NAROTTAMDAS L SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A fundamental question of far reaching importance going to the root of administration of justice as adopted in our country is raised in this group of Criminal Revision Applications. The applicant in each of the applications who is original accused is the editor of a daily news paper JAI HIND published simultaneously from Rajkot and Ahmedabad In the Rajkot edition of the JAI HIND daily published on 21 January 1969 22 January 1969 23 January 1969 25 January 1969 and 4th February 1969 there appeared certain articles adversely reflecting upon the purity and efficiency of administration in Police Department of Rajkot district. One Mr. P. G. Navani was the District Superintendent of Police Rajkot District at the relevant time. Certain passages in the said articles in particular and all articles in general were considered to be per se defamatory of Mr. Navani a public servant in of his duty. The State Government accordingly directed the Public Prosecutor of Rajkot to file five different complaints against the applicant for having committed an offence under sec. 500 of the Indian Penal Code in the Court of Sessions at Rajkot. The Public Prosecutor filed five separate complaints against the applicant in the Court of Sessions at Rajkot. When the trial of the offence was about to commence the Public Prosecutor in charge of the case on behalf of the State gave a single line application in each case:- that the case be held in camera purporting to be under sub-sec. (5A) of sec. 198B of the Criminal Procedure Code. The present applicant contested the application on various grounds. The learned Sessions Judge even though he was satisfied that the case is not of such a nature which will serve any public purpose by holding the trial in camera was constrained to grant the request to hold trial in camera at the desire of the Public Prosecutor in view of the language of sub-sec. (SA) of sec. 198B. The applicant preferred five separate Revision Applications challenging the aforementioned order inter alia on the ground that a portion of sub-sec. 5A of sec. 198B is ultra vires Art. 14 and Arts. 19(1)(a) 19 and 19(1)(f) of the Constitution. In view of the importance of the question raised in these applications our learned brother S. H. Sheth J. referred the applications to the Division Bench. That is how these applications have come up before us for hearing.

(2.) Secs. 190 to 198B grouped together under Part B of Chapter XV headed Conditions requisite for initiation of proceedings provide for taking cognizance of offences by Courts generally and in certain specified offences at the instance of persons directly affected by the offence. The general rule is that anyone can move a Criminal Court for taking cognizance of an offence which is committed. There are well recognised exceptions to this general rule. Sec. 198 provides that no Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under secs. 492 to 496 (both inclusive) of the same Code except upon a complaint made by some person aggrieved by such offence. There is a proviso to the section which is not material for our purpose. Sec. 198B(1) provides that notwithstanding anything contained in the Code when any offence falling under Chapter XXI of the Indian Penal Code is alleged to have been committed against the President or the Vice President or the Governor 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 the conduct in the discharge of his public functions a Court of Sessions may take cognizance of such offence without the accused being committed to it for trial upon a complaint in writing made by the Public Prosecutor. Therefore when any one complains that he is defamed he alone can move the Court for taking cognizance of the offence and the offender can be brought to book on his complaint alone. Since some years past a tendency was discernible that very often unwarranted and vicious attacks were made in press and from public platform on public servants employed in connection with the affairs of the Union or of a State in respect of their conduct in discharge of public functions. In order to vindicate his honour the public servant had to file a complaint and go through the gamut of occasionally long and protracted criminal trial but looking to the time and expenses involved in a protracted trial the public servant appeared to be reluctant to initiate proceedings and the offender went scot free. But this brought in some demoralization in the public service and the whole thing was found unsatisfactory. The Parliament intervene and by the Code of Criminal Procedure (Amendment) Act (26 of 1955) introduced sec. 198B which made notable departure in initiation of proceedings for offence of defamation. In the absence of sec. 198B the person defamed alone could initiate the proceeding. By sec. 198B the Parliament enacted a provision by which upon a sanction of the relevant authority the Public Prosecutor can initiate proceedings for offences falling under Chapter XXI of the Indian Penal Code (particularly offence of defamation) if it is committed against such high dignitaries as President Vice President Governor or a Minister of a State or any other public servant employed in connection with the affairs of Union or of a State so far as the offence is committed in respect of their conduct in the discharge of their public functions. When sec. 198B was initially introduced the Public Prosecutor on a sanction from the Government could initiate proceedings of the offence of defamation if defamation was committed by means other than spoken words. Subsequently by anti-Corruption Laws (Amendment) Act (40 of 1964) the words other than the offence of defamation by spoken words were deleted and simultaneously sub-sec. (5A) was introduced a portion of which is impugned in these applications. A bare perusal of the provisions contained in secs. 198 and 198B would show at a glance that if an offence of defamation is committed in respect of a person other than high dignitaries and public servants as hereinbefore mentioned the Court can take cognizance of an offence upon a complaint of the person defamed and the Court of the Judicial Magistrate First Class within whose local limit the offence is committed would be competent to try the offence. On the introduction of sec. 198B the jurisdiction to the cognizance of an offence of defamation if it is committed in respect of the aforementioned high dignitaries or the public servant appointed in connection with the affairs of the Union or of a State and if the offence is committed in discharge of his public function the Court of Sessions can take cognizance of the offence upon a complaint filed by the public prosecutor who can file complaint after the section is accorded by the competent authority. Thus sec. 198B makes a notable departure from sec. 198 in that two Court which can take cognizance are entirely different and power to initiate the proceedings vests in different persons. In all other respect the procedure is the same namely that the offence of defamation will have to be tried according to the procedure prescribed for trial of a warrant case. One other departure of which we must notice is that the Court of Session ordinarily cannot take cognizance of an offence unless the accused is committed to it. But in the case of an offence falling under Chapter XXI committed in connection with the aforementioned persons the Court of Sessions is empowered to take cognizance of the offence upon a complaint of the Public Prosecutor. Sub-sec. (5A) as stated earlier was introduce on 18-12-1964. It reads as under :-

(3.) Mr. H. M. Mehta and Mr. M. R. Barot learned Advocates who appeared for the applicant in these applications formulated the following propositions for our consideration :-