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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S) 547  OF 2018 [ARISING OUT OF SPECIAL LEAVE PETITION

(CRIMINAL] NO.6064 OF 2017]

K.K. MISHRA      ….APPELLANT(S)

VERSUS

THE STATE OF MADHYA PRADESH  & ANR. …RESPONDENT(S)

JUDGMENT

RANJAN GOGOI, J.

1. Leave granted.

2. By the order impugned, the High Court

of Madhya Pradesh has negatived the challenge

made by the appellant to the maintainability

of  a  criminal  prosecution/proceeding

instituted under Section 199(2) of the Code

of  Criminal  Procedure,  1973  (hereinafter

referred to as “Cr.P.C.”) alleging commission

of offences under Sections 499 and 500 of the

Indian Penal Code, 1860 (hereinafter referred

to  as  “IPC”)  against  the  Hon’ble  Chief

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Minister of the State of Madhya Pradesh.  The

complaint  has  been  filed  by  the  Public

Prosecutor  on  24th June,  2014  before  the

District  &  Sessions  Judge,  Bhopal  (Madhya

Pradesh) after receipt of sanction from the

Competent Authority of the State Government

on the very same day i.e. 24th June, 2014.

3. At  the  very  outset,  we  deem  it

necessary to put on record that during the

pendency  of  the  present  proceedings  the

prosecution against the accused appellant has

been concluded by the learned Special Judge,

Prevention of Corruption Act, Bhopal, Madhya

Pradesh  by  judgment  and  order  dated  17th

November, 2017 in Sessions Trial No.573 of

2014. The accused appellant has been found

guilty  of  the  commission  of  the  offence

punishable  under  Section  500  IPC  and,

accordingly, he has been sentenced to undergo

simple imprisonment for two years with fine

of Rs.25,000/- (Rupees twenty thousand).  We

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are told at the Bar that an appeal against

the said order is presently pending before

the  High  Court  of  Madhya  Pradesh  and  the

accused appellant is presently on bail.   

4. At  this  stage,  we  would  like  to

recapitulate our order dated 5th January, 2018

reiterating  that,  notwithstanding  the

conviction  of  the  accused  appellant,  this

Court would like to consider the question of

the validity of the very initiation of the

prosecution against the appellant.   

5. While  Section  499  IPC  defines  and

deals  with  the  offence  of  defamation,

punishment for the said offence is provided

by Section 500 IPC.  In the present case, the

alleged  offence  of  defamation  against  the

Hon’ble Chief Minister of the State of Madhya

Pradesh,  according  to  the  prosecution,  has

been committed by the accused appellant on

account  of  certain  statements  made  with

regard to the Hon’ble Chief Minister in the

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course  of  a  Press  Conference  that  the

appellant  had  addressed  as  a  Chief

Spokesperson of the Indian National Congress,

Madhya Pradesh organized on 21st June, 2014 at

the MP Congress Committee, 1461 Indra Bhawan

Shivaji Nagar, Bhopal.

6. Though a reading of the transcript of

the Press Conference, which has been placed

on record, may indicate a reference to the

Hon’ble Chief Minister in respect of several

acts  and  events,  for  the  purposes  of  the

present case we will, necessarily, have to

confine  ourselves  to  only  three  statements

allegedly made in the Press Conference with

reference to the Hon’ble Chief Minister. This

is  because  in  the  order  granting

sanction/permission dated 24th June, 2014 for

filing of a complaint under Section 199 (2)

Cr.P.C.  it  is  only  the  aforesaid  three

statements which have been taken note of as

being  defamatory  and,  therefore,  taken

cognizance  for  purpose  of  grant  of

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sanction/permission under Section 199(2) of

the Cr.P.C.  The aforesaid three statements

mentioned in the order dated 24th June, 2014

granting sanction/permission are as follows:

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

2. Conversation  has  been  made  with the accused persons of the Vyapam Scam  from  the  mobile  of  Sanjay Chouhan  son  of  Phoolsingh Chouhan-Mama  of  the  Chief Minister  Sh.  Shivraj  Singh Chouhan.

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

7. Section 199(2) Cr.P.C. provides for a

special procedure with regard to initiation

of a prosecution for offence of defamation

committed  against  the  constitutional

functionaries and public servants mentioned

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therein.   However,  the  offence  alleged  to

have been  committed must  be in  respect of

acts/conduct  in  the  discharge  of  public

functions  of  the  concerned  functionary  or

public servant, as may be.  The prosecution

under Section 199 (2) Cr.P.C. is required to

be  initiated  by  the  Public  Prosecutor  on

receipt  of  a  previous  sanction  of  the

Competent  Authority  in  the  State/Central

Government under Section 199 (4) of the Code.

Such a complaint is required to be filed in a

Court of Sessions that is 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) Cr.P.C.  read with

section 199(4) Cr.P.C., therefore, envisages

a  departure  from  the  normal  rule  of

initiation of a complaint before a Magistrate

by the affected persons alleging the offence

of defamation.  The said right, however, is

saved  even  in  cases  of  the  category  of

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persons  mentioned  in  sub-section  (2)  of

Section  199  Cr.P.C.  by  sub-section  (6)

thereof.   

8. The rationale for the departure from

the normal rule has been elaborately dealt

with  by  this  Court  in  a  judgment  of

considerable  vintage  in  P.C.  Joshi  and

another vs.  The  State  of  Uttar  Pradesh  1

[paragraph 9].  The core reason which this

Court  held  to  be  the  rationale  for  the

special procedure engrafted by Section 199(2)

Cr.P.C.  is  that  the  offence  of  defamation

committed against the functionaries mentioned

therein  is  really  an  offence  committed

against the State as the same relate to the

discharge  of  public  functions  by  such

functionaries.  The State, therefore, would

be  rightly  interested  in  pursuing  the

prosecution; hence the special provision and

the special procedure.  

1  AIR 1961 SC 387

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P.C.  Joshi (supra),  however,

specifically  dealt  with  the  provisions  of

Section  198B  of  the  Code  of  Criminal

Procedure, 1898 (“old Code”) which are pari

materia with the provisions of Section 199 of

the Cr.P.C. (“new Code”).  

9. The  above  would  require  the  Court  to

consider as to whether the statements made by

the accused appellant in the Press Conference

which have been taken note of in the order

dated  24th June,  2014  granting  sanction/

permission  can  legitimately  be  said  to  be

attributable or connected with the discharge

of  public  functions  of  the  office  of  the

Hon’ble  Chief  Minister.   In  other  words,

whether  the  said  statements  have  any

reasonable  nexus  with  the  discharge  of

Official  duties  by  the  Hon’ble  Chief

Minister.

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10. The  problem  of  identification  and

correlation of  the acts  referred to  in an

allegedly  defamatory  statement  and  those

connected  with  the  discharge  of  public

functions/official  duties  by  the  holder  of

the public office is, by no means, an easy

task. The sanction contemplated under Section

199(4) Cr.P.C. though in the opposite context

i.e. to prosecute an offender for offences

committed against a public servant may have

to be understood by reference to the sanction

contemplated by Section 197 Cr.P.C.  which

deals  with  sanction  for  prosecution  of  a

public servant.  There is a fair amount of

similarity between the conditions precedent

necessary  for  accord  of  sanction  in  both

cases though the context may be different,

indeed, the opposite. While dealing with the

requirement  of  sanction  under  Section  197

Cr.P.C. this Court in Urmila Devi vs. Yudhvir

Singh  2 had taken the following view which may

have some relevance to the present case.

2 (2013) 15 SCC 624

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

11. If  the  allegedly  defamatory

statements, already extracted, in respect of

which  sanction  has  been  accorded  to  the

Public  Prosecutor  to  file  the  complaint

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against the appellant under Section 199 (2)

Cr.P.C. by the order dated 24th June, 2014 are

to be carefully looked into, according to us,

none of the said statements, even if admitted

to have been made by the appellant, can be

said to have any reasonable connection with

the  discharge  of  public  duties  by  or  the

office of the Hon’ble Chief Minister.  The

appointment of persons from the area/place to

which the wife of the Hon’ble Chief Minister

belongs and the making of phone calls by the

relatives of the Hon’ble Chief Minister have

no  reasonable  nexus  with  the  discharge  of

public duties by or the office of the Hon’ble

Chief  Minister.   Such  statements  may  be

defamatory but then in the absence of a nexus

between the same and the discharge of public

duties  of  the  office,  the  remedy  under

Section 199(2) and 199(4) Cr.P.C. will not be

available.  It  is  the  remedy  saved  by  the

provisions of sub-section (6) of Section 199

Cr.P.C. i.e. a complaint by the Hon’ble Chief

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Minister before the ordinary Court i.e. the

Court of Magistrate which would be available

and could have been resorted to.

12. There is yet another dimension to the

case.  In  Subramanian  Swamy vs.  Union  of

India  3 one  of  the  grounds  on  which  the

challenge to the constitutional validity of

Section 499 and 500 IPC was sustained by this

Court  was  the  understanding  that  Section

199(2) and 199(4) Cr.P.C. provide an inbuilt

safeguard which require the Public Prosecutor

to scan and be satisfied with the materials

on  the  basis  of  which  a  complaint  for

defamation is to be filed by him acting as

the  Public  Prosecutor.  In  this  regard,  an

earlier  decision  of  this  Court  in  Bairam

Muralidhar vs. State of Andhra Pradesh  4 while

dealing  with  Section  321  Cr.P.C.  (i.e.

Withdrawal from prosecution) was considered

by this Court and it was held as follows:

3 (2016) 7 SCC 221 4 (2014) 10 SCC 380

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“…It  is  ordinarily  expected  that the Public Prosecutor has a duty to scan the materials on the basis of which a complaint for defamation is to be filed. He has a duty towards the court.  This Court in  Bairam Muralidhar Vs. State of A.P [(2014) 10 SCC 380] while deliberating on Section  321  CrPC  has  opined  that the  Public  Prosecutor  cannot  act like a post office on behalf of the State Government.  He is required to act in good faith, peruse the materials  on  record  and  form  an independent  opinion.  It  further observed  that  he  cannot  remain oblivious to his lawful obligations under the Code and is required to constantly remember his duty to the court as well as his duty to the collective.   While  filing  cases under Sections 499 and 500 IPC, he is  expected  to  maintain  that independence  and  not  act  as  a machine.”  

(underlining is ours)

13. In the proceedings before the learned

trial Court, the Public Prosecutor who had

presented the complaint under Section 199(2)

Cr.P.C. was cross-examined on behalf of the

accused appellant.  From the relevant extract

of  the  cross-examination  of  the  Public

Prosecutor,  which  is  quoted  below,  it  is

clear to us that the Public prosecutor had

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admitted the absence of any scrutiny by him

of the materials on which the prosecution is

sought to be launched.  In fact, the Public

Prosecutor  had  gone  to  the  extent  of

admitting  that  he  had  filed  the  complaint

against the accused appellant on the orders

of  the  State  Government.   The  relevant

extract  of  the  cross-examination  of  the

Public Prosecution is as under:

  xxx  7.3.2015  

“47. It is correct to say that I have not given any proposal in capacity of  public  prosecutor  to  the Government that I want to file a complaint against Shri K.K. Mishra in  connection  with  giving defamatory  statement.   It  is correct to say that I have filed the  present  case  in  the  official capacity of Public Prosecutor.  It is correct to say that I have not filed  the  present  complaint  on behalf  of  the  Government (Volunteered  to  say)  that  I  have filed the above case being a Public Prosecutor.  It is correct to say that  on  the  order  of  the Government,  I  have  filed  the complaint.  If  the  Government  had not directed me, then, I would not have filed a complaint as a Public Prosecutor.  

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48. xxxxxxxxxx

49. xxxxxxxxxx

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

51. It is correct to say that before filing  the  complaint,  I  have  not given  any  legal  notice  to  the accused  in  connection  with  this fact  that  whether  objections  were raised  against  the  Hon’ble  Chief Minister  in  Press  Conference  or not.”

14. The  testimony  of  the  Public

Prosecutor  in  his  cross-examination

effectively demonstrates that the wholesome

requirement spelt out by Section 199(2) and

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199(4) Cr.P.C., as expounded by this Court in

Subramanian  Swamy (supra),  has  not  been

complied with in the present case.  A Public

Prosecutor filing a complaint under Section

199 (2) Cr.P.C. without due satisfaction that

the  materials/allegations  in  complaint

discloses an offence against an Authority or

against a public functionary which adversely

affects the interests of the State would be

abhorrent to the principles on the basis of

which  the  special  provision  under  Section

199(2) and 199(4) Cr.P.C. has been structured

as held by this Court in P.C. Joshi (supra)

and  Subramanian  Swamy  (supra).  The  public

prosecutor in terms of the statutory scheme

under the Criminal Procedure Code plays an

important  role.   He  is  supposed  to  be  an

independent person and apply his mind to the

materials  placed  before  him.   As  held  in

Bairam Muralidhar case supra)  

“……He cannot remain oblivious to his lawful  obligations  under  the  Code. He is required to constantly remember

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his duty to the court as well as his duty to the collective.”   

In the present case, the press meet was

convened by the appellant on 21.06.2014.  The

government  accorded  sanction  to  the  public

prosecutor  to  file  complaint  under  Section

500 IPC against the appellant on 24.06.2014.

As seen from the records, the complaint was

filed by the public prosecutor against the

appellant  on  the  very  same  day  i.e.

24.06.2014.   The  haste  with  which  the

complaint  was  filed  prima  facie indicates

that  the  public  prosecutor  may  not  have

applied  his  mind  to  the  materials  placed

before him as held in Bairam Muralidhar case

(supra). We, therefore, without hesitation,

take  the  view  that  the  complaint  is  not

maintainable on the very face of it and would

deserve our interference.    

15. On  the  conclusions  that  have  been

reached  by  us,  as  indicated  above,  the

conviction of the accused appellant and the

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sentence imposed would not have any legs to

stand.   The  very  initiation  of  the

prosecution  has  been  found  by  us  to  be

untenable in law.  Merely because the trial

is over and has ended in the conviction of

the  appellant  and  the  matter  is  presently

pending  before  the  High  Court  in  appeal

should  not  come  in  the  way  of  our

interdicting the same.  The requirements of

justice  would  demand  that  we  carry  our

conclusions to its logical end by invoking

our  special  and  extraordinary  jurisdiction

under  Article  142  of  the  Constitution  of

India.  Consequently,  we  allow  this  appeal;

quash  the  impugned  prosecution/proceedings

registered and numbered as Sessions Session

Trial No.573 of 2014; and set aside the order

dated  17th November,  2017  passed  by  the

learned  Special  Judge,  Prevention  of

Corruption  Act,  Bhopal,  Madhya  Pradesh  in

Sessions Trial No.573 of 2014 convicting the

accused appellant under Section 500 IPC and

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sentencing  him  as  aforesaid.   The  appeal

pending  before  the  High  Court  against  the

order dated 17th November, 2017 passed by the

learned  Special  Judge,  Prevention  of

Corruption  Act,  Bhopal,  Madhya  Pradesh  in

Sessions  Trial  No.573  of  2014  shall  also

stand closed in terms of the present order.

Bail  bond,  if  any  shall  stand  discharged

accordingly.

16. The appeal is allowed in the above

terms.  

......................, J [RANJAN GOGOI]

......................, J  [R. BANUMATHI]

......................, J  [MOHAN M. SHANTANAGOUDAR]

NEW DELHI APRIL 13, 2018.