# MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS

- **Citation:** [2022] 19 S.C.R. 820
- **Court:** Supreme Court of India
- **Decided:** 2022-10-17
- **Case number:** Criminal Appeal No. 1791 of 2022
- **Bench:** S. Abdul Nazeer, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manoj-kumar-tiwari-v-manish-sisodia-ors-36005
- **Pages:** 33

## Headnote

Code of Criminal Procedure, 1973 :
ss. 199(2), 199(4) & 199(6) - Prosecution for defamation -
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
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
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
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
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
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always fall back upon s.250, for claiming compensation on the
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
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
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
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
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"
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
and finetuned in 1964 and overhauled i

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SUPREME COURT REPORTS
[2022] 19 S.C.R.
MANOJ KUMAR TIWARI
v.
MANISH SISODIA & ORS.
(Criminal Appeal No. 1791 of 2022)
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 -
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
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
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
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
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
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always fall back upon s.250, for claiming compensation on the
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
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
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
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
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"
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
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
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
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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
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
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 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
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. [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
(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
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true, do not constitute the offence complained, the person accused
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
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]
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
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
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
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
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
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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
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
(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
[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
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.,
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,
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.
Leave granted.
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2. The order of summoning issued by the Additional Chief
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.
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
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
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
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;
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.
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,
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
[V. RAMASUBRAMANIAN, J.]
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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
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
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,
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
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."
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
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
order of summoning on three grounds namely, (i) that the respondent
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No.1 ought to have followed the special procedure prescribed in Section
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
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 Another3. The
contention of the learned senior counsel for the appellants is that certain
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.
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)
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,
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
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
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
[V. RAMASUBRAMANIAN, J.]
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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)
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
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,
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."
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
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
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)
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17. In the meantime, the Parliament enacted 'The Code of Criminal
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
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
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
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
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
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
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.
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
[V. RAMASUBRAMANIAN, J.]
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(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
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
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
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
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
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.
(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
this section shall be taken into account in awarding compensation
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to such person in any subsequent civil suit relating to the same
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.
(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.
(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."
Milestone-5 (14th 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
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
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
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
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
[V. RAMASUBRAMANIAN, J.]
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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:
(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: -
"(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
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."
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:
(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
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
servant employed in connection with the affairs of the Union or of a
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State, in respect of his conduct in the discharge of his public functions.
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
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)
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.
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
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
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.
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
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
[V. RAMASUBRAMANIAN, J.]
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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
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
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
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.
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
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
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 41st 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
Amendment Act of 1955 made section 198-B applicable to offences
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other than defamation by spoken words. This exception was removed
only by the Amendment of 1964. The 41st Report of the Law
Commission makes no mention of the 1964 Amendment.
28. Without reference to the Amendment of 1964, the 41st 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
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
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
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
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
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
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,
MANOJ KUMAR TIWARI v. MANISH SISODIA & ORS.
[V. RAMASUBRAMANIAN, J.]
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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
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
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.
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
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
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
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
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servants. For example, during the period 1955 to 1967 only twentyfive 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.
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."
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
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.