K. K. MISHRAversusTHE STATE OF MADHYA PRADESH & ANR.

                         [2018] 5 S.C.R. 315                              315


                           K. K. MISHRA                                   A
                                  v.
          THE STATE OF MADHYA PRADESH & ANR.
                  (Criminal Appeal No. 547 of 2018)
                           APRIL 13, 2018                                 B
           [RANJAN GOGOI, R. BANUMATHI AND
            MOHAN M. SHANTANAGOUDAR, JJ.]
      Code of Criminal Procedure, 1973 – s.199(2) and (4) –
Prosecution case that appellant made defamatory statements against
                                                                          C
the Hon’ble Chief Minister of the State in a press conference –
Complaint was filed by the public prosecutor u/s.199(2) after receipt
of sanction from the Competent Authority of the State Government
on the very same day – Appellant convicted u/s.500 IPC by the
Special Judge, trial Court – Appeal against the same pending before
the High Court – Appellant also challenged the maintainability of         D
criminal proceeding instituted u/s.199(2), which was dismissed by
the High Court – On appeal, held: None of the allegedly defamatory
statements, even if admitted to have been made by the appellant,
can be said to have any reasonable connection with discharge of
public duties by or the office of the Hon’ble Chief Minister – Such
                                                                          E
statements may be defamatory but then in the absence of a nexus
between the same and the discharge of public duties, the remedy
u/s.199(2) and (4) Cr.P.C. will not be available – From extract of
cross-examination of the public prosecutor, it is clear that the public
prosecutor had admitted the absence of any scrutiny by him of the
materials on which the prosecution was sought to be launched –            F
Public Prosecutor further, admitted that he had filed complaint
against the accused appellant on the orders of the State Government
– A Public Prosecutor filing a complaint u/s. 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
                                                                          G
which adversely affects the interests of the State would be abhorrent
to the principles on the basis of which the special provision
u/s.199(2) and (4) Cr.P.C. has been structured – Therefore, complaint
not maintainable – Consequently, order of the trial Court set aside
and appeal pending in the High Court also closed – Penal Code,
1860 – s.500 – Constitution of India – Art. 142.                          H
                                 315
316            SUPREME COURT REPORTS                      [2018] 5 S.C.R.


A           Allowing the appeal, the Court
             HELD: 1. If the allegedly defamatory statements, in respect
      of which sanction has been accorded to the Public Prosecutor to
      file the complaint against the appellant under Section 199 (2)
      Cr.P.C. by the order of the State Government are to be carefully
B     looked into, 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
C     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)
D     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 Minister before the ordinary Court i.e. the
      Court of Magistrate which would be available and could have
      been resorted to. [Para 11] [321-G-H; 322-A-C]
E            2. From the cross-examination of the Public Prosecutor, it
      is clear that the Public prosecutor had 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.
F     [Para 13] [323-A-B]
            3. The testimony of the Public Prosecutor in his cross-
      examination effectively demonstrates that the wholesome
      requirement spelt out by Section 199(2) and 199(4) Cr.P.C., as
      expounded by this Court in Subramanian Swamy, has not been
G     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
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K. K. MISHRA v. THE STATE OF MADHYA PRADESH & ANR.                     317


principles on the basis of which the special provision under Section   A
199(2) and 199(4) Cr.P.C. has been structured as held by this
Court in P.C. Joshi and Subramanian Swamy. 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
                                                                       B
before him. [Para 14] [324-A-D]
      4. In the present case, the press meet was convened by
the appellant. After few days, the government accorded sanction
to the public prosecutor to file complaint under Section 500 IPC
against the appellant. As seen from the records, the complaint
was filed by the public prosecutor against the appellant on the        C
very same day. 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. Therefore, the complaint is not
maintainable on the very face of it and would deserve interference.    D
The very initiation of the prosecution has been found to be
untenable in law. [Paras 14, 15] [324-E-H]
      P. C. Joshi and another v. The State of Uttar Pradesh
      AIR 1961 SC 387 : [1961] SCR 63; Urmila Devi v.
      Yudhvir Singh (2013) 15 SCC 624 : [2013] 16 SCR                  E
      542; Subramanian Swamy v. Union of India (2016) 7
      SCC 221 : [2016] 3 SCR 865; Bairam Muralidhar v.
      State of Andhra Pradesh (2014) 10 SCC 380 : [2014]
      8 SCR 328 – relied on.
                      Case Law Reference                               F
[1961] SCR 63                  relied on              Para 8
[2013] 16 SCR 542              relied on              Para 10
[2016] 3 SCR 865               relied on              Para 12
[2014] 8 SCR 328               relied on              Para 12          G
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
547 of 2018.
      From the Judgment and Order dated 24.07.2017 of the High Court
of M.P. Principal Seat at Jabalpur in CRR No. 515 of 2017.
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318            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A            K. T. S. Tulsi, Vivek Tankha, Sr. Advs., Vaibhav Srivastava, Kuber
      Boddh, Prateek Khandelwal, Aman Pandey, Siddhanth, Kabir Dixit, Advs.
      for the Appellant.
            P. S. Narasimha, ASG, Purushaindra Kaurav, Adv. Genl., Mishra
      Saurabh, AAG, Mukul Rohatgi, Sr. Adv., Ms. Swarupama Chaturvedi,
B     B. N. Dubey, Ankit Kr. Lal, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            RANJAN GOGOI, J. 1. Leave granted.
             2. By the order impugned, the High Court of Madhya Pradesh
C
      has negatived the challenge made by the appellant to the maintainability
      of a criminal prosecution/proceeding instituted under Section 199(2) of
      the Code of Criminal Procedure, 1973 (hereinafter referred to as
      “Cr.P.C.”) alleging commission of offences under Sections 499 and 500
      of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) against
D     the Hon’ble Chief Minister of the State of Madhya Pradesh.   th
                                                                           The
      complaint has been filed by the Public Prosecutor on 24 June, 2014
      before the District & Sessions Judge, Bhopal (Madhya Pradesh) after
      receipt of sanction from the Competent
                                    th
                                             Authority of the State Government
      on the very same day i.e. 24 June, 2014.
E            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
                          th
                                 Act, Bhopal, Madhya Pradesh by judgment
      and order dated 17 November, 2017 in Sessions Trial No.573 of 2014.
      The accused appellant has been found guilty of the commission of the
F
      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 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.
G                                                                            th
             4. At this stage, we would like to recapitulate our order dated 5
      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.

H
K. K. MISHRA v. THE STATE OF MADHYA PRADESH & ANR.                          319
                  [RANJAN GOGOI, J.]

       5. While Section 499 IPC defines and deals with the offence of       A
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
                                                                            B
the course of a Press Conference that the appellant had addressed as a
Chief Spokesperson
                 st
                      of the Indian National Congress, Madhya Pradesh
organized on 21 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    C
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.th
                                 This is because in the order granting
sanction/permission dated 24 June, 2014 for filing of a complaint under     D
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 sanction/permission under Section
199(2) of the Cr.P.C.
              th
                       The aforesaid three statements mentioned in the
order dated 24 June, 2014 granting sanction/permission are as follows:
                                                                            E
      “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               F
         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,             G
         Lakshmikant Sharma.”
       7. Section 199(2) Cr.P.C. provides for a special procedure with
regard to initiation of a prosecution for offence of defamationcommitted
against the constitutional functionaries and public servants mentioned
therein. However, the offence alleged to have been committed must be
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320               SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A     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 alonevested
B
      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 personsalleging the offence of
C     defamation. The said right, however, is saved even in cases of the
      category of 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
D     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,
E     would be rightly interested in pursuing the prosecution; hence the special
      provision and the special procedure.
            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.
F     (“new Code”).
             9. The above would require the Court to consider as to whether
      the statements made by the accused appellant in theth
                                                            Press Conference
      which have been taken note of in the order dated 24 June, 2014 granting
      sanction/ permission can legitimately be said to be attributable or
G     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.
      1
          AIR 1961 SC 387
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K. K. MISHRA v. THE STATE OF MADHYA PRADESH & ANR.                                 321
                  [RANJAN GOGOI, J.]

       10. The problem of identification and correlation of the acts               A
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
                                                                                   B
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             C
Devi vs. Yudhvir Singh2 had taken the following view which may have
some relevance to the present case.
           “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.   D
         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      E
         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         F
         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
                                                                                   G
respect of which sanction has been accorded to the Public Prosecutor
to file the complaint against
                          th
                               the appellant under Section 199 (2) Cr.P.C.
by the order dated 24 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
2
    (2013) 15 SCC 624                                                              H
322               SUPREME COURT REPORTS                       [2018] 5 S.C.R.


A     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
B
      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 Minister before the ordinary Court i.e. the Court of Magistrate
C     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)
D     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
E     Court and it was held as follows:
               “…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
F            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
G            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)
      3
          (2016) 7 SCC 221
H     4
          (2014) 10 SCC 380
K. K. MISHRA v. THE STATE OF MADHYA PRADESH & ANR.                             323
                  [RANJAN GOGOI, J.]

       13. In the proceedings before the learned trial Court, the Public       A
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 admitted the absence
of any scrutiny by him of the materials on which the prosecution is sought
                                                                               B
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
                                                                               C
      “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   D
          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.     E
      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.       F
          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       G
          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
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324            SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A                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 199(4) Cr.P.C., as expounded by this
B     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
C     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
D     him. As held in Bairam Muralidharcasesupra)
            “……He cannot remain oblivious to his lawful obligations under
            the Code. He is required to constantly remember 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
E     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
F     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.

G           15. On the conclusions that have been reached by us, as indicated
      above, the conviction of the accused appellant and the 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
H
K. K. MISHRA v. THE STATE OF MADHYA PRADESH & ANR.                              325
                  [RANJAN GOGOI, J.]

the way of our interdicting the same. The requirements of justice would         A
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 asthSessions Session
Trial No.573 of 2014; and set aside the order dated 17 November, 2017
                                                                                B
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 sentencing him as
aforesaid.th The appeal pending before the High Court against the order
dated 17 November, 2017 passed by the learned Special Judge,
Prevention of Corruption Act, Bhopal, Madhya Pradesh in Sessions Trial          C
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.

                                                                                D
Ankit Gyan                                                    Appeal allowed.




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