The Supreme Court order comes in response to a batch of writ petitions that required the apex court to dwell upon the constitutional validity of Sections 499 and 500 of the Indian Penal Code, 1860 and Sections 199(1) to 199(4) of the Code of Criminal Procedure, 1973.
Sections 499 of the IPC provides for defamation and Section 500 IPC for punishment in respect of the said offence. Section 199 of CrPC, which provides for prosecution for defamation. Sub-section (1) of the said section stipulates that no court shall take cognizance of an offence punishable under Chapter XXI of the Indian
During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial
A two Judge Bench of tbe Supreme Court comprising of Justice Dipak Misra and Justice Prafulla C. Pant said in its order: “As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for this purpose, the court has granted eight weeks time to the petitioners.
The order says: “One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.
Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction.”
The interim protection granted by the Supreme Court shall remain in force for a period of eight weeks. It has also been made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before the Supreme Court, he shall face trial and put forth his defence in accordance with law.
Rajya Sabha member Subramanian Swamy of the BJP was one of the petitioners who argued his own case in Supreme Court.
Arguing on behalf of another petitioner―Foundation of Media Professionals, Bhambhani, the senior counsel submitted that the operation of the Press and Registration of Books Act, 1867 must necessitate a Magistrate to accord due consideration of the provision of the 1867 Act before summoning the accused. Attention has been drawn to the Sections 3, 5, 6 and 8 of the 1867 Act and it was also submitted that only person recognized under the said Act as editor, publisher, printer and owner could be summoned in the proceeding under Section 499 Indian Penal Code (IPC), apart from the author or person who has made the offending statements. The submission of the petitioner was that in all the proceedings under Section 499 of IPC against a newspaper the accused must be confined to those who are identifiable to be responsible under Section 5 of the 1867 Act. In the opinion of the Supreme Court these aspects can be highlighted by an aggrieved person either in a challenge for quashing of the complaint or during the trial. There is no necessity to deal with this facet while deliberating upon the constitutional validity of the provisions.
In the course of hearing, it was argued that multiple complaints are filed at multiple places and there is abuse of the process of the court. In the absence of any specific provisions to determine the place of proceedings in a case of defamation, it shall be governed by the provisions of Chapter XIII of the CrPC – Jurisdiction of the Criminal Courts in Inquiries and Trials. A case is ordinarily tried where the Offence is committed (Section 177). The expression used in Section 177 is “shall ordinarily be inquired and tried” by a court within whose jurisdiction it was committed. Whereas “shall” brings a mandatory requirement, the word “ordinarily” brings a situational variation which results in an interpretation that the case may be tried as per the further provisions of the Chapter. In case the place of committing the offence is uncertain, the case may also be tried where the offence was partly committed or continues to be committed (Section 178).
The case may also be tried where the consequence of the act ensues (Section 179). The other provisions in the chapter also deal with regard to certain specific circumstances. Section 186 CrPC gives the High Court powers to determine the issue if two or more courts take cognizance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the Jurisdiction to determine the case lies with the High Court under whose jurisdiction the first complaint was filed.
Upon the decision of the High Court regarding the place of trial, the proceedings in all other places shall be discontinued. Thus, it is again left to the facts and circumstances of each case to determine the right forum for the trial of case of defamation. Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional.