Bhagawan shree Rajneesh vs The State of Bihar and Another

S.B. Sanyal, J.—The most question in this quash�ng application is: who can pros�cute u/s 500 of the Ind�an Penal code. when a deceased is defamed. The complainant, a Congress worker and devotee of Mahatma Gandh�, felt hurt on reading a speech of bhagwan Shree Rajneesh publ�shcd �n a Hindi weekly news magazine ''Current'' from Bombay in �ts issue dated the 2nd September, 1978 which reads as follow:

Mahatma Gandhi ko Rashtra Pita kahna chhor den. Apane antim dinon-men wey ek naya yuwati ke saath soya karte the. Umra ke sattarwen varash men bhi wey swapan dosh aur kaam wasna,se pirit they" It is submit�ed lhat the speech aforesaid is defamatory to the Father of the Nation. The complaint avers that he has been hurt on having read it.

To begin with-what is defamat�on ? classical definition of the term ''defamation'' which is both libel and slander, is false state-ment about a man to his discredit [See Scott v. Sampson 1882 (8) Q B D- 491 Cave, J Lord Atkin in the case of Sim v. Stretch'' [1936 (52) T. L. R. 669 at p. 671] puts it:

would the words tend to lower the complaint in the estimation of the right thinking members of the society generally. (Emphasis added)

Ordinarily, therefore, the proper and only party to bring the action, both civil and criminal, is the person actually and personal, defamed [See knuffer v. London Express Newspaper Ltd. : 1944 (1) A ER 495], unless the reputation of the person, defa med is so intimately connected with that of the complainant as if the words had been spoken against him-to �llustrate husband and wife It was held in the case of Chhotalal Lallubhai v. Nuthabhai Bechar & anr. (I.L R 25 Bombay151 F. B) that imputation made by a third person concerning the wife causes a direct injury to the honour and reputation of a husband. The husband was held to be ''some person aggrier ved'' within the meaning of section 199 of the Code of Criminal Procedure, to move the criminal court in mot�on.

A defamatoiy statement by a person exposes him both to civil and criminal conse-quences. Under common law "Damage to the piaintiff''s reputation being the essence of civil proceeding for defamation, an action for libel or sander does not lie in respect of defamation of dead person. However, criminal proceeding may be instituted in respect of a libel on a dead pcrson published with the intention or possibly with a tendeney to injury the reputation of this surviving relatives so that they may be excited to take revenge and commit a breach of the peace (See Halsbury''s Laws of England, 4th Edition. Volume 28, paragraph 6)

Common law principle as to locus in respect of criminal prosecution for defamation of a dead person appears to be the same in India. Explanation 1 to section 449 envisages that it would be defamation if the imputation not only harms the reputation of the person concerned.if living, but also be intended to be hurtful to the feeling of his family or other near relatives. 1 no provisions of section 499 of the lndian Penal Code ate to be read along with explanation I since the person defamed is dead. The two parts of the provisions contained in explanition I are to be read conju-netively and not in disjunction. The imputationalleged must not only harm the reputation of the person, if living, but also be intended to be hurtful to the feelings of his family and or other near relatives" in order to constitute the offence of defamation. It will appe r from this that though generally the person defamed is the;person aggrieved, yet in the case of a deceased person, an exception is made which allows the relations to complain when the imputation harms the reputation of the deceased and also at the same time hurts the feelings of living family members and near relatives. The explanation widens the scope of main section, which is permitted interpretation of statutes and, therefore, must be given effect to (see Hiralal Rattanlal Vs. State of U.P. and Another etc. etc., In short, an act done with malevolent purpose to vilify the memory of the deceased with an intention to injure and hurt the feelings of the deceased''s posterity is also defamation.

The next question is who is the person aggrieved to set the criminal law in motion in a defamation proceeding with regard to a dead person. This taken us to section 199 of the Code of Criminal Procedure which lays down that no Court shall take cognizance of an offe- nce 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"........on his behalf". Section 199 of the Code of Criminal Procedure forms part of Chapter XIV thereof This chapter deals with conditions requisite for initiation of proceeding. There is no limitation as to the persons who can complain about offences, except those mentioned in sections 195, 198 and 199 which relate to prosecution for contempt of lawful authority of public servants, for offences against public justice, and offences relating to decuments given in evidence �nd prosecution of or offences against marriage as well as prosecution for defamation. The words "person aggrieved by the offence" find mention with respect to offence against marriage and prosecution for defamation. In our opinion, the offence being of private nature, it has limited the persons who can initiate these proceedings.

Mr. Tiwari, appearing on behalf of the complainant,contended that section 199 speaks about locus standi of a person who can main-tain a complaint u/s 500 of the Indian Penai Code. According to him, the express�on some person aggrieved'' is not necessa-rily limited to the person defamed. Had that been so, explanation 1 to section 499 of the Indian Penal Code would become a dead letter. ''Some person aggrieved'', according to Mr. Tiwari is wide enough to include persons not directly defamed.

We do not think Mr. Tiwary is correct �n bis submission. Section 199 of the Code of Criminal Procedure does not stop at the word ''''aggrieved", but aggrieved by such offencer''. With respect to a dead person, the persons aggrieved, in view of explanation 1 to section 499 of the Indian Penal Coce, would be the members of the family or lhe near relativos who have been injured and hurt by the commi-ssion of the said offence. The second part of explanation 1 to section 499 is very material and the first pari cannot be cons�dered de hors thereof.

The words ''person aggrieved'' in section 198(new section 199 of Act 2 of 1974) carne for consideration in the case of Narasimban & ors. v. T. V. Chokkappa (A.l.R. 1973 S. C. 2609) where their lordships held that section 19* lays down an exception to a general rule that a complaint can be filed by any body whether he is an aggrieved person or not, and modifks that rule by permitting only an aggrieved person to move a magistrais in case of defamation. The settion was held to be mandat�ry and, if a Magistrate takes cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, rhe trial and conviction would be void and illegal. It is true that the said case related to expla-nation 2 to section 499 which lays down that it may amount to defamation to make an imputation concerning a company or an association collection of persons as such. Therefore, a defamation imputable against a collection of persons falis within the definition of'' defamation". Their lordships held :

Prima facie, therefore, if S 198 of the Code were to be noticed by itself, thc complaint in the present case would be unsusta�nable, since the news item in question did not mention the responded nor did it contain any defamato y imputation against him individually---(Ernphasis added)

Lord Atkin �n the case of Knupffer (supra) observed :

......The only relevant rule �s that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintyiff.(Emphasis added)

It will, therefore, appear that though gene rally the person defamed is the person aggrieved, but in the case of a deceased person an exception is made in favour of living persons limited only to members of the family or near relatives whose feeling is hurt by the defamatory statement, and none else.

The mere fact that the feelings of the complainant have been injured in consequence of a defamatory statement made against the Father of the Nation affords the complainant no ground under the law to prosecute the petitioner for defamation, he being neither a family member nor a near relative of the deceased but only a Congress worker and devotes of mahatma Gandhi. �f it is a question of hurt we are no less hurt than the complaint. but the law prohibits action against the accused by any person hurt. In the result, the application is allo-wed and the order dated the 10th November, I979, taking cognizance, is quashed.

S.S. Sandhawalia, C J.

I agree.