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PETITIONER: GOUR CHANDRA ROUT & ANOTHER

       Vs.

RESPONDENT: THE PUBLIC PROSECUTOR, CUTTACK

DATE OF JUDGMENT: 23/11/1962

BENCH: MUDHOLKAR, J.R. BENCH: 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   General- Authorisation,   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 pur. ported 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

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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.

JUDGMENT: 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

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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 afore- said 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 made- by 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

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             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 fun- ctions  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

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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

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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  exami- nation--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  sub- section  (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

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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. He-  dismissed  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  sub- sections  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.  459