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Friday, April 13, 2018

quashed - the criminal proceedings - despite of conviction and pending of appeal =maintainability of a criminal prosecution/proceeding instituted under Section 199(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) alleging commission of offences under Sections 499 and 500 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) against the Hon’ble Chief 2 Minister of the State of Madhya Pradesh. = The very initiation of the prosecution has been found by us to be untenable in law. Merely because the trial is over and has ended in the conviction of the appellant and the matter is presently pending before the High Court in appeal should not come in the way of our interdicting the same. The requirements of justice would demand that we carry our conclusions to its logical end by invoking our special and extraordinary jurisdiction under Article 142 of the Constitution of India. - Consequently, we allow this appeal; quash the impugned prosecution/proceedings registered and numbered as Sessions Session Trial No.573 of 2014; and set aside the order dated 17th November, 2017 passed by the learned Special Judge, Prevention of Corruption Act, Bhopal, Madhya Pradesh in Sessions Trial No.573 of 2014 convicting the accused appellant under Section 500 IPC and 19 sentencing him as aforesaid. The appeal pending before the High Court against the order dated 17th November, 2017 passed by the learned Special Judge, Prevention of Corruption Act, Bhopal, Madhya Pradesh in Sessions Trial No.573 of 2014 shall also stand closed in terms of the present order.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S) 547 OF 2018
[ARISING OUT OF SPECIAL LEAVE PETITION
(CRIMINAL] NO.6064 OF 2017]
K.K. MISHRA ….APPELLANT(S)
VERSUS
THE STATE OF MADHYA PRADESH
& ANR. …RESPONDENT(S)
JUDGMENT
RANJAN GOGOI, J.
1. Leave granted.
2. By the order impugned, the High Court
of Madhya Pradesh has negatived the challenge
made by the appellant to the maintainability
of a criminal prosecution/proceeding
instituted under Section 199(2) of the Code
of Criminal Procedure, 1973 (hereinafter
referred to as “Cr.P.C.”) alleging commission
of offences under Sections 499 and 500 of the
Indian Penal Code, 1860 (hereinafter referred
to as “IPC”) against the Hon’ble Chief
2
Minister of the State of Madhya Pradesh. The
complaint has been filed by the Public
Prosecutor on 24th June, 2014 before the
District & Sessions Judge, Bhopal (Madhya
Pradesh) after receipt of sanction from the
Competent Authority of the State Government
on the very same day i.e. 24th June, 2014.
3. At the very outset, we deem it
necessary to put on record that during the
pendency of the present proceedings the
prosecution against the accused appellant has
been concluded by the learned Special Judge,
Prevention of Corruption Act, Bhopal, Madhya
Pradesh by judgment and order dated 17th
November, 2017 in Sessions Trial No.573 of
2014. The accused appellant has been found
guilty of the commission of the offence
punishable under Section 500 IPC and,
accordingly, he has been sentenced to undergo
simple imprisonment for two years with fine
of Rs.25,000/- (Rupees twenty thousand). We
3
are told at the Bar that an appeal against
the said order is presently pending before
the High Court of Madhya Pradesh and the
accused appellant is presently on bail.
4. At this stage, we would like to
recapitulate our order dated 5th January, 2018
reiterating that, notwithstanding the
conviction of the accused appellant, this
Court would like to consider the question of
the validity of the very initiation of the
prosecution against the appellant.
5. While Section 499 IPC defines and
deals with the offence of defamation,
punishment for the said offence is provided
by Section 500 IPC. In the present case, the
alleged offence of defamation against the
Hon’ble Chief Minister of the State of Madhya
Pradesh, according to the prosecution, has
been committed by the accused appellant on
account of certain statements made with
regard to the Hon’ble Chief Minister in the
4
course of a Press Conference that the
appellant had addressed as a Chief
Spokesperson of the Indian National Congress,
Madhya Pradesh organized on 21st June, 2014 at
the MP Congress Committee, 1461 Indra Bhawan
Shivaji Nagar, Bhopal.
6. Though a reading of the transcript of
the Press Conference, which has been placed
on record, may indicate a reference to the
Hon’ble Chief Minister in respect of several
acts and events, for the purposes of the
present case we will, necessarily, have to
confine ourselves to only three statements
allegedly made in the Press Conference with
reference to the Hon’ble Chief Minister. This
is because in the order granting
sanction/permission dated 24th June, 2014 for
filing of a complaint under Section 199 (2)
Cr.P.C. it is only the aforesaid three
statements which have been taken note of as
being defamatory and, therefore, taken
cognizance for purpose of grant of
5
sanction/permission under Section 199(2) of
the Cr.P.C. The aforesaid three statements
mentioned in the order dated 24th June, 2014
granting sanction/permission are as follows:
 “1. 19 amongst the Transport
Inspection appointed in Madhya
Pradesh are from the in-laws
house Gondiya (Maharashtra) of
Chief Minister Shivraj Singh
Chouhan.
2. Conversation has been made with
the accused persons of the Vyapam
Scam from the mobile of Sanjay
Chouhan son of Phoolsingh
Chouhan-Mama of the Chief
Minister Sh. Shivraj Singh
Chouhan.
3. Conversation has been made from
the Chief Minister’s house by an
influential woman through 139
phone calls with the accused of
Vyapam Scam Nitin Mahendra,
Pankaj Trivedi, Lakshmikant
Sharma.”
7. Section 199(2) Cr.P.C. provides for a
special procedure with regard to initiation
of a prosecution for offence of defamation
committed against the constitutional
functionaries and public servants mentioned
6
therein. However, the offence alleged to
have been committed must be in respect of
acts/conduct in the discharge of public
functions of the concerned functionary or
public servant, as may be. The prosecution
under Section 199 (2) Cr.P.C. is required to
be initiated by the Public Prosecutor on
receipt of a previous sanction of the
Competent Authority in the State/Central
Government under Section 199 (4) of the Code.
Such a complaint is required to be filed in a
Court of Sessions that is alone vested with
the jurisdiction to hear and try the alleged
offence and even without the case being
committed to the said court by a subordinate
Court. Section 199(2) Cr.P.C. read with
section 199(4) Cr.P.C., therefore, envisages
a departure from the normal rule of
initiation of a complaint before a Magistrate
by the affected persons alleging the offence
of defamation. The said right, however, is
saved even in cases of the category of
7
persons mentioned in sub-section (2) of
Section 199 Cr.P.C. by sub-section (6)
thereof.
8. The rationale for the departure from
the normal rule has been elaborately dealt
with by this Court in a judgment of
considerable vintage in P.C. Joshi and
another vs. The State of Uttar Pradesh1
[paragraph 9]. The core reason which this
Court held to be the rationale for the
special procedure engrafted by Section 199(2)
Cr.P.C. is that the offence of defamation
committed against the functionaries mentioned
therein is really an offence committed
against the State as the same relate to the
discharge of public functions by such
functionaries. The State, therefore, would
be rightly interested in pursuing the
prosecution; hence the special provision and
the special procedure.
1 AIR 1961 SC 387
8
P.C. Joshi (supra), however,
specifically dealt with the provisions of
Section 198B of the Code of Criminal
Procedure, 1898 (“old Code”) which are pari
materia with the provisions of Section 199 of
the Cr.P.C. (“new Code”).
9. The above would require the Court to
consider as to whether the statements made by
the accused appellant in the Press Conference
which have been taken note of in the order
dated 24th June, 2014 granting sanction/
permission can legitimately be said to be
attributable or connected with the discharge
of public functions of the office of the
Hon’ble Chief Minister. In other words,
whether the said statements have any
reasonable nexus with the discharge of
Official duties by the Hon’ble Chief
Minister.
9
10. The problem of identification and
correlation of the acts referred to in an
allegedly defamatory statement and those
connected with the discharge of public
functions/official duties by the holder of
the public office is, by no means, an easy
task. The sanction contemplated under Section
199(4) Cr.P.C. though in the opposite context
i.e. to prosecute an offender for offences
committed against a public servant may have
to be understood by reference to the sanction
contemplated by Section 197 Cr.P.C. which
deals with sanction for prosecution of a
public servant. There is a fair amount of
similarity between the conditions precedent
necessary for accord of sanction in both
cases though the context may be different,
indeed, the opposite. While dealing with the
requirement of sanction under Section 197
Cr.P.C. this Court in Urmila Devi vs. Yudhvir
 Singh2 had taken the following view which may
have some relevance to the present case.
2 (2013) 15 SCC 624
10
“59. The expression “official duty”
would in the absence of any statutory
definition, therefore, denote a duty
that arises by reason of an office or
position of trust or authority held
by a person. It follows that in every
case where the question whether the
accused was acting in discharge of
his official duty or purporting to
act in the discharge of such a duty
arises for consideration, the court
will first examine whether the
accused was holding an office and, if
so, what was the nature of duties
cast upon him as holder of any such
office. It is only when there is a
direct and reasonable nexus between
the nature of the duties cast upon
the public servant and the act
constituting an offence that the
protection under Section 197 CrPC may
be available and not otherwise. Just
because the accused is a public
servant is not enough. A reasonable
connection between his duties as a
public servant and the acts
complained of is what will determine
whether he was acting in discharge of
his official duties or purporting to
do so, even if the acts were in
excess of what was enjoined upon him
as a public servant within the
meaning of that expression under
Section 197 of the Code.”
11. If the allegedly defamatory
statements, already extracted, in respect of
which sanction has been accorded to the
Public Prosecutor to file the complaint
11
against the appellant under Section 199 (2)
Cr.P.C. by the order dated 24th June, 2014 are
to be carefully looked into, according to us,
none of the said statements, even if admitted
to have been made by the appellant, can be
said to have any reasonable connection with
the discharge of public duties by or the
office of the Hon’ble Chief Minister. The
appointment of persons from the area/place to
which the wife of the Hon’ble Chief Minister
belongs and the making of phone calls by the
relatives of the Hon’ble Chief Minister have
no reasonable nexus with the discharge of
public duties by or the office of the Hon’ble
Chief Minister. Such statements may be
defamatory but then in the absence of a nexus
between the same and the discharge of public
duties of the office, the remedy under
Section 199(2) and 199(4) Cr.P.C. will not be
available. It is the remedy saved by the
provisions of sub-section (6) of Section 199
Cr.P.C. i.e. a complaint by the Hon’ble Chief
12
Minister before the ordinary Court i.e. the
Court of Magistrate which would be available
and could have been resorted to.
12. There is yet another dimension to the
case. In Subramanian Swamy vs. Union of
 India3 one of the grounds on which the
challenge to the constitutional validity of
Section 499 and 500 IPC was sustained by this
Court was the understanding that Section
199(2) and 199(4) Cr.P.C. provide an inbuilt
safeguard which require the Public Prosecutor
to scan and be satisfied with the materials
on the basis of which a complaint for
defamation is to be filed by him acting as
the Public Prosecutor. In this regard, an
earlier decision of this Court in Bairam
Muralidhar vs. State of Andhra Pradesh4 while
dealing with Section 321 Cr.P.C. (i.e.
Withdrawal from prosecution) was considered
by this Court and it was held as follows:
3 (2016) 7 SCC 221
4 (2014) 10 SCC 380
13
“…It is ordinarily expected that
the Public Prosecutor has a duty to
scan the materials on the basis of
which a complaint for defamation is
to be filed. He has a duty towards
the court. This Court in Bairam
Muralidhar Vs. State of A.P [(2014)
10 SCC 380] while deliberating on
Section 321 CrPC has opined that
the Public Prosecutor cannot act
like a post office on behalf of the
State Government. He is required
to act in good faith, peruse the
materials on record and form an
independent opinion. It further
observed that he cannot remain
oblivious to his lawful obligations
under the Code and is required to
constantly remember his duty to the
court as well as his duty to the
collective. While filing cases
under Sections 499 and 500 IPC, he
is expected to maintain that
independence and not act as a
machine.”
(underlining is ours)
13. In the proceedings before the learned
trial Court, the Public Prosecutor who had
presented the complaint under Section 199(2)
Cr.P.C. was cross-examined on behalf of the
accused appellant. From the relevant extract
of the cross-examination of the Public
Prosecutor, which is quoted below, it is
clear to us that the Public prosecutor had
14
admitted the absence of any scrutiny by him
of the materials on which the prosecution is
sought to be launched. In fact, the Public
Prosecutor had gone to the extent of
admitting that he had filed the complaint
against the accused appellant on the orders
of the State Government. The relevant
extract of the cross-examination of the
Public Prosecution is as under:
 xxx 7.3.2015
“47. It is correct to say that I have
not given any proposal in capacity
of public prosecutor to the
Government that I want to file a
complaint against Shri K.K. Mishra
in connection with giving
defamatory statement. It is
correct to say that I have filed
the present case in the official
capacity of Public Prosecutor. It
is correct to say that I have not
filed the present complaint on
behalf of the Government
(Volunteered to say) that I have
filed the above case being a Public
Prosecutor. It is correct to say
that on the order of the
Government, I have filed the
complaint. If the Government had
not directed me, then, I would not
have filed a complaint as a Public
Prosecutor. 
15
48. xxxxxxxxxx
49. xxxxxxxxxx
50. Before receiving the permission, I
have not seen any document and did
not consider whether complaint has
to be filed or not. It is correct
to say that I have not submitted
any document in connection with
this fact that Jagdish Devda was a
Minister in the Government of
Madhya Pradesh and Shri Shivraj
Singh Chouhan was positioned as
Hon’ble Chief Minister of
Government of Madhya Pradesh on the
date of Press Conference
(Voluntarily state that) the
accused himself, while addressing
Shri Shivraj Singh Chouhan as Chief
Minister, has made all the
allegations.
51. It is correct to say that before
filing the complaint, I have not
given any legal notice to the
accused in connection with this
fact that whether objections were
raised against the Hon’ble Chief
Minister in Press Conference or
not.”
14. The testimony of the Public
Prosecutor in his cross-examination
effectively demonstrates that the wholesome
requirement spelt out by Section 199(2) and
16
199(4) Cr.P.C., as expounded by this Court in
Subramanian Swamy (supra), has not been
complied with in the present case. A Public
Prosecutor filing a complaint under Section
199 (2) Cr.P.C. without due satisfaction that
the materials/allegations in complaint
discloses an offence against an Authority or
against a public functionary which adversely
affects the interests of the State would be
abhorrent to the principles on the basis of
which the special provision under Section
199(2) and 199(4) Cr.P.C. has been structured
as held by this Court in P.C. Joshi (supra)
and Subramanian Swamy (supra). The public
prosecutor in terms of the statutory scheme
under the Criminal Procedure Code plays an
important role. He is supposed to be an
independent person and apply his mind to the
materials placed before him. As held in
Bairam Muralidhar case supra)
“……He cannot remain oblivious to his
lawful obligations under the Code.
He is required to constantly remember
17
his duty to the court as well as his
duty to the collective.”
In the present case, the press meet was
convened by the appellant on 21.06.2014. The
government accorded sanction to the public
prosecutor to file complaint under Section
500 IPC against the appellant on 24.06.2014.
As seen from the records, the complaint was
filed by the public prosecutor against the
appellant on the very same day i.e.
24.06.2014. The haste with which the
complaint was filed prima facie indicates
that the public prosecutor may not have
applied his mind to the materials placed
before him as held in Bairam Muralidhar case
(supra). We, therefore, without hesitation,
take the view that the complaint is not
maintainable on the very face of it and would
deserve our interference.
15. On the conclusions that have been
reached by us, as indicated above, the
conviction of the accused appellant and the
18
sentence imposed would not have any legs to
stand. The very initiation of the
prosecution has been found by us to be
untenable in law. Merely because the trial
is over and has ended in the conviction of
the appellant and the matter is presently
pending before the High Court in appeal
should not come in the way of our
interdicting the same. The requirements of
justice would demand that we carry our
conclusions to its logical end by invoking
our special and extraordinary jurisdiction
under Article 142 of the Constitution of
India. Consequently, we allow this appeal;
quash the impugned prosecution/proceedings
registered and numbered as Sessions Session
Trial No.573 of 2014; and set aside the order
dated 17th November, 2017 passed by the
learned Special Judge, Prevention of
Corruption Act, Bhopal, Madhya Pradesh in
Sessions Trial No.573 of 2014 convicting the
accused appellant under Section 500 IPC and
19
sentencing him as aforesaid. The appeal
pending before the High Court against the
order dated 17th November, 2017 passed by the
learned Special Judge, Prevention of
Corruption Act, Bhopal, Madhya Pradesh in
Sessions Trial No.573 of 2014 shall also
stand closed in terms of the present order.
Bail bond, if any shall stand discharged
accordingly.
16. The appeal is allowed in the above
terms.
......................, J
[RANJAN GOGOI]
......................, J
 [R. BANUMATHI]
......................, J
 [MOHAN M. SHANTANAGOUDAR]
NEW DELHI
APRIL 13, 2018. 

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