In Re: M.K.T. Subramaniam, and Another

Maharajan, J.—These four appeals are against convictions under S. 500, I.P.C. in respect of matters published in three different issues of

the Tamil Daily ""Jayakodi"". The appeals were heard jointly and may be conveniently disposed of by a common judgment, since some of the

questions of law raised are common to all the appeals.

The accused in Crl. Ap. No. 327 of 1970 from C.C. 11 of 1969 on the file of the Court of Session, Madras division, is admittedly the Editor,

Publisher and Printer of the Tamil Daily ''Jayakodi''. In the front page of its issue of the 14th March, 1969, there appeared an article Ex. P-4 (a),

under banner headlines sweeping in bold type across the whole page, punctuated with insinuating interrogation and exclamation marks, attacking

Mr. Karunanidhl, the Chief Minister of Tamil Nadu and Ministers, Mr. Mathiazhagan, Mr. Muthuswami Mrs. Satyavanimuthu. The relevant

passage in the article may be translated as follows.

Have purchased abundance of lands and estates? Ferocious Decolty

D.M.K. Ministers are apportioning Tamil Nadu Itself among themselves

Property worth several lakhs

Barbarity of vying with one another in making purchases

They are cheating the people

Suppressing the truth

The integrity of the Ministers is exposed

Undersouth these screaming headlines, the article proceeds to make certain sensational disclosures, which ought to arrest the attention of the

dullest reader, and before making the disclosures, the Editor assures the reader:

The news items we publish in ''Jayakodi'' are strictly scrutinised before publication. Not only that. We approach all issues with the audacity to face

the consequences, whatever the consequences may be.

Having thus conditioned the reader into accepting the veracity and authenticity of the information that follows, the Editor (for it may be presumed

from the editorial ''We'' used in the article that it is the Editor himself who is speaking), makes the following pre-factory remarks:

It is the rule that public men should labour to safeguard the welfare of the public. Bat the D.M.K. Ministers of today act as champions of their own

self interest and accumulate super abundant wealth. This shall not be permitted. What will happen to the country if these in power regard it as their

hunting ground. Fair minded people should reflect on all these things.

After admonishing the fair minded to reflect, the Editor tells them:

We have received news that the Tamil Nadu Ministers Karunanidhi, Mathiazhagan, Muthuswami, and Satyavanimuthu have recently purchased

properties worth lakhs and lakhs of rupees.

Lest this bald information should fall to convince the sceptical reader, the Editor proceeds to give facts and figures, which, if true, would shatter

to pieces the reputation of any public figures, however eminent. The facts and figures are given under classified headings as follows.

Karunanidhi. It appears that the Chief Minister Karunanidhi has purchased 62 acres of land in the village of Mukkanar in Thanjavur Dist. It is said

to be worth Rs. three lakhs. The patta No. of this land is 342 and survey No. 476.

Mathiazhagan. Finance Minister Mathiazhagan appears to have bought 42 acres of land in Madathukulam firka. It is said to be worth two lakhs of

rupees. Survey No. of this land is 157 and patta No. 246.

Muthuswami. Local Administration Minister Muthuswami appears to have purchased an estate itself in Kettagiri, Nilgiri Dist. comprising of 64

acres. Its survey No. is 173 and patta No. 168.

Satyavanimuthu: Helth Minister Satyavanimuthu appears to have bought a 44 acre estate in Nandatti, Gudalur, taluk Nilgiris Dt. The survey No is

408 and patta No. 468.

Several Lakhs: It is reported that the estates bought by Muthuswami and Satyavanimutha are worth several lakhs of rupees.

The have made a pile: It is said that ever since the moment the D.M.K. men came to power, they have been very busy baying property and that

even the late Anaadurai has bought several lakhs of rupees worth of property in several places. The details thereto may be expected to be

published in ''Jayakodi'' shortly.

Ministers: It is sheer madness for today''s Ministers to go about saying that they are clean men interested in public welfare and they are blooming

men of virtue.

Relating the entire information vouchsafed by the Editor to the conspicuous headilnes of the article, such as the Ferocious Dicolty, ""Property

worth several lakhs of rupees"", ""They are cheating the people"" and The integrity of the Ministers is being exposed, any reasonable reader would

not fall to gather the impression that the four Ministers mentioned have, by criminal means and by exploiting their office as Ministers, acquired large

extents of property, the value of which for exceeds their lawful earnings an Ministers.

The prosecution has examined the Hazer Christener in the Tanjore Collector''s office (P.W. 6) and the Tahsildar Nagapattinam taluk (P.W. 7),

who proved with reference to Ex-P. 10, the alphabetical list of villages in Tanjore Dt, that these is no village at all by name Mukkanur in Tanjore

Dt, that there is, however, a village, in the district by name Mohanur'' but there in no land in that village bearing patta No. 342 or survey No. 479.

Neither of these witnesses was put any question in cross-examination. It is, therefore clear that the allegation in Ex. P. 4 (a) that the Chief Minister

Karunanidhi has purchased three lakhs of rupees worth of land in Mukkanur village in Tanjore Dt, that the said land measures 62 acres and that it

is comprised in Survey No. 476 and patta No. 342 is totally false.

P.W. 8, who is the Thasildar of Udumalpet Taluk, in Coimbatore Dt. having jurisdiction over Madathukulam firka, proves that the firka contains

18 villages and in none of the villages is any land bearing Survey No. 157 comprised in patta No. 246. He also says with reference to the

Resettlement register which he brought to court, that there are some leads in those villages which bear survey No. 157, but none of these lands is

42 acres in an extent. He further swears that Minister Mathiazhagan owns no land in Survey No. 157 or patta No. 246 of any of those 18 villages.

Though he filed into court the true extracts from relevant entries in the chittas and showed by convincing evidence that the imputation against

Minster Mathiazhagan is false, not a single question was put to P.W. 8, in cross examination.

The allegation is Ex. P. 4 (a) that Minister Muthuswami has purchased a 64 acre estate in Kottagiri in Nilgiris Dt. and that the survey No. is 1/3

and it is comprised in patta No. 168 has been falsified by the evidence of P.W. 4, Thasildar of Coonoor Taluk, having jurisdiction over Kottagiri

village. He proved that with reference to the Resettlement register and the Revenue records that there is no land bearing Sarvey No. 173 in

Kottagiri village but there is a land bearing S. No. 173/1 measuring I-07 acres and a land bearing S. No. 173/2 measuring 0-33 cents and that

both stand registered in the name one K.V. Ajja Gowder under patta No. 385. As regards patta No. 168 mentioned in Ex-P. 4 (a) he proves that

it steads in the name of Kuppi Ammal, Kuppi Ammal and 26 others and that it has been in the possession of the said 28 pattadars for the last ten

years and more. P.W. 5, the village karnam of Kottagiri village, was examined to show that Minister Muthuswami does not own any property in

the village. Neither of these witnesses was cross examined by the accused.

To falsify the allegation against Minister Satyavanimuthu, P.W. 3, the Tahsildar of Gudalur taluk, has been examined. He says that Nandatti is a

village in Gudalur taluk and that S. No., 408, which are in Gudalar village, are a road poramboke, owned by none. He also says that the allegation

that Minister Satyavanimuthu owns an estate of 44 acres in Gudalur taluk is false. This witness was cross-examined by the accused, and he

reiterated with reference; to A. 3 Register that no assignment of poramboke land can be given without his knowledge, that he is absolutely certain

that S. No. 408 continues to be an un-assigned road poramboke, and that the total extent thereof is only 97 cents.

It is this found that every one of the purchases attributed to the four Ministers concerned is false and that the survey numbers and the patta

numbers given by the accused to land a semblance of reality to his false charges are figments of his imagination.

The accused belongs to the Congress Party and is a political opponent of the D.M.K, party. The publication by him of the false Imputations

against the four Ministers must, therefore, be regarded as having been actuated by malice.

When the learned Sessions Judge examined the accused under S. 342 Crl. P. C, the accused admitted that he published the news item in

question. He added that the members of the Public were talking about these four acquisitions and that is why he gave publicity to the offending

news item. He was unwilling or unable to disclose the source of his information. It is difficult to believe that the person who supplied the information

published in Ex. P. 4 (a) could be any one other than the accused himself. No effort appears to have been made by him to verify the truth of the

information, evidently because the information was the result of his own concoction. The solemn pronouncement made in the preface to the article

that no news item would be published in ""Jayakodi"" unless it has been scrupulously scrutinised is evidently intended to invest a malicious falsehood

with a ring of truth. We have little doubt that the serious imputations made in Ex. P. 4 (a) were intended by the appellant to harm the reputation of

the victims of his attack.

Learned Counsel for the appellant would, however, contend that his client is entitled to protection under the Ninth exception to S. 499 I.P.C.

under which it would not be defamation to make an imputation on the character of another, provided that the imputation be made in good faith for

the protection of the interest of the person making it, or of any other person, or for the public good. His contention is that the imputation has been

made by the accused for the good of the public. It is true that where a matter is of public interest, the press which claims to be the watch-dog of

Democracy would be justified even in using intemperate language in criticising the character of public men, but the criticism must be made on the

basis of admitted or proved facts. In this case, as the criticism is built upon non-existent facts, or upon facts coined out of a malicious imagination,

we refuse to hold that the imputation has been made in good faith. We, therefore, repel the argument that the accused is protected by the Ninth

Exception to S. 499 I P.C.

It is next contended that all that the article intended to point out was that the Ministers concerned have been false to their own ideal of

Socialism by purchasing properties beyond a certain limit. This contention must be rejected as untenable. Reference to ''ferocious dacolty'',

''Partitioning of Tamil Nadu'', ''Cheating of the public'' and ''conversion of the country into a hunting ground for Ministers'' taken in conjunction with

the Ministers, alleged acquisition of properties in non-existent villages of survey numbers or patta numbers, would leave no room for doubt in the

mind of the average reader that the Ministers have been guilty of acquiring properties by nefarious means and by abusing political power. We

refuse to believe that what was attributed by the article to the Ministers was only an innocuous acquisition of property in excess of the limits laid

down by the doctrinaires of Socialism. Consequently, we have no option but to confirm the conviction imposed upon the appellant.

As for the sentence, we do not think that it is excessive.

The appellant in Crl. Ap. No. 328 of 1970 was the first accused in C.C. No. 13 of 1969 on the file of the Court below, and is the Editor,

Printer and Publisher of the same Tamil daily ""Jayakodi"", whereas the appellant in Crl. Ap. No. 330 of 1970 was the second accused in the same

C.C. No. 13 of 1969. In its issue dated 24th February, 1969 ""Jayakodi"" published an article contributed by the second accused under the heading

if they meet"" as per Ex. P.4 (a). The article reproduces an imaginary conversation between two members of Parliament belonging to the D.M.K.

party-viz., Manoharan and Chitti Babu. The headnote takes the reader into confidence by informing him that the dialogue is Imaginary. After

exchanging some pleasant tries, Monoharan tells Chitti Babu:

To you know all our Minister have made incredible acquisitions. Oh God They have acquired lakhs and lakhs and they are simply revelling. Even

Satyavanimuthu has acquired an estate for Rs. thirty lakhs.

Chitti Babu is surprised to hear this information and wants Manoharan to give more particulars. Then says Manoharan:

I understand Karunanidhi has acquired about fifty lakhs of rupees. It appears that the other Ministers are also going on purchasing numerous leads

and houses.

After hearing this, Chitti Babu makes the following observation:

Who, it appears as if these follows are distributing Tamil Nadu itself among themselves. Let them do it. Only unto 1972 they can do it. Who will

cast a look at them or us thereafter. We have been effectively cheating the public by saying that we are servants of the public and that we are

truthful persons and so on. We can do only for a few more days. What will we do later? Well. Well, there is an ""Adults only"" film in the New

Cinema theatre. It is said to be very testy. I will go.

The first accused admitted the publication of the script in question, and the second accused admitted that he is the author thereof. Both of them

contended that the article reproduced only imaginary conversation and that there is nothing defamatory about it. The essence of defamation is that it

conveys a discs creditable imputation by words either spokes or intended to be read or by signs or by visible representations. According to

Explanation 3 of S. 499, I.F.C, an imputation in the form of an alternative or expressed ironically, may amount to defamation. Illustration of to that

section says: that if a draws a picture of Z running away with B''s watch intending it to be believed that Z stole B''s watch, it would be defamation,

unless it falls within one of the exceptions. It is therefore immaterial in what medium the discreditable imputation concerning a person is made. A

play which in woven out of the imagination of an author can possibly contain more deadly imputations against real persons than a more narrative.

What the author has done in the course of his imaginary dialogue in to bring together two living Parliamentarian belonging to the D.M.K. party and

condemn the D.M.K. ministry out of their own months. The imaginary conversation is so satirically manipulated by the author as to extort from the

two characters certain confessions about the misdeeds of the Ministers of the Party to which both belong. They are made to comment in an

undertone of envy upon the depredations of the D.M.K. Ministers including the Chief Minister, Karunanidhi, who is alleged to have earned over

fifty lakhs of rupees, evidently by unfair means, and to be engaged in distributing the spoils of office including Tamil Nadu among in colivegaes. The

author of the article, who evidently belongs to a political party, which does not see eye to eye with the D.M K. party extracts from the words of

Chitti Babu the prediction that the days of D.M.K. rule are numbered and that nobody would cast a look at the D.M.K. men after 1972, in which

year, according to the author, they will be thrown out of office. It is thus seen that though the conversation is imaginary, the imputation concerning

the Chief Minister Karunanidhi is very real and that it is intended to harm the reputation of the defamed person by suggesting that according to the

thinking of his own partymen, he has amassed wealth by obeating the public and abusing political power. As the imputation has been deliberately

made and it is based upon material supplied out of the author''s imagination to the two characters whose conversation he has manipulated, there is

little scope for applying the Ninth Exception to S. 499, I P.C. to either of the appellants. We, therefore, hold that both the accused in C.C. 12 of

1969 have been rightly convicted and sentenced.

We will now turn to Crl. Ap. No. 329 of 1970 which has been preferred by the same Editor, Printer and Publisher of the Tamil daily

Jayakodi"" against his conviction in C.C. 16 of 1969 on the file of the court below of the offence of defaming Mr. M. Karunanidhi, Chief Minister

of Tamil Nadu. Ex. P. 4 (a) contains the defamatory matter, which was published in the issue of ""Jayakodi"" dated 20th April 1969. The article is in

the form of admonition to the public for having returned in large numbers D.M.K. members and their allies as Councilors of the City Corporation.

Addressing the public, It says:-

You have voted in order that they may ravish, thieve, drink and revel.

By returning the D.M.K. members in large numbers, says the article, the electorate must be deemed to have welcomed their lawlessness,

decolty, barbarous ravishing and day light robbery and corruption of some of them. When the article continues to say that many D.M.K.M.L.A.s

have, within two years, bought cars and bungalows with the aid or bribes received by them, and that all the Ministers, except Minister Madhavan,

indulge publicly in drunken revelry, and many Ministers, after becoming Ministers, have purchased and piled up large extents of property. After

making these remarks, the article proceeds to say that the wholes country knows that the Arun Hotel and several buildings in Mount Road,

Madras, have been purchased by Karunanidhi in the names of the members of his family. The report adds:

Our office Compositor, Ramachandran is saying daily and the people in the neighborhood of Mount Road Round Tana are saying that a famous

building called Victory House belonging to the Swadesamitran in Mount Road has been purchased for 45 to 30 lakhs of rupees in the name of

Karunanidhi''s nephew, who is a Member of Parliament.

After making some more allegations, the article proceeds to ask:

It after knowing all this, the public have returned the D.M.K. members to the Corporation Council, does it mean that the public thinks that all these

deeds of the D.M.K. are sacred? It does not matter whether the Congress which does not indulge in such deeds should have been defeated. If

corruption and nepotism are wanted, let the D.M.K. be in power. If ravishing, drunkenness, dacolty and arson are the needs of the country, let the

D.M.K. score victories. The Congress will always labour for justice and administrative purity.

The report is wound up with the poignantly rhetorical remark:

Alas, the public is going down and down towards the nether world.

The accused, when examined under S. 343 Crl. P.C. admitted that he published the offending report, but he said that be had received

information about the purchases made by the Chief Minister Karunanidhi and that is why he published the same.

P.W. 6. Palaniappa Chattier, who built the Arun Hotel and started it as a limited concern, was examined by the prosecution. He said that the

total number of shares for Arun Private Ltd. is 500 and that each share is valued at Rs. 1,000. He would also say that there are three directors for

the company, viz. himself; his son aid hit daughter-is-law and the all the 500 shares are owned by the three directors. He adds that the shores of

the company have never been transferred to Mr. Karunanidhi and that they are retained update by the three directors. The court below has rightly

accepted his evidence as there is little room for disbelieving the same. If his evidence is accepted, it is clear that the allegation in Ex. P. 4 (a) that

Mr. Karunanidhi has purchased Arun Hotel in the names of the members of his family is false.

When we have the evidence of P.W. 4 (Raman), who is the Finance Manager of the ""Swadesamitran"" daily. He says that the Swadesamitran

purchased in Victory House in Mount Road, near Round Tana about 25 years back, that it continues to be with the Swadesamitran and that there

is no truth in the allegation that it has been sold to the nephew of Chief Minister Karunanidhi. Nothing has been elicited in the cross examination of

this witness which can be used to challenge the truth of his testimony. It therefore follows that the allegation in Ex. P. 4 (a) in respect of the

purchase by the Chief Minister of the Victory House in the name of his nephew for 45 or 50 lakhs of rupees is equally false.

A reading of the article produces the impression that the Chief Minister has purchased these two properties by corrupt means and by

committing the several heinous offences which have been catalogued in the article. No doubt, if the purchases alleged were true, it would be open

to the accused as a newspaper man to publish, in the interests of the public, his own inferences from the purchases. But exception 9 to S. 499,

I.P.C. enjoins upon the libellist the duty of making sure of the facts from which he extracts his inference. The accused''s only sources of information

are, according to the article, Ramachandran, the Office Compositor, who is reported to have been daily repeating the information and the gossip of

persons in the neighborhood of Round Tana, Mount Road. The accused appears to have made no attempt to verify the information gathered from

such flimsy sources. We must, therefore, hold that the publication has not been made in good faith and that the article which is per se defamatory is

unprotected by the Ninth Exception to S. 499 I.P.C; the conviction and sentence imposed by the court below are, therefore, upheld.

We shall next proceed to consider certain legal object one also in all the four appeals. The first objection is that the non-examination of the

Chief Minister as a witness constitutes a violation of the mandatory provisions of sub-S. (5) of S. 198-B Crl. P.C. and that consequently has

vitiated the entire trial. That sub-section runs as follows:

When the court of Session takes cognisance of an offence under sub-S. (1), then, notwithstanding anything contained in this Code, the court of

Session shall try the case without a jury and in trying the case, shall follow the procedure prescribed for the trial by Magistrate of warrant cases

instituted otherwise than on a police report and the person against whom the offence is alleged to have been committed shall, unless the court of

Session, for reasons to be recorded otherwise directs, be examined as a witness for the prosecution.

In C.C. 11 of 1969, the persons against whom the offence is alleged to have been committed are four in number, and all of them were

examined except the Chief Minister. In the remaining two cases, the person against whom the offence is alleged to have been committed is the

Chief Minister. It appears from the judgments of the court below that the Additional Public Prosecutor brought to the notice of the court that in

view of the evidence already on record, the evidence of the Chief Minister was considered by the prosecutor to be needless. Upon this

representation, the court passed an order dispensing with the examination of the Chief Minister. The reason given by the lower court is that in view

of the other evidence on record, it was not necessary to examine the Chief Minister. The requirements of S. 198-B(5) Crl P.C. have thus been

strictly compiled with. The section does not lay down the penal consequences flowing from the non-examination of the person against whom the

offence is alleged to have been committed. The language of sub-S. 198-B Crl. P.C is somewhat obscure as to whether the duty of examining the

person against whom the offence is alleged to have been committed is imposed upon the court or upon the prosecution. The sub-section appears

to have been inserted to meet the objections raised in Parliament to the section itself on the ground that it was oppressive in that it enabled the use

of the resources of the State to vindicate private wrongs and that it created a privileged class of public servants, who could launch prosecutions

under the sheltering wings of the Public Prosecutor instead of coming out into the open like any other ordinary citizen. Probably, it was thought by

prescribing the compulsory examination of the defamed person, the defamed person would be put on equal footing with the accused. Whatever the

intention of the Legislature might be, sub-S. (5) of S. 198-B Crl. P.C. relaxes the rigour of compulsory examination by empowering the court for

reasons to be recorded to exempt the defamed person from examination. The provision does not say (and it is unnecessary for us in these cases to

investigate) what consideration should guide the court in exercising this power of exemption. It is conceivable that in certain types of cases, the

offence may not be brought home unless the defamed person is examined, or the accused might be handicapped in his defence unless the defamed

person is put into the box. But in the cases on hand, it cannot be said that the non-examination of the Chief Minister has either handicapped the

defence in any manner or has failed to bring home the guilt of the accused. The fact of the publication of the offending matter being per se

defamatory, it is for the accused to prove he is projected by one or the other of the exceptions to S. 499, I.P.C. We do not think that the

examination of the Chief Minister would have, in any manner, lig opened this burden. We are therefore, unable to hold that the court below

exercised its discretion improperly while exempting the Chief Minister from examination. In view of this order of exemption, the non-examination of

the Chief Minister does not violate the provisions of sub-S. (5) of S. 198-B, Crl. P.C. nor does it vitiate the trial in any manner.

The next ground of objection is that the sanction which is a necessary pre-condition to the prosecution under S. 198-B, Crl. P.C. is defective.

The relevant clauses of S. 198-B Crl. P.C. read as follows:

(1) Notwithstanding anything contained in this Code when any offence falling under Ch. XXI, I.P.C, (Act XLV of 1860 is alleged to have been

committed against the President, or the Vice President, or the Governor 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

cognisance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.

(2) . . .

(3) No complaint under sub. S. (1) shall be made by the Public Prosecutor except with the previous sanction;

(a) In the case of the President or the Vice President, or the Governor of a State, or any Secretary to the Government authorized 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 concerted;

(c) In the case of any other Public servant employed in connection with the affairs of the Union of a State, or of the Government concerned.

In all these cases, the defamed person is the Minister of the State Government. It would therefore, follow sub-S. (3) (b) of S. 198-B Crl P.C,

would apply. In other words, no complaint in these three cases should have been made by the Public Prosecutor except with the previous sanction

either of the Secretaries to the Council of Ministers if any, or of any secretary to the Government, authorised in this behalf by the Government

concerned. If the Secretary to the Counsel of Ministers accords the sanction, it is not necessary that he should have been authorised in this behalf

by the Government concerned, such authorisation being required only when sanction is accorded by any Secretary to the Government who is not a

Secretary to the Council of Ministers. The sanctions accorded have been exhibited and they are in almost identical terms. For example, the

sanction accorded in C.C 11 of 1969 runs as followers. -

Immediate Confidential: Proceedings of the Chief Secretary to the Government of Tamil Nadu and Secretary to the Council of Ministers No.

2314/69-2 Public (General B) Dept., Dated 13th June, 1969.

Present: Sri G.A. Ramakrishnaa, I.C.S.

Sub: Code of Criminal Procedure Sanction under S. 198.B Cr. P.C. to prosecute Thiru M.K.T. Subramaniam, for publication of a defamatory

article against the Chief Minister and certain other Ministers-Accorded.

Whereas in the issue of the Tamil daily ''Jayakodi'' dated 14th March, 1969, an article has been published at page 1 under the caption ''purchased

large extent of lands and number of estates? D.M.K. Ministers sharing Tamilnadu itself, etc. saying that the Chief Minister has purchased 62 acres

of land at Mukkanur in Thanjavur Dt, costing Rs, 3 lakhs, the Minister for Finance has purchased 42 acres of land costing about is. 1 lakhs at

Madathukulam firka in Coimbatore Dt. the Minister for Local Administration has purchased an estate of 64 acres in Kotagiri in the Nilgiris Dt. and

the Minister for Health and Harijan Welfare has purchased an estate of 44 acres in Manthatti in Gudalur, Taluk in the Niligiris Dt.

And whereas, I, C.A. Ramakrishnan, I.C.S. Chief Secretary to the Government of Tamil Nadu and Secretary to the Council of Ministers, am

satisfied, that the publication of the said article constitutes an offence falling under S. 500 I.P.C. (Central Act XLV of 1860), against Thiru C.

Karunanidhi, the Chief Minister of Tamil Nadu and Thiruvalagargal Mathiazhagan and Muthuswami and Thirumathi Satyavanimuthu, Minister for

Finance, Minister for Local Administration and the minister for Health and Harijan Welfare respectively of the Government of Tamil Nadu, in

respect of their conduct in the discharge of their public functions;

And whereas by publishing the said article Thiru M.K.T. Subramaniam, Editor, Printer and Publisher of the Tamil daily ''Jayakodi, has committed

the offence aforesaid:

Now, therefore, under clause (b) of sub-S. (3) of S. 198-B Crl. P.C. 1898 (Central Act v. of 1898), I, the said Ramakrishnan, hereby accord

sanction for the making of a complaint under sub.S. (l) Of the said S. 198-B against Thiru Subramaniam aforesaid.

Sd. C.A. Ramakrishnan, Chief Secretary to Government and ""Secretary to the Council of Ministers

The evidence shows that under the business rules, the Chief Secretary to the Government of Tamil Nadu is the Ex-Officio Secretary to the Council

of Ministers. The proceedings show that they have been issued by Thiru C.A. Ramakrishnan, in his capacity not only as the Chief Secretary but

also as Secretary to the Council of Ministers. He has also signed the order of sanction and described himself as Chief Secretary to Government

and Secretary to the Council of Ministers. The contention of the learned Counsel for the appellants is that because he has issued the sanction as

Chief Secretary and he has not been authorised in this behalf by the State Government, the sanction is defective. We are enable to agree. Thiru

C.A. Ramakrishnan occupies a dual capacity as Secretary to the Council of Ministers and as Chief Secretary to the Government. When the

passed the order of sanction, he must be deemed to have done so in his capacity as Secretary to the Council of Ministers, though he has also

described himself needlessly as Chief Secretary to Government. In one of the three orders (Ex. P. 3 in C.C. 13 of 1969), his designation as Chief

Secretary to Government alone appears under his signature, though in the heading as well as in the body of the order of sanction, he has said ""I,

C.A. Ramakrishnan, I.C.S., Chief Secretary to the Government of Tamil Nadu and Secretary to the Council of Ministers, hereby accord sanction

for making of a complaint. . .

Even assuming that these sanctions have been accorded conjointly by the Chief Secretary and the Secretary to the Council of Ministers, they

would still be valid, because it is open to the Secretary to the Council of Ministers to accord the sanction without any authorisation from the

Government, although the Chief Secretary, If he is dissociated from the office of the Secretary to the Council of Ministers, cannot accord the

sanction without the authority of the Government.

It is next contended that the Chief Secretary ascertained the consent of the Ministers concerned before according the sanction, and therefore

he has not exercised any independent judgment which the section expects him to exercise before according sanction. The intention behind the

provision is that unless the sanctioning authority is authorised by the victim of defamation to accord sanction he ought not to accord it. High

dignitaries of State may for good reason choose to ignore the defamatory attacks made open them. The section, therefore, provides that the

sanctioning authority should be specifically authorised in this behalf. Such authorisation necessarily Implies consultation between the sanctioning

authority and the person defamed. It cannot therefore, be contended that the sanction is vitiated merely because the Chief Secretary obtained the

sanction of the Ministers before according the sanctions.

As pointed out by the Supreme Court in Gour Chandra Rout and Another Vs. The Public Prosecutor, Cuttack, ,

The Secretary....does not merely perform a ministerial attack in according the sanction-. . .While it is no doubt tree that it is the sanctioning

authority 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 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....It is no doubt possible that even though the Governor

may have authorised sanction 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 sanctioned 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 an objective view of an alleged defamatory statement 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.

But so far as the Secretary to the Council of Ministers is concerned, no special authorisation is prescribed, obviously because he is an integral

part of the Council of Ministers, and he would not proceed to accord sanction with out previously obtaining the authorisation of the Minister

concerned. No doubt, the Secretary to the Council of Ministers is by virtue of his position as such, subject to the influence of the Minister

concerned. But that is no reason why he cannot be expected to exercise an independent judgment of his own. At any rate, the Legislature in its

wisdom expects him to do so and it is not open to this Court to question it. In all the sanction orders, Mr., C.A. Ramakrishnan has said that he, as

Secretary to the Council of Ministers, is satisfied that the publication of the article in question constitutes an offence falling under S. 500 I.P.C.,

against the Ministers concerned in respect of their conduct in the discharge of their public functions, and, therefore under clause (b) of sub-S. (3) of

S. 198-B, Crl. P.C. he accords sanction for the making of a complaint under sub-S. (1) of the said S. 198-B. We see no reason to go behind this

statement and held that such subjective satisfaction as the Secretary to the Council of Ministers has received is not voluntary or independent. We

therefore hold that the sanction accorded is valid and the prerequisite to the launching of prosecution under the section has been fulfilled.

In the result, all the four appeals fail and will stand dismissed.