Report No. 41
15.141. Recommendation of the Press Commission.-
The Press Commission recommended an addition to section 198 as follows.-
"Provided further that where the person aggrieved under Chapter XXI of the Indian Penal Code is a public servant within the meaning of section 21 of the Indian Penal Code, by reason of allegations made in respect of his conduct in the discharge of his public duties, the Magistrate with jurisdiction may take cognizance of the offences upon a complaint made in writing by some other public servant to whom he is subordinate."
It also recommended an addition to section 202 to the effect that "where the complaint is in respect of defamation of a public servant in the discharge of his duties, the Magistrate shall make the inquiry himself or direct an inquiry or investigation into the complaint as aforesaid."
15.142. Final views of the Joint Committee.-
The Joint Committee which considered the Bill of 1954 agreed1 that "the offence of defamation against the President, Governor or Rajpramukh of a State, Minister, or other public servant should not be made cognizable." They omitted the clause by which section 198 was amended and recommended as follows.-
"Instead, the Committee have inserted a new section 198B in the Criminal Procedure Code. In drafting this section, the Committee have taken into consideration the recommendations of the majority of the members of the Press Commission and the evidence tendered by the representatives of Indian Federation of Working Journalists. While the Committee consider that defamation of a public servant should not be made a cognizable offence, they are of the opinion that there should be an independent authority apart from the person aggrieved to set the law into motion. The Committee are of the view that the procedure laid down in su.-section (2) of section 194 is cumbersome, and might prove expensive.
The Committee consider that the Public Prosecutor should have the right to launch a prosecution in all such cases by a written complaint which should be filed before the Court of Session. The Court of Session may take cognizance of the offence upon such complaint without the accused being committed to it for trial, and it shall try the case following the procedure prescribed for warrant cases. The Public Prosecutor, however, shall have no right to make a complaint except with the previous sanction of the person specified in su.-section (3) or section 198B. Such a complaint should set forth such particulars as may be reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him, and should be filed within six months from the date on which the offence is alleged to have been committed."
1. Joint Committees Report, para. 18, clause 25.
15.143. Section designed to protect Government's reputation.-
Section 198B thus emerged in its present form after much deliberation and discussion. It was substantially different from the original clause in the Bill, and also from the provision suggested by the Press Commission. It brings in the Public Prosecutor, who is expected to make the complaint made with the Government's approval and to conduct the trial before the Court of Session.
It puts the whole weight of the Government against the accused, in what would otherwise have been a private litigation between the accused and the public servant. This intervention of the State can be justified only on the ground that the Government has an interest in protecting its reputation when it is likely to be tarnished if an attack on its officers goes unchallenged, or in other words, the defamation, besides causing harm to the individual, has caused appreciable injury to the State.
15.144. Su.-section (1.-unnecessary to cover all public servants.-
The primary object behind section 198B is to provide a machinery enabling Government to step in to maintain confidence in the purity of administration when high dignitaries and other public servants are wrongly defamed. We think that to achieve this object, it is unnecessary to cover all Government servants irrespective of their position. Government servants, in general, can seek permission of the Government and approach the Courts for vindicating their official conduct.1 The special provision is needed only for the high dignitaries who really constitute the Government itself. We think that it should be confined to the President and the Vic.-President of India, the Governors of States, Administrators of Union Territories and Ministers, whether of the Union or of a State.
Details as to the number and nature of the prosecutions launched under section 198B since 1955 which were furnished to us by the Courts of Session show that a comparatively large number of cases were on behalf of the subordinate ranks of Government servants. For example, during the period 1955 to 1967, only twent.-five cases were instituted under this section in Punjab, out of which 2 related to Class I officers, 8 related to class II officers and 15 related to other Government servants such as Su.-Inspectors of Police, Registration Clerk, Accountants, Peons etc. The total number of prosecutions in any year was very small.
We are of the view that the provisions of the section, exceptional as they are, should be confined to the high dignitaries of the State mentioned above. In the case of defamation of other public servants, the ordinary provisions of section 198 should be enough, so far as the Code is concerned.
1. Cf. rule 19, Central Civil Services' Conduct Rules.
15.145. Defamation of e.-ministers.-
In a case1 decided by the Allahabad High Court, the question arose whether section 198B applied when the person defamed was a Minister of the State Government but had ceased to hold that office at the time when he was defamed. The High Court held in the affirmative stating that publication of the defamatory article, apart from being defamatory of the e.-minister in his personal capacity, "was also a defamation of a Minister of the U.P. State. It was, therefore, the State which suffered the injury along with the individual and the responsibility for initiating prosecution for defamation, therefore, lay with the State of U.P. irrespective of the fact whether the particular Minister remained in the State as such at the time the article was published or when sanction to prosecute the accused was obtained or not."
We are somewhat doubtful whether, strictly as a matter of interpretation, this view of su.-section (1) is correct. Looking to the main object of the section, however, we consider that the section should apply only when the person defamed holds, at the time of the defamation, an office mentioned in that su.-section. In the case of a Minister, for instance, the defamation must be of a person who, on the date of the defamation, is actually a Minister. In our opinion, it is not necessary that the State should have the power to initiate prosecutions under this section for alleged defamation of e.-ministers.
1. Ramesh Sinha v. Public Prosecutor, AIR 1960 All 763 (768).
15.146. Su.-section (1) revised.-
Su.-section (1) of section 198B may accordingly be revised as follows.-
"(1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice President of India, the Governor of a State, the Administrator of a Union Territory, or a Minister of the Union or of a State or of a Union Territory, x x x in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor."
15.147. Su.-section (3) revised.-
Su.-section (3) which requires the Public Prdsecutor to obtain the previous sanction of the Government concerned in the case of public servants and of some particular secretary to the Government in the case of the President, Vic.-President, Governor or Minister, appears to be unnecessarily complicated. In the case of the Governor of a State, for instance, a Secretary to the Government authorised by the Governor in this behalf has to apply his (the Secretary's) mind to the facts of the case and give his previous sanction to the Public Prosecutor lodging the complaint. This may place him in an awkward and embarrassing position if the Governor himself has suggested taking action under the section. It would be simpler and more straightforward to provide for the previous sanction of the Government concerned in all cases. The su.-section may be revised as follows.-
"(3) No complaint under su.-section (1) shall be made by the Public Prosecutor except with the previous sanction
(a) of the State Government, in the case of the Governor of a State or of a Minister of the State Government; and
(b) of the Central Government in any other case."
15.148. Su.-section (5) revised.-
Su.-section (5) lays down that the Court of Session taking cognizance of an offence under su.-section (1) shall try the case without a jury and follow the same procedure as a Magistrate is required to follow in trying a warrant case instituted on complaint. Since jury trials are to be abolished and the procedure for sessions trial in general is to be simplified, it will be sufficient to provide that the Court of Session may try a case under this section as if it had been committed to it by the Magistrate on a complaint. The su.-section may be revised as follows.-
"(5) A Court of Session taking cognizance of an offence under su.-section (1) shall try the case as if it had been committed to it by a Magistrate taking cognizance of the offence upon a complaint:
Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution."
The latter half of the su.-section which has been put in the form of a proviso in the above r.-draft is intended to avoid abuse of the procedure or any suspicion of it. Ordinarily, there could not be a fair trial in a case of defamation without the person who claims to have been defamed entering the witness box and standing. cros.-examination. In order to maintain public confidence, the su.-section rightly provides that, even where the aggrieved person is a high dignitary, he must give evidence in person.
15.149. Compensation under su.-sections (6) to (11).-
Su.-sections (6) to (11) provides for the payment of compensation in any case where the court acquits or discharges the accused and is of the opinion that the accusation against him was false and either frivolous or vexatious. Cases where the aggrieved person is the President or the Vic.-President of India or the Governor of a State are, however, taken out of the purview of these su.-sections. This leaves the cases where the person against whom the offence of defamation is alleged to have been committed is a Minister or other public servant.
Though that person may not have expressly given his consent to the complaint lodged by the Public Prosecutor, the Court is required to call upon that person (and not the Public Prosecutor) to show cause why he should not pay compensation to the accused.1 In practice, however, the complaint would not have been sanctioned by the Government in the case of defamation of a Minister unless the Minister himself had initiated the prosecution or, at any rate, given his personal consent to it.
We have recommended above that the scope of this section need not extend to cases of defamation of ordinary public servants. Where defamation of a Minister is alleged and not proved and the complaint is found to have been filed without reasonable cause, it is but proper that, as provided in su.-section (6), the Court should ask the Minister to show cause why he should not pay compensation to the accused.
1. It may be noted that the provision regarding compensation was not recommended by the Joint Committee which considered the Amendment Bill in 1954 though it was suggested by one of its members in a dissenting note. It came in later by means of an amendment moved in the Lok Sabha while considering the Bill as revised by the Joint Committee.
15.150. Su.-sections (6) and (7) amended.-
Su.-sections (6) and (7) may be amended to read as follows.-
"(6) If, in any case instituted under this section, the Court of Session xxx discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the acquisition against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed, where such person was at the time of such commission a Minister, to show cause why he should not pay compensation to such accused or to each or any of such accused, where there are more 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 there was no reasonable cause for making the accusation, it may, for reasons 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."