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The Code Of Criminal Procedure, 1973
Section 197 in The Code Of Criminal Procedure, 1973
State Of H.P vs M.P.Gupta on 9 December, 2003
The Indian Penal Code, 1860
State Of Rajasthan vs Kishore on 27 February, 1996

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Andhra High Court
N. Vittal S/O Nagaraju, Chief ... vs 1.Girreddi Suryanarayana Reddy, ... on 28 September, 2004

THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU

Criminal Petition No.5362 of 2003

28/09/2004

N. Vittal S/o Nagaraju, Chief Vigilance Commissioner, Govt. of India Now Residing at Chennai

1.Girreddi Suryanarayana Reddy, S/o Satyanarayana Reddy, aged about 41 years, Deputy General Manager, Securities and Exchange Board of India, C-2/57, Karmakshetra Tower, Kings Circle, Mumbai-400 037. within the limits of Antop Hill P.S.

2. The State of A.P. Rep by PP High Court of A.P. Hyderabad.

Counsel for the Petitioners: Mr. P.V. Vidyasagar

Counsel for the Respondent No.1: Mr. C. Praveen Kumar

Counsel for the Respondent No.2: Public Prosecutor, High Court of A.P., Hyderabad.

:ORDER:

First respondent, who is working as the Deputy General Manager, Securities and Exchange Board of India (SEBI), acting as a whistle blower, sent a report against Dr D.R.Mehta, Chairman, SEBI, alleging that Dr.Mehta had caused a financial loss of Rs.2.20 Crore to SEBI, to the petitioner when he was working as the Chief Vigilance Commissioner (CVC). When asked by the media reporters about the action being taken by him against Dr.Mehta, Chairman, SEBI, on the complaint given by first respondent, petitioner informed them that that complaint is being looked into, but that may not be construed as a probe, and that he (petitioner) does not suspect the integrity of an official like Dr.Mehta, whom he believed was above board, and said that there were complaints against the first respondent on various counts. That statement of the petitioner appeared in the print and visual media and Internet on 18th and 19th April, 2001. Alleging that on 14.08.2002 when he got down from the train at Rajahmundry, to go to his native place, his two friends, who are cited as witnesses in the complaint, had shown him the publications that appeared in the press and questioned him about the truth or otherwise of the allegations made against him by the petitioner, and thus his reputation among friends, relatives and public is lowered and damaged, first respondent filed a private complaint against the petitioner under Section 500 I.P.C. at Rajahmundry, which was taken cognizance of as C.C.No.1344 of 2002. This petition is filed to quash the proceedings in the said C.C.

2.The main contention of Sri P.V.Vidya Sagar, learned counsel for the petitioner, is that the complaint filed by the first respondent about one and a half years after publication of the alleged defamatory statement, at a remote place like Rajahmundry, on the eve of retirement of the petitioner, is vitiated by mala fides and in any event since the statement made by the petitioner, as CVC, that there are some complaints against an official, cannot be said to be a defamatory statement, and in any event since the petitioner, while making the alleged defamatory statement, was acting in his official capacity, complaint filed by the first respondent against the petitioner, without obtaining sanction from the Central Government, as contemplated by Section 197 Cr.P.C. is liable to be quashed and relied on State of H.P. v. M.P.Gupta1 in support of his said contention.

3.The contention of Sri C.Padmanabha Reddy, learned Senior Counsel for first respondent, is that since giving statement to reporters of the media is not an official act, and since the bar under Section 197 Cr.P.C. applies only to acts done in official capacity but not to offences committed by a public servant, and since making defamatory statement is not and cannot be an official act, but is a crime, there is no need for the first respondent to obtain sanction under Section 197 Cr.P.C. Relying on State of H.P. v. M.P. Gupta (1 supra) and State of M.P. v. Awadh Kishore Gupta2 he contended that since question whether the statement made by the petitioner are defamatory or not can be decided only after trial, there are no grounds to quash the complaint more so because petitioner failed to respond to the notice got issued by the first respondent asking for information of the complaints allegedly received against him.

4.The publications relied on by the first respondent, filed along with the complaint, are extracted below:

TENDER TIMES. COM

BUSINESS TIMES

THE CORESECTOR.

Vol. II ISSUE No.109. Thursday April, 19, 2001. KOLKAT

C V C SUSPICIOUS OF REDDY, NOT D.R. MEHTA:

Central Vigilance Commissioner (CVC), N. Vittal, said on Wednesday that the Commission is looking into the complaint of a Securities and Exchange Board of India (SEBI) Official against its Chairman D.R.Mehta, but added that he did not doubt Mehta's integrity. "We are looking into the D.R. Mehta case. SEBI Deputy General Mahager, G.S.Reddy, gave us some information about Mehta two days ago. We have asked for his (Mehta's) comments". Vittal told reporters on the sidelines of a CII conference. Vittal, however, clarified that it could not be construed as a probe as the matter was being looked into just because a SEBI official had given some information against Mehta. He said he did not suspect the integrity of an official like Mehta who he believed was above a board. He also said that there were complaints against Reddy on various counts.

Mehta filed two defamation suits against Reddy in Jaipur on Monday for allegedly leveling defamatory charges against him. While in one case, Mehta sought criminal proceedings against Reddy, on the other, he demanded Rs.10 lakhs as compensation. The SEBI Chairman had described the charges leveled against him by Reddy as false, fabricated, motivated and malicious and said that Reddy had made him the target because of "personal grouse."

Rediff.ComMONEY CHANNEL.

April, 18, 2001

CVC ASKS D.R. MEHTA TO COMMENT ON SEBI OFFICIAL'S CHARGES: Central Vigilance Commissioner, N. Vittal, said on Wednesday that the Commission is looking into the complaint of a securities and Exchange Board of India Official against its Chairman D.R. Mehta but added that he did not doubt Mehta's integrity.

"We are looking into the D.R. Mehta Case. SEBI Deputy General Manager G.S. Reddy gave us some information about Mehta two days ago. We have asked for his (Mehta's) comments, " Vittal told reports on the sidelines of a CII conference. Vittal, however, clarified tht it would not be construed as a probe as the matter was being looked into just because a SEBI official had given some information against Mehta.

He said he did not suspect the integrity of an official like Mehta whom he believed was above board.

He also said that there were complaints against Reddy on various counts. Mehta filed two defamation suits against Reddy in Jaipur on Monday for allegedly leveling defamatory charges against him. While in one case, Mahta sought Criminal proceedings against Reddy, in the other, he demanded Rs.1 million as compensation.

Vittal declined to comment on whether CVC would go through the SEBI inquiry report on alleged price manipulation that brought down the market after the Union Budget.

EXTRACT FROM DAILY EXCELSIOR DT.18-4-2001

.........

CVC ASKS SEBI CHIEF TO CLARIFY ON REDDY'S ALLEGATIONS:

New Delhi, Apr 18: Central Vigilance Commissioner (CVC), N. Vittal said to-day the Commission is looking into the complaint of a Securities and Exchange Board of India (SEBI) official against its Chairman, D.R. Mehta but added that he did not doubt Mehta's integrity.

"We are looking into the D.R. Mehta case. SEBI Deputy General Manager, G.S. Reddy gave us some information about Mehta two days ago. We have asked for his (Mehta's) comments," Vittal told reporters on the sidelines of a CII conference. Vittal, however, clarified that it could not be construed as a probe as the matter was being looked into just because a SEBI official had given some information against Mehta.

He said he did not suspect the integrity of an official like Mehta whom he believed was above board.

He also said that there were complaints against Reddy on various counts. Mehta filed two defamation suits against Reddy in Jaipur on Monday for allegedly leveling defamatory charges against him. While in one case, Mehta sought criminal proceedings against Reddy, in the other, he demanded Rs.10 lakhs as compensation.

The SEBI Chairman had described the charges leveled against him by Reddy as false, fabricated, motivated and malicious and said that Reddy had made him the target because of "personal grouse."

5.From a careful reading of the complaint filed by the petitioner before the Magistrate, it is seen that he is aggrieved by the petitioner not taking action against Dr.Mehta, on his complaint as a whistle blower, and is of the opinion that petitioner was shielding Dr.Mehta, and was in fact aware of the publications that appeared in the media and internet even long prior to 14.08.2002 i.e. when he is said to have gone to Rajahmundry, and where his friends are said to have shown the publications containing the statement made by the petitioner against him, as alleged in para-13 of the complaint, because in para-12 of the complaint it is alleged:

"The accused is duty bound to inquire into the complaint made to or referred to him. He has however done precious little. On the contrary he indulged in making highly defamatory statements against the complainant. The unfounded allegations have severely damaged the complainant's reputation and professional standing." (underlining mine)

"Professional standing" of first respondent as Deputy General Manager, SEBI, Mumbai, does not depend upon what his friends and relatives think of him at Rajahmundry or at his native place near Rajahmundry, which are far away from Mumbai, since first respondent goes there occasionally, may be for a holiday, but not to meet them in connection with his professional or official capacity as Deputy General Manager, SEBI. Therefore, I find force in the contention of the learned counsel for petitioner that first respondent, with a view to harass and cause inconvenience to the petitioner chose to wait till the eve of retirement of the petitioner, and filed the complaint more than one year after publication, at Rajahmundry, a place far away from Mumbai, the place of residence and employment of first respondent or New Delhi, where petitioner worked, and Chennai, where petitioner is residing. Thus, the complaint lacks bona fides and is vitiated by mala fides.

6.I am unable to agree with the contention of Sri Padmanabha Reddy that petitioner was not acting officially or was not discharging his official duty while talking or making statements to media reporters, when he made the statement, which, allegedly is defamatory, because, he, at that time, admittedly, was CVC. In fact first respondent himself made a complaint to the petitioner against Dr.Mehta, his superior officer in the office, and that fact became public. The extract from 'Daily Excelsior' of date 18.04.2001, filed along with the complaint, extracted above, shows that reporters met and enquired from the petitioner about the complaint of first respondent against Dr.Mehta at New Delhi, when he attended CII conference. A reading of Para-15 of the complaint shows that according to the 1st respondent, petitioner, as CVC, can talk to reporters in his official capacity, in respect of the complaints received by him, as the allegations therein read:

"The accused has no business whatsoever to make any defamatory statements against the complainant when he was asked to comment upon the complaint made by the complainant against Sri D.R.Mehta. The accused either should have spoken about the outcome of his enquiry or even can to go to the extent of exonerating D.R.Mehta, but he has absolutely no business to talk about the integrity or character of the complainant which were not in question. Therefore, no sanction is required for lodging the complaint under Section 197 Cr.P.C. as the offence committed by the accused is not either in discharge of his official duties of even remotely connected with discharge of his official duties. The very purpose of such defamatory statement made by the accused is very clear that he wants to side track the whole issue and shield D.R.Mehta while diverting the whole attention towards the complainant and make him a scape goat and show to the entire public that it was the complainant who is the black sheep and that the conduct of D.R.Mehta is above board. Thus the accused is actuated with malice, ill-will, cussedness and with oblique motives in making the defamatory statements. There is neither good faith nor public interest involved in making the defamatory statements." (underlining mine)

7.That apart, it should be kept in view that after the invasion of the print and visual media and increase in news and other channels, which beam news and other programs all the 24 hours in the visual media and the policy of the State and Central Governments to be transparent, reporters of the media who are starved for news, seek information from Ministers and Government officials for covering the space in the print and visual media. First respondent who feels that petitioner can give information to reporters about the complaint given by him about Dr.Mehta in his official capacity, cannot be heard to say that petitioner informing reporters about the complaints against him is not an official act. Since petitioner was the CVC at that time, he can give information to reporters about reports received by him against any official, in his official capacity. While talking to reporters about the complaint given by the second respondent against Dr.Mehta, petitioner undoubtedly was acting in his official capacity but not in his individual capacity, de hors his office as CVC. Assuming that he exceeded his limit, as CVC, by talking about the first respondent and the complaints against him, while talking 'officially' about the complaint given by the 1st respondent against Dr.Mehta, still petitioner would be covered by the protection given by Section 197 Cr.P.C., in view of the ratio in M.P.Gupta case (1 supra) because the apex Court held as follows in para-8 of its judgment. "The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for any thing done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they chose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty." (underlining mine)

and in Para-12 it is held

"But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated." (underlining mine)

The reporters would not have questioned the petitioner in his individual capacity, about the reports received by him in his official capacity. CVC can officially announce that some complaints are received against a particular officer, for information of the public, who have a right to know about the conduct of a public servant.

8.The fact that petitioner failed to send a reply to the notice got issued by the first respondent to furnish him with the details of the complaint received against him is of no consequence, because, CVC is not bound to furnish information about the complaints received against him to a public servant against whom he received the complaints. If such information is given, the purpose of sending a complaint to CVC may be by whistle blowers may get frustrated. If the respondent feels that petitioner, without there being any complaints against him, falsely stated that there are complaints against him, can seek permission to prosecute the petitioner from the Union Government, which after examining the case on merits would take a decision whether or not to sanction to prosecute the petitioner or not. In the facts and circumstances of the case, the ratio in Awadh Kishore Gupta case (2 supra) relied on by the learned counsel for the first respondent does not apply to the facts of the case.

9.Since first respondent failed to obtain sanction under Section 197 Cr.P.C. to prosecute the petitioner, and since the complaint filed by first respondent is vitiated by lack of bona fides and is intended to harass the petitioner, C.C.No.1344 of 2002 on the file of the II Additional Judicial First Class Magistrate, Rajahmundry, is liable to be and hence is quashed. Petition is accordingly allowed.

?1 2004 (1) ALT (Crl.) 236 (SC)

2 (2004) 1 Supreme Court Cases 691