S. Barman, J.
1. This is an application for leave to appeal the Supreme Court, under Articles 132 and 134 of the Constitution from a decision, made by this Court in Criminal appeal No. 108 of 1960 filed by the Editor and Printer and Publisher of the 'Matrubhumi', an Oriya Daily Mews-paper, against an order of conviction and sentence Under Section 501 Indian Penal Code, passed by the learned Sessions Judge, Cuttack-Dhenkanai, on a certain harge 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, 1953.
2. One of the main points for consideration in the Criminal appeal, was the question of maintainability of the prosecution, namely, whether or not the prosecution was maintainable as in compliance with the provisions f 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. On the said question of maintainability of prosecution involving interpretation of Section 198-B, this Court found 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, and accordingly, held that 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). On merits, this Court upheld the order of conviction and sentence passed by the learned Sessions Judge. Hence this petition for leave to appeal to the Supreme Court.
3. It was contended that the sanction, on whichs the prosecution was founded, was not a sanction in accordance with law and that being so, the prosecution was not maintainable. There can be no doubt that, in view of the clear terms of Section 198-B (3) (a), previous sanction of any Secretary to the Government authorised by the complaint by the Public Prosecutor; a valid pre virus sanction is an essential requisite for a valid prosecution under the section. The sanction, that was actually relied on in this case, is to be found in an order of the Secretary to the Government of Orissa, Home' Department dated September 29, 1958 (Ext. 1). One of the points, raised in defence, was that all the facts, - on which the prosecution was based, do not appear on the face of the sanction, and that, accordingly the said order of the Home Secretary (Ext. 1) did not constitute a valid sanction according to law. this Court did not accept any of the contentions of the accused-appellants in the said Criminal appeal.
4. Morever, Section 198-B is a new Section in the Criminal Procedure Code, inserted by Act XXVI of 1955, as it was felt that there should be some special provision for offences of defamation against the President, Governor or Rajpramukh of a State or a Minister or any other public servant in respect of his conduct in the discharge of his public functions. This is prima facie a subject of intrinsic importance, which requires final pronouncement on the interpretation of the new Section by the Supreme Court.
The petitioners herein for leave relied on a decision of the Calcutta High Court in Indu Bhusan Chatterji v. The State : AIR1955Cal430 . It was a case under the Prevention of Corruption Act, 1947, involving the interpretation of the meaning of valid sanction; there relevant facts did not appear on the face of sanction; not one of the facts on which the prosecution was founded, appeared on the face of the sanction and not one of them was proved by reference to any other material or evidence as having been considered by the official who sanctioned the prosecution. On these facts the Calcutta High Court took the view that, whether or not there was a proper sanction in the case, is a question serious enough to justify the High Court giving the petitioner leave to appeal to the Supreme Court, apart from any other question.
In the present case also, the same point is involved as to whether or not the order of the Home Secretary constitutes the requisite sanction Under Section 198-B (a), Code of Criminal Procedure. On this point, this Court decided against the petitioners as aforesaid.
5. On merits also, the petitioners have taken various grounds for filing an appeal to the Supreme Court of India. It is not necessary for us to discuss them. The point of maintainability of the prosecution, which we have referred at some length, is sufficient to justify our granting leave.
6. For the reasons given above, this application is allowed and leave to appeal to the Supreme Court is granted. Let the necessary certificate under Article 134(1)(c) of the Constitution be drawn up and issued.
R.L. Narasimham, C.J.
7. I agree.