Before starting, the author wants to show his heartfelt gratitude to Mr. Vishal Vyas, Civil Judge Cum Judicial Magistrate First Class, Rajasthan Judicial Services for providing his valuable insights and relevant case laws on the topic. The inspiration to write this article has been taken from Seminar Paper prepared by Mr. Vyas for the quarterly workshop of the Judges of the Rajasthan.
Part-I
This is the first part of Bi-Partite Article Series.
Introduction
In India defamation is both criminal and civil wrong. So the person defamed has been given liberty to bring either civil or criminal action or both. In civil cases the person defamed can bring a civil suit for defamation and in criminal law he can file a complaint before the jurisdictional magistrate who after taking cognizance tries it as Warrant Case instituted on the complaint. It has to be noted that FIR is not registered for defamation since it is a non-cognizable offence. In the case of Subramanian Swamy v Union Of India[i], wherein it was held that when a complaint made by the complainant before the Magistrate involves offence punishable under Section 500 of the Indian Penal Code[ii] (IPC) (it provides punishment for the defamation), the Magistrate cannot exercise powers under Section 156(3) of the Code of Criminal Procedure[iii] (CrPC) so as to direct Police to register an FIR and then investigate into the offence, in view of the specific bar contained in Section 199 of the CrPC[iv]. The ingredients of the offence of defamation has been provided under Section 499 of the Indian Penal Code[v].
The present article focuses on the rare scenario where the person defamed dies either during the pendency of litigation or even before initiating the legal proceedings. We will see cases where proceedings abate (comes to an end) and cases where it doesn’t. Before discussing the fate of civil cases let’s see what happens in criminal cases.
Defamation of Deceased- Criminal Side
Section 199 CrPC deals with prosecution for defamation. Sub-section 1 thereof states that no Court should take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code, 1860, except upon a complaint made by some person aggrieved by the offence. This provision therefore mandates that the complaint be made by a ‘person aggrieved’.
Chapter XXI of the Indian Penal Code, 1860, deals with defamation. Section 499 IPC therein defines defamation and Explanation 1 appended thereto give an indication as to who would be a ‘person aggrieved’. Explanation 1 states that imputing anything to a deceased person would amount to defamation, if such imputation would have harmed the reputation of that person had he been living and such imputation is intended to be hurtful to the feelings of his family or other near relatives.
Who can said to be person aggrieved in absence of Person Defamed
The statutory scheme indicates that the ‘person aggrieved’ must have an element of personal interest, being either the person defamed himself or in the case of a deceased person, his family member or other near relative.
Hon’ble Patna High Court in Bhagwan Shree Rajneesh v The State of Bihar and another[vi], wherein it was observed that though generally, the person aggrieved is only the person defamed, an exception has been made in the case of a deceased person but the ‘persons aggrieved’ even in such case are limited only to members of his family or his near relatives, whose feelings would be hurt by the defamatory statement, and none else.
Hon’ble Supreme Court in G. Narasimhan and others v T.V. Chokkappa[vii], wherein it was held that an exception was created to the general rule that a complaint could be filed by anybody, whether he is aggrieved or not, as Section 198 of the old Code of 1898 (presently, Section 199 CrPC) modified that general rule by permitting only an ‘aggrieved person’ to move the Magistrate in cases pertaining to defamation. The Supreme Court observed that compliance with this Section was mandatory and if a Magistrate took cognizance of the offence of defamation on a complaint made by one who was not an ‘aggrieved person’, the trial and conviction in such a case would be void and illegal.
So every lineal descendant or every person interested in the deceased cannot complain of defamation against the deceased. Firstly, such complainant must be a member of the family of the deceased or must be a near relative of his. The words “family or other near relative” significantly are not defined in Section 499 IPC. Such expressions are not defined in the Indian Penal Code. The expressions “family” and “other relative” are expressions which can have different shades of meaning depending on the circumstances and the purpose which a statutory provision is intended to achieve. Any attempt to understand the sweep, width and amplitude of the expressions “family or other near relative” must certainly be made conscious of the purpose which Section 499 IPC and Explanation-I thereto have got to achieve.
In the landmark case Mrs. Pat Sharpe vs Dwijendra Nath Bose[viii] the Honourable court held that if the imputation would have harmed the deceased’s reputation if he was alive then imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives.
Death of the Complainant after instituting Complaint
What happens on death of complainant in a case started on complaint has to be inferred generally from provisions of Code. There is no provision in Criminal Procedure Code about acquittal or discharge of accused in a warrant case on failure of complainant to attend. Section 249 of CrPC[ix] provides that when the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. So this provision talks about discharge and not acquittal. Moreover it is in the discretion of the magistrate to discharge the accused before the charge is framed. Generally this condition doesn’t arise because Legal Representatives are there to come on record in place of deceased complainant.
Whether Legal Representatives of Deceased Complainant can be taken on record in case of Appeal against Acquittal
A bare reading of Section 394 CrPC[x] makes it clear that an appeal under Section 377[xi] or Section 378 of CrPC[xii] shall finally abate on the death of accused. Further, every other appeal under Chapter XXIX, CrPC (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. So the literal reading of section provides that appeal abates on the death of the accused and not the complainant.
In Prayagdutt Tiwari & Ors. v Gajadhar P Tiwari[xiii] the main issue that came before the court was that whether on the death of the complainant at the stage of appeal, his appeal would abate or his legal representatives can come on record in appeal against acquittal in case of defamation. It was held that, under the Indian Law a crime is an offence not against individuals but against the society or the public as such. Once a complaint has been properly instituted and proceeded with, the Courts must punish the offender if the case is proved against him, the death of the complainant has no effect on the proceedings though in some cases the wrong is done strictly to the person of the complainant or where the complaint can be lodged only by specific class of persons. Court further ruled that, it is settled law that the maxim action personalis moritur cum persona (a personal right of action dies with the person) does not apply to criminal prosecution. It is equally settled that Section 306 of the Indian Succession Act[xiv] has no application to criminal prosecutions. Hence the death of complainant does not ipso facto terminate a criminal prosecution.
The Supreme Court while considering the effect of the death of complainant during pendency of appeal against acquittal has held as under in Khedu Mohton v State of Bihar[xv]:
“An appeal under Section 417 (now section 394) can only abate on the death of the accused and not otherwise. Once an appeal against acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other.”
In this next part author will focus on the death of the plaintiff (person defamed) in civil cases.
[i] (2016) 7 SCC 221
[ii] https://indiankanoon.org/doc/1408202/
[iii] https://indiankanoon.org/doc/1291024/
[iv] https://indiankanoon.org/doc/27007/
[v] https://indiankanoon.org/doc/1041742/
[vi] 1986 SCC OnLine Patna 174
[vii] AIR 1972 SC 2609
[viii] 1964 CriLJ 367 Cal HC
[ix] https://indiankanoon.org/doc/1683498/
[x] https://indiankanoon.org/doc/1493299/
[xi] https://indiankanoon.org/doc/195753/
[xii] https://indiankanoon.org/doc/487026/
[xiii] 1977 CrLJ 1258 MP
[xiv] https://indiankanoon.org/doc/261549/
[xv] MANU/SC/0139/1970: AIR 1971 SC 66