Gour Chandra Rout & ANR Vs. The
Public Prosecutor, Cuttack [1962] INSC 333 (23 November 1962)
MUDHOLKAR, J.R.
IMAM, SYED JAFFER SUBBARAO, K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 1198 1963 SCR Supl. (2)
447
ACT:
Criminal Procedure-Authorisation by Governor
GeneralAuthorisation, whether contemplated-Code of Criminal Procedure 1898 (V
of 1898), as amended by Criminal Procedure Code (Amendment) Act, 1955(XXVI of
1955), s. 198-B(1), (3) (a).
HEADNOTE:
The appellants were the editor, printer and
publisher of an Oriya Daily Newspaper called "Matrubhumi". In the
issue of May 31, 1958, the views expressed by Dr. Ram Manohar Lohia concerning
the Political situation created in Orissa by reason of the resignation of the
Congress Ministry and its immediate non-acceptance by the Governor were
published.
During the Press Conference he remarked that
the Governor had played as a toy in the hands of the Congress and that his one
near relation, had secured employment with the help of the congress party.
After it came to the notice of the Governor, he got it translated into English
and sent to the Government for taking such action as may be necessary.
Shortly thereafter, the Home Secretary to the
Government passed an order purported to be a sanction under s. 198B of the Code
of Criminal 448 Procedure for the prosecution of the appellants for offences
under ss. 500 and 501 of the Penal Code and in pursuance thereof the Public
Prosecutor lodged a complaint on the basis of which the appellants were tried
by the Sessions judge who held both of them guilty to the charge, convicted
them of these offences and sentenced them to pay certain fines and their
appeals to the High Court were also dismissed. It was urged by the respondent
in this Court that it was enough for the Governor to say that he had no
objection to the lodging of a complaint and his statement that he left it to
the Government to decide what action should be taken and that the Government
had consulted him before it decided to take action, therefore, meets the
requirements of the provisions of cl. (a) of sub.s. (3) of s. 198B, Code of
Criminal Procedure.
Held, that s. 198-B(3) (a) requires that the
Governor should authorise a Secretary to lodge a complaint. Held, also, that
there are two restrictions upon the power of the Public Prosecutor to lodge a
complaint (1) he must first obtain a sanction to lodge such complaint; (2) and
the sanction should be accorded by a Secretary to the Government authorised by
the Governor in this behalf. While the sanctioning authority has to apply its
mind before according sanction and in performing the function the Secretary
does not merely perform a ministerial Act, the initiative has to be taken by
the Governor by indicating unequivocally that he desires action to be taken and
that the authorisation by him is not an idle formality.
Held, further, that sub.s. (3) of s. 198-B
speaks of a complaint under sub-s. (1) and the complaint under sub-s. (1) is a
specific complaint in writing made by the Public Prosecutor. Reading the two
sub-sections together it would be clear that the authorisation by the Governor
is of the sanction with respect to a specific complaint. A general sanction
will not be of any avail.
Gour Chandra Bout v. Public Prosecutor, A. 1.
R. 1960 Orissa 116, held inapplicable.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 61 of 1960.
Appeal from the Judgment and order dated
August 7, 1961, of the Orissa High Court in Criminal Appeal No. 108/60.
Santosh Chatterjee and Brij Bans Kishore, for
the appellants.
449 D.R. Prem, P. D. Menon and R. H. Dhebar,
for the respondent.
1962. November 23. The judgment of the Court
was delivered by MUDHOLKAR, J.-This is an appeal by a certificate granted by
the High Court of Orissa which dismissed an appeal preferred by the appellants
from their convictions under s. 500 and s. 501, Indian Penal Code, respectively
and the sentences or fine imposed upon each of them.
The appellant No. 1, Gour Chandra Rout, is
the editor of' an Oriya Daily Newspaper called "Matrubhumi" while'
the other appellant, Ram Chandra Kar, is the printer and publisher of that
newspaper. In the issue of May 31, 1958, the views expressed by Dr. Ram Manohar
Lohia concerning the political situation created in Orissa by reason of the
resignation of the Congress Ministry and the immediate non-acceptance of the
resignation by the Governor were published. During the Press Conference
addressed by Dr. Lohia he remarked that the Governor Mr. Sukthankar had played
as a toy in the hands of the Congress and that a near relation of the Governor
had obtained a job carrying a handsome salary, with a British Oil Company in
Assam and that, therefore, the Governor was under an obligation to the
Congress. The suggestion clearly was that the near relation of the Governor had
secured employment with the help of the Congress Party. After the aforesaid
publication came to the notice of the Governor he had a translation made of it
in English and he sent that translation to the Government of Orissa for taking
such action as may be necessary. Shortly thereafter the Home Secretary to the
Government of Orissa passed an order in the following terms :
"Whereas the Matrubhumi' an Oriya Daily
published from Cuttack in its daily edition 450 dated May 31, 1958, knowing or
having reason to believe that such a matter is defamatory of the Governor of
Orissa, published a statement alleged to have been made by Dr. Ram Manohar
Lohia to the effect that the Governor of Orissa in consideration of his
Obligations towards the Congress Government in securing a well paid job for a
near relation of his in an Oil Company in Assam favoured the Congress Party to
be in power in the last political crisis in Orissa.
Whereas the said statement reflects on the
conduct of the Governor of Orissa in the discharge of his public function, it
constitutes an offence committed by the Editor and publisher of the Matrubhumi
punishable under section 501, Whereas the Secretary to the Home Department has
been authorised by the Governor in this behalf under Section 198-B, (3)(a) to
accord sanction to a complaint being made by the Public Prosecutor, Cuttack,
against the Editor and Publisher of the said newspaper, Matrubhumi for the
aforesaid offence-.
Now, therefore, in pursuance of the aforesaid
authority 1, Shri P. N. Mohanti, Secretary to the Government of Orissa in the
Home Department do hereby accord sanction for the aforesaid comment being made
by the Public Prosecutor." This order purports to be a sanction under s.
198-B of the Code of Criminal Procedure for the prosecution of the appellants
for offences under s. 500 and s. 501, 1. P. C.
respectively. In pursuance of this sanction
the Public Prosecutor lodged a complaint on the basis of which the appellants
were tried by 451 the Sessions judge, Cuttack. The learned Sessions judge held
both the appellants guilty of the offences with which they were charged and
convicted them of those offences and sentenced them to pay certain fines, as
already stated.
Their appeals against their conviction and
sentences were dismissed by the High Court.
Section 198 of the Code prohibits a court
from taking cognizance of certain offences, including those under ss. 500 and
501, 1. P. C. except upon a complaint made by a person aggrieved by such an
offence. Therefore, the normal procedure is that where a person complains of
being defamed he himself has to make a complaint to the court in order to make
it possible for the court to take cognizance of the offence complained of. When
the Code was amended by Act 26 of 1955, among other provisions, a new one, s.
1998-B was added to it. The relevant part of that section runs thus :
"198-B (1).-Notwithstanding anything
contained in this Code, when any offence falling under Chapter XXI of the
Indian Penal Code (other than the offence of defamation by spoken words) is
alleged to have been committed against the President, or the Vice-President, or
the Governor or Rajpramukh of a State, or a Minister, or any other public
servant employed in connection with the affairs of the union or of a State, in
respect of his conduct in the discharge of his public functions, a Court of
Session may take cognizance of such offence, without the accused being
committed to it for trial, upon a complaint in writing madeby the Public
Prosecutor.
(3) No complaint under sub-section (1) shall
be made by the Public Prosecutor except with 452 the previous sanction,(a) in
the case of the President or the Vice-President or the Governor of a State of
any Secretary to the Government authorised by him in this behalf;
(b) in the case of a 'Minister of the Central
Government or of a State Government, of the Secretary to the Council of
Ministers, if any, or of any Secretary to the Government authorised in this'
behalf by the Government concerned;
(c) in the case of any other public servant
employed in connection with the affairs of the Union or of a State of the
Government concerned." This provision was enacted for the specific purpose
of allowing the State to prosecute a person for defamation of a high dignitary
of a State or a public servant, when such defamation is directed against the
conduct of such person in the discharge of his public functions. It is common
ground that the alleged defamation of the Governor Mr. Sukthankar does concern
his conduct in the discharge of his public functions and consequently the
Public Prosecutor could file a complaint. But the provisions of sub-s. (3) make
it clear that the Public Prosecutor cannot lodge a complaint without, in the
case of a Governor, the previous sanction of a Secretary to the Government
authorised by the Governor in this behalf. We have already quoted the sanction
given by the Home Secretary. But that sanction will avail provided the Home
Secretary had been previously authorised to accord a sanction to the lodging of
a complaint. In order to prove authorisation by the Governor reliance is placed
on behalf of the respondent State firstly on the evidence of the Governor
himself. It seems to us, 453 however, that the evidence of the Governor instead
of supporting the contention, goes directly against it. Mr. Sukthankar has
stated in his evidence categorically : "I did not ask the Government to
start this case. They did so after consultation with me. I sent the translation
to the Government telling them that the facts were untrue and to take such
action as deemed proper. I did not direct Government to start a case for
defamation. I gave no specific written directions to Government to start this
case." What s. 198-B (3) (a) requires is that the Governor should
authorise a Secretary to lodge a complaint. Mr. Sukthankar did not even purport
to deal with the Secretary but with the Government. Further, he did not ask the
Government to lodge a complaint but on the other hand left it to the Government
to decide in their discretion whether a complaint should be lodged or not. We
are, therefore, unable to hold from the evidence of the Governor that he in
fact authorised even the Government to lodge a complaint.
The mere circumstance that the Government
held consultation with the Governor before filing the complaint does not amount
to authorisation of a Secretary by the Governor. It seems plain that there are
two restrictions placed upon the power of the public Prosecutor to lodge a
complaint with respect to defamation of a high dignitary such as the Governor.
The first is that he must have been given a sanction to lodge such complaint
and the other is that the sanction should be accorded by a Secretary to the
Government, authorised by the Governor in this behalf. This means that the
Governor has first to consider for himself whether the alleged defamatory
statement is of a kind of which he should take notice and seek to vindicate
himself or whether the defamatory statement being of a trivial nature or having
been made by an irresponsible person or for some other reason should be
ignored. This decision has to be taken by the Governor himself and as we read
the section, we are unable to say that he can leave it to 454 some other person
or an authority like the Government to decide whether a complaint should be
lodged or not. It was, however, urged by Mr. Prem who appears for the State
that it was enough for the Governor to say that he had no objection to the
lodging of a complaint and that Mr. Sukthankar's statement that he left it to
the Government to decide what action should be taken and that the Government
had consulted him before it decided to take action, therefore, meets the
requirements of the provisions of cl. (0) of sub-s. (3) of' s. 198-B, Code of
Criminal Procedure. He points out that since a sanction has to be given by a
Secretary it is the Secretary who has to apply his mind to all the relevant
facts and come to a decision whether it is in the public interest to lodge a
complaint and if he finds that it is in the public interest that a complaint be
lodged then to accord his sanction. The Secretary, as he rightly points out,
does not merely perform a ministerial act in according the sanction and,
therefore, it is enough that the Governor says that he leaves the matter to the
Government meaning thereby that he would have no objection to the lodging of a
complaint. While it is no doubt true that it is the sanctioning authority which
has to apply its mind to the facts of a case before according sanction and that
in forming the function of according the sanction in Secretary does not merely
perform a ministerial act, we are clear that initiative has to be taken by the
Governor by indicating unequivocally that he desires action to be taken and
that the authorisation by him is not an idle formality. So when the Governor
says, as Mr. Sukthankar has done in this case, that he leaves it to the
Government to take such action as it thinks fit the inference must be that he
is personally indifferent whether a complaint is lodged or not. When such is
the attitude of-the Governor it would be futile to suggest that he has
authorised the lodging of a complaint.
It is no doubt possible that even though the
Governor may have authorised sanction 455 to be accorded to the lodging of a complaint
the Secretary may think otherwise and decline to sanction the lodging of a
complaint and that it can be said that in a sense the Secretary sits in
judgment over the views expressed by the Governor which is implicit in an
authorisation made by him.
In our opinion the legislature had good
reasons for leaving it to the Secretary to decide whether the lodging of a
complaint by the Public Prosecutor should be sanctioned or not. The Secretary
is expected to look at the question objectively and decide whether it is in the
public interest to take notice of the alleged defamatory statement and
prosecute the person who made it. A person who is directly aggrieved by the
statement may not be in a position to take an objective view of an alleged
defamatory statement and since the expenses for the prosecution will have to be
borne by the State the legislature evidently felt that there was a good reason
for leaving the final decision to a third person rather than with the aggrieved
person. All the same the initiative to lodge a complaint must be taken by the
Governor himself and unless he has, in pursuance of his decision to lodge a
complaint authorised a Secretary to sanction its being lodged the Secretary
gets no power to accord his sanction. This authorisation by him is as important
as the sanction of the Secretary.
The High Court, however, has held, that
authorisation by the Governor is established by the evidence of P.W. 2, P.K. Sarangi.
This person is an Assistant in the Home Department of the Orissa Secretariat
who had placed the papers concerning the sanction before his superior officer
in the Home Department and who claims to be familiar with the papers in the
file. What he has stated in his examination--in-chief is that the Home
Secretary had been authorised by the Governor to sanction the prosecution' When
he was asked in his cross-examination whether the authorisation was on the file
he stated 456 that he was not in a position to say whether it was on the file
or not. It appears that he had brought the file "'showing the
authorisation of the Governor" but he did not produce it as he had not
been permitted to produce it.
Whether sanction was authorised by the
Governor could be proved either from the evidence of the Governor himself or
from any writing emanating from the Governor in which the Governor has said
that he has authorised the lodging of a complaint. From the evidence of the
Governor which we have already quoted it would be clear that there was no
express authorisation of the Secretary by the Governor. The mere fact that
Sarangi says that sanction to the prosecution was authorised by the Governor
means nothing as he has not produced the file showing the Governor's
authorisation. In the circumstances we must hold that the High Court was in
error in reading the evidence of P.W. 2, Sarangi, as proving authorisation by
the Governor. The High Court has further relied upon the evidence of the Deputy
Secretary, Home Department. This evidence is not included in the paper book and
in our opinion it has been rightly excluded. The evidence was given by the
Deputy Secretary not at the trial but in a revision petition before the High
Court. This revision petition was preferred by the appellants challenging the
validity of the sanction. It appears that in that petition the appellants had
contended that the sanction had not been authorised by the Governor. The High
Court in its discretion allowed additional evidence to be led to. prove the
authorisation and one of the witnesses examined before the High Court was the
Deputy Secretary. We are unable to appreciate how evidence tendered before
another court and in other proceedings could be treated as evidence at the
trial. Moreover, that evidence does not appear to have been put to the
appellants when they were examined under s. 342, Cr. P. C. In these
circumstances we must hold that 457 the High Court could not place any reliance
on the evidence of the Deputy Secretary.
Finally the contention of Mr. Prem is that
there was a general authorisation by the Governor in the year 1956 and that
authorisation was sufficient. The authorisation relied upon by him is in the
following terms :
"In exercise of the powers conferred by
clause (a) of subsection (3) of section 198-B of the Code of Criminal
Procedure, 1898 (V of 1898), the Governor hereby authorises the Secretary to
Government of Orissa in the Home Department to accord previous sanction to the
making of complaints under sub-section (1) of the said section in case where
such complaints are made of an offence alleged to have been committed against
the Governor." The question is whether S. 198-B (3) (a) contemplates a
general authorisation. In support of his contention he first relies upon the
decision in Gour Chandra Bout v. Public Prosecutor (1). That in fact is the decision
of the High Court in the Revision Petition preferred by these very petitioners
in which they challenged the validity of the sanction. The learned Chief
justice, who decided the application has, however, not decided the point as to
whether a general authorisation of the kind contained in the notification
quoted above meets the requirements of the law.
Hedismissed the revision petition on the
basis of the additional evidence recorded by him.
It has to be borne in mind that sub-s. (3) of
S. 198-B speaks of a complaint under sub-s. (1) and the complaint under sub-S.
(1) is a specific complaint in writing made by the Public Prosecutor.
Therefore, reading the two subsections together it would be clear that the
authorisation by the Governor is of (1) A.I.R. 1960 Orissa 116.
458 the sanction with respect to a specific
complaint. A general sanction can, therefore, not be of any avail. The High
Court has relied upon s. 14 of the General Clauses Act in support of its
conclusion that a general authorisation would meet the requirements of cl. (a)
of sub-s. (3) of s.
198-B, Cr.P C. That section deals with the
exercise of a power successively and has no relevance to the question whether
the power claimed can at all be conferred. We may further point out that cl.
(a) contemplates authorisation by the Governor defamed and, therefore, an
authorisation of the type which we have here made by someone else in 1956 can
be of no avail. Indeed, considering the nature 'of the offence it is difficult
to appreciate how an authorisation in advance to sanction the making of a
complaint of defamation can at all be given. If such authorisation were good in
law, the Secretary authorised can suo motu sanction the making of a complaint,
without reference to the Governor.
This may lead to the astounding result that
even where a high dignitary wanted to ignore a defamatory statement because it
is beneath notice or because it may lead to embarrassment to him the Secretary
can set the law in motion and either make a mountain out of a mole hill or
embarrass the Governor himself. Such a construction would defeat the very
object which the legislature had in view when it enacted the provision. We,
therefore, reject the argument of learned counsel and hold that the sanction
given by the Secretary, Home Department was not duly authorised by the
Governor.
Upon this view it is not necessary to
consider some other points raised by learned counsel for the appellants. We,
therefore, allow the appeal and set aside the conviction and sentences passed
on each of the appellants and direct that the fines if paid, be refunded.
Appeal Allowed.
Back
