( 1 ) THIS is an application in revision by Nageshwar Dwivedi, an M. L. A. of Jaunpur, against the concurrent orders of the Magistrate and the learned Sessions Judge of Jaunpur dismissing, his complaint on the ground that the complaint could not be filed in the Court of the Magistrate nor could it be tried by that Court but could only be filed and tried in the Court of Sessions and that too through the Public Prosecutor.

( 2 ) THE facts giving rise to this petition may be shortly stated thus. Nageshwar Dwivedi was an m. L. A. from Jaunpur. He wished to contest the election on the Congress ticket again and therefore he appears to have applied to the "high Command" for the necessary ticket to stand as a Congress candidate. Matabadal Singh who is a resident of the area from which Nageshwar dwivedi had been elected to the Vidhan Sabha wrote an article or a letter in a Hindi weekly, named tandava which is printed and published by Sadanand Pande as the Publisher and Editor of the tandava. The writing scribed by Matabadal Singh and published by Sadanand Pande in the Tandava was enough to be defamatory to Nageshwar Dwivedi. Nageshwar Dwivedi, therefore filed a complaint in the Court of a Magistrate, 1st Class, Kerakat, in the district of jaunpur. At the trial an objection was raised on behalf of either both or at least one of the accused to the effect that the complaint made by Nageshwar Dwivedi could not be tried by the magistrate in view of the provisions of Section 198 (B) of the Code of Criminal Procedure.

( 3 ) IT was contended that an M. L. A. was a public servant. It was further contended that if there was a defamation then that defamation was in respect to the complainants conduct in the discharge of his public functions.

( 4 ) THE learned Magistrate came to the conclusion that an M. L. A. was a public servant and the magistrates finding on this question appears to me to have been determined by the definition of public servant as contained in Section 21 I. P. C. wherein a public servant has been said to "denote" a person falling under any of the description confined in that section. In the view of the magistrate and also the learned Sessions Judge, since an M. L. A. received remuneration in the shape of a salary, be came under the definition of Section 21 (9) of the Penal Code. The learned magistrate also came to the conclusion that the defamation by the article related to the discharge of the complainants public functions. This view the Magistrate held because (1) the article was headed "congresi M. L. Aon ki kartooten" and (2) because of what was stated in paragraphs 3 to 8 of that article.

( 5 ) IT is contended on behalf of the complainant-petitioner, that both the Magistrate and the Judge were wrong in their interpretation of Sections 198 and 198 (B) Cr. P. C. The applicant contended that he was not a public servant and that the emoluments that he got from the State were not pay" or "remuneration by fees" or "commission" for "the purpose" of any public duty. It was further contended that the offence of defamation which had been committed by the opposite parties was not in respect of his conduct in the discharge of his public functions and that the view of the learned Magistrate in regard to this matter was erroneous. It was contended that the article did not refer to the petitioners conduct in the Vidhan Sabha where alone he could legitimately be said to be discharging any public function. His activities outside could not relate to the discharge of any public function.

( 6 ) THE questions that fall for determination, therefore, are (1) whether an M. L. A. is a public servant, (2) whether the alleged defamatory matter in the article was in respect of the discharge of the public functions of the complainant or not and (3) whether Section 198-B precluded She complainant from filing a complaint before a Magistrate. 1 may at the outset state that the view that I shall express in regard to the third point would ma