Supreme Court of India
MANOJ KUMAR TIWARIversusMANISH SISODIA & ORS
- Citation
- 2022 INSC 1104
- Decided
- 17 October 2022
- Disposal
- Disposed off
- Bench
- S ABDUL NAZEER
Holding
Section 199(6) provides an independent route for a public servant to prosecute a defamation case, and the special procedure of Section 199(4) does not bar its use; moreover, the tweets were not defamatory, so the summons against the fifth accused was set aside.
Summary
The Deputy Chief Minister of Delhi filed a private complaint under Section 200 CrPC alleging defamation against six persons, including Manoj Kumar Tiwari (A‑1) and Vijender Gupta (A‑5). The Additional Chief Metropolitan Magistrate issued summons, but the two appellants challenged the order. The Supreme Court held that a public servant covered by Section 199(2) may invoke the general procedure of Section 199(6) without being bound by the special procedure of Section 199(4), and that the non‑obstante clause in Section 199(2) is eclipsed by the "nothing in this section" language of Section 199(6). The Court also found that the tweets of A‑5 did not satisfy the essential ingredient of defamation under Section 499 IPC and therefore the summons against him was set aside. The appeal of Manoj Kumar Tiwari was dismissed, while the appeal of Vijender Gupta was allowed, with the complaint proceeding only against the remaining accused.
Issues considered
- The scope and interplay of Sections 199(2), 199(4) and 199(6) of the Code of Criminal Procedure, 1973 with respect to a public servant filing a private defamation complaint.
- Whether the tweets posted by the accused constitute a defamatory statement within the meaning of Section 499 of the Indian Penal Code.
- Whether compliance with Section 65B of the Indian Evidence Act is required for the electronic records of the tweets.
- Whether Section 237 of the Code of Criminal Procedure can be invoked as a safety valve in the present context.
Legislation cited
- Code of Criminal Procedure, 1973s. 199(2), s. 199(4), s. 199(6), s. 237, s. 250
- Indian Evidence Act, 1872s. 65B
- Indian Penal Code, 1860s. 34, s. 35, s. 499, s. 500
Subjects
defamationSection 199 CrPCpublic servantprivate complaintspecial proceduregeneral procedurecompensationSection 237 CrPCtweetsIPC 499IPC 500
Judgment
820 [2022]
SUPREME COURT 19 S.C.R. 820
REPORTS [2022] 19 S.C.R.
A MANOJ KUMAR TIWARI
v.
MANISH SISODIA & ORS.
(Criminal Appeal No. 1791 of 2022)
B OCTOBER 17, 2022
[S. ABDUL NAZEER AND V. RAMASUBRAMANIAN, JJ.]
Code of Criminal Procedure, 1973 :
ss. 199(2), 199(4) & 199(6) – Prosecution for defamation –
C Complaint u/s. 200 CrP.C. filed by respondent-Deputy Chief Minister
of Delhi against six individuals alleging commission of the offences
u/s. 499 and 500 r/w. ss. 34 and 35 IPC – Allegation that the accused
no.1-appellant held a press conference making false and defamatory
statements as though the respondent was involved in corruption to
the tune of Rs. 2000 crores, in the matter of award of contracts for
D
building classrooms in Delhi Government Schools; that accused
no. 2 to 4 shared platform with the accused no.1 during the press
conference; and that accused no.5 and 6 tweeted defamatory
contents against the respondent – Issuance of summons by ACMM
to all accused holding that there exists sufficient grounds to proceed
E against the accused 1 to 4 u/s. 500/34 IPC and against 5 and 6 u/
s.500 IPC – Challenged to, by accused no.1 and 5 by filing petition
u/s. 482 – Dismissed by the High Court – On appeal, held:Plea
raised by both the accused that the court ought not to have
entertained a private complaint u/s. 200 CrPC especially from a
person covered by s. 199(2) without following the procedure
F
prescribed in sub-section (4) of Section 199 is rejected – A person
falling under the category of persons mentioned in sub section (2)
of s. 199 can either take the route specified in sub-section (4) or (6)
of s. 199 – Sub-section (6) does not contain any conditions subject
to which the right thereunder can be exercised – Special procedure
G 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 – Furthermore,
whenever a person is prosecuted by a public servant in his individual
capacity before a Magistrate by virtue of s.199(6), the accused can
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 821
always fall back upon s.250, for claiming compensation on the A
ground that the accusation was made without reasonable cause – s.
237 cannot be used as a crutch to support the argument revolving
around ss. 199(2) and 199(4) – As regards, accused no. 5, the
statement contained in tweets made by him cannot be said to be
defamatory within the meaning of s. 499 – Defamatory statement
B
should be specific and not very vague and general – Essential
ingredient of s. 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 – Statements contained in his tweets
cannot be said to be defamatory, thus, order of summoning passed
by the ACMM insofar as A5, is set aside – ss. 237 and 250 – Penal C
Code, 1860 – ss. 499, 500 and 35.
ss. 199(2), 199(4) and 199(6) – Legislative history – Discussed.
Disposing of the appeals, the Court
HELD: 1.1. To say that the provisions of sub section (6) of D
Section 199 CrPC 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 sub-section (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”. Sub-section (6) does E
not contain any conditions subject to which the right thereunder
can be exercised. The non obstante clause in sub-section (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 sub-section (6). The word “nothing” F
appearing in sub-section (6) will include the non obstante clause
in sub-section (1) also. [Para 45, 46][843-D-F]
1.2 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 G
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. Sub-section (6) of Section
H
822 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 199 which is a reproduction of what was recommended in the 41st
Report of the Law Commission to be made sub-section (13) of
Section 198B, cannot be made a dead letter by holding that persons
covered by sub-section (2) of Section 199 may have to invariably
follow only the procedure prescribed by sub-section (4) of Section
199. Therefore, the common ground raised by both the appellants
B
is liable to be rejected. A person falling under the category of
persons mentioned in sub-section (2) of Section 199 can either
take the route specified in sub-section (4) or take the route
specified in sub-section (6) of Section 199. [Para 51][845-C-E]
1.3 Under sub-section (3) of Section 237, the Court is
C empowered to direct the public servant (other than the President,
Vice-President 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
D acquits the accused, but is also of the opinion that there was no
reasonable cause for making the accusation against him. Section
237(3) is not a new invention. What was contained in sub-sections
(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
E reasonable cause, when he invokes sub-section (6) of Section
199. Whenever a person is prosecuted by a public servant in his
individual capacity before a Magistrate by virtue of Section 199(6),
the accused can always fall back upon Section 250, for claiming
compensation on the ground that the accusation was made without
F reasonable cause. [Para 53, 54][847-A-D]
1.4 Section 237 cannot be used as a crutch to support the
argument revolving around Sections 199(2) and 199(4). [Para
55][848-H]
1.5 The argument revolving around sub-sections (2) and
G (4) of Section 199 is rejected and also since this is the only
argument on which A-1 has come up with the appeal. [Para
56][849-A]
1.6 It is a fundamental rule of criminal jurisprudence that if
the allegations contained in the complaint, even if taken to be
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 823
true, do not constitute the offence complained, the person accused A
should not be allowed to undergo the ordeal of a trial. [Para
58][849-D-E]
1.7 Admittedly and obviously the twenty four questions
posed by A5 to respondent No.1 cannot be said to be defamatory
as these questions seek answers to certain facts relating to the B
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”.
[Para 59][851-E]
C
1.8 It is not known 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.
Even if a person belonging to a political party had challenged a
person holding public office by stating “I will expose your scam”,
the same may not amount to defamation. Defamatory statement D
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, the
statement made by A5 to the effect “your answer will disclose E
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. The summoning Order passed
by the Additional Chief Metropolitan Magistrate, did not go into
the contents of the tweets made by A-5. To that extent, there
was no application of mind on the part of the Additional Chief F
Metropolitan Magistrate. [Para 60, 61][851-F-H; 852-A]
1.9 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 G
office to the 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
H
824 SUPREME COURT REPORTS [2022] 19 S.C.R.
A in which you are involved, etc.” are not by themselves defamatory
unless there is something more. [Para 62][852-B-C]
1.10 The statements contained in his tweets cannot be said
to be defamatory within the meaning of Section 499 of the IPC.
The order of summoning passed by the Additional Chief
B Metropolitan Magistrate insofar as A5 is concerned, is set aside.
However, the complaint may proceed in respect of other accused.
[Para 63, 65][852-D, F[
P.C Joshi and Another vs. State of Uttar Pradesh AIR
1961 SC 387, Subramanian Swamy v. Union of India
C (2016) 7 SCC 221 : [2016] 3 SCR 865, K.K. Mishra
vs. State of Madhya Pradesh and Another (2018) 6 SCC
676 : [2018] 5 SCR 315– referred to.
Case Law Reference
[2016] 3 SCR 865 referred to Para 44
D
[2018] 5 SCR 315 referred to Para 48
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1791 of 2022.
From the Judgment and Orders dated 17.12.2020 of the High
E Court of Delhi at New Delhi in Crl. M.C. No.2342 of 2020.
With
Criminal Appeal No.1790 of 2022
Sanjay Jain, ASG, R.Venkataramani, Ms. Pinky Anand, Sr. Advs.,
F Surender Kumar Gupta, Chitvan Singhal, Rajeev Gupta, Neeraj, Amit
Tiwari, Mudit Bansal, Usman Khan, Neeraj, Ankit Raj, Vijay Joshi,
Kautilya Virat, Vedansh Anand, S.N. Verma, Smriti Singh, Sanjay Kumar
Tyagi, Devashish Bharukha, Rajat Nair, Padmesh Mishra, Anukalp Jain,
Arkaj Kumar, Akash Kishore, Nakul Rai, Shivam Shukla, Ms. Tanya
Agarwal, Gurmeet Singh Makker, Chirag M. Shroff, Amandeep Mehta,
G Shadan Farasat, Bharat Gupta, Shourya Dasgupta, Ms. Hrishika Jaina,
Aman Naqvi, Dhruv Bhatnagar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
H Leave granted.
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 825
[V. RAMASUBRAMANIAN, J.]
2. The order of summoning issued by the Additional Chief A
Metropolitan Magistrate-I, 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.
B
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 C
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 Magistrate-I, 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 D
he has been the Deputy Chief Minister of Delhi since February 2015;
that on 01.07.2019, Shri Manoj Tiwari, (A-1 who is theappellant 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 E
contracts for building classrooms in Delhi Government Schools; that
persons arrayed as Accused Nos. 2 to 4 in the said complaint, sharedthe
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; F
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 well-thought-out and planned manner to defame
him, thereby rendering themselves liable for prosecution. G
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 28-11-2019 directing the issue of summons to all the six accused,
H
826 SUPREME COURT REPORTS [2022] 19 S.C.R.
A after holding that there exists sufficient grounds to proceed against the
accused Nos.1 to 4 under 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
B 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
C Kumar Tiwari (A-1), 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
(A-5) is accused of committing an offence punishable under Section
500 IPC alone. In paragraph 14 of the summoning order dated 28.11.2019,
D 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 respondent no.1,2,3 and
4. As far as the tweets made by respondent no.5 and 6 concerned
E
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.”
F 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
G 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 sub-section (4) of Section 199.
10. Accused No.5 who is appellant in the other appeal assails the
H order of summoning on three grounds namely, (i) that the respondent
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 827
[V. RAMASUBRAMANIAN, J.]
No.1 ought to have followed the special procedure prescribed in Section A
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 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
B
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 Pradesh1;Subramanian Swamy vs. Union of India2; 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 C
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. D
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. 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) E
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 41st 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, F
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 G
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
1
AIR 1961 SC 387
2
(2016) 7 SCC 221
3
(2018) 6 SCC 676
H
828 SUPREME COURT REPORTS [2022] 19 S.C.R.
A and the other emerging from the 41st Report of the Law Commission.
We shall take note of both versions of history.
Legislative History of Section 199 (and 198, to be precise)
Milestone -1 (year 1898)
B 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
C upon a complaint made by some person aggrieved by such offence”
Milestone-2 (year 1943)
15. By Criminal Procedure (Second Amendment) Act, 1943, a
proviso was added to Section 198, to the following effect:
“Provided that, where the person so aggrieved is a woman who,
D
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.”
E Milestone-3 (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 on
December 2, 1947 recommending the establishment of a Statutory Law
F 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
G 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.
Milestone-4 (year 1955)
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 829
[V. RAMASUBRAMANIAN, J.]
17. In the meantime, the Parliament enacted ‘The Code of Criminal A
Procedure (Amendment) Act, 1955, (Act XXVI of 1955)’ which received
the assent of the President on 10th August 1955 and was published in the
Gazette of India on 12th August 1955. By Section 25 of this Amendment
Act XXVI of 1955, a new provision in Section 198-B was inserted,
providing for a special procedure for prosecution for defamation against
B
public servants in respect of their conduct in the discharge of public
functions. This Section 198-B 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 C
President, or the Vice-President, 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 D
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 E
to the accused of the offence alleged to have been committed by
him.
(3) No complaint under sub-section (1) shall be made by
the Public Prosecutor except with the previous sanction,-
(a) in the case of the President or the Vice-President or the F
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 G
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.
H
830 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (4) No Court of Session shall take cognizance of an offence
under sub-section (1), unless the complaint is made 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
B offence under sub-section (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 warrant-cases instituted
otherwise than on a police report and the person against whom
the offence is alleged to have been committed shall, unless the
C 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
D 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, Vice-President or the
Governor or Rajpramukh of a State) to show cause why he should
E 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
F 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 sub-section (7) may
be recovered as if it were a fine.
G (9) No person who has been directed to pay compensation
under sub-section (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
H this section shall be taken into account in awarding compensation
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 831
[V. RAMASUBRAMANIAN, J.]
to such person in any subsequent civil suit relating to the same A
matter.
(10) The person who has been ordered under sub-section
(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. B
(11) When an order for payment of compensation to an
accused person is made in a case which is subject to appeal under
sub-section (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. C
(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.” D
Milestone-5 (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 198-B was inserted), coincided with the constitution of
E
the Law Commission in August/September 1955. The Law Commission
submitted its 14th 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 the Chairman of
the Law Commission dated September 26, 1958 addressed to the then F
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 14th Report on the
Reform of Judicial Administration, in September 1958, the Government G
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
H
832 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 198-B of
the Code of Criminal Procedure, 1898, by this Act 40 of 1964. They
were:
B (a) The brackets and words “(other than the offence of
defamation by spoken words)” in sub-section (1) of Section 198-B
were directed to be omitted;
(b) After sub-section (5), a new sub-section (5A) was directed to
be inserted as follows: -
C
“(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 sub-section (13), a new sub-section (14) was directed
D to be inserted as follows:-
“(14) Where a case is instituted under this section for the trial of
an offence, nothing in sub-section (13) shall be construed as
requiring a complaint to be made also by the person aggrieved by
such offence.”
E 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:
F (i) The Code of 1898 enabled, under Section 198, only the
aggrieved person to file a complaint.
(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
G 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 Vice-President, or the
Governor or Rajpramukh of a State, or a Minister, or any other public
H servant employed in connection with the affairs of the Union or of a
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 833
[V. RAMASUBRAMANIAN, J.]
State, in respect of his conduct in the discharge of his public functions. A
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 B
words” in Section 198-B(1) were omitted by the Amendment of 1964.
It was from this milestone that the legislation moved to Section
199 of the Code of 1973, which we shall see later.
Milestone-6 (37th Report of the Law Commission leaves
the task uncompleted) C
22. After the aforesaid amendment of the year 1964, the Law
Commission submitted its 37th Report in December, 1967 on the Code of
Criminal Procedure, 1898, but it covered only Sections 1 to 176. Paragraph
525 of this 37th Report indicated that the Sections of the Code after
Section 176 were proposed to be dealt with in later Reports. D
Milestone-7 (41st 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
E
Report, which is the 41st Report, in September 1969. Interestingly, it was
recorded in the introductory Chapter of this 41st Report that though the
first 14 Chapters of the Code have been exhaustively analysed in the
previous report (37th Report) of the Law Commission, the Commission
was compelled to revisit even those recommendations. The reason for
this, according to the Law Commission, was that a finely integrated and F
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 41st Report became a very
comprehensive report.
G
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 41st Report of the Law Commission
H
834 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
groups of offences have nothing in common and that the grouping of all
B
of them together was faulty, the 41st 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
198-B under the Amendment Act XXVI of 1955 and recorded in
C paragraph 15.138 of the Report, the rationale behind Section 198-B 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
D 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.
E 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 41st Report of the Law Commission, Section
F 198-B was inserted to provide a special procedure forprosecution 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 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
G 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 198-B inserted by the Amendment
Act of 1955 was worded and how it was changed in 1964. The
H Amendment Act of 1955 made section 198-B applicable to offences
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 835
[V. RAMASUBRAMANIAN, J.]
other than defamation by spoken words. This exception was removed A
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 B
1955 Amendment. It appears therefrom that there was a huge opposition
to the offence of defamation being made cognizable. The 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 C
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 D
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 41st Report of the Law Commission, the E
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 suggestions
of the Joint Committee that Section 198-B emerged in the form in which F
it was inserted under the 1955 Act.
31. Paragraph 15.143 of the 41st Report summed up the rationale,
scope and ambit of Section 198-B as follows:
“15.143. Section 198B thus emerged in its present form after much
deliberation and discussion. It was substantially different from G
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,
H
836 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
individual, has caused appreciable injury to the State.”
32. In a nutshell, the 41st Report recognized that the provision
in Section 198-B 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
C 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.
D 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
E 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
F the Vice-President 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 filed
throughout the country and the officers/dignitaries on whose behalf they
G 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
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 837
[V. RAMASUBRAMANIAN, J.]
servants. For example, during the period 1955 to 1967 only twenty- A
five 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 sub-Inspectors of
Police, Registration Clerk, Accountants, Peons etc. The Total
number of prosecutions in any year was very small.
B
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.”
C
35. Apart from making the above recommendation, the 41st Report
also suggested something, in relation to sub-sections (13) and (14) of
Section 198-B. We may recall that sub-section (13) of Section 198-B
made the provisions of this section to be in addition to, and not in derogation
of, those of Section 198. Sub-section(14) was in the nature of a
clarification to the effect that where a case is instituted under this section D
for the trial of an offence, nothing in sub-section (13) shall be construed
as requiring a complaint to be made also by the person aggrieved by
such offence. With regard to these two sub-sections, the Law Commission
recommended as follows:
15.153 Sub-section (13) states that “the provisions of section 198B E
shall be in addition to, and not in derrogation of, those of section
198”. The precise meaning and effect of this sub-section was a
matter of controversy until it was settled by the Supreme Court.
The sub-section is “enacted with a view to state ex abundanti
cautela that the right of a party aggrieved by publication of a F
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 G
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. H
838 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 15.154. Presumably with a view to making this position clear, sub-
section (14) was added to section 198B by the Anti-Corruption
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 sub-section (13) shall be construed as requiring a
complaint to be made also by the person aggrieved by the said
B
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
C complaint need not comply with the condition laid down in section
198. This idea could be readily brought out by inserting the 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
D
Magistrate in accordance with section 198 was not in any way
affected.
15.155. We accordingly propose that in place of the existing sub-
sections (13) and (14), the following may be put in section 198B:-
“(13) Nothing in this section shall affect the right of the person
E against whom the offence referred to in sub-section (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.”
F 36. In other words, the 41st Report of the Law Commission
recommended the replacement of the then existing sub-sections (13)
and (14) of Section 198B with a new sub-section (13). This new sub-
section (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
G
said right will not stand affected by the other provisions contained in this
Section.
Milestone-8 (Code of 1973)
37. The 41st Report of the Law Commission was submitted in
September, 1969. Thereafter, a draft Bill in Bill No.XLI of 1970 was
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 839
[V. RAMASUBRAMANIAN, J.]
introduced in the Rajya Sabha in December, 1970. The Bill was referred A
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 B
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:
C
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. D
(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 E
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. F
(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. G
(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; H
840 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (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
B 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
C 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
D Commission to be sub-section (13) of Section 198B, in replacement of
the then existing sub-sections (13) and (14), which we have extracted in
paragraph 35 above, has now become sub-section (6) of Section 199.
Keeping this in mind, let us now go back to the grounds raised by the
appellants, for assailing the order of summoning issued by the Magistrate.
E Back to the cases on hand
40. To recapitulate, the appellant in one of these appeals (who is
A-1) is assailing the order of summoning, only on one ground namely,
that a person covered by sub-section (2) cannot bypass the special
procedure prescribed in sub-section (4) of Section 199. The appellant in
F the other appeal (A-5) 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.
G
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 sub-section (4) of Section 199, the learned
H counsel for the appellants has relied upon the decisions of this Court in
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 841
[V. RAMASUBRAMANIAN, J.]
P.C Joshi, Subramanian Swamy and K.K. Mishra (supra). Therefore, A
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 B
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 C
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 sub-section (13) of D
Section 198B clearly indicated that the provisions of Section 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 E
the discharge of his public functions, is not taken away or impaired.
If sub-section (13) be construed as meaning that the provisions of
Section 198B are to be read as supplementary to those of Section
198, the non-obstante clause with which sub-section (1) of Section
198B commences is rendered wholly sterile ……..” F
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 G
vexatious complaint. The said argument was rejected in P.C. Joshi (supra)
on the basis of sub-section (5) of Section 198B 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:
H
842 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “8. Reliance was placed on behalf of the appellants upon sub-ss.
(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
B
proceedings may still be required if so ordered by the court to pay
compensation. But sub-s. (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
C 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.”
D 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 sub-section (6) on
other sub-sections of Section 199 of the Code of 1973 was indicated in
paragraph 203 of the Report in Subramanian Swamy as follows:-
E
“203. Sub-section (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
F 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
G 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.
H State of A.P while deliberating on Section 321 CrPC has opined
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 843
[V. RAMASUBRAMANIAN, J.]
that the Public Prosecutor cannot act like a post office on behalf A
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
B
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 sub-section (6) of Section 199 can be invoked. But we are C
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 sub-section D
(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”. Sub-section (6) does not
contain any conditions subject to which the right thereunder can be
exercised.
E
46. The non-obstante clause in sub-section (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 sub-section
(6). The word “nothing” appearing in sub-section (6) will include the
non-obstante clause in sub-section (1) also.
F
47. In K.K. Mishra (supra) this Court was concerned with a
challenge to the maintainability of the prosecution instituted under 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 G
discharge of public duties by the office of the Chief Minister and that
therefore the Chief Minister should have resorted only to provisions of
sub-section (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. H
844 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
B
49. Merely because it was stated in K.K. Mishra (supra) that
what is envisaged in sub-sections (2) and (4) of Section 199 is a departure
from the normal rule, it does not mean that sub-section (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
C 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
D 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
E 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
F 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 sub-section (2)
of Section 199 CrPC by sub-section (6) thereof.
8. The rationale for the departure from the normal rule has been
G elaborately dealt with by this Court in a judgment of considerable
vintage in P.C. Joshi v. State of U.P. (AIR pp. 391-92, 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
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 845
[V. RAMASUBRAMANIAN, J.]
as the same relate to the discharge of public functions by such A
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 sub-section (6), even if B
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 fine-tuned 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 C
merely because he became a public servant and merely because the
allegations related to official discharge of his duties. Sub-section (6) of
Section 199 which is a reproduction of what was recommended in the
41st Report of the Law Commission to be made sub-section (13) of
Section 198B, cannot be made a dead letter by holding that persons D
covered by sub-section (2) of Section 199 may have to invariably follow
only the procedure prescribed by sub-section (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
sub-section (2) of Section 199 can either take the route specified in sub-
section (4) or take the route specified in sub-Section (6) of Section 199. E
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).— F
(1) A Court of Session taking cognizance of an offence under
sub-section (2) of section 199 shall try the case in accordance
with the procedure for the trial of warrant-cases instituted
otherwise than on a police report before a Court of Magistrate:
Provided that the person against whom the offence is alleged to G
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. H
846 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (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, Vice-President or the Governor of a State or
B
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
C 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 sub-section (4) shall be
D recovered as if it were a fine imposed by a Magistrate.
(6) No person who has been directed to pay compensation under
sub-section (4) shall, by reason of such order, be exempted from
any civil or criminal liability in respect of the complaint made under
this section:
E
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 sub-section (4) to
F 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.”
G
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.
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 847
[V. RAMASUBRAMANIAN, J.]
53. It is true that under sub-section (3) of Section 237, the Court A
is empowered to direct the public servant (other than the President,
Vice-President 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
B
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 sub-sections (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 C
reasonable cause, when he invokes sub-section (6) of Section 199.
Whenever a person is prosecuted by a public servant in his individual
capacity before a Magistrate by virtue of Section 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. D
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 E
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 F
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. G
(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 H
848 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 sub-section (2), further order that, in default
of payment, the person ordered to pay such compensation shall
B undergo simple imprisonment for a period not exceeding thirty
days.
(4) When any person is imprisoned under sub-section (3), the
provisions of sections 68 and 69 of the Indian Penal Code (45 of
1860) shall, so far as may be, apply.
C (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
D 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 sub-
section (2) by a Magistrate of the second class to pay
compensation exceeding one hundred rupees, may appeal from
E 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 sub-
section (6), the compensation shall not be paid to him before the
F 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.
G (8) The provisions of this section apply to summons-cases as well
as to warrant-cases.”
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).
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 849
[V. RAMASUBRAMANIAN, J.]
56. Since we are rejecting the argument revolving around sub- A
sections (2) and (4) of Section 199 and also since this is the only argument
on which Shri Manoj Kumar Tiwari (A-1) has come up 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 B
VIJENDER GUPTA (A-5)
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 (A-5) 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 C
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 D
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, even if taken to be true, do not constitute the offence
complained, the person accused should not be allowed to undergo the E
ordeal of a trial. Therefore, let us have a look at the tweets attributed to
Shri Vijender Gupta (A-5). 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:- F
“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 G
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:
H
850 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “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
B 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?
C 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,
D
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
E under Priority?
11. If yes, please give details – PWD zone wise and school/building
wise ?
12. What was the reasons for cost escalation?
F 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?
G 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?
H
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS. 851
[V. RAMASUBRAMANIAN, J.]
18. Whether the work done by PWD is as per specifications? A
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?
20. What are the EORs sanctioned by DOE to PWD for civil
workers during 2016-17, 2017-18, 2018-19 scheme wise? B
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? C
23. What is the cost of construction per square metre and
what is the cost of construction per room under Priority-II?
24. What extra components are included in the cost estimates
under Priority II vis-à-vis under Priority I? Give list of new
components and expenditure on same.” D
59. Admittedly and obviously the twenty-four questions posed by
Shri Vijender Gupta (A-5) 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 E
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 F
person belonging to a political party had challenged a 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. G
Therefore, we are of the view that the statement made by Shri Vijender
Gupta (A-5) 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.
H
852 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
B 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 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
C 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
(A-5) is liable to succeed on the sole ground that the statements contained
D 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 (A-5), on the basis
of Section 65B of the Indian Evidence Act.
E
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 Magistrate-I, Rouse Avenue Court
F Complex, New Delhi in Ct. Case 51/2019, insofar as Shri Vijender Gupta
(A-5) 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.
G
Nidhi Jain and Anurag Bhaskar Appeals disposed of.
(Assisted by : Pragya Samal, LCRA)
H
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