K. K. MISHRA versus THE STATE OF MADHYA PRADESH & ANR. on 13 April 2018

[2018] 5 S.C.R. 315

K. K. MISHRA

v.

THE STATE OF MADHYA PRADESH & ANR.

(Criminal Appeal No. 547 of 2018)

APRIL 13, 2018

[RANJAN GOGOI, R. BANUMATHI ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Code of Criminal Procedure, 1973 – s.199(2) and (4) –Prosecution case that appellant made defamatory statements againstthe Hon’ble Chief Minister of the State in a press conference –Complaint was filed by the public prosecutor u/s.199(2) after receiptof sanction from the Competent Authority of the State Governmenton the very same day – Appellant convicted u/s.500 IPC by theSpecial Judge, trial Court – Appeal against the same pending beforethe High Court – Appellant also challenged the maintainability ofcriminal proceeding instituted u/s.199(2), which was dismissed bythe High Court – On appeal, held: None of the allegedly defamatorystatements, even if admitted to have been made by the appellant,can be said to have any reasonable connection with discharge ofpublic duties by or the office of the Hon’ble Chief Minister – Suchstatements may be defamatory but then in the absence of a nexusbetween the same and the discharge of public duties, the remedyu/s.199(2) and (4) Cr.P.C. will not be available – From extract ofcross-examination of the public prosecutor, it is clear that the publicprosecutor had admitted the absence of any scrutiny by him of thematerials on which the prosecution was sought to be launched –Public Prosecutor further, admitted that he had filed complaintagainst the accused appellant on the orders of the State Government– A Public Prosecutor filing a complaint u/s. 199 (2) Cr.P.C. withoutdue satisfaction that the materials/allegations in complaint disclosesan offence against an Authority or against a public functionarywhich adversely affects the interests of the State would be abhorrentto the principles on the basis of which the special provisionu/s.199(2) and (4) Cr.P.C. has been structured – Therefore, complaintnot maintainable – Consequently, order of the trial Court set asideand appeal pending in the High Court also closed – Penal Code,1860 – s.500 – Constitution of India – Art. 142.

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316SUPREME COURT REPORTS

[2018] 5 S.C.R.

AAllowing the appeal, the Court

HELD: 1. If the allegedly defamatory statements, in respectof which sanction has been accorded to the Public Prosecutor tofile the complaint against the appellant under Section 199 (2)Cr.P.C. by the order of the State Government are to be carefullyBlooked into, none of the said statements, even if admitted to havebeen made by the appellant, can be said to have any reasonableconnection with the discharge of public duties by or the office ofthe Hon’ble Chief Minister. The appointment of persons fromthe area/place to which the wife of the Hon’ble Chief Ministerbelongs and the making of phone calls by the relatives of theCHon’ble Chief Minister have no reasonable nexus with thedischarge of public duties by or the office of the Hon’ble ChiefMinister. Such statements may be defamatory but then in theabsence of a nexus between the same and the discharge of publicduties of the office,the remedy under Section 199(2) and 199(4)DCr.P.C. will not be available.It is the remedy saved by theprovisions of sub-section (6) of Section 199 Cr.P.C. i.e. a complaintby the Hon’ble Chief Minister before the ordinary Court i.e. theCourt of Magistrate which would be available and could havebeen resorted to. [Para 11] [321-G-H; 322-A-C]

E2. From the cross-examination of the Public Prosecutor, itis clear that the Public prosecutor had admitted the absence ofany scrutiny by him of the materials on which the prosecution issought to be launched. In fact, the Public Prosecutor had goneto the extent of admitting that he had filed the complaint againstthe accused appellant on the orders of the State Government.F[Para 13] [323-A-B]

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3. The testimony of the Public Prosecutor in his cross-examination effectively demonstrates that the wholesomerequirement spelt out by Section 199(2) and 199(4) Cr.P.C., asexpounded by this Court in Subramanian Swamy, has not beenGcomplied with in the present case. A Public Prosecutor filing acomplaint under Section 199 (2) Cr.P.C. without due satisfactionthat the materials/allegations in complaint discloses an offenceagainst an Authority or against a public functionary which adverselyaffects the interests of the State would be abhorrent to the H

principles on the basis of which the special provision under Section199(2) and 199(4) Cr.P.C. has been structured as held by thisCourt in P.C. Joshi and Subramanian Swamy. The public prosecutorin terms of the statutory scheme under the Criminal ProcedureCode plays an important role. He is supposed to be anindependent person and apply his mind to the materials placedbefore him. [Para 14] [324-A-D]

4. In the present case, the press meet was convened bythe appellant. After few days, the government accorded sanctionto the public prosecutor to file complaint under Section 500 IPCagainst the appellant. As seen from the records, the complaintwas filed by the public prosecutor against the appellant on thevery same day. The haste with which the complaint was filedprima facie indicates that the public prosecutor may not haveapplied his mind to the materials placed before him as held inBairam Muralidhar case. Therefore, the complaint is notmaintainable on the very face of it and would deserve interference.The very initiation of the prosecution has been found to beuntenable in law. [Paras 14, 15] [324-E-H]

P. C. Joshi and another v. The State of Uttar PradeshAIR 1961 SC 387 : [1961] SCR 63; Urmila Devi v.Yudhvir Singh (2013) 15 SCC 624 : [2013] 16 SCR 542; Subramanian Swamy v. Union of India (2016) 7SCC 221 : [2016] 3 SCR 865; Bairam Muralidhar v.State of Andhra Pradesh (2014) 10 SCC 380 : [2014]8 SCR 328 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.547 of 2018.

From the Judgment and Order dated 24.07.2017 of the High Courtof M.P. Principal Seat at Jabalpur in CRR No. 515 of 2017.

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AK. T. S. Tulsi, Vivek Tankha, Sr. Advs., Vaibhav Srivastava, KuberBoddh, Prateek Khandelwal, Aman Pandey, Siddhanth, Kabir Dixit, Advs.for the Appellant.

P. S. Narasimha, ASG, Purushaindra Kaurav, Adv. Genl., MishraSaurabh, AAG, Mukul Rohatgi, Sr. Adv., Ms. Swarupama Chaturvedi,BB. N. Dubey, Ankit Kr. Lal, Advs. for the Respondents.

The Judgment of the Court was delivered by RANJAN GOGOI, J. 1. Leave granted.

2. By the order impugned, the High Court of Madhya PradeshChas negatived the challenge made by the appellant to the maintainabilityof a criminal prosecution/proceeding instituted under Section 199(2) ofthe Code of Criminal Procedure, 1973 (hereinafter referred to as“Cr.P.C.”) alleging commission of offences under Sections 499 and 500of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) againstDthe Hon’ble Chief Minister of the State of Madhya Pradesh. Thethcomplaint has been filed by the Public Prosecutor on 24 June, 2014before the District & Sessions Judge, Bhopal (Madhya Pradesh) afterreceipt of sanction from the Competent Authority of the State Governmentthon the very same day i.e. 24 June, 2014.

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E3. At the very outset, we deem it necessary to put on record thatduring the pendency of the present proceedings the prosecution againstthe accused appellant has been concluded by the learned Special Judge,Prevention of Corruption Act, Bhopal, Madhya Pradesh by judgmentthand order dated 17 November, 2017 in Sessions Trial No.573 of 2014.The accused appellant has been found guilty of the commission of theFoffence punishable under Section 500 IPC and,accordingly, he has beensentenced to undergo simple imprisonment for two years with fine ofRs.25,000/- (Rupees twenty thousand). We are told at the Bar that anappeal against the said order is presently pending before the High Courtof Madhya Pradesh and the accused appellant is presently on bail.

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4. At this stage, we would like to recapitulate our order dated 5January, 2018 reiterating that, notwithstanding the conviction of theaccused appellant, this Court would like to consider the question of thevalidity of the very initiation of the prosecution against the appellant.

5. While Section 499 IPC defines and deals with the offence ofdefamation, punishment for the said offence is provided by Section 500IPC. In the present case, the alleged offence of defamation against theHon’ble Chief Minister of the State of Madhya Pradesh, according tothe prosecution, has been committed by the accused appellant on accountof certain statements made with regard to the Hon’ble Chief Minister inthe course of a Press Conference that the appellant had addressed as aChief Spokesperson of the Indian National Congress, Madhya Pradeshstorganized on 21 June, 2014 at the MP Congress Committee, 1461 IndraBhawan Shivaji Nagar, Bhopal.

6. Though a reading of the transcript of the Press Conference,which has been placed on record, may indicate a reference to the Hon’bleChief Minister in respect of several acts and events, for the purposes ofthe present case we will,necessarily, have to confine ourselves to onlythree statements allegedly made in the Press Conference with referenceto the Hon’ble Chief Minister. This is because in the order grantingthsanction/permission dated 24 June, 2014 for filing of a complaint underSection 199 (2) Cr.P.C. it is only the aforesaid three statements whichhave been taken note of as being defamatory and, therefore, takencognizance for purpose of grant of sanction/permission under Section199(2) of the Cr.P.C. The aforesaid three statements mentioned in thethorder dated 24 June, 2014 granting sanction/permission are as follows:

“1. 19 amongst the Transport Inspection appointed in MadhyaPradesh are from the in-laws house Gondiya (Maharashtra)of Chief Minister Shivraj Singh Chouhan.

2. Conversation has been made with the accused persons of theVyapam Scam from the mobile of Sanjay Chouhan son ofPhoolsingh Chouhan-Mama of the Chief Minister Sh. ShivrajSingh Chouhan.

3. Conversation has been made from the Chief Minister’s houseby an influential woman through 139 phone calls with theaccused of Vyapam Scam Nitin Mahendra, Pankaj Trivedi,Lakshmikant Sharma.”

7. Section 199(2) Cr.P.C. provides for a special procedure withregard to initiation of a prosecution for offence of defamationcommittedagainst the constitutional functionaries and public servants mentionedtherein. However, the offence alleged to have been committed must be A

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Ain respect of acts/conduct in the discharge of public functions of theconcerned functionary or public servant, as may be. The prosecutionunder Section 199 (2) Cr.P.C. is required to be initiated by the PublicProsecutor on receipt of a previous sanction of the Competent Authorityin the State/Central Government under Section 199 (4) of the Code.Sucha complaint is required to be filed in a Court of Sessions that is alonevestedBwith the jurisdiction to hear and try the alleged offence and even withoutthe case being committed to the said court by a subordinate Court.Section 199(2) Cr.P.C. read with section 199(4) Cr.P.C., therefore,envisages a departure from the normal rule of initiation of a complaintbefore a Magistrate by the affected personsalleging the offence ofCdefamation. The said right, however, is saved even in cases of thecategory of persons mentioned in sub-section (2) of Section 199 Cr.P.C.by sub-section (6) thereof.

8. The rationale for the departure from the normal rule has beenelaborately dealt with by this Court in a judgment of considerable vintageDin P.C. Joshi and anothervs. The State of Uttar Pradesh1 [paragraph9]. The core reason which this Court held to be the rationale for thespecial procedure engrafted by Section 199(2) Cr.P.C. is that the offenceof defamation committed against the functionaries mentioned therein isreally an offence committed against the State as the same relate to thedischarge of public functions by such functionaries. The State, therefore,Ewould be rightly interested in pursuing the prosecution; hence the specialprovision and the special procedure.

P.C. Joshi(supra), however, specifically dealt with the provisionsof Section 198B of the Code of Criminal Procedure, 1898 (“old Code”)which are pari materia with the provisions of Section 199 of the Cr.P.C.F(“new Code”).

9. The above would require the Court to consider as to whetherthe statements made by the accused appellant in the Press Conferencethwhich have been taken note of in the order dated 24 June, 2014 grantingsanction/ permission can legitimately be said to be attributable orGconnected with the discharge of public functions of the office of theHon’ble Chief Minister. In other words, whether the said statementshave any reasonable nexus with the discharge of Official duties by theHon’ble Chief Minister.

1 AIR 1961 SC 387H

10. The problem of identification and correlation of the actsreferred to in an allegedly defamatory statement and those connectedwith the discharge of public functions/official duties by the holder of thepublic office is, by no means, an easy task. The sanction contemplatedunder Section 199(4) Cr.P.C. though in the opposite context i.e. toprosecute an offender for offences committed against a public servantmay have to be understood by reference to the sanction contemplatedby Section 197 Cr.P.C. which deals with sanction for prosecution of apublic servant. There is a fair amount of similarity between the conditionsprecedent necessary for accord of sanction in both cases though thecontext may be different, indeed, the opposite. While dealing with therequirement of sanction under Section 197 Cr.P.C. this Court inUrmilaDevi vs. Yudhvir Singh2 had taken the following view which may havesome relevance to the present case.

“59.The expression “official duty” would in the absence ofany statutory definition, therefore, denote a duty that arises byreason of an office or position of trust or authority held by a person.It follows that in every case where the question whether theaccused was acting in discharge of his official duty or purportingto act in the discharge of such a duty arises for consideration, thecourt will first examine whether the accused was holding an officeand, if so, what was the nature of duties cast upon him as holderof any such office. It is only when there is a direct and reasonablenexus between the nature of the duties cast upon the public servantand the act constituting an offence that the protection under Section197 CrPC may be available and not otherwise. Just because theaccused is a public servant is not enough. A reasonable connectionbetween his duties as a public servant and the acts complained ofis what will determine whether he was acting in discharge of hisofficial duties or purporting to do so, even if the acts were inexcess of what was enjoined upon him as a public servant withinthe meaning of that expression under Section 197 of the Code.”

11. If the allegedly defamatory statements, already extracted, inrespect of which sanction has been accorded to the Public Prosecutorto file the complaint against the appellant under Section 199 (2) Cr.P.C.thby the order dated 24 June, 2014 are to be carefully looked into,according to us, none of the said statements, even if admitted to havebeen made by the appellant, can be said to have any reasonable 2 (2013) 15 SCC 624

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Aconnection with the discharge of public duties by or the office of theHon’ble Chief Minister. The appointment of persons from the area/placeto which the wife of the Hon’ble Chief Minister belongs and the makingof phone calls by the relatives of the Hon’ble Chief Minister have noreasonable nexus with the discharge of public duties by or the office ofthe Hon’ble Chief Minister. Such statements may be defamatory butBthen in the absence of a nexus between the same and the discharge ofpublic duties of the office,the remedy under Section 199(2) and 199(4)Cr.P.C. will not be available.It is the remedy saved by the provisions ofsub-section (6) of Section 199 Cr.P.C. i.e. a complaint by the Hon’bleChief Minister before the ordinary Court i.e. the Court of MagistrateCwhich would be available and could have been resorted to.

12. There is yet another dimension to the case. In SubramanianSwamyvs. Union of India3 one of the grounds on which the challengeto the constitutional validity of Section 499 and 500 IPC was sustainedby this Court was the understanding that Section 199(2) and 199(4)DCr.P.C. provide an inbuilt safeguard which require the Public Prosecutorto scan and be satisfied with the materials on the basis of which acomplaint for defamation is to be filed by him acting as the PublicProsecutor. In this regard, an earlier decision of this Court in BairamMuralidharvs. State of Andhra Pradesh4 while dealing with Section321 Cr.P.C. (i.e. Withdrawal from prosecution) was considered by thisECourt and it was held as follows:

“…It is ordinarily expected that the Public Prosecutor has aduty to scan the materials on the basis of which a complaint fordefamation is to be filed. He has a duty towards the court. ThisCourt in Bairam Muralidhar Vs. State of A.P [(2014) 10 SCCF380] while deliberating on Section 321 CrPC has opined that thePublic Prosecutor cannot act like a post office on behalf of theState Government. He is required to act in good faith, peruse thematerials on record and form an independent opinion. It furtherobserved that he cannot remain oblivious to his lawful obligationsunder the Code and is required to constantly remember his dutyGto the court as well as his duty to the collective. While filingcases under Sections 499 and 500 IPC, he is expected to maintainthat independence and not act as a machine.”

(underlining is ours)

3 (2016) 7 SCC 221H4 (2014) 10 SCC 380

(underlining is ours)

3 (2016) 7 SCC 221H4 (2014) 10 SCC 380

13. In the proceedings before the learned trial Court, the PublicProsecutor who had presented the complaint under Section 199(2) Cr.P.C.was cross-examined on behalf of the accused appellant. From the relevantextract of the cross-examination of the Public Prosecutor, which is quotedbelow, it is clear to us that the Public prosecutor had admitted the absenceof any scrutiny by him of the materials on which the prosecution is soughtto be launched. In fact, the Public Prosecutor had gone to the extent ofadmitting that he had filed the complaint against the accused appellanton the orders of the State Government. The relevant extract of thecross-examination of the Public Prosecution is as under:

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C“47. It is correct to say that I have not given any proposal incapacity of public prosecutor to the Government that I wantto file a complaint against Shri K.K. Mishra in connectionwith giving defamatory statement. It is correct to say that Ihave filed the present case in the official capacity of PublicDProsecutor. It is correct to say that I have not filed the presentcomplaint on behalf of the Government (Volunteered to say)that I have filed the above case being a Public Prosecutor. Itis correct to say that on the order of the Government, I havefiled the complaint. If the Government had not directed me,then, I would not have filed a complaint as a Public Prosecutor.E48. xxxxxxxxxx49. xxxxxxxxxx50. Before receiving the permission, I have not seen any document Before receiving the permission, I have not seen any documentand did not consider whether complaint has to be filed or not.FIt is correct to say that I have not submitted any document inconnection with this fact that Jagdish Devda was a Ministerin the Government of Madhya Pradesh and Shri Shivraj SinghChouhan was positioned as Hon’ble Chief Minister ofGovernment of Madhya Pradesh on the date of PressConference (Voluntarily state that) the accused himself, whileG

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50. Before receiving the permission, I have not seen any document Before receiving the permission, I have not seen any documentand did not consider whether complaint has to be filed or not.It is correct to say that I have not submitted any document inconnection with this fact that Jagdish Devda was a Ministerin the Government of Madhya Pradesh and Shri Shivraj SinghChouhan was positioned as Hon’ble Chief Minister ofGovernment of Madhya Pradesh on the date of PressConference (Voluntarily state that) the accused himself, whileaddressing Shri Shivraj Singh Chouhan as Chief Minister, hasmade all the allegations.

51. It is correct to say that before filing the complaint, I have notgiven any legal notice to the accused in connection with this H

Afact that whether objections were raised against the Hon’bleChief Minister in Press Conference or not.”

14. The testimony of the Public Prosecutor in his cross-examination effectively demonstrates that the wholesome requirementspelt out by Section 199(2) and 199(4) Cr.P.C., as expounded by thisBCourt in Subramanian Swamy(supra), has not been complied with inthe present case. A Public Prosecutor filing a complaint under Section199 (2) Cr.P.C. without due satisfaction that the materials/allegations incomplaint discloses an offence against an Authority or against a publicfunctionary which adversely affects the interests of the State would beabhorrent to the principles on the basis of which the special provisionCunder Section 199(2) and 199(4) Cr.P.C. has been structured as held bythis Court in P.C. Joshi (supra) and Subramanian Swamy (supra). Thepublic prosecutor in terms of the statutory scheme under the CriminalProcedure Code plays an important role. He is supposed to be anindependent person and apply his mind to the materials placed beforeDhim. As held in Bairam Muralidharcasesupra)

“……He cannot remain oblivious to his lawful obligations underthe Code. He is required to constantly remember his duty to thecourt as well as his duty to the collective.”

In the present case, the press meet was convened by the appellantEon 21.06.2014. The government accorded sanction to the publicprosecutor to file complaint under Section 500 IPC against the appellanton 24.06.2014. As seen from the records, the complaint was filed by thepublic prosecutor against the appellant on the very same day i.e.24.06.2014. The haste with which the complaint was filed prima facieFindicates that the public prosecutor may not have applied his mind to thematerials placed before him as held in Bairam Muralidhar case(supra).We, therefore, without hesitation, take the view that the complaintis not maintainable on the very face of it and would deserve ourinterference.

G15. On the conclusions that have been reached by us, as indicatedabove, the conviction of the accused appellant and the sentence imposedwould not have any legs to stand. The very initiation of the prosecutionhas been found by us to be untenable in law. Merely because the trial isover and has ended in the conviction of the appellant and the matter ispresently pending before the High Court in appeal should not come inH

the way of our interdicting the same. The requirements of justice woulddemand that we carry our conclusions to its logical end by invoking ourspecial and extraordinary jurisdiction under Article 142 of the Constitutionof India. Consequently, we allow this appeal; quash the impugnedprosecution/proceedings registered and numbered as Sessions SessionthTrial No.573 of 2014; and set aside the order dated 17 November, 2017passed by the learned Special Judge, Prevention of Corruption Act,Bhopal, Madhya Pradesh in Sessions Trial No.573 of 2014 convictingthe accused appellant under Section 500 IPC and sentencing him asaforesaid. The appeal pending before the High Court against the orderthdated 17 November, 2017 passed by the learned Special Judge,Prevention of Corruption Act, Bhopal, Madhya Pradesh in Sessions TrialNo.573 of 2014 shall also stand closed in terms of the present order.Bail bond, if any shall stand discharged accordingly.

16. The appeal is allowed in the above terms.

Ankit Gyan Appeal allowed.

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