2009 ALL MR (Cri) 1893
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.P. SONDURBALDOTA, J.

Mrs. Shobhana Bhartia & Ors.Vs.State Of Maharashtra & Anr.

Criminal Application No.4603 of 2008

16th June, 2009

Petitioner Counsel: Mr. SIDHARTH LUTHRA,Mr. SANJOG PARAB, Mr. MADHAV KHURANA, Mr. MEHUL MILIND GUPTA,Mr. SUBODH DESAI
Respondent Counsel: Mr. ANAND GROVER,Mr. VIJAY HIREMATH

(A) Criminal P.C. (1973), Ss.482, 362 - Quashing of proceedings - Application dismissed - Second application - Maintainability - There is no absolute bar - Grounds raised in second application though different were available to applicants at the time of filing of first application - Second application is not warranted. (Para 10)

(B) Criminal P.C. (1973), S.199(2) - Applicability - Taking of cognizance by Sessions Court is discretionary and subject to restriction that complaint must be made by Public Prosecutor with prior sanction of Government and within a period of six months from date of offence. (Para 14)

(C) Criminal P.C. (1973), S.199(1), (6) - Scope - Sub-sections cover both capacities, personal and official, whereas sub-sections (2) to (5) cover only the official capacity. (Para 14)

(D) Criminal P.C. (1973), S.199 - Central Civil Services (Conduct) Rules (1964), S.19 - Complaint by public servant that article published in newspaper is defamatory - Complaint could have been filed without first obtaining sanction from Government - Application was governed by provisions of Cr.P.C. and provisions of Central Civil Services (Conduct) Rules were not relevant. (Para 17)

Cases Cited:
Adalat Prasad Vs. Rooplal Jindal, 2004 ALL MR (Cri) 3131 (S.C.)=(2004)7 S.C.C. 338 [Para 2]
Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee, 1990(2) S.C.C. 437 [Para 5]
Sunita Jain Vs. Pawan Kumar Jain, 2008 ALL MR (Cri) 1346 (S.C.)=(2008)2 S.C.C. 705 [Para 6]
State represented by DSP, SB, CID, Chennai Vs. K. V. Rajendran, (2008)8 S.C.C. 673 [Para 6]
M. Sundareswaran Vs. The State of Maharashtra and The Central Bureau of Investigation, Anti-corruption Branch, 2007 ALL MR (Cri) 2993=(2007)109 Bom.L.R. 2192 [Para 7]
Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh, (1975)3 SCC 706 [Para 8]
S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla, 2007 ALL MR (Cri) 870 (S.C.)=(2007)4 S.C.C. 70 [Para 8]


JUDGMENT

JUDGMENT :- The applicants are associated with Hindustan Times Limited which is a company registered and incorporated in New Delhi and engaged in the business of printing and distribution of Hindustan Times Newspaper. Applicants no.1 and 2 are Editorial Directors, Applicant no.3 Resident Editor, Applicant no.4 Author and News Reporter, Applicant no.5 Sub-Editor, and applicant no.6 Publisher and Printer of Hindustan Times. They have filed the present application under Section 482, Cr.P.C. to challenge the order dated 15th September, 2004 passed by the learned Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai issuing process in Criminal Case No.1993/SS/2004 and for quashing of the proceedings. The complaint in question is filed by respondent no.2 under Sections 499, 500, 501 and 502, IPC alleging that the article published by the applicants in Hindustan Times on 4th October, 2001 titled "Mumbai NCB Chief Under CBI Scanner", is defamatory. Respondent no.2 is a public servant. At the relevant time, he was posted as Zonal Director of Narcotics Control Bureau.

2. The applicants had earlier filed a similar application in this court for quashing of the very proceedings being Criminal Application No.5839 of 2004. It was contended in the application that from the averments in the complaint filed by the respondent, no offence is disclosed and even otherwise the applicants are protected by Exception-1 and Exception-9 of Section 499, IPC. It was also contended by them that the article was published in public interest in discharge of their duty as media. The application was heard on merits and dismissed by speaking order dated 28th April, 2005. The applicants thereafter had approached the Hon'ble Supreme Court by filing Special Leave Petition (Criminal) No.4380 of 2005. That petition was referred to larger bench on a limited question as to the validity of one of the legal issues involved in Adalat Prasad Vs. Rooplal Jindal cited as (2004)7 S.C.C. page 338 : [2004 ALL MR (Cri) 3131 (S.C.)] i.e. scope of the inquiry/hearing at the stage of consideration of notice. On 25th March, 2009 on the request of the applicants the Supreme Court dismissed the Special Leave Petition as withdrawn with liberty to raise all the defences before the Court of Magistrate.

3. Three years after dismissal of the earlier application, the applicants have filed the present application based solely on technical grounds, which were not raised in the earlier application. The challenge to the impugned order and quashing of the proceedings is based on two grounds. Firstly, that the respondent no.2 being a public servant, the special procedure prescribed under Section 199(2) ought to have been adopted. The complaint filed personally by respondent no.2 in the court of Magistrate is without jurisdiction. Secondly, Rule 19 of the Central Civil Services Rules, 1964 framed under Article 309 of the Constitution require prior sanction of the Government for filing of complaint for defamation by a Central Government servant. No such sanction was obtained by the respondent no.2.

4. Respondent no.2 on the other hand while refuting both the grounds, contends that the second petition under Section 482, Cr.P.C. is barred by Section 362, Cr.P.C. Hence, the present application is not maintainable.

5. It will be not only convenient but also more appropriate to consider the contention of maintainability of this application before getting into merits of the application. Mr. Grover, learned Senior Counsel for respondent no.2 submits that the earlier petition filed by the applicants under Section 482, Cr.P.C. for identical reliefs was dismissed by this court and the Special Leave Petition preferred therefrom to the Hon'ble Supreme Court stands withdrawn. In the circumstance, filing of the second petition for the same relief before the same court would amount to review of its earlier decision. This is expressly barred by Section 362, Cr.P.C. He also points out that the applicants in the present application have not come out with a case of any change in the circumstances. In support of his submissions, Mr. Grover seeks to draw support from three decisions of the Apex Court. The first decision is in the case of Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee & anr. reported in 1990(2) S.C.C. page 437. The proceedings before the Apex Court arose out of a private complaint filed for the offences punishable under Sections 452 and 323, IPC. The Judicial Magistrate First Class in exercise of power under Section 192, Cr.P.C. had transferred the complaint for inquiry under Section 202, Cr.P.C.. The court of Second Class Magistrate after examining the witnesses issued process. The accused persons challenged the order issuing process by filing application under Section 482, Cr.P.C. on the ground that the Judicial Magistrate First Class had transferred the case without taking cognizance of the offence. Hence, the subsequent proceedings were illegal. The High Court dismissed the application after coming to a definite finding that the complaint was taken cognizance of. Then there was a second application filed under Section 482, Cr.P.C. on the ground that there was an irregularity in the transfer of the proceedings. It was alleged in the application that closer scrutiny of the records of the proceedings would indicate that the case had not been taken cognizance of before transfer. The High Court accepted the case of the accused persons in the second application and quashed the proceedings. This order was challenged before the Hon'ble Supreme Court contending that exercise of power under Section 482, Cr.P.C. on a second application by the same parties on the same ground virtually amounted to review of the earlier order and was contrary to the spirit of Section 362, Cr.P.C. The Supreme Court accepted the contention and allowed the appeal with the following observations :

"3. .....We find considerable force in the contention of the learned counsel. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362."

6. In the second decision cited of Sunita Jain Vs. Pawan Kumar Jain & Ors. reported in (2008)2 S.C.C. page 705 : [2008 ALL MR (Cri) 1346 (S.C.)], the Apex Court set aside the order of the High court allowing second petition filed under Section 482, Cr.P.C. for quashing of criminal proceedings, despite dismissal of the earlier petition on the same ground, which decision was upheld by the Apex Court. It held in the facts of that case, that in substance and reality the High Court had exercised the power of review not conferred by the Code on a criminal court. It took note of the bar under Section 362, Cr.P.C. for altering or reviewing its order, except to correct the clerical or arithmetical error. The third decision cited by Mr. Grover is of State represented by DSP, SB, CID, Chennai Vs. K. V. Rajendran and Ors. reported in (2008)8 S.C.C. page 673, wherein the Apex Court has held that fresh petition under Section 482, Cr.P.C. for similar relief is permissible, if any subsequent development has taken place after the disposal of the original petition under Section 482, Cr.P.C..

7. Mr. Luthra, the learned Senior Counsel for the applicants replies that none of the above decisions take into consideration a situation of the subsequent petition being filed on grounds different from those in the first petition. Therefore, according to him the decisions are not applicable to the facts of the present case. He submits that none of the grounds pleaded in the present application for quashing of the proceedings were pleaded in the earlier application. Therefore, decision in this application will amount to neither alteration nor review of the earlier decision. In support of the submission, he relies upon decision of Single Judge of this Court in the case of M. Sundareswaran Vs. The State of Maharashtra and The Central Bureau of Investigation, Anti-corruption Branch reported in (2007)109 Bom.L.R. page 2192 : [2007 ALL MR (Cri) 2993], wherein the argument of CBI that the second petition under Section 482, Cr.P.C. would be barred by Section 362, Cr.P.C., was rejected on the ground that the second petition was filed on a fresh ground and the court was not called upon to adjudicate on the issues raised in the earlier petition.

8. Mr. Luthra, relies upon two decisions of the Apex Court to reinforce his argument that there is no bar to file second petition for quashing of criminal proceedings. The decision in Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh reported in (1975)3 SCC page 706 arises out of Section 561(a) old Criminal Procedure Code, 1898 which is equivalent to Section 482, Criminal Procedure Code, 1973. In that appeal before the Apex Court, the earlier application was rejected by the High Court on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceedings at that stage. But thereafter the criminal case dragged on for one and a half year without any progress at all and it was in such circumstances that the second application was made. The Apex Court held that Section 561(a) preserves the inherent powers of the High Court to make such orders as it deems fit to prevent abuse of the process of the court or to secure the ends of justice and the High Court must therefore exercise its inherent jurisdiction having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. It is thus seen that the deciding factor was change in circumstances at the time of filing of the second petition. This decision has been followed with approval in the subsequent decision of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla reported in (2007)4 S.C.C. 70 : [2007 ALL MR (Cri) 870 (S.C.)]. The facts of the case before the Apex Court in this decision were slightly different. The first application filed under Section 482, Cr.P.C. was permitted to be withdrawn by the High Court with liberty to avail remedies, if any available to the petitioner in law. Then, the second petition was filed. While the petition was heard, the question of its maintainability was not raised before the High Court. It came to be raised for the first time before the Apex Court. It held that it was too late to contend that the application under Section 482, Cr.P.C. was not maintainable, when not only the merit of the matter had been gone into by the High Court and the Supreme Court but also the questions in the petition had been referred to the larger bench for obtaining an authoritative pronouncement.

9. The position in law that can be culled out from the decisions cited by both the sides is that there can be no absolute bar in filing a second petition under Section 482, Cr.P.C. because the inherent power of the court under Section 482, Cr.P.C. is intended to prevent abuse of the process of the court and to secure the ends of justice. However, such power cannot be exercised to do something which is expressly barred by the Criminal Procedure Code. The inherent powers can be exercised if there is a change in the circumstances of the case for passing appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court.

10. It is now to be considered whether even in the absence of any change in the circumstances, a petition filed merely on a different ground can be and should be entertained by this court. Undoubtedly, the inherent powers of this court are very wide, as the purpose of the powers is to secure the ends of justice or to prevent the abuse of the process of the court. However, it has been observed by the Supreme Court time and again that these powers should be used sparingly and cautiously only when the court comes to the conclusion that there is manifest injustice or there would be abuse of process of law. In case of private complaints, the inherent powers can be exercised if it is seen that the contents of the complaint, the material in support and the investigation conducted taken at its face value no offence is made out. Therefore, where a party seeks to invoke inherent powers of the High Court by filing one application after another though on different grounds the court must ascertain that the ground of challenge in the subsequent application was not available to it when the first application was filed. Ordinarily, parties are expected to include all the grounds of challenge available to them at the time of filing of the application, unless the facts of the case indicate some infirmity on the part of the applicant in including the grounds in the application. No party can be allowed to file such applications at its own sweet will and convenience. Otherwise, it would amount to abuse of process of court. The subsequent application on the changed circumstances would of course be maintainable as has been expressly held by the Apex Court. In the instant case, though the petition is on the grounds different from that in the first petition, it cannot be said that these grounds were not available to the applicants at the time of filing of the first application. There is also no such claim made in the application. Considering the status of the applicants and the legal assistance available to them, it is surprising that these grounds were not considered for inclusion in the earlier petition. Therefore, in my opinion the facts and circumstances of the present case do not warrant entertainment of the second petition for the same reliefs.

11. This brings us to the merits of the application. Mr. Luthra, urges that the impugned order is an order without jurisdiction since in view of the provision of Section 199(2), Cr.P.C., respondent no.2 could not have filed a private complaint in the court of Magistrate for the offence of defamation. He submits that Section 199(2), Cr.P.C. prescribes a special procedure for cognizance of an offence of defamation whereunder the complaint has to be filed, in case of public servant, through Public Prosecutor before the court of Sessions. He seeks to draw comparison between the provision under the old Code of Criminal Procedure, 1898 and that under the new Code of Criminal Procedure, 1973. According to Mr.Luthra, a private complaint by public servant person aggrieved was possible only under the old Code of Criminal Procedure, 1898. He has taken me through the text of the relevant provisions in both, the old and the new Code. The same read as follows:-

"198-B. Prosecution for defamation against public servants in respect of their conduct in the discharge of public functions.

(1) Notwithstanding anything contained in this 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 a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the 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 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 sections,-

(a) .....

(b) .....

(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.

(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) .....

(5A) .....

(6) .....

(7) .....

(8) .....

(9) .....

(10) .....

(11) .....

(12) .....

(13) The provisions of this section shall to be in addition to, and not in derogation of, those of Section 198.

(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."

"199. Prosecution for defamation.-

(1) No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.

(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction-

(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;

(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State.

(c) of the Central Government, in any other case.

(5) No court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.

(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint."

12. Mr. Luthra argues that Section 198(B) of the old Code did not exclude the other provisions and a public servant could file a complaint for an offence of defamation directly as an aggrieved person. Sub-section (13) says that provision of Section 198(B) is in addition to and not in derogation of Section 198. According to him, under the new Code there is no provision equivalent to Section 198(B)(13) of the old Code. Absence of such provision in the new Code clearly shows the intention of the legislature to make Section 199(2) to Section 199(5), Cr.P.C. applicable in exclusion to the other parts of Section 199 namely 199(1) and 199(6), Cr.P.C. It is submitted that any other interpretation of Section 199(2), Cr.P.C. will distort the scheme of criminal law. It will result in public officers utilising their authority and influence to curb the right to freedom of speech.

13. Mr. Grover on the other hand submits that sub-section (6) of Section 199 of the new Code, serves the purpose as sub-section 13 of Section 198(B) of the old Code.

14. Scrutiny of Section 199, Cr.P.C. makes it difficult to accept the interpretation put by Mr. Luthra. As a general rule, a criminal complaint can be filed by anybody whether he is an aggrieved person or not. Section 199, Cr.P.C. engrafts an exception to the general rule in relation to offences covered by Section 499 to Section 502. This Section covers defamation of persons in general and some officials named therein, in particular. In case of ordinary persons, the complaint is required to be made by the person aggrieved who may or may not be the person defamed. In the other class of cases i.e. in cases of high dignitaries and public servants where defamation is in respect of conduct in discharge of public functions special procedure is prescribed under sub-sections (2) to (5). Under the special procedure, Court of Sessions can take cognizance upon a complaint made by the Public Prosecutor with prior sanction of the Government and within the period of six months from the date on which the offence is alleged to have been committed. Taking of cognizance by the Sessions Court is discretionary as can be seen from the language of the sub-section. The language of the sub-section (2) is that the Sessions Court "may" take cognizance and not "shall". There are further restrictions in the provision. They are (i) the complaint must be made by the Public Prosecutor, (ii) with prior sanction of the Government and (iii) within a period of six months from the date of the offence. The reasons for these restrictions are not far to seek. Under special procedure, the State is the prosecuting agency. The ordinary procedure under sub-section (1) is not attached with the said restrictions. Sub-section (6) saves right of a person defamed, though a public servant, to make complaint to the Magistrate in his capacity as an ordinary person. As has been rightly submitted by Mr. Grover, sub-section (1) and (6) would cover both capacities, personal and official, whereas sub-section (2) to (5) cover only the official capacity. Thus, the special procedure is only an additional procedure available in case of high dignitaries or public servants.

15. There is another difficulty in accepting the interpretation of Mr. Luthra. It will be too restrictive upon a person aggrieved by commission of the offence. He will be left at the mercy of the State and be deprived of his right to approach court of law for redressal of the wrong committed against him. This cannot be the legislative intent. Further, the interpretation will render sub-section (6) redundant. Such interpretation is not permissible. The rule of harmonious construction requires that effect be given to all the sub-sections. As regards the apprehension that the other interpretation will result in public officers utilising their authority and influence to curb the right to freedom of speech, I find no substance in it.

16. This takes us to the second argument of the applicants. The applicants contend that respondent no.2 being a Central Government servant, is covered by Central Civil Services (Conduct) Rules, 1964. Rule 19 of the same reads as follows :

"19. Vindication of acts and character of Government servant.- No Government servant shall,except with the previous sanction of the Government have recourse to any Court or to the press for the vindication of any official act which has been the subject-matter of adverse criticism or an attack of a defamatory character.

Provided that if no such sanction is received by the Government servant within a period of three months from the date of receipt of his request by the Government, he shall be free to assume that the permission as sought for has been granted to him.

1. Nothing in this rule shall be deemed to prohibit a Government servant from his vindicating private character or any act done by him in his private capacity and where any action for vindicating his private character or any act done by him in private capacity is taken, the Government servant shall submit a report to the prescribed authority regarding such action."

This Rule prohibits a government servant from taking recourse to any Court for vindication of official act which has been made matter of adverse criticism or an attack of a defamatory character, without previous sanction of the government. Mr. Luthra submits that Central Civil Services (Conduct) Rules, 1964 are framed under Article 309 of the Constitution and are mandatory in nature governing all public servants. He argues that since respondent no.2 has not taken previous permission of the government in filing the proceedings herein, the same must be treated as not maintainable. Mr. Grover on the other hand submits that the Code of Criminal Procedure and Central Civil Services (Conduct) Rules, 1964 are independent and complete codes. The provisions under Central Civil Services (Conduct) Rules, 1964 can have no bearing on the provisions under the Criminal Procedure Code. Any criminal proceedings filed by respondent no.2 would solely be governed by Criminal Procedure Code. I am in agreement with Mr. Grover as regards impact of Central Civil Services (Conduct) Rules, 1964 on the complaint filed by respondent no.2 for the offence of defamation allegedly committed against him. The Central Civil Services (Conduct) Rules, 1964 govern respondent no.2 only in relation to his service with the Central Government. Any breach of the rules will attract personal consequences to him qua his service. It cannot affect the criminal proceedings filed by him. There is no provision under Criminal Procedure Code making such previous sanction mandatory for filing of the criminal proceedings. Therefore, the proceedings cannot be quashed on that ground.

17. In all the above circumstances, in my opinion, no case is made out by the applicants for interfering with the order of issuance of process by the learned Metropolitan Magistrate and hence the Criminal Application is dismissed. The present application could clearly have been avoided particularly when the applicants withdrew their Special Leave Petition filed in the Apex Court with liberty for agitating all the contentions before the trial court. This has also delayed the main trial. In the circumstances of the case, the applicants shall jointly pay costs quantified at Rs.25,000/- (Rs.Twenty Five Thousand only) to respondent no.2.

Order accordingly.