Report No. 41
15.151. Su.-sections (8) to (11).- Su.-sections (8) to (11) do not require any change of substance.
15.152. Su.-section (12) omitted.-
Su.-section (12) makes the section applicable to the High Courts at Calcutta and Madras in the exercise of their original criminal jurisdiction. But so far as Madras is concerned, Madras Act 34 of 1955 has omitted su.-section (12), and it is only the City Sessions Court which has jurisdiction under the section in the Presidenc.-town. In view of our proposal to abolish the ordinary original jurisdiction of the High Court at Calcutta, the su.-section may be omitted.
15.153. Effect of Su.-section (13).-
Su.-section (13) states that "the provisions of section 198B shall be in addition to, and not in derrogation of, those of section 198". The precise meaning and effect of this su.-section was a matter of controversy until it was settled by the Supreme Court.1 The su.-section is "enacted with a view to state ex abundanti cautela that the right of a party aggrieved by publication of a defamatory statement to proceed under section 198 is not derrogated by the enactment of section 198B.
The expression in addition to' and 'not in derrogation of mean the same thing, that section 198B is an additional provision and not intended to take away the right of a person aggrieved, even if he belongs to the specified classes and the offence is in respect of his conduct in the discharge of his public functions, to file a complaint in the manner provided by section 198". The Supreme Court thus negatived the contention that, in every case falling under section 198B, besides the complaint filed by the Public Prosecutor, there must also be a complaint by the aggrieved person.
1. P.C. Joshi v. State of Uttar Pradesh, AIR 1961 SC 387 (390).
15.154. Su.-section (14) added in 1964.-
Presumably with a view to making this position clear, su.-section (14) was added to section 198B by the Ant.-Corruption Laws (Amendment) Act, 1964. This su.-section states that "where a case is instituted under this section for the trial of any offence, nothing in su.-section (13) shall be construed as requiring a complaint to be made also by the person aggrieved by the said offence". The correct position appears to be that the remedies available to the aggrieved person under the two sections are not mutually exclusive but are parallel to, and independent of, each other.
Where the aggrieved person and the Government concerned have decided to proceed under section 198B, it is clear that the complaint need not comply with the condition laid down in section 198. This idea could be readily brought out by inserting the usual saving provision in section 198, e.g., the words "save as otherwise provided in section 198B". If this was done, the only point to make clear in section 198B would be that the right of the aggrieved person to bring forward a complaint on his own in the Court of a Magistrate in accordance with section 198 was not in any way affected.
15.155. Revised su.-section in place of su.-sections (13) and (14).-
We accordingly propose that in place of the existing su.-sections (13) and 14), the following su.-section may be put in section 198B:
"(13) Nothing in this section shall affect the right of the person against whom the offence referred to in su.-section (1) is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint."
15.156. Inclusion of part of section in Chapter XXIII recommended.-
Su.-sections (1), (2), (3), (4), (13) and (14) of this section are properly within the scope of this Chapter since they deal with the conditions required for initiation of proceedings in a certain category of cases. The other su.-sections, however, are special provisions governing the trial of these cases by the Court of Session, and, as such, it will be more appropriate to put them in Chapter XXIII below.