Gour Chandra Rout and Another vs The Public Prosecutor, Cuttack

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 61 of 1960

Decision Date: 23 November 1962

Coram: J.R. Mudholkar, Syed Jaffer Imam, N. Rajagopala Ayyangar

In this matter the Supreme Court recorded that the petitioners, who served as editor, printer and publisher of the Oriya daily newspaper “Matrubhumi,” were charged for publishing in the 31 May 1958 issue the statements made by Dr. Ram Manohar Lohia concerning the political situation in Orissa after the resignation of the Congress Ministry and its immediate non‑acceptance by the Governor. During a press conference Dr. Lohia had alleged that the Governor acted as a toy in the hands of the Congress and that a close relative of the Governor had obtained employment with the assistance of the Congress Party. After the Governor became aware of these remarks, he ordered a translation into English and forwarded the material to the Government for any necessary action. The Home Secretary subsequently issued an order purporting to be a sanction under section 198B of the Code of Criminal Procedure, as amended by the Criminal Procedure Code (Amendment) Act 1955, for the prosecution of the appellants under sections 500 and 501 of the Indian Penal Code. On the basis of that order the Public Prosecutor lodged a complaint, the appellants were tried before a Sessions Judge, found guilty of the offences, and were sentenced to pay fines. Their appeals to the High Court were dismissed.

The respondent contended before this Court that it was sufficient for the Governor to state that he had no objection to the lodging of a complaint, to leave the decision to the Government, and to note that the Government had consulted him before acting, thereby satisfying the requirement of clause (a) of sub‑section (3) of section 198B. The Court held that sub‑section 3(a) of section 198B demands that the Governor must expressly authorize a Secretary of the Government to lodge a complaint. Consequently the Court clarified two essential restrictions on the power of the Public Prosecutor to lodge a complaint: first, that a sanction must be obtained before the complaint can be filed; second, that such sanction must be granted by a Secretary who has been duly authorized by the Governor for that purpose. The Court emphasized that the sanctioning authority must exercise its mind in deciding the sanction, and that the Governor’s initiative must be a clear, unequivocal indication that action is desired and not a mere perfunctory formality.

In the present case, the Court explained that the Governor’s power to authorize a complaint under Section 198‑B of the Code of Criminal Procedure does not consist merely of a ministerial function. The Governor must take the initiative by unequivocally expressing his desire that action be taken, and his authorisation must be more than a formal or idle gesture. The Court further held that sub‑section (3) of Section 198‑B refers to a complaint that is covered by sub‑section (1), and that the complaint described in sub‑section (1) is a specific written complaint made by the Public Prosecutor. When the two sub‑sections are read together, it becomes clear that the Governor’s authorisation must relate to the sanction for that specific complaint; a general, non‑specific sanction would be of no effect. The Court cited the decision in Gour Chandra Bout v. Public Prosecutor, A.I.R. 1960 Orissa 116, and held that the precedent was not applicable to the present facts.

The judgment concerned Criminal Appeal No. 61 of 1960, which arose from an order dated 7 August 1961 passed by the Orissa High Court in Criminal Appeal No. 108/60. Counsel for the appellants were Santosh Chatterjee and Brij Bans Kishore, while counsel for the respondent were D.R. Prem, P.D. Menon and R.H. Dhebar. The appeal was decided on 23 November 1962 by Justice Mudholkar. The appeal arose after the High Court, by a certificate, dismissed the appellants’ challenge to their convictions under Sections 500 and 501 of the Indian Penal Code and the accompanying sentences and fines. The first appellant, Gour Chandra Rout, served as the editor of the Oriya daily newspaper “Matrubhumi,” and the second appellant, Ram Chandra Kar, was the printer and publisher of the same newspaper. In the edition dated 31 May 1958, the newspaper reproduced comments made by Dr Ram Manohar Lohia at a press conference concerning the political situation in Orissa following the resignation of the Congress Ministry and the Governor’s refusal to accept that resignation. Dr Lohia alleged that Governor Sukthankar acted as a puppet of the Congress and that a relative of the Governor had obtained a lucrative position with a British oil company in Assam through the influence of the Congress, suggesting that the Governor was indebted to the party. After the publication came to the Governor’s notice, he arranged for an English translation of the article and forwarded it to the Government of Orissa, requesting appropriate action. In response, the Home Secretary issued an order stating that the newspaper, knowing or having reason to believe that the matter was defamatory of the Governor, had published the alleged statement by Dr Lohia, thereby inviting sanction under Section 198‑B(3)(a) to be granted by the Secretary to the Government of Orissa for proceedings against the editor and publisher.

The Home Secretary’s order stated that the newspaper Matrubhumi had published a claim that the Governor of Orissa, because of his personal obligations toward the Congress Government, had helped a relative obtain a well‑paid position in an oil company in Assam and that this action indicated the Governor’s desire to see the Congress Party retain power during the recent political crisis in Orissa. The order further observed that the statement concerned the Governor’s conduct while performing his public duties and therefore amounted to an offence punishable under section 501 of the Indian Penal Code. The order explained that the Secretary to the Home Department had been authorised by the Governor, in accordance with Section 198‑B (3)(a) of the Code of Criminal Procedure, to grant sanction to any complaint filed by the Public Prosecutor of Cuttack against the editor and publisher of Matrubhumi for the alleged offence. Accordingly, Shri P. N. Mohanti, Secretary to the Government of Orissa in the Home Department, issued a sanction authorising the prosecution of the appellants for the alleged offences under sections 500 and 501 of the Penal Code, as well as the corresponding provisions of the Code of Criminal Procedure.

Pursuant to that sanction, the Public Prosecutor lodged a formal complaint and the appellants were tried before the Sessions Judge at Cuttack. The Sessions Judge found both appellants guilty of the charges, convicted them, and imposed the fines that have been recorded. The appellants challenged the conviction and sentence, but the High Court dismissed their appeals. The judgment then turned to the procedural rule contained in Section 198 of the Code of Criminal Procedure, which ordinarily bars a court from taking cognisance of offences such as those under sections 500 and 501 unless a complaint is made by a person who claims to have been defamed. The amendment enacted by Act 26 of 1955 introduced a new provision, Section 198‑B, to address defamation of high‑ranking public officials. The relevant excerpt of that provision reads: “198‑B (1).‑Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (other than the offence of defamation by spoken words) is alleged to have been committed against the President, or the Vice‑President, or the Governor or Rajpramukh of a State, or a Minister, or any other public servant employed in connection with the affairs of the union or of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor. (3) No complaint under sub‑section (1) shall be made by the Public Prosecutor except with the …”

The provision that was enacted required, for a complaint to be lodged against a high dignitary, a prior sanction to be obtained. The provision specified that such prior sanction could be given by (a) the President, the Vice‑President, the Governor of a State, or by any Secretary to the Government who had been authorised by the dignitary to give that sanction; (b) a Minister of the Central Government or of a State Government, the Secretary to the Council of Ministers, if any, or any Secretary to the Government who had been authorised by the concerned Government; or (c) any other public servant employed in connection with the affairs of the Union or of a State of the concerned Government. This requirement was introduced so that the State could prosecute a person for defamation of a high dignitary when the alleged defamation was directed against the dignitary’s conduct while discharging public functions. It was not in dispute that the alleged defamation of Governor Mr Sukthankar concerned his conduct in the performance of his official duties, and consequently the Public Prosecutor was empowered to file a complaint. However, subsection (3) made it clear that the Public Prosecutor could not lodge a complaint in the case of a Governor unless a Secretary to the Government had first received the Governor’s prior sanction for that purpose. The record showed that a sanction had been given by the Home Secretary, but that sanction would be effective only if the Home Secretary had himself been previously authorised by the Governor to grant such a sanction.

To establish whether the Governor had authorised the Home Secretary, the State relied on the Governor’s own testimony. The Governor’s evidence, however, ran contrary to the State’s contention. Governor Sukthankar stated unequivocally that he had not asked the Government to initiate the case, adding that the Government had acted only after consulting him. He explained that he had sent a translation of the disputed material to the Government, informing them that the facts were untrue and that they could take any action they deemed appropriate. He emphasized that he had not given any specific written direction to the Government to commence a defamation proceeding. Subsection (3)(a) requires that the Governor expressly authorise a Secretary to lodge a complaint. The Governor’s testimony showed that he dealt not with a Secretary but with the Government as a whole, and that he did not direct the Government to file a complaint but left the decision to the Government’s discretion. Consequently, the Court could not infer from the Governor’s evidence that he had authorised even the Government to lodge a complaint. The mere fact that the Government consulted the Governor before filing the complaint did not satisfy the requirement that a Secretary be authorised by the Governor. Thus, the Court concluded that the two restrictions placed on the power of the Public Prosecutor—first, the necessity of a sanction, and second, that the sanction must be given by a Secretary duly authorised by the Governor—had not been met in the present case.

In this case, the Court explained that a public prosecutor could lodge a complaint for defamation of a high dignitary such as the Governor only when two conditions were satisfied. First, the prosecutor had to obtain a sanction to file the complaint, and second, that sanction had to be granted by a Secretary of the Government who was authorised by the Governor for that purpose. The Court noted that the Governor was required to examine the alleged defamatory statement himself and decide whether the matter warranted his personal attention and a desire to vindicate his reputation, or whether the statement was trivial, made by an irresponsible person, or otherwise not worthy of action. The decision, the Court held, had to be taken by the Governor personally; the statutory language did not permit the Governor to delegate that judgment to another person or to a body such as the Government. The State’s counsel, Mr Prem, argued that it was sufficient for the Governor merely to state that he had no objection to the filing of a complaint and that the Governor’s remark that he left the decision to the Government, after consultation, satisfied the requirements of clause (0) of sub‑section (3) of section 198‑B of the Code of Criminal Procedure. He further contended that because the sanction had to be issued by a Secretary, the Secretary was obliged to consider all relevant facts and determine whether it was in the public interest to lodge a complaint, and that the Secretary’s role was not merely ministerial. Consequently, Mr Prem submitted that the Governor’s statement of leaving the matter to the Government effectively amounted to a lack of objection, thereby meeting the statutory requirement. While the Court acknowledged that the sanctioning authority must indeed apply its mind to the facts before granting sanction and that the Secretary does not perform a purely ministerial function, it emphasized that the Governor must take the initiative by unequivocally indicating his desire for action; the Governor’s authorization could not be a mere formality. Therefore, when the Governor, as reflected in Mr Sukthankar’s statement, said that he left the matter to the Government to act as it saw fit, the Court inferred that the Governor was personally indifferent to whether a complaint would be lodged. Such an attitude, the Court concluded, rendered any purported authorization ineffective, and it would be unreasonable to hold that the Governor had authorised the lodging of the complaint under the statutory scheme.

It is possible that, although the Governor may have given authority for a sanction to permit the lodging of a complaint, the Secretary could nonetheless refuse to grant such sanction. In that situation the Secretary effectively exercises judgment over the Governor’s expressed view, since the Governor’s authorization is only an implicit instruction. The Court believes that the legislature had sound reasons for assigning the decision of whether to sanction a complaint by the Public Prosecutor to the Secretary. The Secretary is expected to examine the matter impartially and determine whether pursuing the alleged defamatory statement serves the public interest. A person personally injured by the statement may lack the ability to assess the allegation objectively, and the prosecution costs would be borne by the State. Consequently the legislature appear to have preferred that a neutral third party, rather than the aggrieved individual, make the ultimate decision. Nevertheless, the initial step of filing a complaint must originate from the Governor himself. If the Governor does not, in accordance with his decision, authorize the Secretary to sanction the filing, the Secretary possesses no power to grant such sanction. That gubernatorial authorization is therefore as essential as the subsequent sanction granted by the Secretary.

The High Court, however, held that the Governor’s authorization was established by the testimony of PW 2, identified as P K Sarangi. Sarangi was an Assistant in the Home Department of the Orissa Secretariat who had presented the sanction papers to his superior officer in that department. He asserted that he was familiar with the contents of the file containing those papers. During his examination‑in‑chief he stated that the Home Secretary had been authorized by the Governor to sanction the prosecution. When cross‑examined about whether the authorization was recorded in the file, he replied that he could not say whether it was on file or not. It appears that he had in his possession a file purporting to show the Governor’s authorization, but he was not permitted to produce it in evidence. Proof that the Governor authorized the sanction could be derived either from the Governor’s own testimony or from a written instrument from the Governor indicating such authorization. The Court notes that the Governor’s own statements, quoted earlier, do not contain any explicit authorization of the Secretary. Therefore the mere assertion by Sarangi that the Governor authorized the sanction carries no weight, because he failed to produce the documentary evidence.

In this case, the Court observed that the document presented to show the Governor’s authorisation was not part of the trial record. Consequently, the Court held that the High Court had erred in interpreting the testimony of the second witness, P.W. 2 Sarangi, as proof that the Governor had authorised the prosecution. The High Court had also relied on the evidence of the Deputy Secretary of the Home Department. That evidence, however, did not appear in the official paper book and, in the Court’s view, had been correctly excluded from consideration. The Deputy Secretary’s testimony had not been given at the original trial; it had been produced only in a revision petition that the appellants had filed before the High Court, challenging the validity of the sanction. In that petition the appellants had argued that the sanction had not been authorised by the Governor. The High Court, exercising its discretion, allowed the additional evidence to be led before it in order to establish authorisation and examined the Deputy Secretary as a witness. The Supreme Court could not accept that evidence, because it was tendered before a different court in a separate proceeding and therefore could not be treated as evidence at the trial. Moreover, the Court noted that the Deputy Secretary’s evidence had not been placed before the appellants when they were examined under section 342 of the Code of Criminal Procedure. In light of these observations, the Court concluded that the High Court could not rely on the Deputy Secretary’s testimony.

The Court then turned to the argument advanced by counsel for the petitioner, Mr Prem, who contended that a general authorisation issued by the Governor in 1956 was sufficient to validate the sanction. The authorisation cited by Mr Prem stated: “In exercise of the powers conferred by clause (a) of sub‑section (3) of section 198‑B of the Code of Criminal Procedure, 1898 (V of 1898), the Governor hereby authorises the Secretary to Government of Orissa in the Home Department to accord previous sanction to the making of complaints 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 Governor.” The issue before the Court was whether sub‑section (3)(a) of section 198‑B contemplated a general authorisation. To support his position, Mr Prem relied on the decision in Gour Chandra Bout v. Public Prosecutor, which was in fact the judgment of the High Court in the very revision petition filed by the petitioners to contest the sanction’s validity. The learned Chief Justice who decided that application had not addressed the question of whether a general authorisation of the type contained in the 1956 notification satisfied the legal requirements of clause (a). The Chief Justice dismissed the revision petition on the basis of the additional evidence recorded, not on the merits of the general authorisation argument. The Supreme Court noted that sub‑section (3) of section 198‑B refers to a complaint under sub‑section (1), and that complaint is a specific, written complaint made by the Public Prosecutor. Reading the two sub‑sections together, it became clear that the Governor’s authorisation applied only to a specific sanction concerning a particular complaint, not to a blanket or general sanction. Accordingly, the Court rejected the claim that a general authorisation could satisfy the statutory requirement.

In this matter the Court observed that the provision in question requires a sanction that is tied to a particular complaint and that a sanction of a general character cannot be of any use. The High Court had earlier relied on section 14 of the General Clauses Act to support its view that a general authorisation would satisfy clause (a) of sub‑section (3) of section 198‑B of the Code of Criminal Procedure. The Court explained that section 14 deals only with the successive exercise of a power and does not address the fundamental question of whether the power itself may be conferred at all. The Court further noted that clause (a) expressly contemplates authorisation by the Governor, and consequently an authorisation issued by any other officer, such as the one made in 1956 by the Secretary of the Home Department, cannot satisfy the statutory requirement. Considering the nature of the alleged offence—defamation—the Court found it impossible to envisage how the law could permit a pre‑emptive authorisation to sanction the filing of a defamation complaint. If such a pre‑emptive authorisation were valid, the Secretary could, without any reference to the Governor, sanction the complaint on his own initiative. This would lead to the unreasonable result that even when a dignitary wished to disregard a defamatory statement because it was trivial or might cause embarrassment, the Secretary could nevertheless set the legal process in motion, potentially magnifying a minor issue or causing embarrassment to the Governor himself. The Court held that such an interpretation would defeat the purpose for which the legislature enacted the provision. Accordingly, the Court rejected the argument advanced by counsel and concluded that the sanction granted by the Secretary of the Home Department was not lawfully authorised by the Governor. On that basis there was no need to consider the remaining points raised by counsel for the appellants. The Court therefore allowed the appeal, set aside the convictions and sentences imposed on each appellant, and directed that any fines that had been paid be refunded. The appeal was allowed.