SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF LAW & Ors.

P.P. Enterprises v. Union of India 1982 (3) SCR 510 : (1982) 2 SCC 33; Mohd Hanif Quareshi. V. State of Bihar AIR 1958 SC 731:1959 SCR 629 ; MRF Ltd. v. Inspector, Kera/a Govt. 1998 (2) Suppl. SCR 632 : (1998) 8 sec 227 ; D.C. Saxena (Dr) V. Hon 'ble The Chief Justice of India 1996 (3) Suppl. SCR 677 : (1996) 5 sec 216 - relied on. 6.6 A public servant is entitled to file a complaint through public prosecutor in respect of his conduct in discharge of public functions. Public function stands on a different footing than the private activities of a public servant. The provision gives them protection for their official acts. There cannot be defamatory attacks on them because of discharge of their due functions. In that sense, they constitute a different class. .However, criticism is different than defamation. One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack. Sub-section (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 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. When sufficient protection is given and the right to appeal to the High Court is not curtailed as the CrPC protects it, the submission does not really commend acceptation. In view thereof the said, there is no justification to declare the provisions ultra vires. [Paras 192,193)[1013-E-H;1014-A-B,E-Fj