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11. Reliance is placed by the learned counsel for the appellants mainly on the decisions of this Court in P.C Joshi and Another vs. State of Uttar Pradesh1; Subramanian Swamy vs. Union of India2; and K.K. Mishra vs. State of Madhya Pradesh and Another3. The contention of the learned senior counsel for the appellants is that certain consequences are prescribed in Section 237 of the Code, if it is a case of malicious prosecution initiated under Section 199(2) and that the attempt of Respondent No.1 to bypass the special procedure prescribed in Section 199(2) is with a view to escape the consequences of Section 237 of the Code.

Whether special procedure eclipses the general procedure?

41. In support of the contention that a person covered by sub­ section (2) of Section 199 has to necessarily go through the special procedure prescribed by sub­section (4) of Section 199, the learned counsel for the appellants has relied upon the decisions of this Court in P.C Joshi, Subramanian Swamy and K.K. Mishra (supra). Therefore, let us see the ratio decidendi of these decisions.

42. In P.C Joshi (supra), the Public Prosecutor, Kanpur filed a complaint in the Court of Sessions, against the Editor and the Printer and the Publisher of an English Weekly, claiming that a news item published therein was defamatory of the Chief Minister of the State. The Order of the Home Secretary sanctioning prosecution under Section 198B(3) of the Code of 1898 was filed along with the complaint. After examining witnesses, the learned Sessions Judge framed the charge. The order framing charge was unsuccessfully challenged by the Editor and Publisher before the High Court and the matter landed up on the file of this Court. The object behind the special procedure prescribed under Section 198B of the Code of 1898 was elaborated in detail by this Court in P.C. Joshi (supra). In paragraph 7 of the Report in P.C. Joshi (supra), this Court indicated that Section 198B has made a departure from the normal rule, in larger public interest. After holding so, this Court clarified that the expression “not in derogation of” appearing in sub­section (13) of Section 198B clearly indicated that the provisions of Section 198B did not impair the remedy provided by Section 198. This Court said: “it means that by Section 198B, the right which an aggrieved person has to file a complaint before a Magistrate under Section 198 for the offence of defamation, even if the aggrieved person belongs to the specified classes and the defamation is in respect of his conduct in the discharge of his public functions, is not taken away or impaired. If sub­section (13) be construed as meaning that the provisions of Section 198B are to be read as supplementary to those of Section 198, the non­obstante clause with which sub­ section (1) of Section 198B commences is rendered wholly sterile ……..”

44. In Subramanian Swamy (supra), this Court was dealing with a batch of writ petitions under Article 32 of the Constitution challenging the constitutional validity of Sections 499 and 500 IPC and Sections 199(1) to 199(4) of the Code of 1973. The impact of sub­section (6) on other sub­sections of Section 199 of the Code of 1973 was indicated in paragraph 203 of the Report in Subramanian Swamy as follows:­ “203. Sub­section (6) gives to a public servant what every citizen has as he cannot be deprived of a right of a citizen. There can be cases where sanction may not be given by the State Government in favour of a public servant to protect his right and, in that event, he can file a case before the Magistrate. The provision relating to engagement of the public prosecutor in defamation cases in respect of the said authorities is seriously criticized on the ground that it allows unnecessary room to the authorities mentioned therein and the public servants to utilize the Public Prosecutor to espouse their cause for vengeance. Once it is held that the public servants constitute a different class in respect of the conduct pertaining to their discharge of duties and functions, the engagement of Public Prosecutor cannot be found fault with. 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 v. State of A.P 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.”

45. The above passage is relied upon by the learned senior counsel for the appellants to contend that it is only in cases where the State Government refuses to give sanction for prosecution, that the individual right under sub­section (6) of Section 199 can be invoked. But we are afraid that such an inference does not flow out of what is observed in paragraph 203 of the decision in Subramanian Swamy (supra). To say that the provisions of sub­ section (6) of Section 199 can be invoked by the individual public servant, only in cases where the State Government does not go to his rescue, could violate the plain language of sub­section (6). Sub­ section (6) of Section 199 begins with the words “nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed”. Sub­section (6) does not contain any conditions subject to which the right thereunder can be exercised.