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2017 DIGILAW 859 (MP)

K. K. Mishra v. State Of M. P.

2017-07-24

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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ORDER : The challenge in the present petition is to charges framed against the petitioner by the learned Special Judge on 4-2-2017. The charges are framed in Hindi, when it is translated into English, reads as follows :— “Firstly - that, you on 21-6-2014, in a Press Conference organized at the Headquarters of the M. P. Congress Committee, 1464 Indra Bhawan Shivaji Nagar, Bhopal, have levelled imputations intentionally, knowingly, or having reason to believe that such imputation will harm reputation of Chief Minister, Shri Shivraj Singh Chouhan; that in the Examination of M. P. Transport Inspectors, 19 appointments were made of candidates hailing from Gondia (Maharashtra), the parental place of Smt. Sadhna Singh, wife of Chief Minister; that the mobile No. 9425365883 used in the communication with Nitin Mohindra and Pankaj Trivedi, who were involved in VYAPAM SCAM, was of one Sanjay Chouhan son of Phool Singh – the maternal uncle of the Chief Minister, in order to get the examinees passed in the said Examination; that the Chief Minister along with his family undertakes contract in that regard; and that from the Chief Minister’s residence an influential woman had made 139 calls with Nitin Mohindra, Pankaj Trivedi and Laxmikant, accused of VYAPAM SCAM from the said mobile number. Thereby you have defamed the Chief Minister Shivraj Singh Chouhan, which is a punishable offence under section 500 of the Indian Penal Code and it is within the cognizance of this Court.” 2. The allegations are that in a Press Conference conducted by the present petitioner on 21-6-2014, the petitioner is said to have levelled allegations in relation to conduct of examination by the M. P. Professional Examination Board (popularly known as ‘Vyapam’). The statement given in the Press Conference has been produced on record – which is available at Page 87 of the paper-book, as part of the complaint. The particular allegations which are said to be defamatory when loosely translated in English reads as under : i) that, in the examination for the post of Transport Inspector, 19 appointments were made from the candidates belonging to Village Gondia, which is the parental village of Smt. Sadhana Singh, wife of the Chief Minister. The particular allegations which are said to be defamatory when loosely translated in English reads as under : i) that, in the examination for the post of Transport Inspector, 19 appointments were made from the candidates belonging to Village Gondia, which is the parental village of Smt. Sadhana Singh, wife of the Chief Minister. This fact came to notice when the Officer who was aware of these appointments was transferred; ii) that Sanjay Singh Chouhan, son of maternal uncle of the Chief Minister – Phool Singh Chouhan, was in touch with the officials, namely – Nitin Mahindra and Pankaj Trivedi, and were successful in making the candidates qualify in the examination; iii) that, if the list of selected candidates of ‘Transport Inspector’ is made public, then the names of 19 candidates are from the village of in-laws of Hon’ble Chief Minister; and, that of the telephone calls made by S. K. Mishra are made public, then it would be made known as to who was the influential person in the Chief Minister’s residence, who has called 139 times to Nitin Mohindra and Pankaj Trivedi – accused of Vyapam scam. 3. Such allegations were said to be defamatory, which led to filing of a complaint – Annexure P/1 by Shri Anand Tiwari, representing himself as Public Prosecutor on 24-6-2014, supported by an affidavit of the same date. On the basis of such complaint, preliminary evidence was recorded by the learned trial Court and after recording of the preliminary evidence, the charge as reproduced above, was framed. 4. Learned counsel for the petitioner before this Court has raised the following arguments :— (a) That, Shri Anand Tiwari was appointed as the Additional Public Prosecutor for a period of three years i.e. from 30-3-2011 to 29-3-2014, vide order dated 12-6-2012, which order was published in the Government Gazette on 22-6-2012. Since the period of appointment expired on 29-3-2014 and that there was no further appointment of Shri Anand Tiwari as Additional Public Prosecutor, therefore, the complaint filed by Shri Anand Tiwari on 24-6-2014 is a presentation by an ‘incompetent person’; (b) That, it is contended that the Public Prosecutor when appeared as a witness in support of the complaint has deposed that he has filed the complaint as directed by the department and is not his own act. It is thus sought to be contended that the complaint was an act on the basis of directions of the superiors and not of Public Prosecutor; (c) That in terms of section 199(2) of the Code of Criminal Procure, 1973 [hereinafter referred to as ‘Code’], a complaint is required to be made by the Public Prosecutor. Such complaint is required to be made by Public Prosecutor after previous ‘sanction’ of the State Government in terms of sub-section (4) of section 199 of the Code. It is contended that sanction has to be sought by the Public Prosecutor, as Public Prosecutor is not a post office, he has a duty to scan the material on the basis of which the claim for defamation is to be filed; and, (d) That the Press Statement is not in respect of discharge of public functions of the Chief Minister, but relate to questioning the conduct of the investigating agency in the matter of Vyapam, therefore, the pre-condition as required under sub-section (2) of section 199 of the Code, is not made out. 5. On the other hand, Shri P. K. Kaurav – learned Advocate General, has argued that in terms of the Departmental Manual, a copy of which is part of the paper book, Clause 20 permits that if the term of the Public Prosecutor or Additional Public Prosecutor expires, he will continue to discharge his duties till such time he is either re-appointed or some other successor is appointed. It is contended that the said Departmental Manual is a compilation of departmental instructions issued from time to time by the State Government which are issued in exercise of the executive powers of the State. Such instructions do not run contrary to any statute or rules or the statutory rules, therefore, such instructions can supplement the statutory provisions. 6. Learned Advocate General also relied upon a Division Bench judgment of the Allahabad High Court, reported as Muneshwara Nand vs. State, AIR 1961 Allahabad 24; and, a Single Bench judgment of the Bombay High Court, reported as Harikishan Agrawal vs. State of Maharashtra, 1970 Cri.L.J. 788, to contend that the allegations attributed to the petitioner fall within the expression ‘conduct in the discharge of his public function’, therefore, complaint has been properly presented. 7. 7. It is also argued that the allegations are against the Chief Minister and that false accusation against his wife and members of family said to be residing in the official residence, therefore, the allegations are against the Chief Minister and are not related to the investigations. The allegations of appointment of 19 candidates as belonging to the parental village of wife of Chief Minister; calls made by Sanjay Chouhan and from the house of the Chief Minister all relates to the Chief Minister in respect of his conduct while discharging official functions. 8. Before, we consider the respective contention of the parties, it would be advantageous to reproduce the provisions of section 199 of the Code :— “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. (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 sub- section (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 sub- section (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.” 9. In respect of the first argument raised by learned counsel for the petitioner that Shri Anand Tiwari was ‘in-competent’ to file a complaint, we do not find any merit in the argument that Shri Anand Tiwari was ‘not competent’ to file the complaint for an offence punishable under section 500 of the Indian Penal Code. As per the Gazette Notification and order on record, Shri Anand Tiwari was appointed as Additional Public Prosecutor till 29-3-2014. In the meantime, the post of Public Prosecutor, Bhopal fell vacant on 3-10-2013 due to retirement of Shri H. L. Jha. Therefore, the Collector passed an order designating Shri Anand Tiwari as Public Prosecutor on 24-10-2013 till 29-3-2014. May be the Collector was not competent to designate an Additional Public Prosecutor as a Public Prosecutor, but Shri Anand Tiwari as Additional Public Prosecutor upto 29-3-2014 could file a complaint in terms of the definition of ‘Public Prosecutor’ in section 2(u) of the Code. 10. May be the Collector was not competent to designate an Additional Public Prosecutor as a Public Prosecutor, but Shri Anand Tiwari as Additional Public Prosecutor upto 29-3-2014 could file a complaint in terms of the definition of ‘Public Prosecutor’ in section 2(u) of the Code. 10. Though the term of Shri Anand Tiwari expired on 29-3-2014, but in terms of the compilation [Clause 20] published in the Departmental Manual of the Law and Legislative Affairs Department of the State, a Public Prosecutor and Additional Public Prosecutor will continue to discharge his duties till such time either he is re-appointed or his successor is appointed. Since none was appointed as Additional Public Prosecutor or Public Prosecutor till 24-6-2014, Shri Anand Tiwari was ‘competent’ to file a complaint for an offence punishable under section 500, Indian Penal Code, as such executive instructions do not run counter to any statute or the rules framed thereunder. Such executive instructions issued under the Executive Powers of the State can supplement law, but cannot supplant law. Therefore, in terms of such clause, Shri Anand Tiwari would be ‘competent’ to file a complaint under section 199 of the Code. 11. In support of the second argument that Public Prosecutor when appeared as a witness and supported the complaint, has deposed that he filed the complaint as directed by the Department and not on his own. It does not merit any consideration. The complaint is signed by Shri Anand Tiwari and is supported by his affidavit. As a Public Prosecutor, after grant of sanction, he has to see whether there is enough material available for an offence under section 500 of the Indian Penal Code (hereinafter referred to as ‘IPC’). 12. The other argument of the learned counsel for the petitioner is that ‘sanction’ was not sought by the Public Prosecutor but by the Department, whereas it is the satisfaction of the Public Prosecutor which is a pre-condition for filing of a complaint. We do not find any merit in the said argument as well. 13. The question of grant of sanction for an offence under section 500, Indian Penal Code has been examined by the Supreme Court in a judgment reported as Rajdeep Sardesai vs. State of A.P., (2015) 8 SCC 239 . It has been held that previous sanction must be accorded, authorising the initiation of criminal prosecution against the accused. 13. The question of grant of sanction for an offence under section 500, Indian Penal Code has been examined by the Supreme Court in a judgment reported as Rajdeep Sardesai vs. State of A.P., (2015) 8 SCC 239 . It has been held that previous sanction must be accorded, authorising the initiation of criminal prosecution against the accused. The Court held as under :— “30. ……. By careful reading of the provision under section 199, Criminal Procedure Code, read with the All India Services (Conduct) Rules, 1968, it provides that previous sanction must be accorded, authorising the initiation of criminal prosecution against the accused, however, the said provisions do not state that it is necessary to mention the names of each one of the accused who are alleged to have committed the offence in the same alleged transaction. Therefore, in the case on hand, when the previous sanction was accorded by the State Government against those who were responsible for the telecast/publication of the news both in electronic and print media which according to the second respondent damaged his reputation, it is not necessary for the State Government to separately issue sanction order against each one of the appellants ……”. 14. In terms of section 199(2) of the Code, a complaint in writing is required to be made by the Public Prosecutor. Annexure P/1 is the complaint made by the Public Prosecutor as defined in section 2(u) of the Code, supported by his affidavit. Sub-section (4) contemplates that no complaint shall be made by the Public Prosecutor except with the previous sanction in case of a person who is or has been the Governor of that State or a Minister of that Government. Sanction has been granted by Additional Secretary, Department of Law and Legislative Affairs on 24-6-2014 (page 63 of the paper book), on the complaint of Administrative Department. The requirement of section 199(2) of the Code is of filing of complaint by a Public Prosecutor after previous sanction. 15. The argument that sanction has not been sought by the Public Prosecutor is again not tenable as sub-section (2) of section 199 of the Code contemplates that a complaint in writing is to be made by the Public Prosecutor. Sub-section (4) of section 199 puts an embargo that no such complaint shall be made by the Public Prosecutor except with a previous sanction. Sub-section (4) of section 199 puts an embargo that no such complaint shall be made by the Public Prosecutor except with a previous sanction. Therefore, the role of the Public Prosecutor is not to seek sanction, but to file a complaint after sanction is granted. In terms of Subramanian Swamy vs. Union of India, (2016) 7 SCC 221 case, the role of a Public Prosecutor is not that of a post office, he has a duty to scan the material on the basis of which a claim for defamation is to be filed. It cannot be said that such test has not been satisfied when Shri Anand Tiwari filed a complaint on the basis of sanction granted by the State Government. In Rajdeep Sardesai’s case (supra), again the Court has held that the power exercised by the State Government under section 199 of the Code is an administrative and ministerial action and is as per subjective satisfaction on the part of the State Government. The relevant extract reads as under :— “31. Further, the reliance placed by the learned counsel on behalf of the appellants upon the judgments of this Court referred to supra while according sanction in favour of the second respondent to initiate the criminal proceedings against the appellants, the State Government has not applied its mind, this contention is also wholly untenable in law as the exercise of power by the State Government under section 199, Criminal Procedure Code is in the administrative and ministerial capacity and according of such sanction is as per the subjective satisfaction on the part of the State Government. The learned Senior Counsel on behalf of the appellants has placed reliance upon the judgments of this Court in Gour Chandra Rout vs. Public Prosecutor [AIR 1963 SC 1193], P.C. Joshi vs. State of U.P. [ AIR 1961 SC 387 ] and Mansukhlal Vithaldas Chauhan vs. State of Gujarat [ (1997) 7 SCC 622 ]. With regard to the above referred cases, the first two cases have not dealt with the exercise of power under section 199, Criminal Procedure Code, except stating the ministerial exercise of power by the State Government while exercising its power under section 198-B(3)(a), Criminal Procedure Code, 1898. With regard to the above referred cases, the first two cases have not dealt with the exercise of power under section 199, Criminal Procedure Code, except stating the ministerial exercise of power by the State Government while exercising its power under section 198-B(3)(a), Criminal Procedure Code, 1898. Insofar as the third case referred to supra upon which the reliance placed upon by the learned Senior Counsel on behalf of the appellants is concerned, the same is in relation to the previous sanction to be accorded by the State Government for the purpose of prosecution under the provisions of the Prevention of Corruption Act. Therefore, none of the above cases on which reliance has been placed by the learned counsel on behalf of the appellants have any relevance to the fact situation on hand.” 16. Therefore, ‘sanction’ is required before a Public Prosecutor files a complaint and not that Public Prosecutor himself has to seek ‘sanction’ before filing of a complaint. Thus, we do not find any merit in the said argument raised by the petitioner. 17. In respect of an argument that the allegation in the press conference attributed to the petitioner are not in respect of discharge of public functions of Chief Minister, but in respect of the investigation in the Vyapam by the Investigating Agency, therefore, the complaint filed cannot be entertained for the reason that there is no allegation against the Chief Minister in respect of discharge of his public functions. We do not find any merit in such argument as well. 18. In Muneshwara Nand’s case (supra), the allegation against the complainant was that he does not do any work; that he was always found to be with his wife (Begum Sahiba) and that he has to be called from inside his house; during the period of his posting none has been happy except one Inspector and that the medicines were taken out of stock and sold in Delhi. It was found that the sanction as contemplated section 197 of the Code is different than the sanction sought under section 198-B of the Code of Criminal Procedure, 1898. The relevant extract reads as under :— “35. So much for the law with regard to the act/illegal omission or offence of a public servant in the discharge of his official duty. But in section 198-B we have to deal with his conduct. The relevant extract reads as under :— “35. So much for the law with regard to the act/illegal omission or offence of a public servant in the discharge of his official duty. But in section 198-B we have to deal with his conduct. I am of opinion that Parliament’s preference for this word over a word like “act” is deliberate. Hence special weight must be given to it. The dictionary meaning of “conduct” is “behaviour, usually with more or less reference to its moral quality, good or bad; manner of conducting oneself or one’s life;” quite obviously, its compass is very wide, and it is far more comprehensive than a mere act or illegal omission, incidentally, much more than an act, conduct can be in respect of performance of official duty as well as in dereliction thereof. Hence for applying section 198-B to any imputation we must concentrate not so much on the public functions as on the alleged conduct of the official concerned, more so because the injury caused by defamation is essentially a moral one inasmuch as by its very nature this offence lowers the victim in the estimation of others. Now, if what Mr. Ansari contends is sound section 198-B will become a dead letter, for unworthy conduct, such as must be affirmed before it could amount to defamation, can be displayed by an official in the proper execution of his duty. It would therefore be absurd to think that such could have been the intention of Parliament. In these circumstances the conclusion becomes irresistible that the phrase “conduct in the discharge of his public functions” occurring in section 198-B covers a vaster field than what has been held by the Supreme Court in examining section 197(1). It is the combined effect of the intendment of Parliament, the use of the word “conduct” as just explained and the extended meaning given by the Supreme Court to “act in the discharge of official duty” that markedly augments the scope of section 198-B (1). It is the combined effect of the intendment of Parliament, the use of the word “conduct” as just explained and the extended meaning given by the Supreme Court to “act in the discharge of official duty” that markedly augments the scope of section 198-B (1). Accordingly, in my judgment the true state of the law is that if there is any defamatory statement concerning the behaviour of a public servant which can be reasonably associated with the discharge or non-discharge of his official duty even if not strictly necessary for that discharge, or relating to his conduct which bears such rational though not pretended or fanciful relation to the duty that it appears to have been displayed in the course of the performance or non-performance of the duty, the behaviour or conduct having reference inter alia to its moral quality, it would immediately attract the operation of section 198-B. To put it differently in the phraseology of section 99, Indian Penal Code, if in the imputation the conduct of the official is made to appear as stemming from the “colour of his office” even if it “may not be strictly justifiable by law”, the provisions of section 198-B will apply. On the other hand, if the imputation alludes to behaviour or conduct which relates to his life as a private citizen or which does not hinge on his public functions, even though his office might have furnished the excuse or occasion for it, the section will have no relevance. No hard and fast rules can however be laid down, and in each case the imputation will have to be dealt with on its own facts and circumstances.” 19. In the later judgment of Harikishan Agrawal (supra), the learned Single Bench of Bombay High Court was examining the words said to be defamatory such as that the revenue minister has taken possession of all the property of Ashram and has locked it up and that the Minister grabbed the Presidentship of the Ashram. It was argued that when a person holding a public office acts in his capacity as an individual dissociated from his official functions, then the provision of section 198-B of the Code will not apply. It was argued that when a person holding a public office acts in his capacity as an individual dissociated from his official functions, then the provision of section 198-B of the Code will not apply. Considering the said argument, the Court held that the description of Shri Balasaheb Desai as Revenue Minister, the capacity of giving threat in certain matter which is not described and calling upon the Collector and the Commissioner will only lead to the fact that intention was to lay before the public the conduct of the Revenue Minister, but the article was so written that the Revenue Minister was exercising his power, whereas he has no such powers. The Court held as under :— “12. If this article had no reference to the capacity of Balasaheb Desai as a Revenue Minister, what was the occasion for mentioning that the District Collector, Amravati, and the Commissioner, Nagpur Division, should throw light as to what the true facts are. Here it may be noticed that out of the Revenue Officers, who must be presumed to be acting under the Revenue Minister, the Commissioner and the Collector are the two topmost officers. If information on this point could be given or should be given by the two topmost Revenue Officers, can it be said that the act that was alleged had no reference to capacity of Balasaheb Desai as the Revenue Minister of Maharashtra? In addition to this, there is the further mention that Presidentship was grabbed by Balasaheb Desai by giving threat in respect of certain matter. An objection was taken by Mr. Kotecha that the word in the original is “Bhay” and that the translation whereof would not be ‘threat’. Whether it is fear, fright or threat, a mention is made that by giving threat Presidentship was grabbed. An inference would, therefore, follow that the person who gave the threat was capable of causing fright or fear such as would make any person such as ‘Rashtrasant’ part with an important office or property. This power of giving threat having a reaction of making another person give up the power or the property when considered along with the description of Balasaheb Desai as Revenue Minister would certainly raise in the mind of a lay man a feeling that the article is intended to show that the power was exercised by Balasaheb Desai as the Revenue Minister. The description of Balasaheb Desai as a Revenue Minister, the capacity to give threats in certain matter, which is not described, and calling upon the Collector and the Commissioner to throw light would only lead to a positive inference that the intention in writing this article was to lay before the public the conduct of a Revenue Minister. It may not be that this was one of the functions of the Revenue Minister. But the article was so written as to show that the Revenue Minister was exercising his power where he has no such power. It is not one of the functions of the Revenue Minister to be a President of an Ashram or to be in possession of the Ashram, but the article is so written as to show that this was done probably by the Revenue Minister with the help of threat of consequences which would raise a fear or fright in those persons. In my opinion, the reading of the entire article is likely to create in the minds of the public who read it or and who may even be unaware of the functions of the Revenue Minister that this was an act of the Revenue Minister done probably by the abuse of his power.” 20. In the complaint, it was asserted that 19 candidates were selected from Gondia, though in the select list of Transport Inspectors there is none selected from Village Gondia. That, Shri Phool Singh Chouhan, who is stated to be maternal uncle of the Hon’ble Chief Minister, is not the Maternal Uncle, but infact Late Shri Randhir Singh Chouhan was the only Maternal Uncle, who expired 8 years back. It is further stated that there is allegation of 139 calls emanating from the residence of the Chief Minister, but without any further details. This indicates that the allegations were directed to the Chief Minister; his family members and his official residence. Reading of the statement prima facie does not suggest that the allegations were in respect of lack of proper investigation into the examination conducted by Vyapam, but against the Chief Minister which were said to be defamatory. Therefore, we are unable to agree with the argument raised by learned counsel for the petitioner that the allegations were not levelled against the Chief Minister but against the lack of proper conduct of the investigation. 21. Therefore, we are unable to agree with the argument raised by learned counsel for the petitioner that the allegations were not levelled against the Chief Minister but against the lack of proper conduct of the investigation. 21. In view of the said fact, we do not find any merit in the present petition. 22. We clarify that any finding regarding the defamatory part of the statement is for the purposes of deciding the present petition. The learned Trial Court shall decide the matter on the basis of evidence on record. 23. With the said observation and finding, the revision petition is dismissed.