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Krisana Pillai and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. Nos. 60 and 107 of 1959
Judge
Reported inAIR1960Ker291; 1960CriLJ1210
ActsCirminal Procedure Code , 1908 - Sections 198B, 494 and 561A
AppellantKrisana Pillai and anr.
RespondentState
Appellant Advocate K. Velayudhan Nair,; Mathew Idiculla and; R. Raghavan
Respondent AdvocatePublic Prosecutor
DispositionPetitions dismissed
Cases ReferredBaij Nath Prasad v. State of Bhopal
Excerpt:
- .....may not suffice. the withdrawal of the complaints, though objected to, was allowed. upon the fresh complaints being registered, the accused in the two cases filed two petitions for rejecting them, on the ground, that they constituted an abuse of the process of court. the sessions judge has rejected these petitions by the orders now sought to be revised.2. the first argument addressed before me by the 'learned counsel on behalf o the revision-petitioners is, that the orders of sanction originally produced were sufficient for the purpose of sub-section (3)(c) of section 198-b, crl. p. c. which applies to this case. section 198-b (3)(b) says, that the sanction 'in the case of a minister.....of a state government' must be 'of the secretary to the council of ministers, if any, or of any.....
Judgment:
ORDER

S. Velu Pillai, J.

1. These petitions are to revise two orders passed by the Sessions Judge at Trivandrum, in two cases in which the Public Prosecutor had preferred two complaints under Section 198-B of the Criminal Procedure Code, for offences of defamation alleged to have been committed by the respective accused, against a public servant, who, at the relevant time, was holding office as Secretary to Government, Home Department. The Public Prosecutor produced two orders of sanction authorising the prosecution, which were signed. 'By order of The Governor-signed-Secretary to the Council of Ministers find Chief Secretary'. In Sankar v. State, 1958 Ker LT 1158: (AIR 1959 Kerala 100), which arose on a complaint preferred by the Public Prosecutor on behalf of one of the Ministers of the State Government the view was taken by a bench of this court, that a sanction signed in the above manner was not one in accordance with Section 198-B(3)(b), Crl. P. C. and though the question did not directly arise, an opinion was expressed by the bench, that such a sanction might answer the purpose of Clause (c) of Sub-section (3). This decision was rendered on 28-11-1958. Shortly after, the Public Prosecutor applied to the Sessions Court for the withdrawal of the two complaints, and for preferring two fresh con-plaints on the same matter, supported by appropriate sanctions. In the petitions tor withdrawal, it was stated, that in view of the decision of the High Court in 1958 Ker LT 1158: (AIR 1959 Kerala 100), the Public Prosecutor apprehended, that the orders of sanction produced along with the original complaints may not suffice. The withdrawal of the complaints, though objected to, was allowed. Upon the fresh complaints being registered, the accused in the two cases filed two petitions for rejecting them, on the ground, that they constituted an abuse of the process of court. The Sessions Judge has rejected these petitions by the orders now sought to be revised.

2. The first argument addressed before me by the 'learned counsel on behalf o the revision-petitioners is, that the orders of sanction originally produced were sufficient for the purpose of Sub-section (3)(c) of Section 198-B, Crl. P. C. which applies to this case. Section 198-B (3)(b) says, that the sanction 'in the case of a Minister.....of a State Government' must be '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', while Clause (c) says, that 'in the case of any other public servant employed in connection with the affairs of the Union or ot a State, of the Government concerned'. The distinction between the two is, that under Clause (b), the sanction must bo of the Secretary to the Council of Ministers Or of any Secretary to the Government authorised in that behalf, while under Clause (c) the sanction must be of the Government. The view in 1958 Ker LT 1158: (AIR 1959 Kerala 100) was, that the subscription in the sanction as 'By order of the Governor', by itself meant, notwithstanding the words ''Secretary to the Council of Ministers and Chief Secretary' which followed, that the sanction was accorded by Government, and not by the Secretary to the Council ol Ministers, or by any Secretary to the Government authorised in that behalf, as prescribed by Clause (b). The present contention, the original sanction is in terms of Clause (c) of Sub-section (3), is based upon the fact, that it purports to have been issued 'By Order of the Governor' which under Article 166 of the Constitution, means on behalf of the Government, when duly authenticated. I am not called upon to pronounce a final opinion on this question, and do not propose to conclude the parties on that issue, as I consider, that the complaints were properly allowed to be withdrawn on the ground alleged by the Public Prosecutor, that he entertained an apprehension, that the sanction might be considered to be not proper. It cannot be supposed, that there was no groxmd for the apprehension of the Public Prosecutor as to the propriety of the sanction, because the words 'Secretary to the Council of Ministers' found a place in the sanction, which is not in accordance with Clause (c). The orders of sanction now produced Were subscribed as follows:

'By Order of the Governor

Signed Secretary to Government'.

This, it was contended, is in complete accord with Article 166(2) of the Constitution.

3. The next question is whether the presentation of fresh complaints amounted to an abuse of the process of court. It was not disputed, that Section 403, Crl. P. C. has no application to this case, But the argument was, that under Section 561-A, Crl. P. C., the court has inherent power to reject a complaint filed without any bona fides, and solely for the purpose of causing harassment to the opposite party. Cases were relied on by the learned counsel before me, particularly the decision in James Nadar v. Joshua, 1950 Trav-C, LR 18, in which a second complaint was thrown out on this ground; but the facts there are different. In that case, the original complaint for abduction was dismissed under Section 201 of the Travancore Criminal Procedure Code, corresponding to Section 203 of the Indian Criminal Procedure Code as lacking in bona fides. After a child was born to the woman alleged to have been abducted, a second complaint was preferred on the same set of facts, and this was rejected on the ground, that it constituted an abuse of the process of court. Other decisions were also cited, in which complaints were dismissed under Section 203, and notwithstanding the dismissal, fresh complaints were filed and rejected on the same ground. In these cases, the intention to cause annoyance to the opposite party was manifest, and they are distinguishable. On the other hand, it has been held by the Supreme Court in Baij Nath Prasad v. State of Bhopal, (S) AIR 1957 SC 494, that when the original complaint was proceeded with and the case ended in acquittal for want ot a proper sanction, then a fresh complaint supported by a proper sanction could bo entertained. It; is true, that the question of harassment to the apposite party, or of an abuse of the process of court, was not directly raised in that case or decided. In the present case, beyond filing the complaints no further steps had been taken and as soon as the decision of this court was rendered in 1958 Ker LT 1158; (AIR 1959 Kerala 100) the Public Prosecutor thought that the original sanction might be impugned as defective , and that a fresh sanction might be produced and fresh complaints instituted. No. witness had been examined. I find it extremely difficult to hold, that the presentation of the two complaints in such circumstances can amount, in any sense of the term, to an abuse of the process o court.

4. I therefore come to the conclusion, that the complaints in question cannot be dismissed on this ground. The orders passed by the learned Sessions Judge are hereby confirmed and these two revision petitions are dismissed.


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