be the first person to move the Government. At any rate ??? explanation of facts at the time of inquiry which must lead to the ??? Complaint. Besides, it is open under the provision to the person ??? reasons why he should not be directed to pay compensation ??? the duty of the Court to record and consider such reasons. Full ??? matter of direction to pay compensation however is given to the Court, ??? circumstances, we cannot read into the words of the provisions ??? which they do not seek to convey. The object of sub-sections (6) ??? only to introduce provisions on the lines of section 250, Criminal ??? and no further. On a careful consideration of all the provisions, ??? to reach the concision that either sub-clauses 5 to 9 by themselves ???, (13) can in any way, consistent with the other provisions, be ??? mean that the person aggrieved should also figure as a complainant. ??? counsel referred us to the observations of R. Sankar v. State, and also to State Of Mysore, Complainant,… v. P.K Atre, Accused,…. . A.I.R 1959 Mys. 65.. In R. Sankar v. State, the other Judge Vaidyalingam, J., has not agreed with Raman Nair, J., on this point. The second ruling cited by the learned counsel does not support his contention. He further referred to the observations of a single Judge of the Bombay High Court in this behalf in C.B.L Bhatnagar v. The State . A.I.R 1958 Bom. 196., but they are only obiter. The matter has been considered in State Of Mysore, Complainant,… v. P.K Atre, Accused,…., wherein it was observed as also in R. Sankar v. State, the Vaidyalingam, J., that section 198-B does not contemplate that the aggrieved person should figure as a complainant but that the ‘complaint” within the meaning of that section is the “complaint in writing of the Public Prosecutor”. As already discussed above, we find ourselves in respectful agreement with the reasoning and conclusions on this point in the above cases. The objection taken is therefore rejected.
14. Now, we turn to the objections on constitutional grounds. The learned counsel Mr. Raghuvir contends that section 198-B is discriminatory in that it places the person accused of the offence of defamation against the public servant in a different position from a person accused of the same offence against an ordinary person. This provision thus being violative of Article 14 of the Constitution of India must be struck down. We feel it difficult to accept this argument. section 198-B is limited to the offences under Chapter XII committed against certain class of persons in respect of their conduct in the discharge of public ???, whereas section 198 is much wider in amplitude and covers other ??? also. What is vouchsafed by Article 14 to all persons within the territory ??? India is equality before law and equal protection of laws. Equality before ??? must imply absence of any privileged position in favour of any person but that does not mean absolute equality, for, that is not physically possible. It means equal subjection of all to ordinary law. The expression “equal protection ??? of the laws” connotes equality of treatment in equal circumstances. All that it ??? is absence of arbitrary discrimination by the laws or in their ???. This Article has been the subject-matter of judicial consideration ??? more than one case even by the highest authority of the land. Its scope, ??? and effect now stand welt settled. In Budhan Chowdhry v. State of Bihar . 195 A.L.T 1955 S.C.J 163 @ 165., ??? to all the previous cases in which the provisions of this Article were ??? by the Supreme Court, Das, J., (as he then was) summed up the ??? thus:
“It is new well established that while Article 14 forbids class legislation, it does ??? reasonable classification for the purposes of legislation. In order, however, to pass ??? of permissible classification two conditions must be fulfilled, namely, (i) that the ??? must be founded on an intelligible differentia which distinguishes persons ??? that are grouped together from others left out of the group and (ii) that the ??? must have a rational relation to the object sought to be achieved by the state ???. The classification may be founded on different bases, namely, geographical, ??? to objects or occupations or the like. What is necessary is that there must ??? between the basis of classification and the object of the Act under consideration,??? well established by the decisions of this Court that Article 14 condemns ??? not only by a substantive law but also by a law of procedure.”.
15. ??? case, the Supreme Court had to consider the constitutionality of section ??? Procedure Code, which empowered the State Government in ??? as to invest the District Magistrate or any Magistrate of the First Class with power to try as Magistrate all offences not punishable with death. Having regard to this provision, a contention was raised that inasmuch as the same accused person in respect of the same offences could be tried by District Magistrate especially empowered under section 30, Criminal Procedure Code and by a Court of Session if the offence did not take place where that section has no application, this discrimination offended against the equal protection clause of the Constitution. But, in the light of the principle above stated, it was held that there was no infringement of the fundamental rights vouchsafed by Article 14. In Matajog Dobey v. H. C. Bhari , where the constitutionality of section 197, Criminal Procedure Code was brought into question on the ground that it vested in the Government arbitrary power to grant or withhold sanction, it was held that the discretionary power is not necessarily discriminatory. In M. Hanumantha Rao v. State of A.P, section 207 and 207-introduced by the Central Act XVI of 1955 in the Criminal Procedure Code were called in question as discriminatory for they lay down committal procedure substantially different from that intended for proceedings instituted otherwise than on a police report. The Supreme Court repelled this contention on the basis that the legislature had provided for
“a clear classification between the two kinds of proceedings at the committal stage based upon a very relevant consideration which was whether or not there was a previous enquiry by a responsible public servant whose duty it is to discover crime, that the basis of classification is clearly connected with the underlying principle of administration of justice that the alleged criminal should be placed on trial as soon after the commission of the crime as circumstances of the case permit”.
16. Therefore the classification cannot be said to be unreasonable nor can it be ??? to have no relation to the object of classification, namely, to bring the offender ??? speedy justice without any avoidable delay. Thus, applying the principles already ??? laid down in the earlier cases, it was held that there was no discrimination an the provisions of Article 14 of the Constitution have not been violated. It ??? be noted that the procedure laid down in section 207-A relating to ??? in cases investigated by a competent police officer who has submitted ??? sheet and a report is substantially different from that in cases where a ??? Magistrate takes cognizance of an offence on a complaint. In the latter case, procedure is more elaborate and the accused has advantage of a possibility of ??? charge at three definite stages, whereas in the procedure under section ??? such is not the case. But their Lordships held that the difference was due ??? fact that the Magistrate has to be more vigilant in seeing the private ??? and that considerations other than those of vindicating justice are not ??? interfere with the course of public justice. In section 208, Criminal ??? Code and the following sections indeed greater facilities before the ??? for persons accused of an offence in order to vindicate their character ??? But such facilities may not be necessary if the matter has been already ??? by competent police officers under a detailed procedure laid down in ??? XIV. It was further observed that it is in the general interests of ??? of justice that crime should be investigated and criminals brought to ??? expeditiously as the circumstances of the case would permit and that ??? has been falsely and wrongly accused of an offence, it is in his interests ??? should get himself declared innocent by a competent Court. Thus, have ??? to the rational basis of classification and its relation to the object ??? Legislature, namely, more speedy trial of offences without any unreasonable it was held that there was no violation of Article 14.
17. In the light of these principles, we have to see whether any question of infraction of right under. Article 14 arises in the present case. section 198-B, as already pointed out, does not cover all the cases mentioned in section 198 but only a few category of cases and only such as are alleged to have been-committed against President, Vice-President, Governor, etc. and against public servants in respect of their conduct in discharge of public functions. Evidently, if it is mere question of private grievance, section 198 is sufficient. But a distinct provision has been made where public interests are involved. Having regard to the procedure laid down for either category of cases it is however obvious that the accused cannot complain of anys erious departure from the usual procedure to his disadvantage. On the contrary, there are definite safeguards in his favour. The only departure from the procedure in section 198-B is whereas in section 198 a complaint subject to the proviso has to be filed by the aggrieved person before a Magistrate, in section 198-B the complaint is to be filed by the Public Prosecutor before the Court of Session. The procedure to be followed by the Court for trying the offence in either case is however the same, i.e, procedure prescribed for trial by the Magistrate of warrant cases instituted otherwise than on a police report. The offence in either case is non-cognizable and the punishment therefor is in either event is the same. Thus the main difference, if any, is in the initiation of proceedings. But even that is to the advantage of the accused, for, the complaint is to be brought by a responsible person like the Public Prosecutor after a careful scrutiny of the matter. Further, he can file only after the sanction of he Government. This pre-requisite is a further safeguard in favour of the accused, for, unless the Government is satisfied, it cannot accord its sanction. Thus the complaint comes before the Court only after the satisfaction of the Government and the Public Prosecutor. The Court which has to try this offence ??? Court of Session. The appointment of a higher tribunal is indeed a ??? for the accused and a great advantage to him in that he can expect speedy. Besides, the complaint can be taken cognizance of only if it is made six months from the date, on which the offence is alleged, to have been ???. This time-limit is a further protection for the accused. The accused ??? has opportunity to cross-examine the aggrieved person, for, under the ??? provisions of sub-section (5) the person against whom the offense is ??? to have been committed has to face the stand of a witness in order to ??? his bona flies. We can elicit from him that the imputations alleged were ??? the interests of public good and, that he, the accused, is not guilty of ???. The accused besides has also the advantage of the provisions of sec. ??? Criminal Procedure Code even though the case is tried by the Court of ??? and at the instance of the Public Prosecutor with the sanction of the ???. Thus, there is nothing in the provisions which may be a source of ??? to the accused of which he can legitimately complain. The only ??? to be that the Public Prosecutor being the complainant, all the ??? the State might be used against the accused. But such a contention, is ??? some misapprehension. No doubt the Public Prosecutor represents the ??? virtue of his office. But in all prosecutions his duty is to, assist the Court ??? the truth. It is no part of the duty of the Public Prosecutor to, ??? at all costs. On the contrary, his duty is to draw attention to in favour of the accused when omitted by the defence advocate, or, if ??? from the prosecution evidence. Thus, it is plain that section 198-B ??? subject the accused to any disadvantage or prejudice. On the contrary, ??? substantial protection which section 198 does not provide for. The ??? therefore, can have no cause for grievance. At any rate, as sections 198 ??? on intelligible differentia and that differentia has a rational ??? sought to be achieved, namely, vindication of a speedy justice, question of infringement of Article 14.
18. Now, the last ground taken is that the prosecution of the accused violates the fundamental right guaranteed under Article 19(1)(a) of the Constitution of India. It is argued that all citizens (and the accused are certainly citizens) have a right to freedom of speech and expression. This right includes the right to defame. It is absolute and if at all any restrictions are to be placed thereon, it can be done only under a statute provided such restrictions are reasonable. Further breach of such restrictions cannot entail penal sanctions though it may be that the accused for such breach can be put to answer civilly. That is the substance of the argument advanced by Mr. Chowdary, relying on Gopalan v. State of Madras Ramesh Thappar v. State of Madras and Thakur Raghubir Singh v. Court of Wards, Ajmir. It is difficult to accept this argument and the rulings cited also in no manner support the proposition that the freedom of speech and expression includes the right to defame or that the accused cannot be put to answer criminally for expressions in breach of restrictions under Article 19(2) which are punishable under the existing law. In Gopalan v. State of Madras, we have been referred: to the observations of their Lordships in connection with the question whether Article 19 in its setting in Part III of the Constitution deals with the deprivation of personal liberty or imprisonment in prevention of crime committed or threatened. Patanjali Sastry, J., (as he then was) at page 192 (S.C.R) observed:—
“But where, as a penalty for committing a crime or otherwise the citizen is lawfully deprived of his freedom, there could no longer be any question of his exercising or enforcing the rights referred to in clause (1). Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of Article 19 at all but is dealt with by the succeeding Article 20 and 21. In other words, Article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while Articles 20 to 22 secure to all persons—citizens and non-citizens—certain constitutional guarantees in regard to punishment and prevention of crime. Different criteria are provided by which to measure legislative judgments in the two fields and a construction which would bring within Article ??? imprisonment in punishment of a crime committed or in prevention of a crime ??? would as it seems to me, make a reductio ad absurdum of that provision. If ??? were to be regarded as a ‘restriction” of the right mentioned in Article 19(1)(d), it ??? equally be a restriction of the rights mentioned by the order, sub-clauses of clause (1) ??? the result that all penal laws providing for imprisonment as mode of punishment ??? have to run the gauntlet of clauses (2) to (6) before their validity could be accepted. ??? instance, the law which imprisons for theft would, on that view, fail to be justified ??? clause (2) as a law sanctioning restriction of freedom of speech and expression.”
19. These observations evidently are not in support of the contention a ??? but against it. In Ramesh Tappar v. State of Madras the provision of ??? (2) in its unamended form came up for consideration before their Lord as a result of the decision given thereon amendment of the provision ??? sent form has been effected and the words “in the interests of public or ??? introduced in substitution of the previous expression. This too does ??? the contention of the learned advocate.
20. The learned Advocate-General has taken us through the various ??? both American and Indian and argued that the expressions ??? the Constitution should be construed bearing in mind that the ??? makers at the time they framed the Constitution had in view the then prevailing popular and legal notions of the expressions used by them. It is urged that the freedom of Speech and expression guaranteed by the Constitution does not confer an absolute right to speak or publish whatever one chooses and that it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom. It has got its own limitations and the provisions of the Indian Penal Code contained infection 499 which impose reasonable restrictions and provide for penalty are not by Article 19(2). M'Kean, C.J in Respublica v. Oswald while considering freedom of the Press Under the Bill of Rights made the following remarks in relation to the destructive nature of slander and libel:—
“And here, I must allowed to observe that libeling is a great crime, whatever sentiments may be entertained by those who live by it. With respect to the heart of the libel it is More dark and base than that of the assassin or than his who commits a midnights arson. It is true that I may never discover the wretch who has burned my house, or set fire to my barn; but these losses are easily repaired, and bring with them no portion of ignominy or reproach. But the attacks of the libeler admit not that of this consolation the injuries which are done to character and reputation seldom can be cured, and the most innocent man may in a moment be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life. To what tribunal can he then resort, how shall he be tried, and by whom shall he be acquitted?. It is in vain to object that those who know him will disregard the slander, since the wide circulation of public prints must render it impracticable to apply the antidote as far as the poison has been extended. Nor can it be fairly said, that the same ??? is given to vindicate which has been employed to defame him for, many will read the charge who may never seen the answer; and while the object of accusation is publicly pointed at, the malicious and malignant author rests in the dishonorable security of an anonymous signature. Where much has been said, something will be believed and it is one of the many artifices of the ???, to give his charges an aspect of general support, by changing and multiplying the ??? and name of his performances. But shall such things be transacted with impunity in ??? country and among an enlightened people? Let every honest man make this appeal ??? his heart and understandings and the as were must be—no.”
21. ??? he proceeded to consider the meaning of the Bill of Rights and observed
??? true liberty of the press is amply secured by permitting every man to publish his ??? but it is due to it the peace and dignity of society to enquire into the motives of ???, and to distinguish between those which are meant for use and reformation, ??? an eye solely to the public good, and those which are intended merely to delude ???. To the later description it is impossible that any good Government should ??? and immunity.”
22. Near v. State of Minesota Ex. Rel. Floyd B. Olson, Country Attorney of ???, Minnesota it was held that liberty of speech, under the press is, ??? right and the State may punish its abuse and that punishment for ??? accorded to the press is essential to the protection of the pub ??? the common law rules that subject the libel to responsibility for ??? as well as to the private injury are not abolished by the protection ??? the Constitution. At page 1376 reference is made to the observations ??? Story, on the Constitution (5th Edition) in relation to the first amend ??? declares “Congress, shall make no law abridging the freedom of ??? or of the press” which read thus:—
“That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man. This would be to allow every citizen a right to destroy at his pleasure the reputation, peace, the property, and even the personal safety of every other citizen…… It is plain then that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation; and so always that he does not thereby disturb the public peace or attempt to subvert the Government. It is neither more nor less than an expansion of the great doctrine recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free Government. Without such a limitation, it might become the scourge of the Republic, first denouncing the principles of liberty, and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form.”
23. To the same effect are the observations in Benjmin Gitlow v. People of the State of New York which read thus:—
“It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer ??? an absolute right to speak or publish, without responsibility, whatever one ??? may choose, or an unrestricted and unbridled licence that gives immunity for every possible use of language, prevents the punishment of those who abuse this freedom …… Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free Government; without such limitation, it might become a scourge of the Republic.”
24. In Arnold v. King Emperor where the question as to the privileges of the ??? had arisen, the following are the observations of their Lordships of the ??? Council:—
“The responsibilities which attach to his (journalist's) power of ??? semination of printed matter may, and in the case of a ??? journalist do, make him more careful; but the range of his assertions criticisms, or his comments, is as wide as, and no wider than, that ??? other subject. No privilege attaches to his position.”
25. In State of Bombay v. R.M.D Chamarbaugwala where it was argued ??? proper approach of our Constitution is to start with absolute freedom ??? to permit the State to cut it down if necessary by restrictions which ??? extend to total prohibition, their Lordships observed:—
“On this argument it will follow that criminal activities undertaken ??? carried on with a view to earning profit will be protected as ??? rights until they are restricted by law. Thus there will be a guarantee ??? to carry on a business of hiring out goondas to commit assault or ??? murder, of house-breaking, of selling obscene pictures, of ??? women and so on, until the law curbs or stops such activities. This ??? to use to be completely unrealistic and incongruous.”
26. It is therefore impossible to accept the argument of the learned counsel for the revision petitioners that freedom of speech in Article 19(1) must be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without regard to any person's honour and reputation. The right guaranteed by the Constitution, it must be borne in mind, is to all the citizens alike. The right in one, certainly has a corresponding duty to the other and judged in that manner also, the right guaranteed cannot but be a qualified one. Indeed the right has its own natural limitation. Reasonably limited alone, it is an inestimable ???. Without such limitations, it is bound to be a scourge to the Republic. The American jurists and judges, as already discussed, have long understood the natural limitations and the evils of absolute unbridled freedom of speech and expression. Though the First and Fourteenth Amendments declare in clear terms that no law shall abridge the freedom of speech or of the press, this right having regard to its natural limitations, has invariably been construed to mean a qualified right and for this purpose the doctrines such as doctrine of danger present and clear, or of substantial evil sufficient to justify impairment of the right, have been ??? to place that right within limits. Our Constitution-framers taking benefit of the experience in America, have in terms provided the necessary qualifications to this right. Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the right and it reads thus:—
“19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation if any existing law, or prevent the State from making any law, in, so far as ??? law imposes reasonable restrictions on the exercise of the right conferred ??? the said sub-clause in the interests of the security of the State, friendly ??? with foreign States, public order, decency or morality, or in relation contempt of Court, defamation or incitement to an offence.”
27. ??? the legal provision with which we are concerned is section 499, Indian Code which reads:
“Whoever by words either spoken or intended to be read, or by signs or ??? representations, makes or publishes any imputation concerning any ??? intending to harm, or knowing or having reason to believe that such ??? will harm, the reputation of such person, is said, except in the ??? excepted, to defame that person.
Explanation 1.—It may amount to defamation to, impute anything to a ??? person, if the imputation would harm the reputation of that person ??? is intended to be hurtful to the feelings of his family or other ???.
Explanation 2.—It may amount to defamation to make an imputation ??? company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or ???, may amount to defamation.
Explanation 4.—No imputation is said to harm a person's reputation, ??? imputation directly or indirectly, in the estimation of others, ??? moral or intellectual character of that person, or lowers the ??? of that person in respect of his caste or of his calling, or lowers the ??? of that person, or causes it to be believed that the body of that person ??? state, or in a state generally considered as disgraceful.
Illustration (a) to (c) * * * * *
First exception.—It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is question of fact.
Second exception.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears that conduct, and no further.
Third exception.—It is not defamation to expression good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration. * * * * *
Fourth exception.—It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth exception.—It is not defamation to express in good faith any opinion whatever, respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting, the character of such person, as far as his character appears in that conduct, and no further.
Illustrations (a) and (b) * * * *
Sixth exception.—It is not defamation to express in good faith any ??? respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author ??? far as his character appears in such performance, and no further.
Explanation.—A performance may be submitted to the judgment of ??? public expressly or by acts on the part of the author which imply such mission to the judgment of the public.
Illustrations (a) to (e) * * * *
Seventh exception.—It is not defamation in a person having over ??? any authority, either conferred by law or arising out of a lawful ??? made With that other, to pass in good faith any censure on the ??? that other in matter to which such lawful authority relates.
Illustration * * * 5 *
Eighth exception.—It is not defamation to prefer in good faith a ??? against any person to any of those who have lawful authority ??? person with respect to the subject-matter of accusation.
Illustration * * * * *
Ninth exception.—It is not defamation to make an imputation on ??? character of another provided that the imputation be made in good faith ??? the protection of the interest of the person making it, or any other ??? for the public good.
Illustrations (a) and (b)
Tenth exception.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested or for the public good.”
28. According to this section, not all imputations which may harm the reputation of a person shall constitute defamation, for, the section makes as many as ten Exceptions. The First Exception makes it clear that if the imputations are true and for the public good they will not constitute defamation. Whether or not it is for public good is a question of fact. Under Second Exception too, expression of any opinion in good faith in respect of the conduct of a public servant in the discharge of public functions is not defamation. So also expression of any opinion in good faith in respect of the conduct of any person touching any public question is not defamation. There are further Exceptions as well. It is manifest, that only such imputations as are malicious and reckless and not for public ???, tranquility or peace or public security or as are not made in good faith, ??? been brought within defamation which is but the abuse of freedom of speech ??? expression punishable under section 500, Indian Penal Code. Such being ??? case, no reasonable ground it can be said that the provisions of section 499 ??? any unreasonable restriction on the freedom of speech or expression. It is ??? impossible to say that section 499, Indian Penal Code is violative of ??? 19 of the Constitution. Nor is it possible to entertain the argument that ??? grants immunity from all punishments of abuse of freedom of ???. The argument that the accused cannot be put to answer criminally for ??? of reasonable restrictions on his freedom of speech or his abuse of the ??? of speech cannot be sustained. Punishment is of course not a ??? but is indeed a consequence of the breach of restriction which the ??? cannot escape. The last objection of the learned counsel thus fails, ??? no mertis in these Revision petitions and they are therefore dismissed.
Revision dismissed.