“Complaint Not Initiated Through Public Prosecutor”: Bombay Sessions Court Dismisses Defamation Complaint Against Arnab Goswami
Mumbai Session Court ruled that it is not that the aggrieved public servant or the person against whom the said offence is alleged to have been committed has no forum to take his grievances to. He has the remedy to make a complaint before the competent Magistrate.
The Court therefore reiterated that his filing the complaint even through the public prosecutor however, would not confer any jurisdiction on this Court to take cognizance of the alleged offence.
Section 199 (2) of the Cr. P. C makes it clear that in case of an offence falling under Chapter XXI of the Indian Penal Code, if alleged to have been committed against the certain category of persons named therein, then a Court of Session may take cognizance of such offence without the case being committed to it, upon a compliant in writing made by the public prosecutor. It is quite obvious that Trimukhe, being the Dy. Commissioner of Police, Zone IX, Mumbai is a public servant and fits into the category of persons named in the said Section.
Section 199(2) of the Cr. P. C. further requires that the complaint has to be in writing and has to be made by the public prosecutor. This, no other person, be that even the person against whom the offence is alleged to have been committed, can make such a complaint. This view is further fortified by Section 199(6) of the Cr. P. C. which says that the right of the person against whom the offence is committed to make a complaint in respect of that offence before a Magistrate shall not be affected by making of the complaint by the public prosecutor.
The Court therefore observed that there is no room to doubt that the complainant has essentially to be the public prosecutor only.
The description of the complainant in the title is given as Abhishek Trimukhe, the Dy. Commissioner of Police, Zone IX, Mumbai, through the public prosecutor. This on its face depicts that Trimukhe is the complainant and he filed the complaint through the public prosecutor.
Even the narration of the facts in the complaint begins with the statement “The complainant named begs to state on solemn affirmation as under”. This unambiguously indicates that it is Trimukhe who has put forth his grievances against the accused, though through the public prosecutor.
No doubt, the complaint in the end is signed by Mr. Jaysing V. Desai, the public prosecutor for Greater Mumbai. But mere signing a complaint would not necessarily make its signatory the complainant. As observed earlier, the public prosecutor has to be the complainant. In the present complaint, the complainant is not the public prosecutor. He merely has filed the complaint of Trimukhe, exactly similar to what the prosecutors do while filing Appeals, Revisions and other proceedings on behalf of the State/Prosecution.
The public prosecutor thus is nothing more than a medium to file this complaint. This certainly is not in compliance with what the Section 199(2) of the Cr. P. C. mandates. The sanction to make complaint is also given to the public prosecutor and not to Trimukhe. Therefore, the present complaint ought to have been made by the public prosecutor alone, which is not the case here.
The present complaint, in these circumstances, has but to be treated as the one made by Shri. Trimukhe and not the public prosecutor, although filed by the latter. Consequently, such filing of the complaint by the public prosecutor cannot be equated with making of a complaint by him.
As per Proviso to Section237 (1) of the Cr. P. C, status of the person against whom the offence is alleged to have been committed would be that of a witness only. He can never become a complainant. Since he cannot become the complainant, it is made mandatory to examine him as a witness, unless directed otherwise.
In the present case, the complainant and the person against whom the offence is alleged to have been committed are one and the same. This again is not in conformity with the mandatory requirement of Section 199(2) of the Cr. P. C.
Such being the position, the Session Court said that the cognizance of the offence alleged to have been committed by the accused cannot be taken at the instance of Trimukhe. The complaint being not the one made by the public prosecutor cannot be proceeded with further.
Abhishek Trimukhe vs Arnab Goswami & Ors