Explained: Section 199(2) of CrPC

Reading time: 8-10 minutes.

India is one of the few countries in the world which have both civil and criminal defamation proceedings and punishments which stretch up to two years in prison or a fine or both. But this British-era law is often misused by influential people and politicians to crack down on objection.

A person or group of persons cannot be prosecuted for defamation for calling a government corrupt or unfit.

 Recently Madras High Court had given a landmark judgement in Thiru N Ram, Editor-In-Chief, “The Hindu” v. Union of India and connected cases. In this landmark judgement court quashed the criminal complaints against a group of journalists and editors. The High Courts have the constitutional power to quash government orders sanctioning prosecution under Section 199(2), if the competent authority, without any material as to how the state is defamed, has sanctioned prosecution. The complaints were lodged in 2012 which alleged criminal defamation against state over few reports against J Jayalalitha, the then chief minister of Tamil Nadu. There were 28 cases which were filed by the AIADMK government when it was headed by Chief Minister J. Jayalalithaa. Criminal complaints were filed by the Public Prosecutor before the Sessions Court under Section 199(2) of the CrPC.

Then writ petitions were filled challenging the validity of government orders granting sanctions to public prosecutor to file complaints under section 199(2) of CrPC regarding the reports and articles.

In this case, the Court observed that the criminal defamation law is not meant for misuse by state. It should be used in real cases of necessity. A public servant and constitutional machinery must be able to face criticism. The state should not be impulsive as an ordinary citizen in defamation matters just to throttle democracy. The Court also observed that Section 199(2) CrPC should only be invoked when there are foolproof materials, evidences and when launching of prosecution is inevitable. State is like a parent for its citizens, so it is normal for parents to face censorious insults from the children.

The Supreme Court also pulled up the Jayalalitha government for filing several such cases against political opponents, editors and journalists in Tamil Nadu & said a person cannot be prosecuted for defamation for calling a government corrupt or unfit.

What is defamation?

Defamation is a wide term which includes attacking another’s reputation by a false publication tending to bring the person into disrepute, which harms a person’s reputation, decreases the respect, regard, or confidence in which a person is held or disagreeable opinions or feelings against a person, entity, group, government etc. Written defamation is called “libel,” while spoken defamation is called “slander.”

In India defamation is both a civil as well as a criminal offence. The person who is defamed is offered a remedy both as in civil law for damages and in criminal law for punishment. Section 499 of the IPC provides for defamation and Section 500 of the IPC for punishment in respect of the above said offence.

Section 199(2) of CrPC in brief:

Section 199 talks about Prosecution for defamation. Its clause 1 says that no court shall take cognizance of all offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some aggrieved person by the offence.

Clause 2 of section 199 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 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) Code of Criminal Procedure is required to be initiated by the Public Prosecutor

Clause 3, 4 and 5 of this section is connected to sub-section 2.

Clause 3 talks about that the nature of such offence and such other particulars should be reasonably sufficient to give notice to the cause of the offence alleged to have been committed by him/her.

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

  1. 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,
  2. of the State Government, in the case of any other public servant employed in connection with the affairs of the State,
  3. of the Central Government, in any other case.

Clause 5 lays that 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.

Landmark judgements

The courts in India have seen a variety of cases on section 199(2) of CrPC. The following are some of the landmark and different cases which have interesting facts or an important court ruling:

  1. K.K. Mishra v. State of Madhya Pradesh and Ors. –  In this case the defamation was confined to the 3 statements made in a press conference by the defendant and the public prosecutor filed the case against defendant after the government granted permission to file complaint considering the three statements as defaming against chief minister of MP. The appeal was allowed and the defendant were punished under section 500 of IPC.
  2. Udayam Telugu Daily v. State of Andhra Pradesh– In this case the petition was quashed because the appellant, who was a Minister in state, thought that the news printed in Udayam Telugu newspaper was directly defaming him and so there was a misconception and the government used their excessive power and granted the permission to file complaint, so here we can see the wrong use of this section by the govt.
  3. Mrs. Shobhana Bhartia and ors. v. State of Maharashtra and Shri Ajay Ganesh Ubale – This is a landmark judgment as it clarifies the difference between old code of criminal procedure, 1898 and that under new code of criminal procedure, 1973. According to the defendant, a private complaint by the public servant person was possible under old code of criminal procedure, 1898 but in the new code of criminal procedure, 1973 the public servant needs to take permission from government to approach the court under this section. The court held this interpretation right and said that by previous provision there is a factor where the public officers may utilize their authority and influence to curb the right to freedom of speech.
  4. Shamurailatpam Gopal Sharma v. Public Prosecutor (Districts), Manipur and anr. – In this case a newspaper wrote something defaming about the Minister of State in regard to his personal function. The court here held that the allegations relatable to personal life of a public functionary like that of a private citizen which does not revolve around his public function, this section won’t be operative and the cases are to be decided on the factual matrix of case.

Why was it invoked?

Section 199(2) CrPC. 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 there in the section.

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. In these cases, it can be invoked not otherwise.

Recently, the Madras High Court stated in the judgment of the 28 cases filed by AIADMK party headed by Jaylitha that time, that until there is a foolproof material and when launching of prosecution under section 199(2) is inevitable than only the said procedure can be invoked.

The court also said that criminal defamation law is meant for a laudable object in real cases of necessity and cannot be misused by using the state as a tool to settle score of a public servant/ public functionary over his adversary.

In the case of K.K. Mishra v. state of MP,  it was said that the core reason which this Court held to be the rationale for the special procedure engrafted by Section 199(2) Code of Criminal Procedure 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.

And in the case of Subramaniam Swamy v. Union of India the court came to the conclusion that the criminal defamation under section 199 is not a violation of Art. 19(1) as the article involved public interest and not that of individual so the provision of invoked in this case.

The cases filed by AIADMK, the section 199(2) was invoked by them as it was solely against the then chief minister of Tamil Nadu and it was believed that the defamation is against the state, but the Tamil Nadu high court rejected the plea and explained it as merely criticism.

Critical analysis

As it is always said that reputation is an asset to each and every person, the same goes for state and public officers but they must be able to face reasonable criticism.

Section 199(2) 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 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) Code of Criminal Procedure is required to be initiated by the Public Prosecutor.

The Criminal defamation law is not a tool for using as a matter of solving of personal vengeance by government & government officers nor it can be used as a political counter-weapon against anybody.

In the recent verdict of Madaras High Court in the case of Thiru N Ram, Editor-In-Chief, “The Hindu” v. Union of India and connected cases, it had clearly said that state should maintain higher tolerance with respect to criticism and it should not be impulsive like an ordinary citizen in defamation matters and it should not invoke section 199(2) of Cr.P.C. without any foolproof material & when it is inevitable for the state for launching prosecution under this section through a public prosecutor.

In defamation cases filed under Section 199(2) C.r.P.C. the public prosecutor has a very vital role as it plays two roles here – one as a representative of public servant or constitutional functionary as well as a public prosecutor.

In the case of Udayam Telugu Daily v. State of Andhra Pradesh, the petition was quashed because the appellant thought that the news printed in Udayam Telugu newspaper who was a Minister in state thought that was directly defaming him and so there was a misconception and the government used their excessive power and granted the permission to file complaint, so here we can see the wrong use of this section by the government.

This section is an important one and it is only invoked for protection of state and government from unnecessary defamation, a reasonable criticism is not defamation. Neither the government nor the government servants should misuse this section.

Conclusion

Defamation laws in India have been enacted to prevent person maliciously using their right to freedom of speech and expression.

In this particular case, Madras High court noted that in all 28 cases the core ingredient of Section 199(2) of C.r.P.C. for requiring prosecution through public prosecutor, that is, defamation of state, was missing.  The sanctioned orders of government were totally silent as to whether the state has been defamed on the account of alleged defamation of the public servant or constitutional functionary while discharging his/her public functions. So, complaints for criminal defamation under section 199(2) failed.

Thus, for invoking section 199(2) of C.r.P.C. it is necessary that 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. 

This section enables a public servant to file a complaint through the public prosecutor in respect of his conduct in discharge of public functions. Public functions stand on a different footing. This section gives them protection only for their official acts not otherwise. There cannot be defamatory attacks on them because of discharge of their due functions but it is important that they should be able face reasonable criticism and for invoking this section the ingredients of this section must be fulfilled.

Author: Shristi Gupta from Chanakya National Law University.

Editor: Avani Laad from Symbiosis Law School, Pune.

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