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g) Whether the accord of sanction to prosecute under Section 199(4) Cr.P.C can be tested in a writ petition ?
h) Whether the respective articles published which are the subject matter of consideration in these batch of writ petitions are in respect of the conduct of the public servant/constitutional functionary in the discharge of his/her public functions ?
(d) The news item is not pertaining to the conduct of the public functionary in the discharge of his/her public functions.
(e) The sanction for prosecution granted to the public prosecutor has been passed in utter disregard of section 199(2) Cr.P.C. The impugned sanction has been accorded by total non-application of mind and is nothing but an abuse of process of law and is also against the Principles of natural justice.
21. Section 199(2) Cr.P.C. also does not bar a constitutional functionary/public servant from personally launching prosecution for criminal defamation before the Magistrate under section 199(6) Cr.P.C. even in cases of defamation in respect of his conduct in the discharge of his public functions. The intention of the legislature would never have been to overlap the applicability of subsections within a section. The rule of harmonious construction comes into play. The rule falls on the premise that every statute/section has a purpose of intent as per law and should be meaningful. The rule of Harmonious construction is the thumb rule while interpreting any statute. The interpretation which makes the enactment consistent and the interpretation which avoids inconsistency or repugnancy should be the aim of the courts. Therefore there is an intelligible differentia between subsection (2) and subsection (6) of http://www.judis.nic.in W.P.No.5129 of 2012 etc., batch section 199. Subsection (2) is the procedure for launching prosecution in case of defamation against the State and subsection (6) is for personal defamation even if it is a case of defamation against a public servant/constitutional functionary in the discharge of his public functions which are personal in nature and where state has not been defamed. Public servant/constitutional authority is required to do selfless service to the State. The Legislature would never have intended to launch prosecution through a Public Prosecutor to serve the personal interest of the public servant/constitutional authority alone, even if the said defamation of the public servant/constitutional authority was made in the discharge of his / her public functions. Unless, the element of the State also being defamed along with the public servant/constitutional authority is satisfied, the question of launching prosecution through the public prosecutor under Section 199(2) Cr.P.C will never arise as it involves a special procedure for criminal defamation against the State. The subtle difference between Section 199(2) and 199(6) Cr.P.C is also supported by decisions of the Honourable Supreme Court which will be discussed by this court in the forthcoming paragraphs of this common Order.