MANOJ KUMAR TIWARI VERSUS MANISH SISODIA & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1791 OF 2022

(Arising out of Special Leave Petition (Crl) No.351 of 2021)

MANOJ KUMAR TIWARI … APPELLANT(S)

VERSUS

MANISH SISODIA & ORS. …RESPONDENT(S)

With

CRIMINAL APPEAL NO. 1790 OF 2022

(@ Special Leave Petition (Crl) No.658 of 2021)

J U D G M E N T

V. Ramasubramanian, J.

Leave granted.

2. The order of summoning issued by the Additional Chief

Metropolitan MagistrateI, 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 MagistrateI, 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, (A1 who is the appellant 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, shared the 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 wellthoughtout 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 28112019 directing the issue of

summons to all the six accused, 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 (A1), 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 (A5) 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 subsection (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 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.

1 AIR 1961 SC 387

2 (2016) 7 SCC 221

3 (2018) 6 SCC 676

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 subsection (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 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”

Milestone2 (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.”

Milestone3 (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.

Milestone4 (year 1955)

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 198B 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

198B 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 VicePresident, 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 subsection (1) shall be

made by the Public Prosecutor except with the previous

sanction,

(a) in the case of the President or the VicePresident

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;

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 subsection (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 subsection (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 warrantcases 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, VicePresident 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 subsection (7)

may be recovered as if it were a fine.

(9) No person who has been directed to pay

compensation under subsection (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 to such person in any subsequent civil suit

relating to the same matter.

(10) The person who has been ordered under subsection

(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 subsection (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.”

Milestone5 (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 198B 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 AntiCorruption Laws (Amendment) Act, 1964 (Act 40 of 1964)’. By this

Act, four different Acts, namely, the Indian Penal Code, 1860, the

Code of Criminal 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 198B 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 subsection (1) of Section 198B

were directed to be omitted;

(b) After subsection (5), a new subsection (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.";

to be inserted as follows:

"(14) Where a case is instituted under this section for

the trial of an offence, nothing in subsection (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 VicePresident, 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. 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 198B(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.

Milestone6 (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.

Milestone7 (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 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

198B under the Amendment Act XXVI of 1955 and recorded in

paragraph 15.138 of the Report, the rationale behind Section 198B

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

198B was inserted to provide a special procedure for 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 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 precondition 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 198B inserted by the

Amendment Act of 1955 was worded and how it was changed in

1964. The Amendment Act of 1955 made section 198B

applicable to offences 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 198B 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 198B 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, 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 198B 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 VicePresident 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

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 subInspectors 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 subsections (13) and (14)

of Section 198B. We may recall that subsection (13) of Section

198B made the provisions of this section to be in addition to, and

not in derogation of, those of Section 198. Subsection (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

subsection (13) shall be construed as requiring a complaint to be

made also by the person aggrieved by such offence. With regard to

these two subsections, the Law Commission recommended as

follows:

15.153 Subsection (13) states that “the provisions of

section 198B shall be in addition to, and not in

derrogation of, those of section 198". The precise

meaning and effect of this subsection was a matter of

controversy until it was settled by the Supreme Court.

The subsection is "enacted with a view to state ex

abundanti cautela that the right of a party aggrieved

by publication of a defamatory statement to proceed

under section 198 is not derogated by the enactment

of section 198B. The expression ‘in addition to’ and

‘not in derogation of’ mean the same thing, that

section 198B is an additional provision and not

intended to take away the right of a person aggrieved,

even if he belongs to the specified classes and the

offence is in respect of his conduct in the discharge of

his public functions, to file a complaint in the manner

provided by section 198". The Supreme Court thus

negatived the contention that, in every case falling

under section 198B, besides the complaint filed by the

Public Prosecutor, there must also be a complaint by

the aggrieved person.

15.154. Presumably with a view to making this position

clear, subsection (14) was added to section 198B by the

AntiCorruption Laws (Amendment) Act, 1964. This subsection states that "where a case is instituted under this

section for the trial of any offence, nothing in subsection

(13) shall be construed as requiring a complaint to be

made also by the person aggrieved by the said offence".

The correct position appears to be that the remedies

available to the aggrieved person under the two sections

are not mutually exclusive but are parallel to, and

independent of, each other. Where the aggrieved person

and the Government concerned have decided to proceed

under section 198B, it is clear that the complaint need

not comply with the condition laid down in section 198.

This idea could be readily brought out by inserting the

usual saving provision in section 198, e.g., the words

"save as otherwise provided in section 198B". If this was

done, the only point to make clear in section 198B would

be that the right of the aggrieved person to bring forward

a complaint on his own in the Court of a Magistrate in

accordance with section 198 was not in any way affected.

15.155. We accordingly propose that in place of the

existing subsections (13) and (14), the following may be

put in section 198B:

“(13) Nothing in this section shall affect the right of

the person against whom the offence referred to in

subsection (1) 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."

36. In other words, the 41st Report of the Law Commission

recommended the replacement of the then existing subsections

(13) and (14) of Section 198B with a new subsection (13). This new

subsection (13) of Section 198B was intended to make it clear that

the right of an individual against whom the offence of defamation

was committed, to make a complaint before a Magistrate, was

preserved and that the said right will not stand affected by the other

provisions contained in this Section.

Milestone8 (Code of 1973)

37. The 41st Report of the Law Commission was submitted in

September, 1969. Thereafter, a draft Bill in Bill No.XLI of 1970 was

introduced in the Rajya Sabha in December, 1970. The Bill was

referred to a Joint Select Committee of both the Houses of

Parliament and what finally emerged, was passed by both the

Houses and this became the Code of Criminal Procedure, 1973 (Act

No.2 of 1974).

38. It is Section 199 of this Code of 1973, which we are called

upon to interpret in this case. Section 199 of the Code of 1973

reads as follows:

“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 subsection (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;

case.

(5) No Court of Session shall take cognizance of an

offence under subsection (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.”

39. Before proceeding further, it is necessary to take note of the

fact that what was recommended by the 41st Report of the Law

Commission to be subsection (13) of Section 198B, in replacement

of the then existing subsections (13) and (14), which we have

extracted in paragraph 35 above, has now become subsection (6) of

Section 199. Keeping this in mind, let us now go back to the

grounds raised by the appellants, for assailing the order of

summoning issued by the Magistrate.

Back to the cases on hand

40. To recapitulate, the appellant in one of these appeals (who is

A1) is assailing the order of summoning, only on one ground

namely, that a person covered by subsection (2) cannot bypass the

special procedure prescribed in subsection (4) of Section 199. The

appellant in the other appeal (A5) has raised two additional

grounds namely, (i) that the contents of the tweets sent by him were

not per se defamatory; and (ii) that the transcript of the tweets

cannot be relied upon without complying with the mandate of

Section 65B of the Indian Evidence Act. Let us first deal with the

common ground on which both the appellants assail the order of

summoning.

Whether special procedure eclipses the general procedure?

41. In support of the contention that a person covered by subsection (2) of Section 199 has to necessarily go through the special

procedure prescribed by subsection (4) of Section 199, the learned

counsel for the appellants has relied upon the decisions of this

Court in P.C Joshi, Subramanian Swamy and K.K. Mishra

(supra). Therefore, let us see the ratio decidendi of these decisions.

42. In P.C Joshi (supra), the Public Prosecutor, Kanpur filed a

complaint in the Court of Sessions, against the Editor and the

Printer and the Publisher of an English Weekly, claiming that a

news item published therein was defamatory of the Chief Minister of

the State. The Order of the Home Secretary sanctioning prosecution

under Section 198B(3) of the Code of 1898 was filed along with the

complaint. After examining witnesses, the learned Sessions Judge

framed the charge. The order framing charge was unsuccessfully

challenged by the Editor and Publisher before the High Court and

the matter landed up on the file of this Court. The object behind the

special procedure prescribed under Section 198B of the Code of

1898 was elaborated in detail by this Court in P.C. Joshi (supra).

In paragraph 7 of the Report in P.C. Joshi (supra), this Court

indicated that Section 198B has made a departure from the normal

rule, in larger public interest. After holding so, this Court clarified

that the expression “not in derogation of” appearing in subsection

(13) of Section 198B clearly indicated that the provisions of Section

198B did not impair the remedy provided by Section 198. This

Court said: “it means that by Section 198B, the right which an

aggrieved person has to file a complaint before a Magistrate under

Section 198 for the offence of defamation, even if the aggrieved

person belongs to the specified classes and the defamation is in

respect of his conduct in the discharge of his public functions, is not

taken away or impaired. If subsection (13) be construed as meaning

that the provisions of Section 198B are to be read as supplementary

to those of Section 198, the nonobstante clause with which subsection (1) of Section 198B commences is rendered wholly sterile

……..”

43. An argument was advanced in P.C. Joshi (supra) that subsections (6) to (11) of Section 198B of the Code of 1898 provided for

the award of compensation in the case of vexatious prosecution and

that if the aggrieved person was not the complainant, it was not

possible to direct compensation to be paid to the accused who was

made to face a vexatious complaint. The said argument was rejected

in P.C. Joshi (supra) on the basis of subsection (5) of Section 198B

which required the person against whom the offence was

committed, to be examined as a witness for prosecution. In

paragraph 8 of the Report in P.C. Joshi (supra), this Court held as

follows:

“8. Reliance was placed on behalf of the appellants

upon subss. (6) to (11) of S.198B which provide for

the award of compensation to the person accused if

the court is satisfied that the accusation is false and

either frivolous or vexatious, and it was submitted

that the Legislature could not have intended that a

person who was not the complainant and who was

not directly concerned with the proceedings may still

be required if so ordered by the court to pay

compensation. But subs. (5) which provides that a

person against whom the offence is alleged to have

been committed shall, unless the court for reasons to

be recorded otherwise directs, be examined as a

witness for the prosecution, clearly indicates that the

question whether the complaint was false and either

frivolous or vexatious may fall to be determined only

if the person complaining to be defamed actively

supports the complaint. It cannot therefore be said

that S. 198B provides for compensation being

awarded against a person who is not concerned with

the complaint.”

44. In Subramanian Swamy (supra), this Court was dealing with

a batch of writ petitions under Article 32 of the Constitution

challenging the constitutional validity of Sections 499 and 500 IPC

and Sections 199(1) to 199(4) of the Code of 1973. The impact of

subsection (6) on other subsections of Section 199 of the Code of

1973 was indicated in paragraph 203 of the Report in

Subramanian Swamy as follows:

“203. Subsection (6) gives to a public servant what every

citizen has as he cannot be deprived of a right of a citizen.

There can be cases where sanction may not be given by

the State Government in favour of a public servant to

protect his right and, in that event, he can file a case

before the Magistrate. The provision relating to

engagement of the public prosecutor in defamation cases

in respect of the said authorities is seriously criticized on

the ground that it allows unnecessary room to the

authorities mentioned therein and the public servants to

utilize the Public Prosecutor to espouse their cause for

vengeance. Once it is held that the public servants

constitute a different class in respect of the conduct

pertaining to their discharge of duties and functions, the

engagement of Public Prosecutor cannot be found fault

with. 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 v.

State of A.P 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.”

45. The above passage is relied upon by the learned senior counsel

for the appellants to contend that it is only in cases where the State

Government refuses to give sanction for prosecution, that the

individual right under subsection (6) of Section 199 can be

invoked. But we are afraid that such an inference does not flow out

of what is observed in paragraph 203 of the decision in

Subramanian Swamy (supra). To say that the provisions of subsection (6) of Section 199 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 subsection (6). Subsection (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”. Subsection (6) does not contain

any conditions subject to which the right thereunder can be

exercised.

46. The nonobstante clause in subsection (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

subsection (6). The word “nothing” appearing in subsection (6) will

include the nonobstante clause in subsection (1) also.

47. In K.K. Mishra (supra) this Court was concerned with a

challenge to the maintainability of the prosecution instituted under

Section 199(2). After referring to the decisions in P.C. Joshi and

Subramanian Swamy (supra), this Court held the prosecution to

be not maintainable, primarily on two grounds namely (i) that the

alleged defamatory statements cannot be said to have any

reasonable connection with the discharge of public duties by the

office of the Chief Minister and that therefore the Chief Minister

should have resorted only to provisions of subsection (6) of Section

199; and (ii) that in any case the Public Prosecutor had failed to

apply his mind to the materials placed before him, vitiating the

complaint presented by him.

48. We do not know how the decision in K.K. Mishra (supra) will

be of any assistance to the appellants. The question whether the

Public Prosecutor applied his mind or not cannot arise in this case,

as Respondent No.1 has filed the complaint on his own in terms of

Section 199(6). The question whether the alleged defamatory

statements relate to the official discharge of duties of Respondent

No.1, hinges on facts.

49. Merely because it was stated in K.K. Mishra (supra) that what

is envisaged in subsections (2) and (4) of Section 199 is a

departure from the normal rule, it does not mean that subsection

(6) stands nullified. In fact more than helping the appellants, the

ratio propounded in paragraph 7 of K.K. Mishra (supra) supports

the stand of Respondent No.1. Paragraphs 7 and 8 of K.K. Mishra

(supra) read thus:

“7. Section 199(2) CrPC provides for a special procedure

with regard to initiation of a prosecution for the offence of

defamation committed against the constitutional

functionaries and public servants mentioned therein.

However, the offence alleged to have been committed

must be in respect of acts/conduct in the discharge of

public functions of the functionary or public servant

concerned, as may be. The prosecution under Section

199(2) CrPC 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 Session 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) CrPC

read with Section 199(4) CrPC, 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 persons

mentioned in subsection (2) of Section 199 CrPC by subsection (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 v. State of

U.P. (AIR pp. 39192, para 9) The core reason which this

Court held to be the rationale for the special procedure

engrafted by Section 199(2) CrPC 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.”

50. As seen from the portion of K.K. Mishra (supra) extracted

above, the right of an individual is saved, under subsection (6),

even if he falls under the category of persons mentioned in subsection (2).

51. 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. Subsection (6) of Section 199 which is a

reproduction of what was recommended in the 41st Report of the

Law Commission to be made subsection (13) of Section 198B,

cannot be made a dead letter by holding that persons covered by

subsection (2) of Section 199 may have to invariably follow only the

procedure prescribed by subsection (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 subsection (2) of Section 199 can either take the route specified

in subsection (4) or take the route specified in subSection (6) of

Section 199.

52. An ancillary argument arising out of Section 199(4) is that

Section 237 of the Code provides a safety valve against malicious

prosecution or prosecution without reasonable cause. Section 237

reads as follows:

“237. Procedure in cases instituted under section

199(2).—(1) A Court of Session taking cognizance of an

offence under subsection (2) of section 199 shall try the

case in accordance with the procedure for the trial of

warrantcases instituted otherwise than on a police report

before a Court of Magistrate:

Provided that 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.

(2) Every trial under this section shall be held in camera if

either party thereto so desires or if the Court thinks fit so

to do.

(3) If, in any such case, the Court discharges or acquits

all or any of the accused and is of opinion that there was

no reasonable cause for making the accusation against

them or any of them, it 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,

VicePresident or the Governor of a State or the

Administrator of a Union territory) 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.

(4) The Court shall record and consider any cause which

may be shown by the person so directed, and if it is

satisfied that there was no reasonable cause for making

the accusation, it may, for reasons to be recorded, make

an order 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.

(5) Compensation awarded under subsection (4) shall be

recovered as if it were a fine imposed by a Magistrate.

(6) No person who has been directed to pay compensation

under subsection (4) 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 to such person in any

subsequent civil suit relating to the same matter.

(7) The person who has been ordered under subsection

(4) to pay compensation may appeal from the order, in so

far as it relates to the payment of compensation, to the

High Court.

(8) When an order for payment of compensation to an

accused person is made, 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.”

The contention of the appellants is that the protection available

under Section 237 of the Code to the accused, will be lost if the

public servant avoids the special procedure and lodges a complaint

individually.

53. It is true that under subsection (3) of Section 237, the Court

is empowered to direct the public servant (other than the President,

VicePresident 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.

54. But Section 237(3) is not a new invention. What was contained

in subsections (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 subsection (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. Section 250 of the Code reads

thus:

“250. Compensation for accusation without reasonable

cause.—(1) If, in any case instituted upon complaint or

upon information given to a police officer or to a

Magistrate, one or more persons is or are accused before

a Magistrate of any offence triable by a Magistrate, and

the Magistrate by whom the case is heard discharges or

acquits all or any of the accused, and is of opinion that

there was no reasonable ground for making the

accusation against them or any of them, the Magistrate

may, by his order of discharge or acquittal, if the person

upon whose complaint or information the accusation was

made is present, call upon him forthwith 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; or, if such person is not present, direct the issue of a

summons to him to appear and show cause as aforesaid.

(2) The Magistrate shall record and consider any cause

which such complainant or informant may show, and if

he is satisfied that there was no reasonable ground for

making the accusation, may, for reasons to be recorded,

make an order that compensation to such amount, not

exceeding the amount of fine he is empowered to impose,

as he may determine, be paid by such complainant or

informant to the accused or to each or any of them.

(3) The Magistrate may, by the order directing payment of

the compensation under subsection (2), further order

that, in default of payment, the person ordered to pay

such compensation shall undergo simple imprisonment

for a period not exceeding thirty days.

(4) When any person is imprisoned under subsection (3),

the provisions of sections 68 and 69 of the Indian Penal

Code (45 of 1860) shall, so far as may be, apply.

(5) No person who has been directed to pay compensation

under this section shall, by reason of such order, be

exempted from any civil or criminal liability in respect of

the complaint made or information given by him:

Provided that any amount paid to an accused

person under this section shall be taken into account in

awarding compensation to such person in any

subsequent civil suit relating to the same matter.

(6) A complainant or informant who has been ordered

under subsection (2) by a Magistrate of the second class

to pay compensation exceeding one hundred rupees, may

appeal from the order, as if such complainant or

informant had been convicted on a trial held by such

Magistrate.

(7) When an order for payment of compensation to an

accused person is made in a case which is subject to

appeal under subsection (6), 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; and where

such order is made in a case which is not so subject to

appeal the compensation shall not be paid before the

expiration of one month from the date of the order.

(8) The provisions of this section apply to summonscases

as well as to warrantcases.”

55. Therefore, nothing turns on Section 237 of the Code. Section

237 cannot be used as a crutch to support the argument revolving

around Sections 199(2) and 199(4).

56. Since we are rejecting the argument revolving around subsections (2) and (4) of Section 199 and also since this is the only

argument on which Shri Manoj Kumar Tiwari (A1) has come up

with the above appeal, his appeal in Criminal Appeal arising out of

S.L.P. (Crl.) No.351 of 2021, is liable to be dismissed. Accordingly,

it is dismissed.

ADDITIONAL GROUNDS IN THE CASE OF SHRI VIJENDER

GUPTA (A5)

57. In the first portion of this judgment where we have provided

the background facts, we have indicated that the learned Additional

Chief Metropolitan Magistrate has held Shri Vijender Gupta (A5)

not liable to be prosecuted for the offence under Section 34 of the

IPC. We have extracted elsewhere, paragraph 14 of the summoning

order dated 28.11.2019 passed by the Additional Chief Metropolitan

Magistrate, which became the subject matter of challenge before the

High Court in the order impugned in these appeals.

58. In the light of the fact that learned Additional Chief

Metropolitan Magistrate has taken cognizance only of the offence

under Section 500 IPC against Shri Vijender Gupta, it is enough for

us to test whether the tweets attributed to him can be said to be

per se defamatory. It is a fundamental rule of criminal

jurisprudence that if the allegations contained in the complaint,

even if taken to be true, do not constitute the offence complained,

the person accused should not be allowed to undergo the ordeal of a

trial. Therefore, let us have a look at the tweets attributed to Shri

Vijender Gupta (A5). These tweets are extracted in paragraphs 44

and 45 of the impugned judgment of the High Court of Delhi and

they are extracted as follows:

“44. The alleged culpable tweet of the petitioner of

Crl.M.C. 2355/2020 reads as under:

“Vijender Gupta @ Gupta, vijend…01 Jul

Chief Minister of Delhi @ Arvind Kejriwal and Deputy

Chief Minister @mssodia, kindly give answer to 24

questions of mine

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.

45. Though the tweet itself is requirement of the

complainant to respond to 24 questions of the said

alleged Twitter which questions are to the effect:

“1. How many rooms and what total cost was

sanctioned under Priority in Directorate of Education?

2. What is the cost of construction per square meter

and what is the cost of construction per room under

Priority?

3. What were AA and ES for same were given by DOE

and with what conditions?

4. What components were included in the cost

estimates including horticulture, landscaping, rain water

harvesting etc.? List different components as the

estimated expenditure?

5. What was the time of completion under Priority?

6. How many rooms are actually constructed till now

under Priority and at what different time building wise?

7. What was the time over run in handling over of

these rooms?

8. How many rooms are still to be constructed under

Priority, both building/school wise?

9. What remaining work including horticulture,

landscaping etc. is left under Priority, both

building/school wise?

10. Is there any cost escalation by PWD in construction

of rooms under Priority?

11. If yes, please give details – PWD zone wise and

school/building wise ?

12. What was the reasons for cost escalation?

13. Are these reasons approved by DOE before it was

implemented by PWD?

14. Is there any precondition in AA & ES given by DOE

regarding how much cost escalation is allowed without

prior approval as when the approval is required?

15. Were such approvals of the competent authority

taken?

16. If no, what action is taken against concerned

officials of PWD?

17. What penalties are imposed on contractor of PWD for

time overrun?

18. Whether the work done by PWD is as per

specifications?

19. Is the water drainage system built by PWD using

pipes on the face of the building on all floors, as per

specification of PWD?

20. What are the EORs sanctioned by DOE to PWD for

civil workers during 201617, 201718, 201819 scheme

wise?

21. What steps are taken by DOE to avoid any

duplication of work under EORs and under works carried

in Priority I?

22. How many rooms and at what total cost were

sanctioned under priority II under DOE?

23. What is the cost of construction per square metre

and what is the cost of construction per room under

PriorityII?

24. What extra components are included in the cost

estimates under Priority II visàvis under Priority I? Give

list of new components and expenditure on same.”

59. Admittedly and obviously the twentyfour questions posed by

Shri Vijender Gupta (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”.

60. We do not know 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. We are afraid that

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, we are of the view that the

statement made by Shri Vijender Gupta (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.

61. Unfortunately the summoning Order dated 28.11.2019 passed

by the Additional Chief Metropolitan Magistrate, did not go into the

contents of the tweets made by Shri Vijender Gupta. To that extent,

there was no application of mind on the part of the Additional Chief

Metropolitan Magistrate.

62. 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 in which you are

involved, etc.” are not by themselves defamatory unless there is

something more.

63. In view of the above, the appeal filed by Shri Vijender Gupta

(A5) is liable to succeed on the sole ground that the statements

contained in his tweets cannot be said to be defamatory within the

meaning of Section 499 of the IPC.

64. In light of the above finding, we do not think that we need to

go into other argument raised by Shri Vijender Gupta (A5), on the

basis of Section 65B of the Indian Evidence Act.

CONCLUSION

65. In the result, the appeal arising out of S.L.P. (Criminal) No.658

of 2021, is allowed and the order of summoning dated 28.11.2019

passed by the Additional Chief Metropolitan MagistrateI, Rouse

Avenue Court Complex, New Delhi in Ct. Case 51/2019, insofar as

Shri Vijender Gupta (A5) is concerned, is set aside. However, the

complaint may proceed in respect of other accused. The appeal

arising out of S.L.P. (Criminal) No.351 of 2021 filed by Shri Manoj

Kumar Tiwari shall stand dismissed.

Pending application(s), if any, stands disposed of accordingly.

…………………………….J.

(S. Abdul Nazeer)

…………………………….J.

(V. Ramasubramanian)

New Delhi

October 17, 2022

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