As per the case facts, a criminal defamation complaint was filed against individuals, and their challenge to the summoning order was unsuccessful in the High Court, leading to an appeal ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1791 OF 2022
(Arising out of Special Leave Petition (Crl) No.351 of 2021)
MANOJ KUMAR TIWARI … APPELLANT(S)
VERSUS
MANISH SISODIA & ORS. …RESPONDENT(S)
With
CRIMINAL APPEAL NO. 1790 OF 2022
(@ Special Leave Petition (Crl) No.658 of 2021)
J U D G M E N T
V. Ramasubramanian, J.
Leave granted.
2.The order of summoning issued by the Additional Chief
Metropolitan MagistrateI, Rouse Avenue Courts, New Delhi, in a
criminal complaint of defamation filed by Respondent No.1 herein
against six individuals, was challenged before the High Court
unsuccessfully, by persons arrayed as Accused Nos.1 and 5 and
hence both of them have come up with the above Criminal Appeals.
1
3.We have heard Shri R. Venkataramani and Ms. Pinky Anand,
learned senior counsel appearing for the appellants and Dr.
Abhishek Manu Singhvi, learned senior counsel, as well as Shri
Shadan Farasat, learned counsel appearing for Respondent No.1
4.On 19.07.2019, Respondent No.1 herein filed a complaint
under Section 200 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.P.C’) against six individuals, on the file
of the Additional Chief Metropolitan MagistrateI, Rouse Avenue
Courts, New Delhi, alleging commission of the offences under
Sections 499 and 500 read with Sections 34 and 35 of the Indian
Penal Code (hereinafter referred to as ‘IPC’). The case of Respondent
No.1 in his complaint was, that he has been the Deputy Chief
Minister of Delhi since February 2015; that on 01.07.2019, Shri
Manoj Tiwari, (A1 who is the appellant in one of these appeals) held
a Press Conference making false and defamatory statements as
though the complainant was involved in corruption to the tune of
Rs. 2000 crores, in the matter of award of contracts for building
classrooms in Delhi Government Schools; that persons arrayed as
2
Accused Nos. 2 to 4 in the said complaint, shared the platform with
the said Shri Manoj Tiwari, during the Press Conference and they
also uttered the same defamation statements; that Shri Vijender
Gupta, arrayed as Accused No.5 in the complaint (appellant in one
of these appeals) tweeted defamatory contents against the
complainant; and that the person named as Respondent No.6 in the
complaint also made defamatory statements in his tweets.
According to Respondent No.1 herein (the complainant), all the
accused persons acted with common intent and in a wellthought
out and planned manner to defame him, thereby rendering
themselves liable for prosecution.
5.After recording the statements of Respondent No.1 and two
independent witnesses, in the inquiry under Section 202(1) of the
Cr.P.C and after taking note of the documents produced by
Respondent No.1, the learned Additional Chief Metropolitan
Magistrate passed an Order on 28112019 directing the issue of
summons to all the six accused, after holding that there exists
sufficient grounds to proceed against the accused Nos.1 to 4 under
3
Section 500 IPC read with Section 34 IPC and against accused
Nos.5 and 6 under Section 500 IPC.
6.The appellants herein (who were cited as accused Nos.1 and 5
respectively) challenged the order of summoning by way of petitions
under Section 482 of the Cr.P.C, before the High Court of Delhi.
The High Court dismissed the petitions, forcing the appellants to
come up with the above appeals.
7.Though the petitions filed by the appellants under Section 482
of the Code were dismissed by the High Court of Delhi by a common
order, the cases of both of them are not exactly the same. Shri
Manoj Kumar Tiwari (A1), the appellant in one of these appeals, is
accused along with Accused Nos. 2 to 4 of committing the offence
punishable under Section 500 read with Section 34 IPC. But Shri
Vijender Gupta (A5) is accused of committing an offence
punishable under Section 500 IPC alone. In paragraph 14 of the
summoning order dated 28.11.2019, learned Additional Chief
Metropolitan Magistrate has recorded the following opinion:
“Further the exhortation by the respondents as to sharing
of the statements and holding a joint conference together
also strengthens the inference of common intention of the
4
respondent no.1,2,3 and 4. As far as the tweets made by
respondent no.5 and 6 concerned that have been made
after few hours of the Press Conference held by the
respondent no.1 to 4, hence, the act of respondent no.5
and 6 cannot said to be done with common intention
along with other respondents rather they are individual
acts of defamation.”
8.Keeping in mind the above distinction between the case of Shri
Manoj Kumar Tiwari and the case of Shri Vijender Gupta, let us
now proceed to consider the grounds on which the summoning
order is challenged by these appellants.
9.The only ground on which accused No.1 assails the order of
summoning is that the Court ought not to have entertained a
private complaint under Section 200 Cr.P.C especially from a
person covered by Section 199(2) of the Code, without following the
procedure prescribed in subsection (4) of Section 199.
10.Accused No.5 who is appellant in the other appeal assails the
order of summoning on three grounds namely, (i) that the
respondent No.1 ought to have followed the special procedure
prescribed in Section 199(4) of the Code of Criminal Procedure, as
he happens to be a Minister of a Union Territory; (ii) that the
transcript of the tweets attributed to him were not accompanied by
5
a valid certificate in terms of Section 65B of the Indian Evidence
Act; and (iii) that in any case the tweets made by him per se do not
make out a case of defamation in terms of Section 499 IPC,
punishable under Section 500 IPC.
11.Reliance is placed by the learned counsel for the appellants
mainly on the decisions of this Court in P.C Joshi and Another vs.
State of Uttar Pradesh
1
; Subramanian Swamy vs. Union of
India
2
; and K.K. Mishra vs. State of Madhya Pradesh and
Another
3
. The contention of the learned senior counsel for the
appellants is that certain consequences are prescribed in Section
237 of the Code, if it is a case of malicious prosecution initiated
under Section 199(2) and that the attempt of Respondent No.1 to
bypass the special procedure prescribed in Section 199(2) is with a
view to escape the consequences of Section 237 of the Code.
12.Defending the summoning order passed by the Additional
Chief Metropolitan Magistrate and the order of the High Court
dismissing the challenge to the same, it is contended by Dr. A.M.
1 AIR 1961 SC 387
2 (2016) 7 SCC 221
3 (2018) 6 SCC 676
6
Singhvi that what is prescribed by Section 199(2) of the Code is a
special procedure, which does not exclude the general procedure
prescribed under Section 199(6) and that the right of a public
servant, as an individual, to prosecute a person for defamation, is
guaranteed by Section 199(6), to which the provisions of sub
section (2) of Section 199 have no application. Our attention is also
drawn to the 41
st
Report of the Law Commission of India which led
to Section 198B of the Code of Criminal Procedure, 1898
undergoing sweeping changes in the Code of Criminal Procedure,
1973.
13.We have carefully considered the rival submissions. In order to
understand the scope and ambit of the two different procedures
prescribed in Section 199 of the Code, it may be necessary to have a
look at the legislative history of these provisions. Unfortunately,
there emerges two versions of this history, one from the
amendments made to the Code of 1898 in the years 1943, 1955 and
1964 and the Code of 1973 and the other emerging from the 41
st
Report of the Law Commission. We shall take note of both versions
of history.
7
Legislative History of Section 199 (and 198, to be precise)
Milestone 1 (year 1898)
14.Section 198 of the Code of Criminal Procedure, 1898, as it
originally stood in the Code of Criminal Procedure, 1898 read as
follows:
“198. No Court shall take cognizance of an offence
falling under Chapter XIX or Chapter XXI of the Indian
Penal Code or under sections 493 to 496 (both
inclusive) of the same Code, except upon a complaint
made by some person aggrieved by such offence”
Milestone2 (year 1943)
15.By Criminal Procedure (SecondAmendment) Act, 1943, a
proviso was added to Section 198, to the following effect:
“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
eighteen 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.”
Milestone3 (Constitution of Law Commission)
16.After India attained independence, suggestions were made for
the appointment of a Law Commission for examining the Central
Acts. Initially, a Resolution was moved in the Constituent Assembly
8
on December 2, 1947 recommending the establishment of a
Statutory Law Revision Committee. However, the Resolution was
withdrawn upon an assurance given by the then Law Minister Dr.
Ambedkar, to constitute a permanent Law Commission to revise
and codify the laws. Eventually, the Lok Sabha resolved on
November 19, 1954, to constitute a Law Commission to recommend
revision and modernization of laws, both substantive and
procedural and in particular, the Civil and Criminal Procedure
Codes. Pursuant thereto, the Law Commission was constituted in
August/September 1955 with M.C. Setalvad, Attorney General of
India as its Chairman.
Milestone4 (year 1955)
17.In the meantime, the Parliament enacted ‘The Code of
Criminal Procedure (Amendment) Act, 1955, (Act XXVI of 1955)’
which received the assent of the President on 10
th
August 1955 and
was published in the Gazette of India on 12
th
August 1955. By
Section 25 of this Amendment Act XXVI of 1955, a new provision in
Section 198B was inserted, providing for a special procedure for
prosecution for defamation against public servants in respect of
9
their conduct in the discharge of public functions. This Section
198B read as follows:
“198B. (1) Notwithstanding anything contained in this
Code, when any offence falling under Chapter XXI of the
Indian Penal Code (Act XLV of 1860) (other than the offence
of defamation by spoken words) is alleged to have been
committed against the President, or the VicePresident, 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 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 reasonably
sufficient to give notice to the accused of the offence alleged
to have been committed by him.
(3)No complaint under subsection (1) shall be
made by the Public Prosecutor except with the previous
sanction,
(a) in the case of the President or the VicePresident
or the Governor or Rajpramukh 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, of 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 affairs of the Union or of a State, of
the Government concerned.
(4)No Court of Session shall take cognizance of an
offence under subsection (1), unless the complaint is made
10
within six months from the date on which the offence is
alleged to have been committed.
(5)When the Court of Session takes cognizance of an
offence under subsection (1), then, notwithstanding
anything contained in this Code, the Court of Session shall
try the case without a jury and in trying the case, shall
follow the procedure prescribed for the trial by Magistrates
of warrantcases instituted otherwise than on a police
report and 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.
(6) If in any case instituted under this section, the Court
of Session by which the case is heard discharges or acquits
all or any of the accused, and is of opinion that the
accusation against them or any of them was false and either
frivolous or vexatious, the Court of Session may, by its
order of discharge or acquittal, direct the person against
whom the offence was alleged to have been committed (other
than the President, VicePresident or the Governor or
Rajpramukh of a State) to show cause why he should not
pay compensation to such accused or to each or any of such
accused, when 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 the accusation was false and either
frivolous or vexatious, 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.
(8) All compensation awarded under subsection (7)
may be recovered as if it were a fine.
(9) No person who has been directed to pay
compensation under subsection (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
11
compensation to such person in any subsequent civil suit
relating to the same matter.
(10) The person who has been ordered under subsection
(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 a case which is subject to appeal
under subsection (10), the compensation shall not be paid
to him before the period allowed for the presentation of the
appeal has elapsed, or, if an appeal is presented, before the
appeal has been decided.
(12) For the purposes of this section, the expression
"Court of Session" includes the High Courts 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, those of section 198.”
Milestone5 (14
th
Report of the Law Commission on “Reform of
Judicial Administration” and the Amendment of 1964)
18.The enactment of the Amendment Act XXVI of 1955 (by which
Section 198B was inserted), coincided with the constitution of the
Law Commission in August/September 1955. The Law Commission
submitted its 14
th
Report on “Reform of Judicial Administration” in
September 1958. The Report was confined only to indicating in
broad outline, the changes that were required to make judicial
administration speedy and less expensive as seen from the letter of
12
the Chairman of the Law Commission dated September 26, 1958
addressed to the then Minister of Law. The detailed examination of
the Codes of Criminal and Civil Procedure was deferred, as they
were likely to consume considerable time.
19.After the Law Commission submitted its 14
th
Report on the
Reform of Judicial Administration, in September 1958, the
Government asked the Commission to undertake an examination of
the Code of Criminal Procedure. When the Law Commission was
carrying out this exercise, the Parliament enacted ‘The Anti
Corruption Laws (Amendment) Act, 1964 (Act 40 of 1964)’. By this
Act, four different Acts, namely, the Indian Penal Code, 1860, the
Code of Criminal Procedure, 1898, the Delhi Special Police
Establishment Act, 1946 and the Prevention of Corruption Act,
1947 were amended.
20.Three important changes were made to Section 198B of
the Code of Criminal Procedure, 1898, by this Act 40 of 1964 .
They were:
13
(a) The brackets and words "(other than the offence of
defamation by spoken words)" in subsection (1) of Section 198B
were directed to be omitted;
(b) After subsection (5), a new subsection (5A) was directed to
be inserted as follows:
"(5A) Every trial under this section shall be held in
camera if either party thereto so desires or if the Court
of Session so thinks fit to do.";
(c) After subsection (13), a new subsection (14) was directed
to be inserted as follows:
"(14) Where a case is instituted under this section for
the trial of an offence, nothing in subsection (13) shall
be construed as requiring a complaint to be made also
by the person aggrieved by such offence."
The version of history as reflected by the Amendments to the
Code of 1898
21.The version of history that could be traced from the
Amendments made in the years 1943, 1955 and 1964, to the Code
of 1898, can be summed up as follows:
(i) The Code of 1898 enabled, under Section 198, only the
aggrieved person to file a complaint.
14
(ii) The Amendment of the year 1943 carved out an exception
in the case of women who could not appear in public, minors,
lunatics, sick and infirm persons etc., by enabling them to file a
complaint through some other person.
(iii) The Amendment of the year 1955 prescribed a detailed special
procedure to be followed in the case of offences under Chapter XXI
of IPC, committed against the President, or the VicePresident, 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. But this procedure was not applicable to the offence
of defamation by spoken words as seen from the words “ any
offence falling under Chapter XXI of the Indian Penal Code (Act
XLV of 1860) (other than the offence of defamation by spoken
words)”
(iv) But the words “other than the offence of defamation by
spoken words” in Section 198B(1) were omitted by the Amendment
of 1964.
15
It was from this milestone that the legislation moved to Section 199
of the Code of 1973, which we shall see later.
Milestone6 (37
th
Report of the Law Commission leaves the task
uncompleted)
22.After the aforesaid amendment of the year 1964, the Law
Commission submitted its 37
th
Report in December, 1967 on the
Code of Criminal Procedure, 1898, but it covered only Sections 1 to
176. Paragraph 525 of this 37
th
Report indicated that the Sections
of the Code after Section 176 were proposed to be dealt with in later
Reports.
Milestone7 (41
st
Report of the Law Commission)
23.Therefore, the revision of the remaining provisions of the Code
of Criminal Procedure was undertaken by the subsequent Law
Commission, constituted in March, 1968. This Commission
submitted its Report, which is the 41
st
Report, in September 1969.
Interestingly, it was recorded in the introductory Chapter of this
41
st
Report that though the first 14
Chapters of the Code have been
exhaustively analysed in the previous report (37
th
Report) of the Law
Commission, the Commission was compelled to revisit even those
16
recommendations. The reason for this, according to the Law
Commission, was that a finely integrated and comprehensive law
like the Code of Criminal Procedure cannot be revised piecemeal, as
the amendments suggested in one part of the Code were likely to
naturally affect, provisions of the other parts of the Code to a
greater or lesser extent. Therefore, the 41
st
Report became a very
comprehensive report.
24.As we have seen in paragraph 14 above, the Code of 1898
contained a provision in Section 198, which mandated that the
cognizance of offences relating to (i) breach of contract;
(ii) defamation; and (iii) marriage, cannot be taken by any court
except upon a complaint made by the aggrieved person. The 41
st
Report of the Law Commission recognized (as seen from paragraph
15.131) that Section 198 of the Code dealt with the issue of
cognizance of three completely unconnected groups of offences
namely, (i) offence relating to breach of contract to attend on or to
supply demands to helpless persons; (ii) offences relating to
marriage; and (iii) offence relating to defamation. Finding that these
17
groups of offences have nothing in common and that the grouping
of all of them together was faulty, the 41
st
Report recommended the
deletion of the reference to Chapter XIX of the Indian Penal Code, in
Section 198.
25.Then the Law Commission took note of the insertion of section
198B under the Amendment Act XXVI of 1955 and recorded in
paragraph 15.138 of the Report, the rationale behind Section 198B
as follows:
“15.138. Section 198B, which was introduced by the
Amendment Act of 1955, deals with prosecution for the
offence of defamation where such offence is committed
against certain high dignitaries and public servants in
respect of their conduct in the discharge of public
functions. The section lays down a special procedure for
such cases. The Court of Session is empowered to take
cognizance of such offence, without the accused being
committed to it for trial, upon a complaint in writing made
by the Public Prosecutor. It is not necessary for the
aggrieved person to sign the complaint under this section,
but the complaint has to be made with the previous
sanction of a specified authority. There are also distinctive
features which will be discussed below.”
26.According to the 41
st
Report of the Law Commission, Section
198B was inserted to provide a special procedure for prosecution
for the offence of defamation where such offence is committed
against certain high dignitaries and public servants in respect of
their conduct in the discharge of public functions. The specialties of
18
the procedure were, (i) that the offence was made cognizable;
(ii) that the complaint could be by the Public Prosecutor and need
not even be signed by the aggrieved person; and (iii) that the pre
condition for taking cognizance is that it was sanctioned by a
specified authority.
27.It is interesting to see that the 41
st
Report of the Law
Commission fails to note how Section 198B inserted by the
Amendment Act of 1955 was worded and how it was changed in
1964. The Amendment Act of 1955 made section 198B
applicable to offences other than defamation by spoken
words. This exception was removed only by the Amendment of
1964. The 41
st
Report of the Law Commission makes no mention of
the 1964 Amendment.
28.Without reference to the Amendment of 1964, the 41
st
Report
of the Law Commission records in paragraphs 15.139 to 15.142, a
different version of history starting with the battle that preceded the
1955 Amendment. It appears therefrom that there was a huge
opposition to the offence of defamation being made cognizable. The
19
opposition came from the Indian Federation of Working Journalists.
The Press Commission reported that the consequences of making
the offence of defamation cognizable, are very dangerous, as it may
enable the Police (i) to arrest without a warrant; (ii) to take
preventive action contemplated under Chapter XIII of the Code of
1898 (presently Chapter XI of the Code of 1973); and (iii) to
conduct searches.
29.After expressing the above apprehensions, the Press
Commission recommended that a procedure may be devised so as
to strike a balance between those two considerations, viz.,
(i) frivolous action by the police and the consequent harassment of
the alleged offender; and (ii) the desirability of police investigation
or magisterial inquiry in some cases where it is necessary that the
public servant should clear himself of the defamatory allegations.
30.According to the 41
st
Report of the Law Commission, the Joint
Committee which considered the Bill of 1954 agreed that "the
offence of defamation against the President, Governor or
Rajpramukh of a State, Minister, or other public servant should not
be made cognizable." The Report says that it was on the basis of the
20
suggestions of the Joint Committee that Section 198B emerged in
the form in which it was inserted under the 1955 Act.
31.Paragraph 15.143 of the 41
st
Report summed up the rationale,
scope and ambit of Section 198B as follows:
“15.143. 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.”
32.In a nutshell, the 41
st
Report recognized that the provision
in Section 198B 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
21
unchallenged or in other words, the defamation, besides causing
harm to the individual, has caused appreciable injury to the State.
33.The Law Commission’s Report recorded in paragraph 15.144
that the primary object behind Section 198B was 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. Therefore, the Commission
recommended that the special provision is needed only for the high
dignitaries who really constitute the Government itself and that it is
unnecessary to cover all Government servants irrespective of their
position. The Commission opined that Government servants in
general can seek permission of the Government and approach the
courts for vindicating their official conduct. In essence, the
Commission thought that it should be confined to the President and
the VicePresident of India, the Governors of States, Administrators
of Union Territories and Ministers, whether of the Union or of a
State.
34.In fact before making the above recommendation, the Law
Commission looked into the data regarding the number of cases
22
filed throughout the country and the officers/dignitaries on whose
behalf they were filed. The Commission recorded as follows:
“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 twentyfive cases were instituted under this
section in Punjab, out of which 2 related to Class I
officers, 8 related to class If officers and 15 related to
other Government servants such subInspectors 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.”
35. Apart from making the above recommendation, the 41
st
Report
also suggested something, in relation to subsections (13) and (14)
of Section 198B. We may recall that subsection (13) of Section
198B made the provisions of this section to be in addition to, and
not in derogation of, those of Section 198. Subsection (14) was in
the nature of a clarification to the effect that where a case is
instituted under this section for the trial of an offence, nothing in
subsection (13) shall be construed as requiring a complaint to be
23
made also by the person aggrieved by such offence. With regard to
these two subsections, the Law Commission recommended as
follows:
15.153 Subsection (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 subsection was a matter of
controversy until it was settled by the Supreme Court.
The subsection 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 derogated by the enactment
of section 198B. The expression ‘in addition to’ and
‘not in derogation 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.
15.154. Presumably with a view to making this position
clear, subsection (14) was added to section 198B by the
AntiCorruption Laws (Amendment) Act, 1964. This sub
section states that "where a case is instituted under this
section for the trial of any offence, nothing in subsection
(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
24
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. We accordingly propose that in place of the
existing subsections (13) and (14), the following 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
subsection (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."
36.In other words, the 41
st
Report of the Law Commission
recommended the replacement of the then existing subsections
(13) and (14) of Section 198B with a new subsection (13). This new
subsection (13) of Section 198B was intended to make it clear that
the right of an individual against whom the offence of defamation
was committed, to make a complaint before a Magistrate, was
preserved and that the said right will not stand affected by the other
provisions contained in this Section.
Milestone8 (Code of 1973)
37.The 41
st
Report of the Law Commission was submitted in
September, 1969. Thereafter, a draft Bill in Bill No.XLI of 1970 was
25
introduced in the Rajya Sabha in December, 1970. The Bill was
referred to a Joint Select Committee of both the Houses of
Parliament and what finally emerged, was passed by both the
Houses and this became the Code of Criminal Procedure, 1973 (Act
No.2 of 1974).
38.It is Section 199 of this Code of 1973, which we are called
upon to interpret in this case. Section 199 of the Code of 1973
reads as follows:
“199. Prosecution for defamation .(1) No Court shall
take cognizance of an offence punishable under Chapter
XXI of the Indian Penal Code (45 of 1860 ) except upon a
complaint made by some person aggrieved by the offence:
Provided that where such person is under the age
of eighteen years, or is an idiot or a lunatic, or is from
sickness or infirmity unable to make a complaint, or is a
woman who, according to the local customs and
manners, ought not to be compelled to appear in public,
some other person may, with the leave of the Court, make
a complaint on his or her behalf.
(2) Notwithstanding anything contained in this
Code, when any offence falling under Chapter XXI of the
Indian Penal Code (45 of 1860 ) 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, 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 case being committed to it, upon a
complaint in writing made by the Public Prosecutor.
26
(3) Every complaint referred to in sub section (2)
shall set forth the facts which constitute the offence
alleged, the nature of such offence and such other
particulars as are reasonably sufficient to give notice to
the accused of the offence alleged to have been committed
by him.
(4) No complaint under subsection (2) shall be
made by the Public Prosecutor except with the previous
sanction
(a) of the State Government, in the case of a
person who is or has been the Governor of
that State or a Minister of that Government;
(b) of the State Government, in the case of any
other public servant employed in connection
with the affairs of the State;
(c) of the Central Government, in any other
case.
(5) No Court of Session shall take cognizance of an
offence under subsection (2) unless the complaint is
made within six months from the date on which the
offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of
the person against whom the offence is alleged to have
been committed, to make a complaint in respect of that
offence before a Magistrate having jurisdiction or the
power of such Magistrate to take cognizance of the offence
upon such complaint.”
39.Before proceeding further, it is necessary to take note of the
fact that what was recommended by the 41
st
Report of the Law
Commission to be subsection (13) of Section 198B, in replacement
of the then existing subsections (13) and (14), which we have
extracted in paragraph 35 above, has now become subsection (6) of
Section 199. Keeping this in mind, let us now go back to the
27
grounds raised by the appellants, for assailing the order of
summoning issued by the Magistrate.
Back to the cases on hand
40.To recapitulate, the appellant in one of these appeals (who is
A1) is assailing the order of summoning, only on one ground
namely, that a person covered by subsection (2) cannot bypass the
special procedure prescribed in subsection (4) of Section 199. The
appellant in the other appeal (A5) has raised two additional
grounds namely, (i) that the contents of the tweets sent by him were
not per se defamatory; and (ii) that the transcript of the tweets
cannot be relied upon without complying with the mandate of
Section 65B of the Indian Evidence Act. Let us first deal with the
common ground on which both the appellants assail the order of
summoning.
Whether special procedure eclipses the general procedure?
41.In support of the contention that a person covered by sub
section (2) of Section 199 has to necessarily go through the special
procedure prescribed by subsection (4) of Section 199, the learned
counsel for the appellants has relied upon the decisions of this
28
Court in P.C Joshi, Subramanian Swamy and K.K. Mishra
(supra). Therefore, let us see the ratio decidendi of these decisions.
42.In P.C Joshi (supra), the Public Prosecutor, Kanpur filed a
complaint in the Court of Sessions, against the Editor and the
Printer and the Publisher of an English Weekly, claiming that a
news item published therein was defamatory of the Chief Minister of
the State. The Order of the Home Secretary sanctioning prosecution
under Section 198B(3) of the Code of 1898 was filed along with the
complaint. After examining witnesses, the learned Sessions Judge
framed the charge. The order framing charge was unsuccessfully
challenged by the Editor and Publisher before the High Court and
the matter landed up on the file of this Court. The object behind the
special procedure prescribed under Section 198B of the Code of
1898 was elaborated in detail by this Court in P.C. Joshi (supra).
In paragraph 7 of the Report in P.C. Joshi (supra), this Court
indicated that Section 198B has made a departure from the normal
rule, in larger public interest. After holding so, this Court clarified
that the expression “not in derogation of” appearing in subsection
(13) of Section 198B clearly indicated that the provisions of Section
29
198B did not impair the remedy provided by Section 198. This
Court said: “it means that by Section 198B, the right which an
aggrieved person has to file a complaint before a Magistrate under
Section 198 for the offence of defamation, even if the aggrieved
person belongs to the specified classes and the defamation is in
respect of his conduct in the discharge of his public functions, is not
taken away or impaired. If subsection (13) be construed as meaning
that the provisions of Section 198B are to be read as supplementary
to those of Section 198, the nonobstante clause with which sub
section (1) of Section 198B commences is rendered wholly sterile
……..”
43.An argument was advanced in P.C. Joshi (supra) that sub
sections (6) to (11) of Section 198B of the Code of 1898 provided for
the award of compensation in the case of vexatious prosecution and
that if the aggrieved person was not the complainant, it was not
possible to direct compensation to be paid to the accused who was
made to face a vexatious complaint. The said argument was rejected
in P.C. Joshi (supra) on the basis of subsection (5) of Section 198B
30
which required the person against whom the offence was
committed, to be examined as a witness for prosecution. In
paragraph 8 of the Report in P.C. Joshi (supra), this Court held as
follows:
“8. Reliance was placed on behalf of the appellants
upon subss. (6) to (11) of S.198B which provide for
the award of compensation to the person accused if
the court is satisfied that the accusation is false and
either frivolous or vexatious, and it was submitted
that the Legislature could not have intended that a
person who was not the complainant and who was
not directly concerned with the proceedings may still
be required if so ordered by the court to pay
compensation. But subs. (5) which provides that a
person against whom the offence is alleged to have
been committed shall, unless the court for reasons to
be recorded otherwise directs, be examined as a
witness for the prosecution, clearly indicates that the
question whether the complaint was false and either
frivolous or vexatious may fall to be determined only
if the person complaining to be defamed actively
supports the complaint. It cannot therefore be said
that S. 198B provides for compensation being
awarded against a person who is not concerned with
the complaint.”
44.In Subramanian Swamy (supra), this Court was dealing with
a batch of writ petitions under Article 32 of the Constitution
challenging the constitutional validity of Sections 499 and 500 IPC
and Sections 199(1) to 199(4) of the Code of 1973. The impact of
subsection (6) on other subsections of Section 199 of the Code of
31
1973 was indicated in paragraph 203 of the Report in
Subramanian Swamy as follows:
“203.Subsection (6) gives to a public servant what every
citizen has as he cannot be deprived of a right of a citizen.
There can be cases where sanction may not be given by
the State Government in favour of a public servant to
protect his right and, in that event, he can file a case
before the Magistrate. The provision relating to
engagement of the public prosecutor in defamation cases
in respect of the said authorities is seriously criticized on
the ground that it allows unnecessary room to the
authorities mentioned therein and the public servants to
utilize the Public Prosecutor to espouse their cause for
vengeance. Once it is held that the public servants
constitute a different class in respect of the conduct
pertaining to their discharge of duties and functions, the
engagement of Public Prosecutor cannot be found fault
with. It is ordinarily expected that the Public Prosecutor
has a duty to scan the materials on the basis of which a
complaint for defamation is to be filed. He has a duty
towards the Court. This Court in Bairam Muralidhar v.
State of A.P while deliberating on Section 321 CrPC has
opined that the Public Prosecutor cannot act like a post
office on behalf of the State Government. He is required to
act in good faith, peruse the materials on record and form
an independent opinion. It further observed that he
cannot remain oblivious to his lawful obligations
under the Code and is required to constantly remember
his duty to the court as well as his duty to the collective.
While filing cases under Sections 499 and 500 IPC, he is
expected to maintain that independence and not act as a
machine.”
45.The above passage is relied upon by the learned senior counsel
for the appellants to contend that it is only in cases where the State
Government refuses to give sanction for prosecution, that the
individual right under subsection (6) of Section 199 can be
32
invoked. But we are afraid that such an inference does not flow out
of what is observed in paragraph 203 of the decision in
Subramanian Swamy (supra). To say that the provisions of sub
section (6) of Section 199 can be invoked by the individual public
servant, only in cases where the State Government does not go to
his rescue, could violate the plain language of subsection (6). Sub
section (6) of Section 199 begins with the words “nothing in this
section shall affect the right of the person against whom the offence
is alleged to have been committed”. Subsection (6) does not contain
any conditions subject to which the right thereunder can be
exercised.
46.The nonobstante clause in subsection (2) of Section 199 will
also not go to the rescue of the appellants, as the said clause also
stands eclipsed by the words “nothing in this section” appearing in
subsection (6). The word “nothing” appearing in subsection (6) will
include the nonobstante clause in subsection (1) also.
47.In K.K. Mishra (supra) this Court was concerned with a
challenge to the maintainability of the prosecution instituted under
33
Section 199(2). After referring to the decisions in P.C. Joshi and
Subramanian Swamy (supra), this Court held the prosecution to
be not maintainable, primarily on two grounds namely (i) that the
alleged defamatory statements cannot be said to have any
reasonable connection with the discharge of public duties by the
office of the Chief Minister and that therefore the Chief Minister
should have resorted only to provisions of subsection (6) of Section
199; and (ii) that in any case the Public Prosecutor had failed to
apply his mind to the materials placed before him, vitiating the
complaint presented by him.
48.We do not know how the decision in K.K. Mishra (supra) will
be of any assistance to the appellants. The question whether the
Public Prosecutor applied his mind or not cannot arise in this case,
as Respondent No.1 has filed the complaint on his own in terms of
Section 199(6). The question whether the alleged defamatory
statements relate to the official discharge of duties of Respondent
No.1, hinges on facts.
34
49.Merely because it was stated in K.K. Mishra (supra) that what
is envisaged in subsections (2) and (4) of Section 199 is a
departure from the normal rule, it does not mean that subsection
(6) stands nullified. In fact more than helping the appellants, the
ratio propounded in paragraph 7 of K.K. Mishra (supra) supports
the stand of Respondent No.1. Paragraphs 7 and 8 of K.K. Mishra
(supra) read thus:
“7. Section 199(2) CrPC provides for a special procedure
with regard to initiation of a prosecution for the offence of
defamation committed against the constitutional
functionaries and public servants mentioned therein.
However, the offence alleged to have been committed
must be in respect of acts/conduct in the discharge of
public functions of the functionary or public servant
concerned, as may be. The prosecution under Section
199(2) CrPC is required to be initiated by the Public
Prosecutor on receipt of a previous sanction of the
competent authority in the State/Central Government
under Section 199(4) of the Code. Such a complaint is
required to be filed in a Court of Session that is alone
vested with the jurisdiction to hear and try the alleged
offence and even without the case being committed to the
said court by a subordinate court. Section 199(2) CrPC
read with Section 199(4) CrPC, therefore, envisages a
departure from the normal rule of initiation of a
complaint before a Magistrate by the affected persons
alleging the offence of defamation. The said right,
however, is saved even in cases of the category of persons
mentioned in subsection (2) of Section 199 CrPC by sub
section (6) thereof.
8. The rationale for the departure from the normal rule
has been elaborately dealt with by this Court in a
35
judgment of considerable vintage in P.C. Joshi v. State of
U.P. (AIR pp. 39192, para 9) The core reason which this
Court held to be the rationale for the special procedure
engrafted by Section 199(2) CrPC is that the offence of
defamation committed against the functionaries
mentioned therein is really an offence committed against
the State as the same relate to the discharge of public
functions by such functionaries. The State, therefore,
would be rightly interested in pursuing the prosecution;
hence the special provision and the special procedure.”
50.As seen from the portion of K.K. Mishra (supra) extracted
above, the right of an individual is saved, under subsection (6),
even if he falls under the category of persons mentioned in sub
section (2).
51.The long history of the evolution of the legislation relating to
prosecution for the offence of defamation of public servants shows
that the special procedure introduced in 1955 and finetuned in
1964 and overhauled in 1973 was in addition to and not in
derogation of the right that a public servant always had as an
individual. He never lost his right merely because he became a
public servant and merely because the allegations related to official
discharge of his duties. Subsection (6) of Section 199 which is a
reproduction of what was recommended in the 41
st
Report of the
Law Commission to be made subsection (13) of Section 198B,
36
cannot be made a dead letter by holding that persons covered by
subsection (2) of Section 199 may have to invariably follow only the
procedure prescribed by subsection (4) of Section 199. Therefore,
the common ground raised by both the appellants is liable to be
rejected. A person falling under the category of persons mentioned
in subsection (2) of Section 199 can either take the route specified
in subsection (4) or take the route specified in subSection (6) of
Section 199.
52.An ancillary argument arising out of Section 199(4) is that
Section 237 of the Code provides a safety valve against malicious
prosecution or prosecution without reasonable cause. Section 237
reads as follows:
“237. Procedure in cases instituted under section
199(2).—(1) A Court of Session taking cognizance of an
offence under subsection (2) of section 199 shall try the
case in accordance with the procedure for the trial of
warrantcases instituted otherwise than on a police report
before a Court of Magistrate:
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.
(2) Every trial under this section shall be held in camera if
either party thereto so desires or if the Court thinks fit so
to do.
37
(3) If, in any such case, the Court discharges or acquits
all or any of the accused and is of opinion that there was
no reasonable cause for making the accusation 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 (other than the President,
VicePresident or the Governor of a State or the
Administrator of a Union territory) to show cause why he
should not pay compensation to such accused or to each
or any of such accused, when there are more than one.
(4) The Court 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, make
an order 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.
(5) Compensation awarded under subsection (4) shall be
recovered as if it were a fine imposed by a Magistrate.
(6) No person who has been directed to pay compensation
under subsection (4) 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.
(7) The person who has been ordered under subsection
(4) to pay compensation may appeal from the order, in so
far as it relates to the payment of compensation, to the
High Court.
(8) When an order for payment of compensation to an
accused person is made, the compensation shall not be
paid to him before the period allowed for the presentation
of the appeal has elapsed, or, if an appeal is presented,
before the appeal has been decided.”
38
The contention of the appellants is that the protection available
under Section 237 of the Code to the accused, will be lost if the
public servant avoids the special procedure and lodges a complaint
individually.
53.It is true that under subsection (3) of Section 237, the Court
is empowered to direct the public servant (other than the President,
VicePresident or the Governor of a State or the Administrator of a
Union Territory) to show cause why he should not pay
compensation to a person accused of committing the offence of
defamation, in cases where the Court not only discharges or acquits
the accused, but is also of the opinion that there was no reasonable
cause for making the accusation against him.
54.But Section 237(3) is not a new invention. What was contained
in subsections (6) to (11) of Section 198B of the old Code of 1898
has taken a new shape in Section 237. Moreover, it is not as though
there is no such safety valve against prosecution by an individual
without reasonable cause, when he invokes subsection (6) of
Section 199. Whenever a person is prosecuted by a public servant
in his individual capacity before a Magistrate by virtue of Section
39
199(6), the accused can always fall back upon Section 250, for
claiming compensation on the ground that the accusation was
made without reasonable cause. Section 250 of the Code reads
thus:
“250. Compensation for accusation without reasonable
cause.—(1) If, in any case instituted upon complaint or
upon information given to a police officer or to a
Magistrate, one or more persons is or are accused before
a Magistrate of any offence triable by a Magistrate, and
the Magistrate by whom the case is heard discharges or
acquits all or any of the accused, and is of opinion that
there was no reasonable ground for making the
accusation against them or any of them, the Magistrate
may, by his order of discharge or acquittal, if the person
upon whose complaint or information the accusation was
made is present, call upon him forthwith to show cause
why he should not pay compensation to such accused or
to each or any of such accused when there are more than
one; or, if such person is not present, direct the issue of a
summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause
which such complainant or informant may show, and if
he is satisfied that there was no reasonable ground for
making the accusation, may, for reasons to be recorded,
make an order that compensation to such amount, not
exceeding the amount of fine he is empowered to impose,
as he may determine, be paid by such complainant or
informant to the accused or to each or any of them.
(3) The Magistrate may, by the order directing payment of
the compensation under subsection (2), further order
that, in default of payment, the person ordered to pay
such compensation shall undergo simple imprisonment
for a period not exceeding thirty days.
(4) When any person is imprisoned under subsection (3),
the provisions of sections 68 and 69 of the Indian Penal
Code (45 of 1860) shall, so far as may be, apply.
40
(5) No person who has been directed to pay compensation
under this section shall, by reason of such order, be
exempted from any civil or criminal liability in respect of
the complaint made or information given by him:
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.
(6) A complainant or informant who has been ordered
under subsection (2) by a Magistrate of the second class
to pay compensation exceeding one hundred rupees, may
appeal from the order, as if such complainant or
informant had been convicted on a trial held by such
Magistrate.
(7) When an order for payment of compensation to an
accused person is made in a case which is subject to
appeal under subsection (6), the compensation shall not
be paid to him before the period allowed for the
presentation of the appeal has elapsed, or, if an appeal is
presented, before the appeal has been decided; and where
such order is made in a case which is not so subject to
appeal the compensation shall not be paid before the
expiration of one month from the date of the order.
(8) The provisions of this section apply to summonscases
as well as to warrantcases.”
55.Therefore, nothing turns on Section 237 of the Code. Section
237 cannot be used as a crutch to support the argument revolving
around Sections 199(2) and 199(4).
56.Since we are rejecting the argument revolving around sub
sections (2) and (4) of Section 199 and also since this is the only
argument on which Shri Manoj Kumar Tiwari (A1) has come up
41
with the above appeal, his appeal in Criminal Appeal arising out of
S.L.P. (Crl.) No.351 of 2021, is liable to be dismissed. Accordingly,
it is dismissed.
ADDITIONAL GROUNDS IN THE CASE OF SHRI VIJENDER
GUPTA (A5)
57.In the first portion of this judgment where we have provided
the background facts, we have indicated that the learned Additional
Chief Metropolitan Magistrate has held Shri Vijender Gupta (A5)
not liable to be prosecuted for the offence under Section 34 of the
IPC. We have extracted elsewhere, paragraph 14 of the summoning
order dated 28.11.2019 passed by the Additional Chief Metropolitan
Magistrate, which became the subject matter of challenge before the
High Court in the order impugned in these appeals.
58.In the light of the fact that learned Additional Chief
Metropolitan Magistrate has taken cognizance only of the offence
under Section 500 IPC against Shri Vijender Gupta, it is enough for
us to test whether the tweets attributed to him can be said to be
per se defamatory. It is a fundamental rule of criminal
jurisprudence that if the allegations contained in the complaint,
42
even if taken to be true, do not constitute the offence complained,
the person accused should not be allowed to undergo the ordeal of a
trial. Therefore, let us have a look at the tweets attributed to Shri
Vijender Gupta (A5). These tweets are extracted in paragraphs 44
and 45 of the impugned judgment of the High Court of Delhi and
they are extracted as follows:
“44.The alleged culpable tweet of the petitioner of
Crl.M.C. 2355/2020 reads as under:
“Vijender Gupta @ Gupta, vijend…01 Jul
Chief Minister of Delhi @ Arvind Kejriwal and Deputy
Chief Minister @mssodia, kindly give answer to 24
questions of mine
I am sure that your answer will disclose your scam in the
construction of these rooms but you are avoiding to give
answer but I will obtain the reply.
45.Though the tweet itself is requirement of the
complainant to respond to 24 questions of the said
alleged Twitter which questions are to the effect:
“1.How many rooms and what total cost was
sanctioned under Priority in Directorate of Education?
2. What is the cost of construction per square meter
and what is the cost of construction per room under
Priority?
3. What were AA and ES for same were given by DOE
and with what conditions?
4. What components were included in the cost
estimates including horticulture, landscaping, rain water
harvesting etc.? List different components as the
estimated expenditure?
43
5. What was the time of completion under Priority?
6. How many rooms are actually constructed till now
under Priority and at what different time building wise?
7. What was the time over run in handling over of
these rooms?
8. How many rooms are still to be constructed under
Priority, both building/school wise?
9. What remaining work including horticulture,
landscaping etc. is left under Priority, both
building/school wise?
10.Is there any cost escalation by PWD in construction
of rooms under Priority?
11.If yes, please give details – PWD zone wise and
school/building wise ?
12.What was the reasons for cost escalation?
13.Are these reasons approved by DOE before it was
implemented by PWD?
14.Is there any precondition in AA & ES given by DOE
regarding how much cost escalation is allowed without
prior approval as when the approval is required?
15.Were such approvals of the competent authority
taken?
16.If no, what action is taken against concerned
officials of PWD?
17.What penalties are imposed on contractor of PWD for
time overrun?
18.Whether the work done by PWD is as per
specifications?
19.Is the water drainage system built by PWD using
pipes on the face of the building on all floors, as per
specification of PWD?
44
20.What are the EORs sanctioned by DOE to PWD for
civil workers during 201617, 201718, 201819 scheme
wise?
21.What steps are taken by DOE to avoid any
duplication of work under EORs and under works carried
in Priority I?
22.How many rooms and at what total cost were
sanctioned under priority II under DOE?
23.What is the cost of construction per square metre
and what is the cost of construction per room under
PriorityII?
24.What extra components are included in the cost
estimates under Priority II vis
àvis under Priority I? Give
list of new components and expenditure on same.”
59.Admittedly and obviously the twentyfour questions posed by
Shri Vijender Gupta (A5) to respondent No.1 cannot be said to be
defamatory as these questions seek answers to certain facts relating
to the construction of some buildings. What is sought to be
projected as defamatory, is only one statement namely “I am sure
that your answer will disclose your scam in the construction of these
rooms but you are avoiding to give answer but I will obtain the reply”.
60.We do not know how a statement in a tweet that the answers
of respondent No.1 to the questions posed by the appellant will
disclose his scam, can be said to be defamatory. We are afraid that
even if a person belonging to a political party had challenged a
45
person holding public office by stating “I will expose your scam”, the
same may not amount to defamation. Defamatory statement should
be specific and not very vague and general. The essential ingredient
of Section 499 is that the imputation made by the accused should
have the potential to harm the reputation of the person against
whom the imputation is made. Therefore, we are of the view that the
statement made by Shri Vijender Gupta (A5) to the effect “your
answer will disclose your scam” cannot be considered to be an
imputation intending to harm or knowing or having reason to
believe that it will harm the reputation of respondent No.1.
61.Unfortunately the summoning Order dated 28.11.2019 passed
by the Additional Chief Metropolitan Magistrate, did not go into the
contents of the tweets made by Shri Vijender Gupta. To that extent,
there was no application of mind on the part of the Additional Chief
Metropolitan Magistrate.
62.Though the High Court prima facie examined the tweets, it
upheld the summoning order passed by the Magistrate, after simply
extracting Section 499. The claim made by a person involved in
politics that the answers provided by his rival in public office to the
46
questions posed by him, will expose his scam, cannot be per se
stated to be intended to harm the reputation of the person holding
office. The statements such as “I will expose you”, “I will expose
your corrupt practices” and “I will expose the scam in which you are
involved, etc.” are not by themselves defamatory unless there is
something more.
63.In view of the above, the appeal filed by Shri Vijender Gupta
(A5) is liable to succeed on the sole ground that the statements
contained in his tweets cannot be said to be defamatory within the
meaning of Section 499 of the IPC.
64.In light of the above finding, we do not think that we need to
go into other argument raised by Shri Vijender Gupta (A5), on the
basis of Section 65B of the Indian Evidence Act.
CONCLUSION
65.In the result, the appeal arising out of S.L.P. (Criminal) No.658
of 2021, is allowed and the order of summoning dated 28.11.2019
passed by the Additional Chief Metropolitan MagistrateI, Rouse
Avenue Court Complex, New Delhi in Ct. Case 51/2019, insofar as
47
Shri Vijender Gupta (A5) is concerned, is set aside. However, the
complaint may proceed in respect of other accused. The appeal
arising out of S.L.P. (Criminal) No.351 of 2021 filed by Shri Manoj
Kumar Tiwari shall stand dismissed.
Pending application(s), if any, stands disposed of accordingly.
…………………………….J.
(S. Abdul Nazeer)
…………………………….J.
(V. Ramasubramanian)
New Delhi
October 17, 2022
48
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