Judgment S. B. Sanyal, J. 1. The moot question in this quashing application is. Who can prosecute under Sec.500 of the Indian Penal Code when a deceased is defamed ? 2. The complainant, a Congress Worker and devotee of Mahatma Gandhi, felt hurt on reading a speech of Bhagwan Shree Rajneesh published in a Hindi weekly news Magazine current from Bombay in its issue dated the 2nd september, 1978, which reads as follows : "mahatma Gandhi ko Rashtra Pita kahna Chhorden. Apane antim dinon men wey ek nagn yuwati ke saath soya karte the. Umra ke Sattarwen varsh me bhi wey swapan dosh aw kaam wasana se pirit the. " It is submitted that the speech aforesaid is defamatory to the Father of the nation. The complainant averes that he has been hurt on having read it. 3 To begin with what is defamation The classical definition of the term defamation, which is both libel and slander, is "false statement about a man to his discredit" See Scott V/s. Sampson, 1882 (8) QBD 491, Cave, J. Lord atkin in the case of Sim V/s. Stretch, 1936 (52) TLR 669 at p.671 puts in : "would the words tend to lower the complainant in the estimation of the right thinking members of the society generally". (Emphasis added) 4. Ordinarily, therefore, the proper and only party to bring the action, both civil and criminal, is the person actually and personally defamed See knupffer V/s. London Express Newspaper, Ltd. , 1944 (1) All England Reports 4y5, unless the reputation of the person defamed is so intimately connected with that of the complainant as if the words had been spoken against him to illustrate husband and wife. It was held in the case of Chhotelal Lallubhai V/s. Nathabhai bechar and another, 1lr 25 Bombay 151 (FB) that imputation made by a third person concerning the wife causes a direct injury to the honour and reputation of a husband. The husband was held to be some person aggrieved" within the meaning of Sec.199 of the Code of Criminal Procedure, to move the criminal court in motion. 5. A defamatory statement by a person exposes him both to civil and criminal consequences. Under common law "damage to the plaintiffs reputation being the essence of civil proceeding for defamation, an action for libel or slander does not lie in respect of defamation of a dead person. 5. A defamatory statement by a person exposes him both to civil and criminal consequences. Under common law "damage to the plaintiffs reputation being the essence of civil proceeding for defamation, an action for libel or slander does not lie in respect of defamation of a dead person. However, a criminal proceeding may be instituted in respect of a libel on a dead person published with the intention cr possibly with a tendency to injure the reputation of his surviving relatives so that they may be excited to take revenge and commit a breach of the peace" See Halsburys Laws of England, 4th Edition, Volume 28, paragraph 6. 6. Common law principle as to locus in respect of criminal prosecution for defamation of a dead person appears to be the same in India. Explanation I to section 499 envisages that it would be defamation if the imputation not only harms the reputation of the person concerned, if living, but also be "intended to be hurtful to the feelings of his family or other near relatives". The provisions of Sec.499 of the Indian Penal Code are to be read alongwith Explanation I since the person defamed is dead. The two parts of the provisions contained in explanation 1 are to be read conjunctively and not in disjunction. The imputation alleged must not only harm the reputation of the person, if living, but also be intended "to be hurtful to the feelings of his family or other near relatives" in order to constitute the offence of defamation. It will appear from this that though generally the person defamed is the person aggrieved, yet in the case of a deceased person, an exception is made which allows the relations to complain when the imputation on harms the reputation of the deceased and also at the same time hurts the feelings of living family members and near relatives. The explanation widens the scope of main section, which is permitted interpretation cf statutes and, therefore, must be given effect to See Mjs. Hiralal Ratan Lal V/s. The Sales Tax Officer, Section III, Kanpur, AIR 1973 SC 1034 at 1040. In short, an act done with malevolent purpose to vilify the memory of the deceased with an intention to injure and hurt the feelings of the deceaseds posterity is also defamation. 7. Hiralal Ratan Lal V/s. The Sales Tax Officer, Section III, Kanpur, AIR 1973 SC 1034 at 1040. In short, an act done with malevolent purpose to vilify the memory of the deceased with an intention to injure and hurt the feelings of the deceaseds posterity is also defamation. 7. The next question is who is the person aggrieved to set the criminal law in motion in a defamation proceeding with regard to a dead person. This takes us to Sec.199 of the Code of Criminal Procedure which lays down that "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. . . . . . on. . . his behalf," Sec.199 of the code of Criminal Procedure forms part of Chapter XIV thereof. This chapter deals with conditions requisite for initiation of proceedings. There is no limitation as to the persons who can complain about offences, except those mentioned in Sec.195, 198 and 199 which relate to prosecution for contempt of lawful authority of public servants, for offences against public justice, offences relating to documents given in evidence and prosecution for offences against marriage as well as prosecution for defamation. The words "person aggrieved by the offence" find mention with respect to offences against marriage and prosecution for defamation. In our opinion, the offence being of private nature, it has limited the persons who can initiate these proceedings . 8 Mr. Tiwari, appearing on behalf of the complainant, contended that section 199 speaks about locus standi of person who can maintain a complaint under Sec.500 of the Indian Penal Code. According to him, the expression some person aggrieved is not necessarily limited to the person defamed. Had that been so, Explanation I to Sec.4)9 of the Indian Penal Code would become a dead letter. some person aggrieved, according to Mr. Tiwari is wide enough to include persons not directly detamed. We do not think Mr. Tiwari is correct in his submission. Sec.199 of the code of Criminal Procedure does not stop at the word "aggrieved", but "aggrieved by such offence. some person aggrieved, according to Mr. Tiwari is wide enough to include persons not directly detamed. We do not think Mr. Tiwari is correct in his submission. Sec.199 of the code of Criminal Procedure does not stop at the word "aggrieved", but "aggrieved by such offence. " With respect to a dead person, the persons aggrieved, in view of Explanation I to Sec.499 of the Indian Penal Code, would be the members ot the family or the near relatives who have been injured and hurt by the commission of the said offence. The second part of explanation I to Sec.499 is very material and the first part cannot be considered de hors thereof. 9. The words person aggrieved in Sec.198 (new Sec.199 of Act 2 of 1974) came in for consideration in the case of G. Narasimhan and others V/s. T. V. Chokkappa, AIR 1972 SC 2609 where their lordships held that Sec.198 lays down an exception to a general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modifies that rule by permitting only an aggrieved person to move a magistrate in cases of defamation. The section was held to be mandatory and, therefore, if a Magistrate takes cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction would be void and illegal. It is true that the said case related to Explanation 2 to Sec.499 which lays down that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Therefore, a defamation imputable against a collection of persons falls within the definition of "defamation". Their lordships held : "prima facie, therefore, if Sec.198 of the Code were to be noticed by itself, the complaint in the present case would be unsustainable, since the news item in question did not mention the respondent nor did it contain any defamatory imputation against him individually. " (Emphasis added) Lord Atkin in the case of Knupffer (supra) observed : ". . . . . . The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. " (Emphasis added) Lord Atkin in the case of Knupffer (supra) observed : ". . . . . . The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. " (Emphasis added) It will, therefore, appear that though generally the person defamed is the person aggrieved, but in the case of a deceased person an exception is made in favour of living persons limited only to members of the family or near relatives whose feeling is hurt by the defamatory statement, and none else. 10 The mere fact that the feelings of the complainant have been injured in consequence of a defamatory satement made against the Father of the Nation affords the complainant no ground under the law to prosecute the petitioner for defamation, he being neither a family member nor a near relative of the deceased but only a Congress worker and devotee of Mahatma Gandhi. If it is a question of hurt, we are no less hurt than the complainant, but the law prohibits action against the accused by any person hurt. 11. In the result, the application is allowed and the order dated the 10th november, 1979, taking cognizance, is quashed. Application allowed.