Shri S.M Katwal Petitioner v. Shri Virbhadra Singh & Another S

Dharam Chand Chaudhary, Judge

Challenge herein is to the order dated 16.12.2005, passed by learned Sessions Judge, Una, allowing thereby Criminal Revision No. 11/2005 and setting aside the order passed by learned Chief Judicial Magistrate, Una, in Complaint No. 373-1-04/157-11/2004, whereby after being satisfied that there exist sufficient grounds to proceed further against the respondent (hereinafter referred to as ‘the accused’) under Section 500 IPC, process against him, was ordered to be issued.

2. Petitioner, hereinafter referred to as ‘the complainant’, allegedly felt defamed from the speech made by the accused in a public meeting at Rohara in District Kangra on 3.12.2003 The relevant extract of the speech published in the issue of Punjab Kesari, a Hindi Daily dated 4 December, 2003, in vernacular, reads in its English version as follows:

“……Despite there being thousands-lakhs of unemployed persons in the State, jobs have been sold to people of Punjab, Uttar Pradesh and Bihar, and thus committed breach of faith of competent and intelligent people of Himachal.

He (Chief Minister Virbhadra Singh) said the Dhumal Government had surpassed all limits of corruption. The Subordinate Services Selection Board, Hamirpur has become a den of corruption the inquiry got made into which will bare the faces of many. A charge-sheet against the persons found involved in the Board bungling would be presented in Court in this week…..”

3. The complainant, therefore, filed a complaint under Section 500 of the Indian Penal Code against the accused in the Court of learned Chief Judicial Magistrate, Una, H.P Learned Magistrate, after recording the preliminary evidence consisting of the own statement of the complainant as well as that of CW-2 Brijesh Kaushal, Press Reporter “Punjab Kesari”, and S/Shri Navdeep Kashyap, Manohar Singh, Safi Mohammad and Dharam Singh, analyzed the same vis-a-vis the news item. After being satisfied prima-facie about the commission of the offence, under Section 500 IPC, ordered to issue process against the accused, vide order dated 11.3.2005 Learned Sessions Judge, Una, however, quashed the same and concluded that the imputations made do not relate to the complainant, there is no evidence to show that the complainant did not make any recommendation with respect to the appointments in the Govt, jobs after the accused having taken over as the Chief Minister of the State till he demitted the office on the completion of his tenure and that since the accused being the then Chief Minister has made the imputations in the discharge of his official duties to awaken the public about the evil of corruption, the protective cover of sub-section (1) of Section 197 Cr. P.C comes Into play in this case and as such learned Magistrate had no power to take cognizance of the offence except for the previous sanction of the competent authority. The impugned order has, therefore, been sought to be set aside being legally unsustainable.

4. Legality and validity of the impugned order has been challenged on the following grounds:

“(B)…………In continuation accusation was made that Dhumal Government had crossed all limits of corruption. Subordinate Service Selection Board, Hamirpur has become den of corruption. During the period referred in the statement, the Petitioner was the Chairman of the Subordinate Service Selection Board and between the period after retirement of the petitioner and making impugned statement, no recommendation was ever made by the Subordinate Service Selection Board to the Government rather no requisition was sent to the Board by the Government after Sh. Virbhadra Singh became Chief Minister of the State. All these circumstances are sufficient to connect the statement with the petitioner particularly at this stage of preliminary evidence and taking cognizance of the offence. The learned Sessions Judge has discussed the evidence like a trial court at final stage whereas the learned Sessions Judge was exercising Revisional jurisdiction and not even appellate jurisdiction. Pre-charge evidence is yet to be led and the whole evidence was/is to be considered at the stage of framing charge. Therefore, interference of the learned Sessions Judge is unwarranted, illegal and beyond jurisdiction at this stage. Hence, impugned order deserves to be set aside.

5. Also that learned Sessions Judge has neither considered nor referred the case law cited at the bar and that there being no jurisdictional error or miscarriage of justice or any other patent error or defect in the order passed by learned trial Magistrate, the same should have not been interfered with by learned Sessions Judge in the exercise of revisional jurisdiction. Also that at this stage when learned trial Magistrate has only appreciated the preliminary evidence, the impugned order could have not been the subject matter of revisional jurisdiction. The protection of Section 197 Cr. P.C cannot be extended to the accused as the imputations he made had absolutely no nexus whatsoever with his official duties. It was never the official duty of the accused to utter derogatory and vulgar remarks against the complainant. Also that it is only the prima-facie evidence and not conclusive proof of a fact like final stage of a case is required to form an opinion to proceed further against an accused in a case of this nature.

6. It has been pointed out that neither there was any jurisdictional error nor any miscarriage of justice caused to the accused nor any other patent error or defect apparent on the face of the record, warranting exercise of revisional jurisdiction to quash the order passed by learned Magistrate. It has also been pointed out that the aim of revisional jurisdiction is to set right a patent error or defect occurred on the face of record and not to stall the proceedings before the lower court at its threshold. The order impugned in this petition has, therefore, been sought to be quashed and set aside.

7. Learned counsel representing the petitioner-complainant has urged that the imputations made by the accused in his speech directly hit the integrity, reputation and unblemished service career of the complainant, who was an IAS Officer having been initially appointed Member and subsequently Chairman of H.P Subordinate Services Selection Board, and discharged his duties as such during the period referred to Jn the speech and as such he is the person aggrieved and has a legal right to file the complaint. Otherwise also, according to him, the Board, being collection of persons and the complainant having remained its Member and subsequently Chairman, has locus-standi to prefer the complaint. Also, that there being no connection between the imputations so made and the official duties, protection of Section 197 Cr. P.C cannot be extended in favour of the accused in the case in hand. It has further been alleged that learned Sessions Judge has exceeded the revisional jurisdiction, as the order passed by learned trial Judge neither suffers from any illegality nor amounts to miscarriage of justice and as such could have not been interfered with in the exercise of such jurisdiction.

8. On the other hand, Mr. Nareshwar Chandel learned counsel appearing on behalf of the accused has strenuously contended that the alleged imputation on the face of it does not relate to the complainant and that whatever the accused said in his speech and published in the newspaper, was in the discharge of his official duty and as such without obtaining sanction no cognizance could have been taken against him being barred under Section 197 Cr. P.C According to learned counsel, otherwise also, in view of the complainant having been convicted by learned Special Judge, Hamirpur, and his conviction even affirmed by this Court also, the imputations made by the accused against the complainant are true and also for the public good, because being the Chief Minister of the State, it was his duty to apprise the public about the rampant corruption prevailing in H.P Subordinate Services Selection Board, Hamirpur during BJP regime when Professor Prem Kumar Dhumal was the Chief Minister. It is further submitted that copy of a news paper is not legally admissible in evidence unless and until proved in accordance with law.

9. Although the respondent-state is a formal party, however, learned Deputy Advocate General while adopting the contentions raised on behalf of the accused has further added that charge of corruption against the complainant while functioning as Chairman of H.P Subordinate Services Selection Board stand established during the course of trial conducted by learned Special Judge, Hamripur and he has been convicted and sentenced also. This Court, in an appeal he preferred, has also affirmed his conviction and sentence. It has, therefore, been contended that on account of the alleged imputations having been turned as correct, no case against the accused is made out and as such, learned Sessions Judge has rightly quashed the order of learned Magistrate qua issuance of process against him. Also that the alleged imputations do not in any manner relate to the complainant and rather the accused being a public servant, has rightly highlighted the issue of corruption in the Subordinate Services Selection Board to make the public aware about this. On this score also, protection of Section 197 Cr. P.C is stated to be available to the accused.

10. On analyzing the arguments addressed on both sides, following points arise for determination:

1) Whether the alleged imputations directly or indirectly relate to the complainant or not and is he an aggrieved person to have locus-standi to file the complaint against the accused?

2) Whether the accused has made the alleged imputations against the complainant in the discharge of his official duties and as such is he entitled to the protection as envisaged under Section 197 Cr. P.C?

3) What material the Magistrate is required to take into consideration at the time of issuance of process against an accused and the scope of interference by the superior Court with an order of this nature in revisionai jurisdiction?

11. Before proceeding to adjudicate the aforesaid points, it is deemed appropriate to discuss as to what constitutes an offence of defamation punishable under Section 500 of the Indian Penal Code. A reference in this behalf has to be made to the provisions contained under Section 499 IPC relevant for the purpose of present controversy. The same read as follows:

“499. Defamation - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, of defame that person.

Explanation 1-xxx xxxxx xxxxx.

Explanation 2-lt may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3-xxxx xxxxx xxxxxx

When an imputation not amounts to defamation can be gathered from the exceptions below Section 499 of the Code. In the light of the arguments addressed for our purpose, it is the following first three exceptions relevant to the present controversy:

First Exception-lmputation of truth which public good requires to be made or published:- 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 a question of fact.

Second Exception-Public conduct of Public servants:- It is not defamation to express in a 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 in that conduct, and no further.

Third Exception-Conduct of any person touching any public question:- It is not defamation to express in good faith any opinion whatever respecting to conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

XXX XXX XXX XXX XXX XXX XXX.”

12. It is, therefore, to be seen that the essential ingredients of an offence, punishable under Section 500 IPC are that there should be an imputation concerning any person having been made or published; such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations and that the said imputation must have been made intentionally knowing fully to harm or having reasons to believe that it will harm the reputation of the person concerned. In this behalf I draw the support from the judgment of Calcutta High Court in Sunilakhya Chowdhury v. H.M Jadwet, AIR 1968 Calcutta 266

13. However, irrespective of there being pleadings and proof qua the commission of an offence punishable under Section 500 IPC, if the accused succeeds in proving his defence that he is entitled to the protective umbrella of either of the exceptions below Section 499 IPC, would be entitled to the benefit of doubt and ultimately acquittal. The protection of either exception however, can be sought by the accused during the course of trial byway of raising a plea in this behalf in his defence.

14. The present is a case where the imputations made by the accused against Shri Dhumal and the Subordinate Staff Selection Board are part and parcel of his speech made in a public meeting at Rohara in District Una. Article 19(1)(a) of the Constitution of India of course provides that subject to reasonable restrictions, every citizen has freedom of speech and expression. Meaning thereby that such freedom cannot 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, therefore, has its own natural limitations.

15. If coming to Section 499 IPC, referred to hereinabove, only such imputations as are malicious and reckless and not for public good, tranquility or peace or public security and are not made in good faith, have been brought within the domain of defamation being abuse of freedom of speech and expression, hence punishable under Section 500 IPC.

16 A bare reading of first Exception reveals that Section 499 IPC contemplates truth as a defence and to operate as a valid defence in a criminal case for defamation. Exceptions 1 and 2 to this Section postulate that if the imputation is true, it is not defamation, because to impute anything which is true concerning any person and for the public good, is not defamation to the person against whom such imputation is made or published. However, if the accused, who has published or made the imputation, fails to prove the same to be true, is not entitled to the benefit of first exception. The identity of the complainant with the object defamed needs to be proved on record. As a matter of fact, in a case of prosecution for defamation, the complainant must be proved to have been defamed. His identity is also required to be established from the reading of the written material. It is held so in M.P Naarayana Pillai v. M.P Chacko, 1986 Cr.LJ 2002 and Raman Namboodri v. Govindan, 1962 Kerala LT 538.

17 The above legal principles have simply been discussed to have an idea as to under what circumstances an offence punishable under Section 500 IPC can be said to have been committed as in the present proceedings this Court will not enter into the merits of the case nor would like to comment thereon.

Point No. 1

18. The order dated 11.3.2005 qua issuance of process, which was under challenge in the Court of learned Sessions Judge, Una, reveals that learned Chief Judicial Magistrate, Una, having gone through the contents of the complaint, the preliminary evidence produced by the complainant-petitioner and the law cited at the bar, has concluded that there exist sufficient grounds to proceed against the accused under Section 500 iPC and as such, process against him was ordered to be issued. Learned Sessions Judge in the exercise of revisional jurisdiction has quashed the order so passed by learned Chief Judicial Magistrate, on the ground that imputations made do not at all relate to the complainant as he stood already retired from the office of the Chairman of the Board on the day when the same were made and rather the imputations are against the Board, hence the complainant is not a person aggrieved. This takes me to adjudicate this point, which pertains to the maintainability of the complainant at the instance of the petitioner and his locus-standi to file the same.

19. In view of the given facts and circumstances, I am not in agreement with the findings that the alleged imputations do not relate to the complainant and rather against the Board and that the complainant is, therefore, not a person aggrieved for the reasons that the imputations referred above are not in present form but in the past and relate back to BJP regime, when Sh. Prem Kumar Dhumal was the Chief Minister of the State, whereas the complainant initially remained Member of the Subordinate Services Selection Board and subsequently its Chairman. Not only this, cases against him and other Members of the Board were also registered with the State Vigilance and Anti-Corruption Bureau. Therefore, it would lie ill to say that the alleged imputation does not relate to the complainant. True it is that he has not been named anywhere in the news item and the same rather relates to corruption in the Subordinate Services Selection Board and selling of jobs to outsiders during the period when Shri Prem KUmar Dhumal, was the Chief Minister of the State. However, it is prima-facie established at this stage that the complainant initially being Member and subsequently Chairman of the Board during the period referred to in the alleged news item, is a person aggrieved within the meaning of Section 499 IPC, for the reasons that the imputations made directly or indirectly prima-facie reveal that he is the person intended to be defamed.

20 It is well settled at this stage that if the description and attendant circumstances suggest with fair certainty the identity of the person intended to be defamed, it is sufficient to infer the commission of offence of defamation. In this behalf I take support from a judgment of Kerala High Court in Subair v. Sudhakarana, (1987) 2 Crimes 548 (Ker).

21 Not only this but Subordinate Services Selection Board being a collection of persons is absolutely identifiable and distinguishable from rest of the community and as the corruption, as per the alleged imputation, was prevalent in the Board, therefore, prima-facie every employee of the Board, including the complainant, can reasonably be believed to have been defamed by such imputations, of course if false and as such competent and has locus-standi to file the complaint.

22 Learned counsel, representing the petitioner in support of the contention that H.P Staff Selection Board is a collection of persons and the complainant being its Chairman at the relevant time, has locus standi to file the complaint, has placed reliance on the judgment of the Hon'ble Apex Court in G. Narasimhanv v. T.V Chokkappa, AIR 1 972 SC 2609:

“14.

…………………………………………………………….

…………………………………………………….

Section 499 of the Penal Code, which defines defamation, lays down that whoever by words, either spoken or intended to be read or by signs etc. makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm the reputation of such person, is said to defame that person. This part of the section makes defamation in respect of an individual an offence. But Explanation (2) to the section lays down the rule that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. A defamatory imputation against a collection of persons thus falls within the definition of defamation. The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed. Therefore, in a case where explanation (2) is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing inveighs against mankind in a general, or against a particular order of men, e.g, men of gown, it is no libel. It must descend to particulars and individuals to make it a libel. (1699) 3 Balk 224, cited in Ratanlal and Dhirajlal, Law of Crimes (22 ed.) 1317. In England also, criminal proceedings would lie in the case of libel against a class provided such a class is not indefinite, e.g, men of science, but a definite one, such as, the clergy of the diocese of Durham, the justices of the peace for the county of Middlesex. (See Kenny's Outlines of Criminal Law 19 ed. 235). If a well-defined class is defamed, every person of that class can file a complaint even if the defamatory imputation in question does not mention him by name.”

23. The Apex Court has again held in Sahib Singh Mehra v. State Of Uttar Pradesh, AIR 1965 SC 1451, as follows:

“9. The next question to determine is whether it is essential for the purpose of an offence under S. 500, I. P. C. that the person defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a ‘person’ which could be defamed. Section 499, I. P. C. defines ‘defamation’ and provides inter alia that whoever makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases covered by the exceptions to the Section, to defame that person, Explanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. It is clear therefore, that there could be defamation of an individual person and also of a collection of persons as such. The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contemplated by Explanation 2. The language of Explanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be it identifiable in the sense that one could, with certainty say that this group of particular people has been defamed, as distinguished from the rest of the community. The prosecuting staff of Aligarh or, a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U. P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could, therefore, be the subject of defamation.

24. Further, the Hon'ble Apex Court in John Thomas v. Dr. K. Jaqadeesan, (2001) 6 SCC 30, has held as under:

11. The contention focused by the learned senior counsel is that the respondent, who filed the complaint, has no locus standi to complain because he is only a Director of K. J. Hospital about which the publication was made and that the publication did not contain any libel against the complainant personally. It is not disputed that the complainant is the Director of K. J. Hospital. Explanation 2 in S.499 of the I. P. C. reads thus:

“Explanation 2. - It may amount to defamation to make an imputation concerning a Company or an association or collection of persons as such.”

12. In view of the said Explanation, it cannot be disputed that a publication containing defamatory imputations as against a Company would (sic) escape from the purview of the offence of defamation. If the defamation pertains to an association of persons or a body corporate, who could be the complainant? This can be answered by reference to S.199 of the Code. The first subsection of that section alone is relevant, in this context. It reads thus:

“199. Prosecution for defamation. - (1) No Court shall take cognizance of an offence under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.”

13. The collocation of the words “by some persons aggrieved” definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the Court depending upon the facts of each case. If a Company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the Company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. If K. J. Hospital is a private limited company, it is too far-fetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the Company. Hence the appellant cannot justifiably contend that the Director of the K. J. Hospital would not fall within the wide purview of “some person aggrieved” as envisaged in S. 199 (1) of the Code.

25. Therefore, without lamenting much on merits of the case and leaving open the question of competency of the petitioner to maintain the complaint to be determined during the course of trial, the careful scrutiny of the record and also the law discussed hereinabove, prima-facie demonstrates that the petitioner is a person aggrieved within the meaning of Section 499 IPC and as such has locus-standi to institute the complaint.

Point No. 2

26. Now if coming to second point, i.e the application of Section 197 Cr. P.C in this case, while as per the claim of the petitioner the so called defamatory imputation made by the respondent in a public meeting was not part and parcel of his duties, on behalf of the respondent it has been urged that being the Chief Minister of the State of H.P, it was the duty of the accused to apprise the general public about the corruption in the Subordinate Staff Selection Board and as such he cannot be prosecuted without obtaining sanction from the competent authority. The Apex Court has held in Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 as under:

“10. Such being the nature of the provision the question is how should the expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, be understood? What does it mean? “Official” according to the dictionary, means pertaining to an office, and “official act” or “official duty” means an act or duty done by an officer in his official capacity In B. Saha v. M.S Kochar(1979) 4 SCC 177: 1979 SCC (Cri) 939) it was held: (SCCpp. 184-85, para 1 7)

“17. The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.” (emphasis supplied)

11. Use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

27. Similar is the law laid down by the Apex Court in State Of H.P v. M.P Gupta.. AIR 2004 SC 730.

28. In Bidhi Singh v. M.S Mandyala, 1993 Cri. Law Journal 499, our own High Court qua this aspect of the matter has also held as under:

23. We would like to borrow the words from the opinion of Lord Simonds in H.H.B Gill v. King, AIR 1948 PC 128: (49 Cri LJ 503) when he says (in paragraph 30) that:

‘A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purports to act as a public servant in picking the pocket of patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office…”.

24. A Presiding Judge is expected to maintain decorum in the proceedings before him. He is expected also to act with restraint. One would expect him to be sober, unruffled and temperate in language even when faced with a situation where those appearing before him may tend to lose their composure. True it is that the Presiding Officer has to be firm in maintaining decorum in the Court and deal decisively with those who present themselves in the Court-house irrespective of the distinction that they possess, yet, we reiterate, that the action should be consistent with the dignity of the high pedestal on which society places him, while he is discharging his duty as a Judge. In this scheme of things any vituperative outburst on the part of the Presiding Officer, howsoever grave the provocation to him, cannot be countenanced as an action sustainable as one performed by him “while acting or purporting to act in the discharge of his official duty.”

29. In AIR 1970 SC 1661, Bhaqwan Prasad Srivastabva v. N.P Mishra, the Apex Court while holding that emphasis to seek sanction for prosecution of a public servant should be an act attributed to such servant and not his duty and that Section 197 neither should be interpreted too widely nor too narrowly, has further held as under:

5. The principle embodied in this Section seems to be well understood; the difficulty normally lies in its application to the facts of a given case. The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant forcibly turned out of the operation theatre by the cook. There is nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have properly discharged it.

6. As suggested by this Court in Prabhakar V. Sinari v. Shankar Anant Verlekar, Criminal Appeal No. 152 of 1967, D/- 29-11-1963= (reported in AIR 1969 SC 686), it would be open to the appellant to place material on the record during the course of the trial tor showing what his duty as Civil Surgeon was and also that the impugned acts were inter-related with his official duty so as to attract the protection afforded by Section 197, Cr. P. C. We do not find any material on the existing record suggesting that the impugned acts were done by the appellant in the discharge of his official duty or that they are directly connected with it. This appeal accordingly must fail and is dismissed.”

30 The Apex Court in Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 has again held as under:

“51. In Baijnath v. State of M.P (1966 SCR 210) the position was succinctly stated as follows:

“__..it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted.”

31. A coordinate Bench of this Court in Darshan Kumar v. Sushil Kumar Mathotra, 1980 Cri. L J 154, has also held as under:

“13. Thus the crux of the matter is that in order to determine whether in a particular case a public servant is entitled to the protection of Section 197, Cr. P. C. all that has to be considered is whether the act complained of against the public servant which is alleged to constitute the offence, was committed by him while discharging his official duty and that such act had a reasonable connection with his official duty. It is not material whether in discharging such official duty, the public servant acted somewhat in excess of his limits.”

32. To the similar effect is the law laid down again by the Apex Court in Pukhraj v. State of Rajasthan, 1973 Cri. Law Journal 1795 and B.S Sambhu v. T.S Krishnaswamy, (1983) 1 SCC 11.

33. It has, therefore, to be ascertained during the course of trial, if ultimately a charge under Section 500 IPC is made out against the accused, as to whether the speech made by the accused in a public meeting can be said to be an act done by him in the discharge of his official duties or not. The accused can seek the protective cover of Section 197 Cr. P.C by putting appearance in the trial Court and satisfying the said Court that he made the imputations in the discharge of his official duties.

34. Here this Court would like to explain the meaning of word “official act” and “official duty” also. Word “Official”, according to Black's Dictionary, means ‘pertaining to an office’, and ‘official act’ or ‘official duty’, means an act or duty done by an officer in the discharge of his official duty. A public servant should not indulge in criminal activities and to that extent Section 197 Cr. P.C has to be construed narrowly and in a restricted manner, but once it is established that act or omission was done by the public servant while discharging his duty, the scope of its being official duty should be construed so as to advance the protection of the section in favour of the public servant, otherwise the entire purpose of affording protection to a public servant without obtaining sanction shall stand frustrated.

35. The intention behind the Section is to prevent a public servant from being unnecessarily harassed, however, at the same time it is no part of the official duty of a public servant to abuse anyone by making imputations publically, when the subject matter has not been finally adjudicated upon by the Courts and is subjudice, for the reason that Article 21 of the Constitution of India gives a right to every citizen to live with dignity and even an accused has a right to live with dignity. Unless the accusation against him is sustained or upheld by the competent highest Court in hierarchy he cannot be condemned merely on account of the commission of the alleged offence.

36. Learned Sessions Judge, however, has not taken into consideration the above said settled legal principles and rather held in a perfunctory manner that for want of sanction under Section 197 Cr. P.C, learned Magistrate could have not passed the order to proceed further against the accused under Section 500 IPC for the reason that at this stage only process has been ordered to be issued against the accused and he is yet to be tried. When the alleged imputation stands prima-facie established to have been made by the accused in a public meeting at Rohara in District Una, learned Sessions Judge was not justified to embark upon the admissibility of the preliminary evidence produced by the complainant for the reasons that at the stage of issuing process against the accused it is the commission of the offence prima-facie to be seen and whether the news item or the report is legally admissible or not and the protection of Section 197 Cr. P.C is available to the accused or rot needs to be examined and established during the course of trial as the Apex Court held in B.P Srivastava's case cited supra.

Point No. 3

37. Learned counsel on both sides have hotly contested the scope of interference by the Court in exercise of revisional jurisdiction vested under Section 397 Cr. P.C Before coming to the point so urged, it is deemed appropriate to discuss as to what material is required to be considered by a Magistrate at the time of forming an opinion to proceed further and issue process against the accused.

38. This point has been considered by a three Judge Bench of the Hon'ble Apex Court in Smt. Naqawwa v. Veeranna Shivalinqappa Konialgi, AIR 1976 SC 1947 and held as under:

“2…………… It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.

5. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit ofan inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”

39. It is, therefore, held by the Apex Court in the judgment supra that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint and is only required to be prima-facie satisfied qua existence of sufficient grounds to proceed further against the accused. At this stage neither the detailed discussion of merits or de-merits is required by the Magistrate nor can the Court go into this question in the exercise of revisional jurisdiction. After appreciating the entire law, the Apex Court, in the judgment supra, has clearly pointed out the cases where the process issued against an accused can be quashed in the exercise of revisional jurisdiction.

40. Now if coming to next limb of the arguments addressed on both sides, the scope of Revisional jurisdiction has been discussed by the Apex Court in Munna Devi v. State of Rajasthan, AIR 2002 SC 107, which reads as follows:

“3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers, the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”

41. The Apex Court qua revisional jurisdiction of the High Court has again held in S.M Dutta v. State of Guirat, AIR 2001 SC 3253, as follows:

“9. We respectfully record our concurrence therewith Criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than an ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude neither it is a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. It is in this context however, one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be so scuttled. The First Information Report needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law Courts are barred from usurping the jurisdiction of the Police since two organs of the State operate in two specific spheres of, activities and one ought not to tread over the other sphere”.

42, The Apex Court in Sewak Ram Sobhani v. R.K Karanjia, Chief Editor Weekly Blitz, (1981) 3 SCC 208, a complaint under Section 500 IPC, decided only on perusal of the report submitted in an ex-parte confidential inquiry conducted at the instance of the accused, quashed the entire proceedings and held that the interference by the High Court well before recording of statement under Section 251 Cr. P.C by the Magistrate, was perverse and hence, set aside. The relevant portion of the judgment reads:

“6. The order recorded by the High Court quashing the prosecution under Section 482 of the Code is wholly perverse and has resulted in manifest miscarriage of justice. The High Court has pre-judged the whole issue without a trial of the accused persons. The matter was at the stage of recording the plea of the accused persons under Section 251 of the Code. The requirements of Section 251 are still to be complied with. The learned Magistrate had to ascertain whether the respondent pleads guilty to the charge or demands to be tried. The circumstances brought out clearly show that the respondent was prima facie guilty of defamation punishable under Section 500 of the Code unless he pleads one of the exceptions to Section 499 of the Code.”

43. The question that the court below has erred in interfering with the order issuing process against the accused in the exercise of revisional jurisdiction has, therefore, to be considered in the light of the given facts and circumstances of the case and also the law discussed hereinabove.

44. It is seen that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner and rather only in a situation when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report, even if taken at the face value and accepted in their entirety, do not constitute the offence for which the accused has been charged or process issued against him.

45. This Court is satisfied about the legality and validity of the order qua proceeding further in the case and issuance of process against the accused passed by learned trial Court. Therefore, in the light of the settled legal position discussed supra, learned Sessions Judge had no jurisdiction to interfere with it, that too in the exercise of the revisional jurisdiction.

ADMISSIBILITY OF THE PRODUCTION OF AN ISSUE OF NEWS PAPER IN PRELIMINARY EVIDENCE

46. It has been urged on behalf of the accused that mere production of the copy of news paper is not admissible in evidence. This point has been dealt with by the High Court of Calcutta in Dalip Chakraborty v. Public Prosecutor, 1976 Cri. L.J 1300, as under:

“6. Section 81 of the Indian Evidence Act provides that a Court shall presume the genuineness of the documents mentioned in the section including a newspaper and under Section 4 of the Act when a Court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. Therefore, when the prosecution produced a copy of the issue of “Bangladesh” dated 26 October, 1973 and proved that the said copy was available for sale, Section 81 was attracted and the learned Judge was fully justified in admitting the said newspaper into evidence. Once the newspaper was admitted into evidence it was for the petitioners to prove that the said newspaper was not the correct copy of the issue of “Bangladesh” which was published on the 26 October, 1973.

7. The ratio of the decisions cited by Mr. Mitra was that a statement of fact in a newspaper was merely hearsay and the presumption under Section 81 of the Indian Evidence Act cannot be treated as proof of the facts contained in the newspaper.

8. In the instant case the point in issue is not the truth or otherwise of the statement of facts contained in the article in pages 1 and 11 of the issue dated the 26 October 1973. The question that has to be determined is whether the imputations contained in the said article defamed the District Magistrate of Burdwan. If the imputations are shown to be prima facie defamatory, the petitioners are free to contend that any of the exceptions to Section 499 of the Indian Penal Code were attracted. Once the petitioners plead justification the burden would shift to them to prove that what was reported in the newspaper was true or was published with good motives and for justifiable ends-The first contention of Mr. Mitra thus fails.”

47. The above principles came to be settled at final stage of the case on the basis of the evidence produced by the parties during the course of trial. However, in the case in hand, the news paper has been produced in preliminary evidence. The news item whether defamatory in nature or published in the newspaper, needs evidence, which the parties have yet to produce during the course of trial. At this stage, when it is only an order proceeding further in the case and issuance of process against the accused has been passed, the news paper alongwith other evidence produced in preliminary was sufficient to form an opinion to proceed further in the matter. Therefore, the point so raised is hardly of any help to the accused at this stage.

48. No doubt In B. Singh v. Union of India, AIR 2004 SC 1923 also, the Hon'ble Apex Court has observed that too much authenticity or credibility cannot be attributed to any information or fact merely because it found publication in a newspaper or journal or magazine or any other form of communication, because the news paper reports per se do not constitute legally acceptable evidence, however, such observations have come at such a stage when the Apex Court decided the case finally on merits. That stage in the case in hand has not yet reached, because learned trial Court on the basis of evidence produced in preliminary, has only formed an opinion to proceed further against the accused by issuance of process against him. The accused may press into service the law laid down in the judgments supra, at an appropriate stage in the proceedings against him.

49. The judgment of the Apex Court in Quamarul Islam v. S.K Kanta. AIR 1994 SC 1 733, relied upon on behalf of the accused is not at all attracted in the given facts and circumstances of the case being a matter under the Representation of the People Act and the observation that a news item without any further proof through witnesses is of no value, came on merits in the judgment at final stage and not at a preliminary stage, like in the present one before this Court.

50. The benefit of first Exception to Section 499 IPC is also not available at this stage to the accused for the reason that the imputations made even if defamatory, however, are true and for the public good, the onus to prove the same is on him. Merely because the complainant has been convicted by learned Special Judge, Hamirpur and his conviction and sentence affirmed by this Court, is not sufficient to discharge the onus. Such onus can only be said to have been discharged by producing in evidence the record pertaining to the criminal proceedings against the accused, the judgment of conviction and sentence passed against him by learned Special Judge, Hamirpur and the judgment passed by this Court, during the course of trial had he been charged with the commission of alleged offence and tried. Admittedly, the judgment of conviction passed against the petitioner is under challenge in the Apex Court.

51. The findings of conviction and sentence so recorded against the complainant, therefore, have not yet attained finality. Unless and until the judgment attains finality, it cannot be said that the imputations made against the petitioner are true, hence cannot be said to be defamatory or that even prima-facie, no case is made out against the accused. The protection of first and fourth exceptions below Section 499 IPC is, therefore, also not available to the accused at this stage.

52. The issuance of process against an offender no doubt set the machinery in motion against him and he even has to face the proceedings so ordered to be initiated. Therefore, the Court should issue process against an offender with all care and circumspection and due application of mind by maintaining balance between the freedom and liberty of an individual and the duty cast on it to enforce the rule of law. Therefore, when the trial Court on the basis of the preliminary evidence and other material on record had formed an opinion to proceed further in this matter, learned Sessions Judge should have not interfered with the impugned order that too in the exercise of limited revisional jurisdiction.

53. Learned Sessions Judge in the exercise of limited jurisdiction vested in him under Section 397 Cr. P.C was, therefore, not justified in quashing the order so passed by learned Magistrate while appreciating the given facts and circumstances and also the preliminary evidence in a manner like at final stage of a case and thereby scuttled down the proceedings initiated by the complainant against the accused. Such an approach, to my mind, is neither legally nor factually sustainable. The order impugned in this petition, therefore, does not stand the test of legal scrutiny and as such in all fairness and in the ends of justice deserves to be quashed and set aside.

54. Consequently, this petition succeeds and the same is accordingly allowed. The order impugned in this petition is, therefore, quashed and set aside.

55. The observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.

56. The record be sent back to the Courts below. It is left open to learned trial Magistrate to fix a date for further proceedings in this matter and issue notice to the parties for the date so fixed.

57. Since this matter pertains to the year 2004, therefore, it is expected that the trial Court shall dispose it of as expeditiously as possible.