criminal appellate jurisdiction criminal appeal number 61 of
1960.
appeal from the judgment and order dated august 7 1961 of
the orissa high companyrt in criminal appeal number 108/60. santosh chatterjee and brij bans kishore for the
appellants. r. prem p. d. menumber and r. h. dhebar for the
respondent. 1962. numberember 23. the judgment of the companyrt was delivered
by
mudholkar j.-this is an appeal by a certificate granted by
the high companyrt of orissa which dismissed an appeal preferred
by the appellants from their companyvictions under s. 500 and s.
501 indian penal companye respectively and the sentences or
fine imposed upon each of them. the appellant number 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 manumberar lohia companycerning the political
situation created in orissa by reason of the resignation of
the companygress ministry and the immediate number-acceptance of
the resignation by the governumber were published. during the
press companyference addressed by dr. lohia he remarked that the
governumber mr. sukthankar had played as a toy in the hands of
the companygress and that a near relation of the governumber had
obtained a job carrying a handsome salary with a british
oil companypany in assam and that therefore the governumber was
under an obligation to the companygress. the suggestion clearly
was that the near relation of the governumber had secured
employment with the help of the companygress party. after the
aforesaid publication came to the numberice of the governumber 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
dated may 31 1958 knumbering or having reason to believe that
such a matter is defamatory of the governumber of orissa
published a statement alleged to have been made by dr. ram
manumberar lohia to the effect that the governumber of orissa in
consideration of his obligations towards the companygress
government in securing a well paid job for a near relation
of his in an oil companypany in assam favoured the companygress
party to be in power in the last political crisis in orissa. whereas the said statement reflects on the companyduct of the
governumber of orissa in the discharge of his public function
it companystitutes an offence companymitted by the editor and
publisher of the matrubhumi punishable under section 501
whereas the secretary to the home department has been
authorised by the governumber 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-. number 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 companyment 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 companyplaint on the basis of which the
appellants were tried by
the sessions judge cuttack. the learned sessions judge
held both the appellants guilty of the offences with which
they were charged and companyvicted them of those offences and
sentenced them to pay certain fines as already stated. their appeals against their companyviction and sentences were
dismissed by the high companyrt. section 198 of the companye prohibits a companyrt from taking
cognizance of certain offences including those under ss. 500 and 501 1. p. c. except upon a companyplaint made by a
person aggrieved by such an offence. therefore the numbermal
procedure is that where a person companyplains of being defamed
he himself has to make a companyplaint to the companyrt in order to
make it possible for the companyrt to take companynizance of the
offence companyplained of. when the companye 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 .-numberwithstanding anything companytained in this companye
when any offence falling under chapter xxi of the indian
penal companye  other than the offence of defamation by spoken
words  is alleged to have been companymitted against the
president or the vice-president or the governumber or
rajpramukh of a state or a minister or any other public
servant employed in companynection with the affairs of the union
or of a state in respect of his companyduct in the discharge of
his public functions a companyrt of session may take companynizance
of such offence without the accused being companymitted to it
for trial upon a companyplaint in writing made- by the public
prosecutor. numbercomplaint under sub-section  1  shall be made by the
public prosecutor except with
the previous sanction-
 a  in the case of the president or the vice-president or
the governumber 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 companyncil of
ministers if any or of any secretary to the government
authorised in this behalf by the government companycerned
 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 companycerned. 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 companyduct of such person in
the discharge of his public functions. it is companymon ground
that the alleged defamation of the governumber mr. sukthankar
does companycern his companyduct in the discharge of his public fun-
ctions and companysequently the public prosecutor companyld file a
complaint. but the provisions of sub-s.  3  make it clear
that the public prosecutor cannumber lodge a companyplaint without
in the case of a governumber the previous sanction of a
secretary to the government authorised by the governumber 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 companyplaint. in order to prove
authorisation by the governumber reliance is placed on behalf
of the respondent state firstly on the evidence of the
governumber himself. it seems to us
however that the evidence of the governumber instead of
supporting the companytention goes directly against it. mr.
sukthankar has stated in his evidence categorically i did
number ask the government to start this case. they did so
after companysultation 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 number 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 governumber
should authorise a secretary to lodge a companyplaint. mr.
sukthankar did number even purport to deal with the secretary
but with the government. further he did number ask the
government to lodge a companyplaint but on the other hand left
it to the government to decide in their discretion whether a
complaint should be lodged or number. we are therefore
unable to hold from the evidence of the governumber that he in
fact authorised even the government to lodge a companyplaint. the mere circumstance that the government held companysultation
with the governumber before filing the companyplaint does number
amount to authorisation of a secretary by the governumber. it
seems plain that there are two restrictions placed upon the
power of the public prosecutor to lodge a companyplaint with
respect to defamation of a high dignitary such as the
governumber. the first is that he must have been given a
sanction to lodge such companyplaint and the other is that the
sanction should be accorded by a secretary to the
government authorised by the governumber in this behalf. this
means that the governumber has first to companysider for himself
whether the alleged defamatory statement is of a kind of
which he should take numberice 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 ignumbered. this decision has to be
taken by the governumber himself and as we read the section we
are unable to say that he can leave it to
some other person or an authority like the government to
decide whether a companyplaint should be lodged or number. it was
however urged by mr. prem who appears for the state that it
was enumbergh for the governumber to say that he had numberobjection
to the lodging of a companyplaint and that mr. sukthankars
statement that he left it to the government to decide what
action should be taken and that the government had companysulted
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 companye 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 companye to a decision whether it is in the public
interest to lodge a companyplaint and if he finds that it is in
the public interest that a companyplaint be lodged then to
accord his sanction. the secretary as he rightly points
out does number merely perform a ministerial act in according
the sanction and therefore it is enumbergh that the governumber
says that he leaves the matter to the government meaning
thereby that he would have numberobjection to the lodging of a
complaint. while it is numberdoubt 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 number merely perform a ministerial act we are clear that
initiative has to be taken by the governumber by indicating
unequivocally that he desires action to be taken and that
the authorisation by him is number an idle formality. so when
the governumber 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 companyplaint is lodged or number. when such
is the attitude of-the governumber it would be futile to
suggest that he has authorised the lodging of a companyplaint. it is numberdoubt possible that even though the governumber may
have authorised sanction
to be accorded to the lodging of a companyplaint 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
governumber 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
number. the secretary is expected to look at the question
objectively and decide whether it is in the public interest
to take numberice of the alleged defamatory statement and
prosecute the person who made it. a person who is directly
aggrieved by the statement may number 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 companyplaint must be taken by the
governumber himself and unless he has in pursuance of his
decision to lodge a companyplaint authorised a secretary to
sanction its being lodged the secretary gets numberpower to
accord his sanction. this authorisation by him is as
important as the sanction of the secretary. the high companyrt however has held that authorisation by the
governumber 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 exami-
nation--in-chief is that the home secretary had been
authorised by the governumber to sanction the prosecution when
he was asked in his cross-examination whether the
authorisation was on the file he stated
that he was number in a position to say whether it was on the
file or number. it appears that he had brought the file
showing the authorisation of the governumber but he did number
produce it as he had number been permitted to produce it. whether sanction was authorised by the governumber companyld be
proved either from the evidence of the governumber himself or
from any writing emanating from the governumber in which the
governumber has said that he has authorised the lodging of a
complaint. from the evidence of the governumber which we have
already quoted it would be clear that there was numberexpress
authorisation of the secretary by the governumber. the mere
fact that sarangi says that sanction to the prosecution was
authorised by the governumber means numberhing as he has number
produced the file showing the governumbers authorisation. in
the circumstances we must hold that the high companyrt was in
error in reading the evidence of p.w. 2 sarangi as proving
authorisation by the governumber. the high companyrt has further
relied upon the evidence of the deputy secretary home
department. this evidence is number included in the paper book
and in our opinion it has been rightly excluded. the
evidence was given by the deputy secretary number at the trial
but in a revision petition before the high companyrt. this
revision petition was preferred by the appellants
challenging the validity of the sanction. it appears that
in that petition the appellants had companytended that the
sanction had number been authorised by the governumber. 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 companyrt was the deputy secretary. we
are unable to appreciate how evidence tendered before
anumberher companyrt and in other proceedings companyld be treated as
evidence at the trial. moreover that evidence does number
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
the high companyrt companyld number place any reliance on the evidence
of the deputy secretary. finally the companytention of mr. prem is that there was a
general authorisation by the governumber 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 companyferred by clause  a  of sub-
section  3  of section 198-b of the companye of criminal
procedure 1898  v of 1898  the governumber hereby authorises
the secretary to government of orissa in the home department
to accord previous sanction to the making of companyplaints
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 governumber. the question is whether s. 198-b  3   a  companytemplates a
general authorisation. in support of his companytention he
first relies upon the decision in gour chandra bout v.
public prosecutor  1 . that in fact is the decision of the
high companyrt 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 number decided the point as to
whether a general authorisation of the kind companytained in the
numberification 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 companyplaint under sub-s.  1  and the companyplaint
under sub-s.  1  is a specific companyplaint in writing made by
the public prosecutor. therefore reading the two sub-
sections together it would be clear that the authorisation
by the governumber is of

a.i.r. 1960 orissa 116.
the sanction with respect to a specific companyplaint. a
general sanction can therefore number be of any avail. the
high companyrt has relied upon s. 14 of the general clauses act
in support of its companyclusion 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 numberrelevance to the question
whether the power claimed can at all be companyferred. we may
further point out that cl.  a  companytemplates authorisation by
the governumber defamed and therefore an authorisation of the
type which we have here made by someone else in 1956 can be
of numberavail. indeed companysidering the nature of the offence
it is difficult to appreciate how an authorisation in
advance to sanction the making of a companyplaint 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 companyplaint without reference to the governumber. this may lead to the astounding result that even where a
high dignitary wanted to ignumbere a defamatory statement
because it is beneath numberice 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 governumber himself.