Supreme Court: Under which circumstances the court must stay conviction in defamation case?

 Insofar as grant of stay of conviction is concerned, we have considered certain factors. The sentence for an offence punishable under Section 499 of the Indian Penal Code, 1860 (for short “IPC”) is simple imprisonment for two years or fine or both. The learned Trial Judge, in the order passed by him, has awarded the maximum sentence of imprisonment for two years. Except the admonition given to the appellant by this Court in contempt proceedings [Contempt Petition (Crl) No.3/2019 in Yashwant Sinha and Others v. Central Bureau of Investigation through its Director and another, reported in (2020) 2 SCC 338] no other reason has been assigned by the learned Trial Judge while imposing the maximum sentence of two years. It is to be noted that it is only on account of the maximum sentence of two years imposed by the learned Trial Judge, the provisions of sub-section (3) of Section 8 of the Representation of the People Act, 1950 (for short, “the Act”) have come into play. Had the sentence been even a day lesser, the provisions of subsection (3) of Section 8 of the Act would not have been attracted. {Para 5}

6. Particularly, when an offence is non-cognizable, bailable and compoundable, the least that the Trial Judge was expected to do was to give some reasons as to why, in the facts and circumstances, he found it necessary to impose the maximum sentence of two years.

9. We are of the considered view that the ramification of subsection (3) of Section 8 of the Act are wide-ranging. They not only affect the right of the appellant to continue in public life but also affect the right of the electorate, who have elected him, to represent their constituency.

10. We are of the considered view, taking into consideration the aforesaid aspects and particularly that no reasons have been given by the learned Trial Judge for imposing the maximum sentence which has the effect of incurring disqualification under Section 8(3) of the Act, the order of conviction needs to be stayed, pending hearing of the present appeal.

IN THE SUPREME COURT OF INDIA

 J. Petition(s) for Special Leave to Appeal (Crl.) No(s). 8644/2023; 

RAHUL GANDHI Vs PURNESH ISHWARBHAI MODI & ANR.

Bench: B.R. GAVAI; J., PAMIDIGHANTAM SRI NARASIMHA; J., SANJAY KUMAR;

Dated: 04-08-2023.

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Whether magistrate should consider exceptions to Section 499 of IPC while issuing process against accused?

We have referred to these authorities to highlight
that in matters of criminal defamation the heavy burden is on
the Magistracy to scrutinise the complaint from all aspects.
The Magistrate has also to keep in view the language
employed in Section 202 CrPC which stipulates about the
resident of the accused at a place beyond the area in which
the Magistrate exercises his jurisdiction. He must be
satisfied that ingredients of Section 499 CrPC are satisfied.
Application of mind in the case of complaint is imperative.
198. We will be failing in our duty if we do not take note
of submission of Mr. Bhambhani, learned senior counsel. It is
submitted by the learned senior counsel that Exception to
Section 499 are required to be considered at the time of

summoning of the accused but as the same is not conceived
in the provision, it is unconstitutional. It is settled position of
law that those who plead Exception must prove it. It has
been laid down in M.A. Rumugam (supra) that for the
purpose of bringing any case within the purview of the Eighth
and the Ninth Exceptions appended to Section 499 IPC, it
would be necessary for the person who pleads the Exception
to prove it. He has to prove good faith for the purpose of
protection of the interests of the person making it or any
other person or for the public good. The said proposition
would definitely apply to any Exception who wants to have the
benefit of the same. Therefore, the argument that if the said
Exception should be taken into consideration at the time of
the issuing summons it would be contrary to established
criminal jurisprudence and, therefore, the stand that it
cannot be taken into consideration makes the provision
unreasonable, is absolutely an unsustainable one and in a
way, a mercurial one. And we unhesitatingly repel the same.
 In view of the aforesaid analysis, we uphold the
constitutional validity of Sections 499 and 500 of the Indian
Penal Code and Section 199 of the Code of Criminal
Procedure. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 184 OF 2014

SUBRAMANIAN SWAMY Vs UNION OF INDIA,


Dated;May 13, 2016
Dipak Misra, J.

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SUPREME COURT : DEFAMATION U/S. 499 & 500 IPC CONSTITUTIONALLY VALID

Noting that it is “extremely difficult to accept that criminal defamation has a chilling effect on freedom of speech and expression”, the Supreme Court upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code to protect the individual's right to reputation.

“Right to free speech is not absolute. Reputation cannot be crucified at the altar of freedom of speech and expression,” a Bench of Justices Dipak Misra and P.C. Pant observed in their judgment.

The apex court held that courts have to strike a balance between the fundamental right free speech as well as the right to reputation which is equivalent to the fundamental right to dignity and life under Article 21 of the Constitution.

“Free speech is sacrosanct. But right to life under Article 21 has its own significance as protection of individual rights form the fulcrum of a society. Courts have to strike a balance,” the Supreme Court reasoned.

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Who can file criminal complaint for defamation?

Under s. 198, Cr.P.C., no Magistrate can take cognizance of an offence falling inter alia under Chap. XXI, I.P.C., that is, ss. 499 to 502, except on a complaint made by some persons aggrieved by such offence. The section is mandatory, so 'that, if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person the trial and conviction of the accused would be void and illegal. [48A-C] (2)Section 499, I.P.C., defines defamation and lays down that whoever by words, either spoken or intended to be read or by signs etc., makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that the imputation will harm the reputation of such person is said to defame that person. Explanation 2 to the section lays down that it may amount to defamation to make an imputation concerning a company or an association or collection of persons. But such a collection of persons must be an identifiable body, so, that, it is possible to say with definiteness that a group of particular persons ,is distinguished from the rest, of the community, was defamed. Therefore, in a case where Explanation 2 is resorted to the identify of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. If a well defined class is defamed, every particular member' of that class can file a complaint even if the defamatory imputation does not mention him by name.

Supreme Court of India

G. Narasimhan & Ors.Etc vs T. V. Chokkappa(Will Connected ... on 4 September, 1972

Equivalent citations: 1972 AIR 2609, 1973 SCR (2) 40

Coram : SHELAT, J.,M.PALEKAR, D.G.,DWIVEDI, S.N.

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