Apart from being a tort, defamation is also a crime under Chapter XXI of the Indian Penal Code. However, no Court can take cognizance of such an offence, except upon a complaint made by some person who is aggrieved by such offence. If such person is under 18, or is an idiot or a lunatic, or is unable to complain because of sickness or infirmity or is a pardanashin woman, some other person may make a complaint on behalf of such person, with the leave of the Court.
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If such offence of defamation is alleged to have been committed against a person who, at the time of its commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State, or any other public servant employed in connection with the affairs of the Union or a State, a Court of Session can take cognizance of such an offence upon a complaint in writing made by the Public Prosecutor.
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Such a complaint must set forth the facts which constitute the alleged offence, the nature of such offence and other necessary particulars. Moreover, such a complaint cannot be made by the Public Prosecutor, except with the previous sanction—
(a) Of the State Government:
In the case of a person who is, or has been, the Governor of that State or a Minister of that Government, or is any other public servant employed in connection with the affairs of the State;
(b) Of the Central Government:
In any other case. Moreover, such a complaint must be made within six months from the date on which the offence is alleged to have been committed. If the complaint is made after the expiry of such period, the Court of Session cannot take cognizance of the alleged offence.
It will be seen, analysing the above section, that the following are the six essential conditions for making such a complaint:
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(i) The offence should be alleged to have been committed against any of the specified persons in respect of his conduct in the discharge of his public functions.
(ii) The offence must be committed at the time the person holds such office.
(iii) The Public Prosecutor should make a written complaint to the Sessions Judge.
(iv) The complaint should be made by the Public Prosecutor with the previous sanction of the State Government or the Central Government, as mentioned above.
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(v) The complaint should set forth the facts which constitute the alleged offence and such other particulars as may be necessary to give notice to the accused of the precise charge which he has to meet.
(vi) The complaint should be filed within six months from the date of the commission of the offence.
