K.K. Mishra vs The State Of Madhya Pradesh

to as “IPC”) against the Hon’ble Chief 2

Minister of the State of Madhya Pradesh. The

complaint has been filed by the Public

Prosecutor on 24th June, 2014 before the

District & Sessions Judge, Bhopal (Madhya

Pradesh) after receipt of sanction from the

Competent Authority of the State Government

on the very same day i.e. 24th June, 2014.

3. At the very outset, we deem it

necessary to put on record that during the

pendency of the present proceedings the

prosecution against the accused appellant has

been concluded by the learned Special Judge,

Prevention of Corruption Act, Bhopal, Madhya

Pradesh by judgment and order dated 17th

November, 2017 in Sessions Trial No.573 of

2014. The accused appellant has been found

guilty of the commission of the offence

punishable under Section 500 IPC and,

accordingly, he has been sentenced to undergo

simple imprisonment for two years with fine

of Rs.25,000/- (Rupees twenty thousand). We 3

are told at the Bar that an appeal against

the said order is presently pending before

the High Court of Madhya Pradesh and the

accused appellant is presently on bail.

4. At this stage, we would like to

recapitulate our order dated 5th January, 2018

reiterating that, notwithstanding the

conviction of the accused appellant, this

Court would like to consider the question of

the validity of the very initiation of the

prosecution against the appellant.

5. While Section 499 IPC defines and

deals with the offence of defamation,

punishment for the said offence is provided

by Section 500 IPC. In the present case, the

alleged offence of defamation against the

Hon’ble Chief Minister of the State of Madhya

Pradesh, according to the prosecution, has

been committed by the accused appellant on

account of certain statements made with

regard to the Hon’ble Chief Minister in the 4

course of a Press Conference that the

appellant had addressed as a Chief

Spokesperson of the Indian National Congress,

Madhya Pradesh organized on 21st June, 2014 at

the MP Congress Committee, 1461 Indra Bhawan

Shivaji Nagar, Bhopal.

6. Though a reading of the transcript of

the Press Conference, which has been placed

on record, may indicate a reference to the

Hon’ble Chief Minister in respect of several

acts and events, for the purposes of the

present case we will, necessarily, have to

confine ourselves to only three statements

allegedly made in the Press Conference with

reference to the Hon’ble Chief Minister. This

is because in the order granting

sanction/permission dated 24th June, 2014 for

filing of a complaint under Section 199 (2)

Cr.P.C. it is only the aforesaid three

statements which have been taken note of as

being defamatory and, therefore, taken

cognizance for purpose of grant of 5

sanction/permission under Section 199(2) of

the Cr.P.C. The aforesaid three statements

mentioned in the order dated 24th June, 2014

granting sanction/permission are as follows:

“1. 19 amongst the Transport Inspection appointed in Madhya Pradesh are from the in-laws house Gondiya (Maharashtra) of Chief Minister Shivraj Singh Chouhan.

2. Conversation has been made with the accused persons of the Vyapam Scam from the mobile of Sanjay Chouhan son of Phoolsingh Chouhan-Mama of the Chief Minister Sh. Shivraj Singh Chouhan.

3. Conversation has been made from the Chief Minister’s house by an influential woman through 139 phone calls with the accused of Vyapam Scam Nitin Mahendra, Pankaj Trivedi, Lakshmikant Sharma.”

7. Section 199(2) Cr.P.C. provides for a

special procedure with regard to initiation

of a prosecution for offence of defamation

committed against the constitutional

functionaries and public servants mentioned 6

therein. However, the offence alleged to

have been committed must be in respect of

acts/conduct in the discharge of public

functions of the concerned functionary or

public servant, as may be. The prosecution

under Section 199 (2) Cr.P.C. 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 Sessions 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) Cr.P.C. read with

section 199(4) Cr.P.C., 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 7

persons mentioned in sub-section (2) of

Section 199 Cr.P.C. 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 judgment of

considerable vintage in P.C. Joshi and

another vs. The State of Uttar Pradesh1

[paragraph 9]. The core reason which this

Court held to be the rationale for the

special procedure engrafted by Section 199(2)

Cr.P.C. 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.

1 AIR 1961 SC 387 8

P.C. Joshi (supra), however,

specifically dealt with the provisions of

Section 198B of the Code of Criminal

Procedure, 1898 (“old Code”) which are pari

materia with the provisions of Section 199 of

the Cr.P.C. (“new Code”).

9. The above would require the Court to

consider as to whether the statements made by

the accused appellant in the Press Conference

which have been taken note of in the order

dated 24th June, 2014 granting sanction/

permission can legitimately be said to be

attributable or connected with the discharge

of public functions of the office of the

Hon’ble Chief Minister. In other words,

whether the said statements have any

reasonable nexus with the discharge of

Official duties by the Hon’ble Chief

Minister.

9

10. The problem of identification and

correlation of the acts referred to in an

allegedly defamatory statement and those

connected with the discharge of public

functions/official duties by the holder of

the public office is, by no means, an easy

task. The sanction contemplated under Section

199(4) Cr.P.C. though in the opposite context

i.e. to prosecute an offender for offences

committed against a public servant may have

to be understood by reference to the sanction

contemplated by Section 197 Cr.P.C. which

deals with sanction for prosecution of a

public servant. There is a fair amount of

similarity between the conditions precedent

necessary for accord of sanction in both

cases though the context may be different,

indeed, the opposite. While dealing with the

requirement of sanction under Section 197

Cr.P.C. this Court in Urmila Devi vs. Yudhvir

Singh2 had taken the following view which may

have some relevance to the present case. 2 (2013) 15 SCC 624 10

“59. The expression “official duty” would in the absence of any statutory definition, therefore, denote a duty that arises by reason of an office or position of trust or authority held by a person. It follows that in every case where the question whether the accused was acting in discharge of his official duty or purporting to act in the discharge of such a duty arises for consideration, the court will first examine whether the accused was holding an office and, if so, what was the nature of duties cast upon him as holder of any such office. It is only when there is a direct and reasonable nexus between the nature of the duties cast upon the public servant and the act constituting an offence that the protection under Section 197 CrPC may be available and not otherwise. Just because the accused is a public servant is not enough. A reasonable connection between his duties as a public servant and the acts complained of is what will determine whether he was acting in discharge of his official duties or purporting to do so, even if the acts were in excess of what was enjoined upon him as a public servant within the meaning of that expression under Section 197 of the Code.”

11. If the allegedly defamatory

statements, already extracted, in respect of

which sanction has been accorded to the

Public Prosecutor to file the complaint 11

against the appellant under Section 199 (2)

Cr.P.C. by the order dated 24th June, 2014 are

to be carefully looked into, according to us,

none of the said statements, even if admitted

to have been made by the appellant, can be

said to have any reasonable connection with

the discharge of public duties by or the

office of the Hon’ble Chief Minister. The

appointment of persons from the area/place to

which the wife of the Hon’ble Chief Minister

belongs and the making of phone calls by the

relatives of the Hon’ble Chief Minister have

no reasonable nexus with the discharge of

public duties by or the office of the Hon’ble

Chief Minister. Such statements may be

defamatory but then in the absence of a nexus

between the same and the discharge of public

duties of the office, the remedy under

Section 199(2) and 199(4) Cr.P.C. will not be

available. It is the remedy saved by the

provisions of sub-section (6) of Section 199

Cr.P.C. i.e. a complaint by the Hon’ble Chief 12

Minister before the ordinary Court i.e. the

Court of Magistrate which would be available

and could have been resorted to.

12. There is yet another dimension to the

case. In Subramanian Swamy vs. Union of

India3 one of the grounds on which the

challenge to the constitutional validity of

Section 499 and 500 IPC was sustained by this

Court was the understanding that Section

199(2) and 199(4) Cr.P.C. provide an inbuilt

safeguard which require the Public Prosecutor

to scan and be satisfied with the materials

on the basis of which a complaint for

defamation is to be filed by him acting as

the Public Prosecutor. In this regard, an

earlier decision of this Court in Bairam

Muralidhar vs. State of Andhra Pradesh4 while

dealing with Section 321 Cr.P.C. (i.e.

Withdrawal from prosecution) was considered

by this Court and it was held as follows:

3 (2016) 7 SCC 221 4 (2014) 10 SCC 380 13

“…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 Vs. State of A.P [(2014) 10 SCC 380] 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.” (underlining is ours)

13. In the proceedings before the learned

trial Court, the Public Prosecutor who had

presented the complaint under Section 199(2)

Cr.P.C. was cross-examined on behalf of the

accused appellant. From the relevant extract

of the cross-examination of the Public

Prosecutor, which is quoted below, it is

clear to us that the Public prosecutor had 14

admitted the absence of any scrutiny by him

of the materials on which the prosecution is

sought to be launched. In fact, the Public

Prosecutor had gone to the extent of

admitting that he had filed the complaint

against the accused appellant on the orders

of the State Government. The relevant

extract of the cross-examination of the

Public Prosecution is as under:

xxx 7.3.2015

“47. It is correct to say that I have not given any proposal in capacity of public prosecutor to the Government that I want to file a complaint against Shri K.K. Mishra in connection with giving defamatory statement. It is correct to say that I have filed the present case in the official capacity of Public Prosecutor. It is correct to say that I have not filed the present complaint on behalf of the Government (Volunteered to say) that I have filed the above case being a Public Prosecutor. It is correct to say that on the order of the Government, I have filed the complaint. If the Government had not directed me, then, I would not have filed a complaint as a Public Prosecutor.

15

48. xxxxxxxxxx

49. xxxxxxxxxx

50. Before receiving the permission, I have not seen any document and did not consider whether complaint has to be filed or not. It is correct to say that I have not submitted any document in connection with this fact that Jagdish Devda was a Minister in the Government of Madhya Pradesh and Shri Shivraj Singh Chouhan was positioned as Hon’ble Chief Minister of Government of Madhya Pradesh on the date of Press Conference (Voluntarily state that) the accused himself, while addressing Shri Shivraj Singh Chouhan as Chief Minister, has made all the allegations.

51. It is correct to say that before filing the complaint, I have not given any legal notice to the accused in connection with this fact that whether objections were raised against the Hon’ble Chief Minister in Press Conference or not.”

14. The testimony of the Public

Prosecutor in his cross-examination

effectively demonstrates that the wholesome

requirement spelt out by Section 199(2) and 16 199(4) Cr.P.C., as expounded by this Court in

Subramanian Swamy (supra), has not been

complied with in the present case. A Public

Prosecutor filing a complaint under Section

199 (2) Cr.P.C. without due satisfaction that

the materials/allegations in complaint

discloses an offence against an Authority or

against a public functionary which adversely

affects the interests of the State would be

abhorrent to the principles on the basis of

which the special provision under Section

199(2) and 199(4) Cr.P.C. has been structured

as held by this Court in P.C. Joshi (supra)

and Subramanian Swamy (supra). The public

prosecutor in terms of the statutory scheme

under the Criminal Procedure Code plays an

important role. He is supposed to be an

independent person and apply his mind to the

materials placed before him. As held in

Bairam Muralidhar case supra)

“……He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember 17

his duty to the court as well as his duty to the collective.”

In the present case, the press meet was

convened by the appellant on 21.06.2014. The

government accorded sanction to the public

prosecutor to file complaint under Section

500 IPC against the appellant on 24.06.2014.

As seen from the records, the complaint was

filed by the public prosecutor against the

appellant on the very same day i.e.

24.06.2014. The haste with which the

complaint was filed prima facie indicates

that the public prosecutor may not have

applied his mind to the materials placed

before him as held in Bairam Muralidhar case

(supra). We, therefore, without hesitation,

take the view that the complaint is not

maintainable on the very face of it and would

deserve our interference.

15. On the conclusions that have been

reached by us, as indicated above, the

conviction of the accused appellant and the 18

sentence imposed would not have any legs to

stand. The very initiation of the

prosecution has been found by us to be

untenable in law. Merely because the trial

is over and has ended in the conviction of

the appellant and the matter is presently

pending before the High Court in appeal

should not come in the way of our

interdicting the same. The requirements of

justice would demand that we carry our

conclusions to its logical end by invoking

our special and extraordinary jurisdiction

under Article 142 of the Constitution of

India. Consequently, we allow this appeal;

quash the impugned prosecution/proceedings

registered and numbered as Sessions Session

Trial No.573 of 2014; and set aside the order

dated 17th November, 2017 passed by the

learned Special Judge, Prevention of

Corruption Act, Bhopal, Madhya Pradesh in

Sessions Trial No.573 of 2014 convicting the

accused appellant under Section 500 IPC and 19

sentencing him as aforesaid. The appeal

pending before the High Court against the

order dated 17th November, 2017 passed by the

learned Special Judge, Prevention of

Corruption Act, Bhopal, Madhya Pradesh in

Sessions Trial No.573 of 2014 shall also

stand closed in terms of the present order.

Bail bond, if any shall stand discharged

accordingly.

16. The appeal is allowed in the above

terms.

......................, J [RANJAN GOGOI]

......................, J [R. BANUMATHI]

......................, J [MOHAN M. SHANTANAGOUDAR]

NEW DELHI APRIL 13, 2018.