S. Barman, J.
1. The Editor and Printer and Publisher of the 'Matrubhumi',--an Oriya Daily newspaper published from their office in Cuttack Town,-- are the appellants in the Criminal Appeal against an order of conviction and sentence passed by the learned Sessions Judge, Cuttack Dhenkanal on a certain charge of defamation, alleged to have been committed against the Governor of Orissa, Sri Y.N. Sukthanker in respect of his conduct in the discharge of his public functions, during the ministerial crisis in the State in May, 1958. The Criminal Revision,--which was directed to be heard analogously with the Criminal Appeal,--was filed by the State of Orissa for enhancement of the sentences on the said Editor and Printer and Publisher, who are opposite parties in the Criminal Revision.
2. The genesis of the prosecution of the accused appellants herein is the alleged defamatory statement published in the news item of the 'Matrubhumi' on May 31, 1958 under the caption. 'Bharatar Rajnaitik Dala Socialist Netanka Samalo-chana' (criticism by the leader of Socialist Party against the different political parties of India), during the ministerial crisis in May 1958; the publication was in relation to a certain statement alleged to have been made by Dr. Ram Manohar Lohia, at a Press Conference, while giving a short note about the activities of the different political parties, in Cuttack on May 30, 1958. The following is the English Translation of the impugned publication:
'When his (referring to Dr. Ram Manohar Lohia) attention was drawn to the last political crisis which prevailed in Orissa, he replied that the Congress is a new oppressive party and those who desire to get into power by pushing the former aside (i.e. Ganatantra Parishad) are old oppressors. So, while expressing his personal views he said that the single member of our party should remain neutral under the circumstances. While his attention was drawn to the activities of the Governor of Orissa, he said Governor Sukthanker is a mere toy in the hands of the Congress. A close relation of this Governor has got an appointment in theAssam British Oil Co., on a fat salary, through the endeavours of the Congress Government. How could the Governor be so ungrateful by not showing favour towards the Congress Party?'
The prosecution case was that the accused-appellants printed and published the said matters, knowing or having reason to believe that the same was defamatory and thereby committed an offence punishable under Sections 500 and 501 Indian Penal Code. In pursuance of Section 198-B (3) (a), Code of Criminal Procedure, a complaint was made by the public Prosecutor with the previous sanction of the Home Secretary of the Government of Orissa authorised by the Governor in this behalf.
The defence,--taken on behalf of the accused appellants,--was that their was neither proper authorisation by the Governor nor previous sanction by the Secretary to the Government for a complaint to be made by the Public Prosecutor, as required by law; that, on merits, the statements in the impugned publication were true, made in good faith and for the public good and the accused appellants pleaded justification.
3. The learned Sessions Judge held that the accused persons intended to harm the reputation of the Governor, because no other news-paper, not even the 'Ganatantra', included the said impugned statement in their publication, while giving the gist of Dr. Ram Manohar Lohia's Press Conference; and accordingly for the reasons discussed in his judgment the learned Sessions Judge passed the order of conviction and sentence on the appellants as aforesaid.
4. The main points,--for consideration in this appeal,--are:
A. Whether or not the prosecution was maintainable as in compliance with the provisions of Section 198-B, Code of Criminal Procedure, relating to prosecution for defamation against public servants in respect of their conduct in the discharge of public functions:
B. On merits--whether the accused appellantscan claim the benefit of any of the variousexceptions to Section 499, Indian PenalCode, that is to say,
(i) Whether the imputations contained in thesaid publication were true:
(ii) Whether the accused appellants published and printed the said imputations in good faith and for the public good:
(iii) Whether the said imputations exceeded thelimits of fair comment:
(iv) Whether the accused appellants were justified in publishing and printing the said imputations:
5. On the question of maintainability of the prosecution,--involving interpretation of Section 198-B, Criminal Procedure Code, the point was raised in Criminal Revision No. 178 of 1959, filed by the accused appellants herein, where my lord the Chief Justice held that proper authorisation had been made as required by law, and that there was no defect in the sanction order which will have the effect of rendering the trial itself void ab initio; but the order, by which the accused appellants feltaggrieved, having been an interlocutory order during the pendency of a criminal trial and not a final order, the question was left to be taken up after the trial was concluded in the court of tha learned Sessions Judge, if it eventually resulted in the conviction of the accused appellants; it was on this ground that an application for leave to appeal to the Supreme Court from the said decision in the said Criminal Revision No. 178 of 1959 was rejected. On this legal aspect also, the learned Sessions Judge decided against the accused appellants, holding to the effect that there was authorisation and sanction as required by law.
The point of maintainability was also argued, at length, in this appeal. The questions involved are broadly covered by the decision of this Court in the said Criminal Revision No. 178 of 1959,--on full discussion of the rival contentions of the parties urged in respect thereof, with which I agree,
6. As regards the requisite authorisation by the Governor, a point was raised--whether the Orissa Government Notification dated July 18, 1956, by which a general authorisation by the Governorwas given to the Home Secretary to accord previous sanction to making of complaints under Section 193-B, Criminal Procedure Code in respect of offences committed against the Governor,--was sufficient toy virtue of the enabling provisions of Section 14 General Clauses Act. Assuming, without deciding, that general authorisation is not sufficient compliance with Section 198-B (3) (a), Code of Criminal Procedure,--in the present case there is sufficient evidence of special authorisation by the Governor Indeed, the Governor himself, as P. W. 1, said that he sent the translation of the impugned passage to the Government telling them that the facts were untrue and to take such action as deemed proper; he further added that he did not direct Government to start a case for defamation and gave no specific written directions to Government to start this case.
Indeed, Section 198-B does not contemplate that the Governor should authorise the Secretary, to start the case, because what is contemplated by the section is that,--after the Secretary is authorised by the Governor to give sanction for the making of the complaint by the Public Prosecutor,--it is for the Secretary to examine the position and use his discretion whether or not a defamation case should be started. It cannot be said that, in a case falling under Clause (a) of Section 198-B (3) the sanctioning authority is really the Governor concerned and that the Secretary acts as a conduit; this is a construction which the language of the Section can hardly bear, for, what it says is that there must be the previous sanction of the Secretary; the sanction is the sanction of the Secretary and not of the Governor, and all that is required of the Governor or the Governor is competent to do, is to authorise the Secretary to give the sanction and nothing more.
In the present case, this is exactly what theGovernor did and,--as he rightly said in his evidence--he did not ask Government to start this case. The Prosecution case, on the question of authorisation, is further supported by the evidenceof Grade I Assistant, Special Section (P. W. 2) and the evidence of the Deputy Secretary, Home Department, Government of Orissa who said that sometime in June 1958 the Governor gave his approval to the suggestion of the Legal Remembrancer that the Home Secretary may be authorised to sanction the prosecution; the Deputy Secretary also said that the said authorisation was long before the sanction order was actually issued by the then Home Secretary.
It was strongly urged,--on behalf of the accused appellants,--that the evidence of the Deputy Secretary, Home Department in this Court in the said Criminal Revision No. 178 of 1959 is not admissible under Section 33, Evidence Act; that the Deputy Secretary should have been again called to depose before the learned Sessions Judge. The argument was, however, repelled by the learned Government Advocate, submitting that in the present case there is no question of subsequent judicial proceeding nor of later stage of the same judicial proceeding; in fact, it is evidence taken in the same proceedings; the position, on facts, is this: Cognizance of the defamation case was taken on October 11, 1958; the evidence of P. Ws. 1 and 2 was taken, by the learned Sessions Judge in February, 1959 and the evidence of P. W. 3 in April 1959; thereafter on May, 1959 the accused appellants were charged.
In course of the trial before the learned Session Judge, on June 29, 1959, the accused appellant filed the said Criminal Revision No. 178 of 1959 in this Court. On December 7, 1959, evidence of the said Deputy Secretary was taken before Court in the said Criminal Revision, in which ultimately the judgment was delivered on December 16, 1959. It is thus clear that the evidence of the Deputy Secretary was taken by this court itself by way of taking additional evidence, which this Court,--in its Criminal Revisional jurisdiction,--had power to take, by virtue of Section 439 read with Section 428, Criminal Procedure Code. I, therefore, hold that the evidence of the Deputy Secretary is admissible.
That apart, the order of sanction given by the Home Secretary dated September 29, 1958 (Ext. 1) itself mentions that the Home Secretary had been authorised by the Governor in this behalf under Section 198-B (a) to accord sanction to the complaint to be made by the Public Prosecutor against the accused appellants for the offence mentioned in the said order.
7. Now, as regards previous sanction, the sanction Order of the Home Secretary dated September 29, 1958 is quoted as follows:
'Sanction under Section 198-B of the Code of Criminal Procedure, 1898.
Whereas 'the Matrubhumi' an Oria Daily published from Cuttack in its daily edition dated the 31st May 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 functions it constitutes an offence committed by the Editor and Publisher of the Matrubhumi punishable under Section 501, I. P. C.
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, I Shri P.N. Mohanty, Secretary to the Government of Orissa in the Home Department do hereby accord sanction for the aforesaid complaint being made by the Public Prosecutor.
Sd. P.N. Mohanty. 29-9-58
SECRETARY TO THE GOVT. OF ORISSA
It was contended,--on behalf of the accused appellants,--that the Home Secretary had not sanctioned the complaint that was filed. Their point is that the Home Secretary gave his sanction for the complaint to be filed by the public Prosecutor by his order September 29, 1958, whereas the complaint itself was filed thereafter on October 8, 1958, that is to say, after the sanction of the Home Secretary. Therefore, according to the defence case, the Home Secretary cannot be said to have sanctioned the complaint itself in his sanction order dated September 29, 1958. In further support of this point it was urged that one of the sentences (as translated into English) in the offending passage that 'Governor Sukthanker is a mere toy in the hands of the Congress' has not been referred to in the sanction order issued by the Home Secretary on September 29, 1958; it was urged that the attention of the Home Secretary was not expressly drawn to this portion of the passage and that he has not given sanction to the filing of complaint against the appellants so far as this portion of the passage was concerned; the appellants relied on the observations of the Privy Council in the case of Gokulchand Dwarkadas v. The King, AIR 1948 PC 82 to the effect that sanction should be given in respect of 'facts constituting the offence' charged and where it is not clear that the attention of the sanctioning authority was specially drawn to such facts the sanction order would be invalid.
All these arguments, however, overlook the clear provision to the effect that the Secretary's 'previous sanction' is a condition precedent to the making of the complaint by the Public Prosecutor; the word 'previous' preceding the Word 'sanction' in Section 198-B (3) is significant; it means that the Secretary is only to sanction the making of the complaint by the Public Prosecutor; then it is for the Public Prosecutor to decide what the complaint petition should contain; it is not for the Secretary to mention in his sanction order all the details on which the complaint is to be made by the Public Prosecutor. In the present case, the Home Secretary in the sanction order stated only so much of the gist of the alleged defamatory matter, as it is just necessary for giving the sanction and nothing more; if the Home Secretary sought to sanction the complaint itself, it would have been amounted to interference with the discretion of the Public Prosecutor as regards the details of the alleged defamatory matter, which the complaint petition should state.
Although the Home Secretary in the sanction order mentioned only such facts as he thought necessary for giving sanction, there is no doubt that the Home Secretary's attention was drawn to all the facts constituting the offence, including the portions omitted in the sanction order. In my opinion, the omission of any reference in the Home Secretary's sanction order to the portion of the passage,--in which the Governor was described as a ''toy' in the hand of the Congress,' would not, in any way, affect the validity of the prosecution of the accused appellants for using those expressions the prosecution was valid for using the said expression; in other words, the prosecution was not bound to confine itself only to the terms of the Home Secretary's sanction order.
8. Thus, in view of my finding,--that there was the requisite authorisation by the Governor as also the previous sanction of the Home Secretary for the making of the complaint by the Public Prosecutor, -- there is no merit in the accused appellants' contention that the prosecution is not maintainable as not having been in compliance with Section 198-B (3)(a) Code of Criminal Procedure.
9. This leads me to the consideration of thecase, on merits. It was after obtaining the HomeSecretary's previous sanction,--which was condition precedent,--that the Public Prosecutor madethe complaint, the relevant portion of which' is,--for convenience of ready reference, quoted asfollows:
'2. In the issue of the Newspaper-DailyMatrubhumi dated the 31st May, 1958,--the accusedpersons maliciously published the following statement alleged to have been made by Dr. Rammanohar Lohia on 30-5-58 at Cuttack when hisattention was drawn to the critical political situation alleged to have arisen in Orissa at or aboutthat time:
The above statement is an English translation of the Oriya writings published in the paper.
3. The imputations contained in the above statement are directed against the integrity and impartiality of the Governor in discharge of his official duties;
4. The allegations made in the above statement are absolutely false.
5. The statement was published with the intention of harming or with the knowledge or reason to believe that the same will harm the reputation of the Governor concerning whom it was made.
6: The statement was published without due care and caution and without making any attempt at verification before publication and it was not published in good faith.
7. The accounts published in various other daily papers about the Press Conference of Dr. Ram Manohar Lohia on 30th May 1958, at Cuttack did not contain the impugned statement.'
In defence, the accused appellants,--in their statement under Section 364, Criminal Procedure Code, took the stand that the imputation published in their newspaper 'Matrubhumi' is true, and that they do not agree with the view of the Governor that he acted within his constitutional limits during that crisis; that in the said publication, they did not assert any particular Oil Company as such in Assam; in other words they did not state, that it was the Assam Oil Company as such; that in fact Andrew Yule Company (where the Governor's son was employed from 1952 to June 1957) is also a British Company dealing in oils and that fact has been admitted by the Governor; the accused appellants denied that they intended to harm the reputation of the Governor by publishing such imputation.
10. Section 499 of Indian Penal Code provides that whoever by words either spoken or intended to be read, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases mentioned in the section, to defame that person. It was argued, on behalf of the accused appellants herein,--that if there was any defamation at all, it was not of the Governor but of his son, and therefore the Governor could not make any grievance of it. The argument, however, has no substance because, the offending passages are prima facie grossly defamatory of the Governor himself in respect of his conduct in the discharge of his public functions, unless the accused appellants can claim the benefit of any of the various exceptions to Section 499, namely, truth, good faith, public good, fair comment and accordingly justification.
11. The plea of veritas (truth) was openly and plainly made by the accused appellants, defending the publication as true. Therefore, under the first exception, the only question, apart from the question of public good, that could arise was whether what had been published was true pr not.
On this point, the Governor, in his evidence said that the statement 'a near relative of his has got a job in the British Oil Company in Assam on a fat salary through the Congress Government' is not at all correct; in fact, he said that no near relation of his ever got any job in the British Oil Company, Assam, to his knowledge; that neither the Congress Government nor anyone connected with Congress did anything at any time to secure a job for any relation of his in the British Oil Company, Assam. It is, however, true that the Governor's son was in Andew Yule and Co., a British Firm in Calcutta from 1952 (end) to June 1957; the Gbvernor's son left Andrew Yule and Co. and is employed in Associated Cement Company Ltd., Bombay, since June 1957. The Governor was corroborated by Mr. Maclachalan, General Manager, Assam Oil Company (P. W. 3), who, in his evidence, said that to his knowledge there is or wasno relation of the Governor serving in Assam Oil Company or in Burma Oil Company India trading Ltd. associated with Assam Oil Company; that he did not appoint any officer on the recommendation of the Congress Government; that from the list of Officers of the said Companies serving till now, he was able to say that no relation of the Governor Sri Sukthanker is serving the Companies.
It was, however, argued, on behalf of the accused appellants, that the said statement in the offending passage was substantially true, in that the accused appellants did not assert any particular Oil Company in Assam, and that in fact Andrew Yule Company is also a British Company dealing in oils. Even so, there is nothing to show that Congress Government or Congress had anything to do with getting for the Governor's son the employment in Andrew Yule and Company, Calcutta in 1952 when the Governor Sri Sukthanker was the Cabinet Secretary. So I hold that the said statement was not true.
12. As regards the defence of alleged truth of the sentence in the offending passage that ''Rajyapal' (Governor) Sukthanker plays as a toy in the hands of the Congress' it is not within the scope of this appeal to give any decision on the political aspect of the situation, which is outside the domain of a court of law. However, having regard to the constitutional position of the Governor, the Court has to decide in the present context, the legal aspect as to whether or not the Governor,--in his discretion, allowed under our Constitution,--was justified in not immediately accepting the resignation of the Ministry during the crisis in May 1959. There might be two opinions regarding his conduct in not accepting the resignation at once. The unprecedented position, in which the Governor was placed in May 1958, was this; on the one hand, the Chief Minister of the State, while submitting the resignation, claimed that, he had the majority in the House, while on the other hand, the Chief Minister was being pressed by the Central Parliamentary Board to resign; nobody wanted President's rule at the time; everybody was in favour of democratic form of Government; it was in this situation that the Governor before calling the leader of the opposition to form Government, had to satisfy himself that he will be able to form a stable Government particularly when the Chief Minister of the State himself was asserting that he commanded the majority; it was with this end in view that the Governor had parleys with leaders of the different parties.
Our constitution does not prohibit such action on the part of the Governor; he has the discretion in such matters. In order to ascertain the position of the respective parties, the Governor wanted certain particulars about their respective position. It was at this time that the Governor happened to have gone to Delhi and met certain personages; after his return, he requested the Chief Minister to reconsider his resignation and the Chief Minister accordingly withdrew his resignation. Thus the Governor judged the situation and came to a decision. In these circumstances,--without expressing any opinion, whether in such a situation, the Governor could have used his discretion differently,--I hold that the statement that 'theGovernor plays as a toy in the hands of theCongeress' was untrue; I further hold that the Governor acted constitutionally and that he never intended to favour the then ministry as alleged.
13. In view of my finding,--that none of the imputations in the offending passage are true, this part of the defence case on the plea of truth is rejected.
14. Now, on the defence of alleged good faith, nothing is said to be done or believed in good faith, which is done or believed without due care and attention. In the present case notwithstanding the elaboration of the arguments and the introduction of such matter affecting the conduct of the Governor, it was this question and this question only which the Court had to try, namely, whether in publishing the imputations found to be not true, the accused appellants did so in good faith because they believed them to be true, having given due care and attention to seeing that they were so; if the Court was satisfied that they didgive that due care and attention, and that they acted in good faith, then the exception formed a good defence; if, on the other hand, the Court was not so satisfied, then no course, according to the Indian Criminal Law, was open to the Court but to negative the exception. Thus the accused appellants could only be excused by showing good faith after due care and attention.
It is clear that the accused appellants published the statement containing the said imputations (found to be untrue) without due care and attention and without making any attempt at verification before publication and it was not published In good faith. The absence of good faith is further corroborated by the fact that, except the 'Matrubhumi', no other newspaper published the said offensive statement alleged to have been made by Dr. Ram Manohar Lohia at a Press Conference as aforesaid. The publication and printing of such untrue statements could never have been for the public good. I, therefore, hold that the said imputation exceeded the limits of fair comment, and that accordingly, the accused appellants were not justified in publishing and printing the said imputations without verification.
15. The learned Sessions Judge, therefore, rightly convicted the Editor under Section 500 Indian Penal Code and sentenced him to a fine of Rs. 500/-, and convicted the Printer and Publisher under Section 501 Indian Penal Code and sentenced him to a fine of Rs. 250/-; in default of paymentof the fines imposed, they would undergo two months and one month's simple imprisonment respectively.
16. The State of Orissa filed the Criminal Revision for enhancement of the sentences, having regard to the gravity of the offence, on grounds stated in the revision petition. In view of the position, that the accused appellants are not the authors (makers) but publisher and printer of the offensive imputation without verification as aforesaid,--and having regard to the mitigating circumstances as stated by the learned Sessions Judge, I do not interfere with the sentence passed by him. While thus, refraining from enhancing the sentence, Imust, however, remind the press that the responsibility which attach to their power in the dissemination of printed matters may and in the case ofconscientious journalists do, make them more careful; but the range of their assertions, their criticism,their comments or their publication are as wideas, and no wider than, that of any other subject; noprivilege attaches to their position; the freedom ofthe journalists is an ordinary part of the freedomof the subject and to whatever lengths the subjectin general may go, so also may the journalists, but,apart from statute law, their privilege is no otherand no higher.
17. The result, therefore, is that the orderof conviction and sentence,--passed by the learnedSessions Judge on both the accused appellants,--isupheld. The Criminal Appeal and the CriminalRevision are accordingly dismissed.