# [1963] Supp. 2 S.C.R. 447

- **Citation:** [1963] Supp. 2 S.C.R. 447
- **Court:** Supreme Court of India
- **Decided:** 1961-08-07
- **Case number:** Criminal Appeal No. 61of1960
- **Bench:** S. J. buv, K. SUBBA RAo, N. R.uAGOPALA AYYANGAR, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1963-supp-2-s-c-r-447-2782
- **Pages:** 12

## Headnote

Oriminal Proadurt-Aulkoriaation by GotJtmM GtntralAulhMi•<Jtion, whetAor contemp/4ted-Ootl.e of Oriminal Procedure
1898 (V of 1898), "" <Jmttuktl by Oriminal Procedure Ood«
(A,,..ndmtnt) Act, 1955(XXVI of 1955), a. 198-B(l), (3)(1l).
The appellann were the editor, printer and publisher of
an Oriya Daily Newspaper called "Matrubhumi". In the issue
of May 31, 1958, the views expressed by Dr. Ram Manohar
Lohia concerning the Political situation created in Orissa by
reason of the resignation of the Congress Ministry and its
immediate non-acceptance by the Governor were published.
During the Press Conference he remarked that the Governor had
played as a toy in the hands of the ·Congress and that his one
near relation had secured employment with the help of the
congress party. After it came to the notice of the Governor,
he got it translated into· English and sent to the Government
for taking such action as may be necessary. Shortly thereafter,
the Home Secretary to the Government passed an order pur•
ported to be a sanction under s. 1988 of the Code of Criminal
Fi"" A.T.B. M1ft.
r.6 Majid •' C•.
y,
Sl•t. of M•dr.s
Ratlwbar D•Jdl, J.
1962
N_,,,., 13.
1962
Gvur Cllantlr•·Rnt
v •.
Pu6lic P1os1a
eutor, C1111.c•
448, SUPREME COURT REPORTS [1963]SUPP.
Procedure , for the prosecution of the appellants . for oft'ences
under ss. 500 and 501 of the Penal Code and in pursuance
thereof the Ptibli o Prosecutor lodged a complaint on the basis
of which the appellants were tried by the SessionsJudge who
held both of them guilty to the charge, convicted them of these
oft'enocs and sentenced them to pay certain lines · and their
appeals to the High Court were ,also dismissed. It was urged
by the respondent i11 this .Court that .it was enough for the
Governor to say that he had 'no 'objection to the lodging of a
complaint and his statement ·that he left it to the Ccivernmerit
to decide what action should be taken and that the •Government
had consulted him before it decided to take action, therefore,
meets the requirements of the provisions of cl. (a) of sub-s.(3} of
s. l 98B, Code of Criminal Procedure.
Held, thats. 19S-B(3}(a} requires that the Governor should
authorise a Secretary to lodge a complaint. Held, also, that
there are two restrictiom upon the power of the Public Proaccutor to lodge a complaint (1) he must first obtain a sanction
to lodge such complaint; (2) and the sanction •hould be
accorded by a Secretary to the Government authorised by the
Governor in this behalf. While the sanctioning authority has
to apply its mind before according sanction and in performing
the function the Secretary does not merely perform a minis·
terial Act, the initiative has to be taken by the Governor by
indicating unequivocally that he desires action to be taken and
that the authorisation by him is not an idle formality.
Held, further, that sub.s. (3) of s. 191l-B speaks of a
complaint under sub-s. (1) and the complaint under •ub-s. (I)
is a specific complaint in writing made by the Public Prosecutor. Reading the two sub-sections together it would be
clear that the authorisation by the Governor is of the sanction
with respect to a specific complaint. A KCneral smction will
not be of any avail.
Gour Chandra Rom v. Public Proaecu.tor, A. I. R. 1960
Orissa 116, held inapplicable.

## Text

2 s.c.R.
SUPREME COURT REPORTS
447
diction to assess the tax on account of the invalidity
of the rule under which the tax was assessed.
We therefore allow this petition with costs
holding the impugned rule 16 (2) invalid and order
the is.,ue of a writ of mandamus to the State of
Madras and the Sales Tax Authorities under the Act
to refrain from enforcing any of the provisions of
r. 16 (2) and direct them to refund the tax illegally
collceted from the petitioner.
Petition Allowed.
GOUR CHANDRA ROUT & ANOTHER
ti.
THE PUBLIC PROSECUTOR, CUTT ACK
(S. J. buv, K. SUBBA RAo, N. R.uAGOPALA
AYYANGAR and J. R. MuDHOLKAR, JJ.)
Oriminal Proadurt-Aulkoriaation by GotJtmM GtntralAulhMi•<Jtion, whetAor contemp/4ted-Ootl.e of Oriminal Procedure
1898 (V of 1898), "" <Jmttuktl by Oriminal Procedure Ood«
(A,,..ndmtnt) Act, 1955(XXVI of 1955), a. 198-B(l), (3)(1l).
The appellann were the editor, printer and publisher of
an Oriya Daily Newspaper called "Matrubhumi". In the issue
of May 31, 1958, the views expressed by Dr. Ram Manohar
Lohia concerning the Political situation created in Orissa by
reason of the resignation of the Congress Ministry and its
immediate non-acceptance by the Governor were published.
During the Press Conference he remarked that the Governor had
played as a toy in the hands of the ·Congress and that his one
near relation had secured employment with the help of the
congress party. After it came to the notice of the Governor,
he got it translated into· English and sent to the Government
for taking such action as may be necessary. Shortly thereafter,
the Home Secretary to the Government passed an order pur•
ported to be a sanction under s. 1988 of the Code of Criminal
Fi"" A.T.B. M1ft.
r.6 Majid •' C•.
y,
Sl•t. of M•dr.s
Ratlwbar D•Jdl, J.
1962
N_,,,., 13.
1962
Gvur Cllantlr•·Rnt
v •.
Pu6lic P1os1a
eutor, C1111.c•
448, SUPREME COURT REPORTS [1963]SUPP.
Procedure , for the prosecution of the appellants . for oft'ences
under ss. 500 and 501 of the Penal Code and in pursuance
thereof the Ptibli o Prosecutor lodged a complaint on the basis
of which the appellants were tried by the SessionsJudge who
held both of them guilty to the charge, convicted them of these
oft'enocs and sentenced them to pay certain lines · and their
appeals to the High Court were ,also dismissed. It was urged
by the respondent i11 this .Court that .it was enough for the
Governor to say that he had 'no 'objection to the lodging of a
complaint and his statement ·that he left it to the Ccivernmerit
to decide what action should be taken and that the •Government
had consulted him before it decided to take action, therefore,
meets the requirements of the provisions of cl. (a) of sub-s.(3} of
s. l 98B, Code of Criminal Procedure.
Held, thats. 19S-B(3}(a} requires that the Governor should
authorise a Secretary to lodge a complaint. Held, also, that
there are two restrictiom upon the power of the Public Proaccutor to lodge a complaint (1) he must first obtain a sanction
to lodge such complaint; (2) and the sanction •hould be
accorded by a Secretary to the Government authorised by the
Governor in this behalf. While the sanctioning authority has
to apply its mind before according sanction and in performing
the function the Secretary does not merely perform a minis·
terial Act, the initiative has to be taken by the Governor by
indicating unequivocally that he desires action to be taken and
that the authorisation by him is not an idle formality.
Held, further, that sub.s. (3) of s. 191l-B speaks of a
complaint under sub-s. (1) and the complaint under •ub-s. (I)
is a specific complaint in writing made by the Public Prosecutor. Reading the two sub-sections together it would be
clear that the authorisation by the Governor is of the sanction
with respect to a specific complaint. A KCneral smction will
not be of any avail.
Gour Chandra Rom v. Public Proaecu.tor, A. I. R. 1960
Orissa 116, held inapplicable.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 61of1960.
Appeal from the Judgment and order dated
August 7, 1961, of the Orissa High Court in Criminal
Appeal No. 108/60.
SanfA:Jsh Chatterjee and Brij Bans Kialwre, for
the appellants.
-
-
2 S.C.R.
SUPREME COURT REPORTS
449
D. R. Prem, P. D. Menan and R. H. Dhebar,
for the respondent.
1962. November 23. The Judgment of the
Court was delivered by
MuDHOLKAR, J.-This is an appeal by a certi·
ficate granted by the High Court of Orissa which
dismissed an appeal preferred by the appellants from
their convictions under s. 500 and s. 501, Indian
~enal Code, respectively and the sentences or fine
imposed upon each of them.
The appellant No. 1; Gour Chandra Rout, is
the editor of an Oriya Daily Newspaper called
"Matrubhumi" while the other appellant, Ram
Chandra Kar, is the printer and publisher of that
newspaper. In the issue of May 31, 1958, the views
expressed by Dr. Ram Manohar Lohia concerning
the political situation created in Orissa by reason of
the resignation of the Congress Ministry and the
immediate non-acceptance of the resignation by the
Governor were published. During the Press Conference addressed by Dr. Lohia he remarked that the
Governor Mr. Sukthankar had played as a toy in the
hands of the Congress and that a near relation of the
Governor had obtained a job carrying a handsome
salary, with a British Oil Company in Assam and
that, therefore, the Governor was under an obligation
to the Congress. The suggestion clearly was that the
near relation of the Governor had secured employment with the help ol the Congress Party. After the
aforesaid publication came to the notice of the
Governor he had a translation made of it in English
and he sent that translation to the Government of
Orissa for taking such action as may be necessary.
Shortly thereafter the Home Secretary to the Govern·
ment of Orissa passed an order in the following
terms:
"Whereas 'the Matrubhumi' an Oriya Daily
published from Cuttack in its daily edition
l!MZ
GOMr Cltattdra Raul
v.
Publie Proucut•r,
Crdtaik
Mudt../kar, /, •\,
1912
c;., Clair• 11 .. 1
"·
Public ,.,_,..,,
Crlltd
M•ilMlk<r, /.
430 SUPREME COURT REPORTS [1963] SUPP.
dated
May 31, 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 Oriua 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 Ori!Sa.
Whereas the said statement reflects on the conduct of the Governor of Orissa in the discharge
of his public function, 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. Mohan ti, Secretary to
the Government of Orissa in the Home Department do hereby accord sanction for the aforesaid complaint being made by the Public
Prosecutor."
This order purports to
be a
sanction
under
s. 198-B of the Code of Criminal Procedure for the
prosecution of the appellants for offences under s. 500
and s. 501, I. P. C. respectively. In pursuance of
this sanction the Public Prosecutor lodged a complaint
on the· basis of which the appellants were tried by
-
-
2 S.C.R.
SUPREME COURT REPORTS
451
the Sessions Judge, Cuttack. The learned Sessions
Judge held both the appellants guilty of the offences
with which they were charged and convicted them of
those offences and sentenced them to pay certain
fines, as already stated. Their appeals against their
conviction and sentences were dismis•ed by the High
Court.
Section 198 of the Code prohibits a court from
taking cognizance of certain offences, including those
under ss. 500 and 501, I. P. C. except upon a complaint made by a person aggrieved by such an offence.
Therefore, the normal procedure is that where a
person complains of being defamed he himself has
to make a complaint to the court in order to make it
possible for the court to take cognizance of the offence
complained of. When the Code was amended by
Ar.t 26 of 1955, among other provisions, a new one,
s. l 98 · B was added to it. The relevant part of that
section runs thus :
"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 pu~lic servant employed
in connection with the affairs of the Union or
of a State, in respect of his conduct in tlie
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 rr.ade by the
Public Prosecutor.
(3) No complaint under sub-section (1) shall
be made by the Public Prosecutor except with
1962
G1*r CllMdr• &ul
v.
P,,blie Pros1t11Ur
Cuttaek
M•dhDlklr, J.
1962
C.,,, Chadro Root
v.
Pm&lit Prol#lltat,
Cuttad<
Mudho/kar, J.
452 SUPREME COURT REPORTS [1963] SUPP.
the previous sanction,-
{a) in the case of the President or the VicePrcsident or the Governor of a State of any
Secretary to the Government authorised by
him in this behalf;
{b) in the case of a Minister of the Central
Government or of a State Government, 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;
(c) in the case of any other public servant
employed in connection with the affairs or
the Union or of a State of the Government
concerned."
This provision was enacted for the specific purpose of allowing the State to prosecute a person for
defamation of a high dignitary of a State or a public
servant, when such defamation is directed against the
conduct of such person in the discharge of his public
functions. It is common ground that the alleged
defamation of the Governor Mr. Sukthankar does con·
cern his conduct in the discharge of his public functions and consequently the Public Prosecutor could
file a comlJlaint. But tlie provisions of sub-s. (3)
make it clear that the Public Prosecutor cannot lodge
a complaint without, in the case of a Governor, the
previous sanction of a Secretary to the Government
authorised by the Governor in this behalf. We have
already quoted the sanction given by the Home
Secretary. But that sanction will avail provided the
Home Secretary had been previously authorised to
accord a sanction to the lodging of a complaint. In
order to prove authorisation by the Governor reliance
is placed on behalf of the respondent State firstly on
the evidence of the Governor himself. It seems to us,
2 S .C.R.
SUPREME COURT REPORTS
453
however, that the evidence of the Governor instead
of supporting the contention, goes directly agai 1St it.
Mr. Sukthankar has stated in hi, evidence categorically : "I did .not ask the Government to start this
case.
They did so after consultation
with me.
I sent the translation to the Government telling them
that the facts were untrue and to take such action as
deemed proper. I did not direct Government to
start' a case for defamation.
I gave no specific
written directions to Government to start this case."
Whats. 198-B (3) (a) requires ·is that the Governor
should authorise a Secretary to lodge a complaint.
Mr. Sukthankar did not even purport to deal with the
Secretary but with the Government. Further, he did
not ask the Government to lodge a complaint but on
the other hand left it to the Government to decide in
their discretion whether a complaint should be lodged
or not. We are, therefore, unable to hold from the
evidence of the Governor that he in fact authorised
even the Government to lodge a complaint. The
mere circumstance that the Government held consul·
tation with the Governor before filing the complaint
does not amount to authorisation of a Secretary by
the Governor. It seems plain that there are two
restrictions placed upon the power of the public
Prosecutor to lodge a complaint with respect to defamation of a high dignitary such as the Governor.
The first is that he must have been given a sanction
to lodge such complaint and the other is that the
sanction should be accorded by a Secretary to the
Government, authorised by the Governor in this
behalf. This means that the Governor has first to
consider for himself whether the alleged defamatory
statement is of a kind of which he should take notice
and seek to vindicate himself or whether the defa·
matory statement being of a trivial nature or having
been made by an irresponsible person or for some
other reason should he ignored. This decision has to
be taken by the Governor himself and as we read the
section, we are unable to say that he can leave it to
1962
Gour Clum.tit• Ro•f
v.
Public Prosecutor,
Cu.taek
Mudh.U•, J.
/~62
Gtur Clt•ntiro Rowt
v.
Pu/Jlic Prosnulor,
CuttacJ:
Mudholkar, J,
454 SUPREME COURT REPORTS [1963] SUPP.
some other person or an authority like the Government to decide whether a complaint should be lodged
or not. It was, however, urged by Mr. Prem who
appears for the State that it was enough for the
Governor to say that he had no objection to the lodging of a complaint and that
Mr. Sukthankar's
statement that he left it to the Government to decide
what action should be taken and that the Government had consulted him before it decided to take
action, therefore, meets the requirements of the
provisions of cl. (0) of sub-s. (3) of s. 198-B, Code of
Criminal Procedure. He points out that since a
!anction has to be given by a Secretary it is the Secretary who has to apply his mind to all the relevant
facts and come to a decision whether it is in the
public interest to lodge a complaint and if he finds
that it is in the public interest that a complaint be
lodged then to accord his sanction. The Secretary,
as he rightly points out, does not merely perform a
ministerial act in according the sanction and, there·
fore, it is enough that the Governor says that he
leaves the matter to the Government meaning thereby
that he would have no objection to the lodg!·ng of a
complaint. While it is no doubt true that it is the
sanctioning anthority which has to apply its mind to
the facts of a case before according sanction and that
in performing the function of according the sanction
the Secretary does not merely perform a ministerial
act, we are clear that initiative has to be taken by the
Governor by indicating unequivocally that he desires
action to be taken and that the authorisation by him
is not an idle formality.
So when the Governor says,
as Mr. Sukthankar has done in this case, that he
leaves it to the Government to take such action as it
thinks fit the inference must be that he is penonally
indifferent whether a complaint is lodged or not.
When such is the attitude of the Governor it would be
futile to suggest that he has authorised the lodging
of a complaint. It is no · doubt possible that even
though the Governor may have authorised sanction
2 S.C.R.
SUPREME COURT REPORTS
455
to be accorded to the lodging of a complaint the
Secretary may think otherwise and decline to sanction
the lodging of a complaint and that it can be said
that in a sense the Secretary sits in judgment over the
views expressed by the Governor which is implicit in
an authorisation made by him. In our opinion the
legislature
had
good reasons for leaving it to
the Secretary to decide whether the lodging of a
complaint by the Public Prosecutor should be san·
ctioned or not. The Secretary is expected to look at
the question objectively and decide whether it is in
the public interest to take notice of the alleged
defamatory statement and prosecute the person who
made it. A person who is directly. aggrieved by the
statement may not be in a position to take all
objective view of an alleged defamatory statemen•
and. since the expenses for the prosecution will have
to be borne by the State the legislature evidently felt
that there was a good reason for leaving the final
decision
to a third person rather than with the
aggrieved person.
All the same the initiative ta
lodge a complaint must be taken by the Governor
himself and unless he has, in pursuance of his decision to lodge a complaint authorised a Secretary to
sanction its being lodged the Secretary gets no power
to accord his sanction. This authorisation by him is
as important as the sanction of the Secretary.
The High Court, however, has held that
authorisation by the Governor is established by the
evidence of P.W. 2, P.K. Sarangi. This person is an
Assistant in the Home Department of the Orissa
Secretariat who. had placed the papers concerning
the sanction before his superior officer in the Home
Department and who claims to be familiar with the
papers in the file. What he has stated in his examination--in-chief is that the Home Sf'crctary had bf'cn
authorised by the Governor to sanction the prosecution. When he was asked in his cross-examination
whether the authorisation was on the file he stated
1962
Gour C/ua,ira Raul
v.
Pu61ie Prosm1l1r,
Cuttad
JluiMlbr, J.
1962
c .. , Chandra lllJUt
v.
Public Pros1C1'tor1
Cut14ck
Madholiar, J,
456 SUPREME COURT REPORTS (1963] SUPP.
that he was not in a position to say whether it was
on the file or not. It appears that he had brought
the file "showing the authorisation of the Governor"
but he did not produce it as he had not been permitted
to produce it. Whether sanction was authorised by
the
Governor could be proved either from
the
evidence of the Governor himself or from any writing
emanating from the Governor in which the Governor
has said that he has authorised the lodging of a
complaint. From the evidence of the Governor which
we have already quoted it would be clear that there
was no express authorisation of the Secretary by the
Governor.
The mere fact that Sarangi says that
sanction to the prosecution was authorised by the
Governor means nothing as he has not produced the
file showing the Governor's authorisation. In the
circumstances we must hold that the High Court was
in error in reading the evidence of P.W. 2, Sarangi,
as proving authorisation by the Governor. The
High Court has further relied upon the evidence of
the Deputy Secretary, Home Department. This
evidence is not included in the paper book and in
our opinion it has
been rightly excluded. The
evidence was given by the Deputy Secretary not at
the trial but in a revision petition before the High
Court. This revision petition was preferred by the
appellants challenging the validity of the sanction.
It appears that in that petition the appellants had
contended that the sanction had not been authorised
by the Governor. The High Court in its discretion
allowed additional evidence to be led to prove the
authorisation and one of the witnesses examined
before the High Court was the Deputy Secretary.
We are unable to appreciate how evidence tendered
before another court and in other proceedings could
be treated as evidence at the trial.
Moreover, that
evidence does not appear to have been put to the
appellants when they were examined under s. 342,
Cr. P. C. In these circumstances we must hold that
'
2 s.c.R.
SUPREME COURT REPORTS
457
the High Court could. not place any reliance on the
evidence of the Deputy Secretary.
Finally the contention of Mr. Prem is that
there was a gf'.neral authorisation by the Governor
in the year 1956 and that authorisation was sufficient.
The authorisation relied upon by him is in the
following terms : ·
"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 question is whether s. 198-B (3) (a) contemplates
a general authorisation. In support of his contention
he first relies upon the · decision in Gour Ohandra
Rout v. Puhlic Prosecutor ('). That in fact is the
decision of the High Court in the Revision Petition
preferred by these very petitioners in which they
challenged the validity of the sanction. The learned
Chief Justice, who decided the application has,
however, not decided the point as to whether a
general authorisation of the kind contained in the
notification quoted above meets the requirements of
the law. He dismissed the revision petition on the
basis of the additional evidence recorded by him.
It has to be borne in mind that sub-s. (3) of
s. 198-B speaks of a complaint under sub-s. (1) and
the complaint under sub-s. (I) is a specific complaint
in writing made by the Public Prosecutor. Therefore,
reading the two sub-sections together it would be
clear that the authorisation by the Governor is of
(I) A.I.R. 1960 Oris• 116.
1962
Goat Cluoulro Rout
v.
Publie Pror1Cttlor,
Cuttaek
MudMlka,, /,
1962
Gour Chandra Rou•
v.
Public ProHtUlor,
Cuttad:
Mudholka<, J,
458 SUPREME COURT REPORTS [1963) SUPP
the sanction with respect to · a specific complaint.
A general sanction can, therefore, not be of any avail.
The High Court has relied urns. 14 of the General
Clauses
Act in support o ·its conclusion that a
general authorisation would meet the requirements
of cl. (a} of sub-s. (3) of s. 198-B, Cr.P.C. That
section deals with the exercise of a power successively and has no relevance to the question whether
the power claimed can at all be conferred. We may
further point out that cl. (al contemplates authorisation by the Governor defamed and, therefore, an
authorisation of the type which we have here made
by someone else in 1956 can be of no avail. Indeed,
considerin~ the nature of the offence it is difficult
to appreciate how an authorisation in advance to
sanction the making of a complaint of defamation
can at all be given. If such authorisation were good
in law, the Secretary authorised can .mo motu sanction
the making of a complaint, without reference to the
Governor. This may lead to the astounding result
that even where a high dignitary wanted to ignore a
defamatory statement because it is beneath notice or
because it may lead to embarrassment to him the
Secretary can set the law in motion and either make
a mountain out of a mole hill or embarrass the
Governor himself. Such a constructicn would defeat
the very object which the legislature had in view
when it enacted the provision.· We, therefore, reject
the argument of learned counsel and hold that the
sanction given by the Secretary, Home Department
was not duly authorised by the Governor.
Upon this view it is not necessary to consider
some other points raised by learned counsel tor the
appellants. We, therefore, allow the appeal and set
aside the conviction and sentences passed on each of
the appellants and direct that the fines if paid, be
refunded.
Appeal Allowed.