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Pachhalloor Noohu Vs. Public Prosecutor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1975CriLJ1304
AppellantPachhalloor Noohu
RespondentPublic Prosecutor
Cases ReferredJaswant Singh v. The State of Punjab
Excerpt:
.....valid sanction has been accorded rests on the prosecution and such burden involves proof that the sanctioning authority had given the sanction with reference to the facts on which the proposed prosecution was to be based, facts which might appear on the face of the sanction or might be proved by extraneous evidence. 4 was satisfied that the said imputations were made against p. trivandrum to file the complaint, exhibit p-3 is self-contained and clearly shows that the sanction was accorded after considering ext. p-1 (a) and the files but he ought to have considered the evidence as well. p-16 (a) does not read like an order or direction to prosecute the appellant :had that been the intention the language would have been different in form and content. 4. i am not satisfied that exhibit..........will only negative the intention of the provision besides being against the plain language of the clause. that contention must be rejected. exhibit p-3 is not liable to challenge on the ground that it was granted only by a secretary (p. w. 4) although authorised in that behalf and not by the secretary to the council of ministers.4. even so counsel argued that ext. p-3 is invalid for two reasons - that p. w. 4 did not apply his mind to all the materials before granting the sanction and second that he did not exercise his independent judgment but only obeyed the direction of the chief minister (d. w. 2). it is well settled that the burden of proving that a requisite and valid sanction has been accorded rests on the prosecution and such burden involves proof that the sanctioning authority.....
Judgment:

G. Balagangadharan Nair, J.

1. Appellant who was the Editor, Printer and Publisher of an evening daily 'Aswamedham' has been convicted under - Sections 500 and 501, I. P. C. and sentenced to a fine of Rupees 100/-, with a default sentence of simple imprisonment for two weeks under the latter Section (no separate sentence being awarded under the former count) by the learned Additional Sessions Judge. Trivandrum. on a complaint instituted by the Public Prosecutor, pursuant to a sanction Ext. P-3 granted under Section 198-B (3) (b) by P. W. 4, Special Secretary to the Government of Kerala who was authorised by the order Ext. P-2 issued by the Government in that behalf. The substance of the complaint was that the appellant had committed the above offences by publishing a news item (Ext. P-1 (a)) under the title '(Original in Malayalam omitted).' In the issue of the paper (Ext. P-1) dated 22-1-1970, which was defamatory of Mr. Mohammad Koya (P. W. D who was the then Home Minister. In the Court below, the appellant contested the validity of the sanction and claimed the protection of Exceptions 1. 2 and 9 to Section 499. I. P. C. The learned Judge overruled these defences and finding Ext. P-1 (a) to be defamatory of P. W. 1 convicted the appellant.

2. The principal contention of the appellant was directed against the validity of the sanction Ext. P-3. The first limb of this contention was based upon the language of Section 198-B (3) (b). Sub-section (3) provides that no complaint under Sub-section (1) shall be made by the Public Prosecutor except with the previous sanction of the authorities specified in Clauses (a) to (c) depending upon the persons mentioned in Sub-section (D. against whom the offences under Chapter XXI of the Indian Penal Code (Defamation) are committed. So far as relevant Clause (b) provides that in the case of a Minister of a State Government, the sanction contemplated by Sub-section (3) must be that 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. In the present case the sanction Ext. P-3 was granted not by the Secretary to the Council of Ministers (who is the Chief Secretary) but by the Special Secretary (P. W. 4) who was authorised by the Government Order Ext. P-2 in that behalf. It was argued on behalf of the appellant that if there is any Secretary to the Council of Ministers, as there was one in Kerala, he alone could accord the sanction and not any Secretary even if the latter is authorised in that behalf by the Government. In aid of this contention counsel placed emphasis on the expression 'if any'. I find it impossible to accept this contention either on the language of the clause or on its legislative intent. No provision of law was placed before me which makes it mandatory that the Council of Ministers should have a Secretary. That apart, what a fair reading of the clause means is that if there is a Secretary to the Council of Ministers he or any Secretary to the Government, might grant the sanction, the former without any authorisation and the latter under an authorisation by the Government in that behalf. The object of the provision is to confer the power of granting sanction on more officers than one and not to make them mutually exclusive or to restrict the power to one officer-that is plain from the clause. As to the use of the word 'or' in clause, the following passage from the judgment of Latham, C. J., in 73 Commonwealth Law Reports 304 (313) followed in Travancore Forward Bank Ltd. v. State of Kerala 1958 Ker LT 537. is worth reproduction:

When the word 'or' is used in relation to two or more alternatives, it is not necessarily the case that the alternatives are 'mutually exclusive. The question as to whether they are mutually exclusive or not must be determined by applying the general rule that words should be construed to ascertain the intention of the provision in question to be collected from the whole of its terms.

3. The object and purport of Clause (b) is to enlarge the classes of officers who could grant the sanction and not to make them mutually exclusive. The reasons are obvious. The Secretary to the Council of Ministers might be away, or he might be too busy or he might be related to the defamed Minister concerned or antagonistic to the accused. In the former two cases, if no one else could accord the sanction, it might happen that a clear case could not be brought before a Court of law within the period of six months prescribed by Sub-section (4). In the latter cases the sanction issued by him carries the obvious risk of being challenged as vitiated by bias or mala fides. What the clause seeks to do is to eliminate these contingencies by conferring power on more functionaries than one. The appellant's contention which makes them mutually exclusive will only negative the intention of the provision besides being against the plain language of the clause. That contention must be rejected. Exhibit P-3 is not liable to challenge on the ground that it was granted only by a Secretary (P. W. 4) although authorised in that behalf and not by the Secretary to the Council of Ministers.

4. Even so counsel argued that Ext. P-3 is invalid for two reasons - that P. W. 4 did not apply his mind to all the materials before granting the sanction and second that he did not exercise his independent judgment but only obeyed the direction of the Chief Minister (D. W. 2). It is well settled that the burden of proving that a requisite and valid sanction has been accorded rests on the prosecution and such burden involves proof that the sanctioning authority had given the sanction with reference to the facts on which the proposed prosecution was to be based, facts which might appear on the face of the sanction or might be proved by extraneous evidence. The leading case on this point is Gokulchand Dwarkadas v. The King AIR 1948 PC 82 : 49 Cri LJ 261 which has been approved by the Supreme Court in a number of decisions one of the latest being The State of Rajasthan v. Tarachand Jain (1973) 2 SCWR 262 : 1973 Cri LJ 1396. Ext. P-3 expressly refers to the article Ext. P-1 (a), and proceeds to say that it has made imputations which are defamatory of P. W. 1, that after careful consideration P. W. 4 was satisfied that the said imputations were made against P. W. 1 in respect of his conduct in the discharge of his public functions intending to harm or knowing or haying reason to believe that the said imputations would harm the reputation of P. W. 1 and that the said imputations constituted offences punishable under Sections 501 and 502, I. P. C. It then winds up by ac-cording sanction to the Public Prosecutor. Trivandrum to file the complaint, Exhibit P-3 is self-contained and clearly shows that the sanction was accorded after considering Ext. P-1 (a) and its defamatory tendency : in other words the facts constituting the offences. As pointed out in (1973) 2 SCWR 262 at p. 276 : (1973 Cri LJ 1396 at p. 1404) where the facts, constituting the offence have been referred to on the face of the sanction, it was not necessary to lead separate evidence to show that the relevant facts were placed before the sanctioning authority. Even so P. W. 4 has deposed that he considered all the relevant facts and files before granting the sanction. Counsel for the appellant however contended that it was not enough for P. W. 4 to study Ext. P-1 (a) and the files but he ought to have considered the evidence as well. In support of this contention he quoted Jaswant Singh v. The State of Punjab (1958) SCR 762 : 1958 Cri LJ 265. where it was observed that

The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.

This observation will hardly avail the appellant for P. W. 4 considered not only Ext. P-1 (a) which is the vital evidence in the case but also other relevant files which have themselves come into the case as evidence. I reject this part of the contention.

5. The next limb of the argument is based upon the note 'sanction may be accorded to prosecute the Daily'. Exhibit P-16 (a) made by the Chief Minister in the file Ext. P-16. This note was made on 28-2-l970 and the sanction Exhibit P-3 issued by P. W. 4 was 12-6-1970. It was argued that in the face of Exhibit P-16 (a) made by the Chief Minister, there was no question of P. W. 4, a Secretary considering the question of sanction independently or exercising his free judgment. That the sanctioning authority must consider the facts and exercise his independent judgment in deciding to grant or withhold the sanction is undoubted; a sanction granted under the direction or dictate of a superior, which paralyses his independence, stands vitiated. The question here is whether Ext. P-3 is so vitiated. Ext. P-16 (a) does not read like an order or direction to prosecute the appellant : had that been the intention the language would have been different in form and content. The matter is put beyond doubt by the Chief Minister himself who swears that when he read Exhibit P-1 it appeared to be defamatory and that he felt that a prosecution was necessary to clear the character of the Minister. He proceeds to say that he only recorded that opinion and did not mean it to be an order. That this was only an expression of opinion is further made apparent by the circumstance that the matter was examined at the Law and Home Departments before the entire file reached P. W. 4. I am not satisfied that Exhibit P-16 (a) was an order or a direction to issue the sanction or that it had in any manner paralysed the independent judgment of P. W. 4. I reject this contention.

6. Counsel did not challenge the finding of the Court below that Ext. P-1 (a) is defamatory of P. W. 1 and that the appellant was not entitled to the benefit of Exceptions (1), (2) and (9) to Section 499, I. P. C. I shall nevertheless briefly indicate the nature of the article and the evidence to show that the findings are correct. The article starts with the title quoted above and states that the full details of a case of corruption have come to light involving the Police Minister C. M. Mohammad Koya in the purchase of Kaki cloth for the State Police. The article also contains the photograph of P. W. 1. It then proceeds to say:

The Sivakami Textiles had contracted to supply 400 bales of Kaki cloth 80 centimetres wide for the use of the Special Armed Police, that despite this contract they began supplying cloth of 60 centimetres width, that on this account they had amassed S lakhs of rupees, besides their usual trade profits. Although there were quotations by others the Sivakami Textiles were able to get the contract by exercising influences at the ministerial level and supply cloth of lesser width. The Selection Board to whose attention this was brought detected the grave corruption and resolved to reject their supplies. The Sivakami Textiles thereupon decided to spend a part of the huge amount they had amassed. They met the Minister-in-charge of the Police Department. In no time the Selection Board's decision was ignored and opportunity was open to the Sivakami Textiles to make gains. It is said that a Part of the gains so made has reached the proper Quarters through the League leader. Complaints have sprung from all quarters that the Government which includes Minister Koya who is denying the legitimate amenities of the ordinary police man is causing loss to the tune of lakhs to the exchequer.

That in substance is the article complained against. There cannot be any doubt that the article which ascribes corruption is highly defamatory of p. W. 1. The evidence in the case shows that the Selection Board has no power to reject the cloth but can only make recommendations and then the final decision is to be taken by the Inspector General of Police. The Inspector General of Police P. W. 3 has given evidence that he decided to accept the cloth in view of the expert opinion of D. W. 1 who in Principal of the Central Polytechnic, that slight variations in the width of cloth is possible during manufacture. It is thus patent that P. W. 1 had nothing to do with the acceptance of the cloth supplied by the Sivakami Textiles, and it was P. W. 3 who decided to accept it, despite the slight variation in the width. As to the alleged payment of bribe or the exercise of influence either on P. W. 1 or at the ministerial level there is absolutely no evidence. I find that the learned Judge rightly held that the appellant could not claim the protection of Exceptions 1, 2 and 9 and that he is guilty of the offences,

7. I confirm the conviction and sentence of the appellant and dismiss the appeal.


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