In Re: P. Ramaswami

Sadasivan, J.—Appellant Thiru P. Ramaswami, was the Editor, Printer, and Publisher of the Tamil Daily ""Nathigam"" on the relevant date,

namely 27th March 1969, when the defamatory article Ex. P-3 (a) was published in the Daily Ex. P-3, under the caption ""Accounts of Minister''s

Assests"". The material part of the article is to the effect that Thiru Karunanidhi. who does not come from a wealthy family, had disclosed in his

income tax returns that he has properties worth Rs. 57 lakhs, that he must have acquired this 57 lakhs, only after he became Minister of Public

Works, because before that he was in very poor financial circumstances and he could not have earned this amount from his work in films, before

he became a Minister, that after becoming the Chief Minister, the financial position of the State has not improved, but that his own financial position

has improved greatly to the cavy of some D.M. K members and that he owns a building in Mount Road, a fine hotel in Aminilkarrai and some

houses la Thousand Lights.

The above allegations are per se defamatory. The City Public Prosecutor, Madras, filed a complaint under S. 198-B Crl. P.C., against the

appellant under S. 500 I. P.C. after obtaining the sanction, Ex. P-2 from the Secretary to the Council of Ministers. The learned Sessions Judge,

Madras Division, accepted the prosecution case, convicted the appellant under S. 500 I.P. C. and sentenced him to R. I for three months and to

pay a fine of Rs. 1,000, or is the alternative, to S.I. for three months.

Thiru C.K. Venkatanarasimham appearing for the appellant urged only one point, namely, that the appellant is entitled to the benefit of

Exception 9 to S. 499, I. P.C. In order to benefit of that exception, the appellant should prove that he acted in good faith. It is clearly stated in S.

52, I.P. C. that nothing is said to be done or believed in good faith, unless it is done after due care and sanction. It is quite clear from the evidence

of P.W. 4, Thiru Seshadri, the Incometax Officer who dealt with the the Incometax returns filed by White Karunanidhi and who is the officer who

should have dealt with his wealth tax, return; If he was liable to pay wealth tax, as wall as the evidence of P.W. 5 Thiru Jagadeesan, the Chartered

Accountant, who prepared and submitted the incometax returns on behalf of Thiru Karunanidhi, that the statement in Ex. P-3 (a) that Thiru

Karunanidhi has filed Incometax return showing that he has properties worth Rs. 57 lakhs la totally false. In fact, no attempt was made by the

learned advocate for the appellant, to show that either the statement was true, at that the appellant, after bona fide enquiries, believed it to be true.

Even during his examination under S. 342 Crl. P. C, the appellant Merely stated that the object of his publishing Ex. P-3 (a) was to compel Thiru

Karunanidhi and other Ministers to file their property statements in the Legislature as promised by the mearlier. He examined himself as a defence

witness. Even in his evidence, he has made no attempt to justify the statements in Ex. P-3 (a) on the ground that they are true or at least on the

ground that he made bona fide enquiries and satisfied himself about the truth of the same. During his examination under S. 342 Crl. P. C the

appellant has stated vaguely that Thiru Karunanidhi has purchased properties in the name of others, without disclosing specifically the individuals in

whose name he has so purchased the properties.

The learned advocate for the appellant commented on the fact that Thiru Karunanidhi has not been examined as a witness in this case.

Ordinarily, it is open to anyone, whether aggrieved or not, to file a complaint in a criminal case. But in order to discourage frivolous prosecutions, it

is provided in the Criminal Procedure Code, that courts shall not take cognisance eve certain offences unless the complaint is made by some

person aggrieved by the offence. Thus in a case of defamation punishable under Chapter XXI, I.P. C. S. 198 Crl. P. C, specifically provides that

no court shall take cognizance of an offence except upon a complaint made by some person aggrieved by such offence. S. 198-B, Crl. P. C,

however makes prevision for the Public Prosecutor to prefer a complaint in a Court of Session for the prosecution of the offence of defamation

against the President or the Vice President or the Governor, or a Minister or any other public servant, in respect of his conduct in the discharge of

his public functions. But Clause (5) of S. 198-B provides a safeguard that the person supposed to have been wronged should be available as a

witness in the case, to be cross examined. Even if his public duty prevents such high dignitary from coming to court without detriment to his public

functions, there could be no difficulty for his being examined on commission. The failure to give due effect to the provision may lead to miscarriage

of justice. If the Public Prosecutor does not examine the person against whom the offence is alleged to have been committed and the court

considers that the evidence of the witness is necessary, there will be no alternative, but to acquire the accused. But S. 191-B (5) Crl. P. C,

provides that the court shall examine the person against whom the offence is alleged to have been committed, unless for reasons to be recorded, it

directs otherwise.

The learned Sessions Judge has stated in paragraph 7 of his judgment that by his order dated 18th February 1970, the examination of Thiru

Karunanidhi was dispensed with. We found a brief order on the notes paper dispense log with the examination of the Chief Minister Thiru

Karunanidhi on the ground that the Public Prosecutor wanted to dispense with the witness. This is hardly satisfactory. The case appears to have

been adjourned several times for the examination of Thiru Karunanidhi and normally he should have been examined as a witness in this case. But

the prosecution examined P. Ws. 3 and 4 to prove that the statements contained in Ex. P. 3 (a) are not true. In fact, the plea of the appellant

himself is that the made the statements with the object of inducing the Ministers to come forward with their statement of property. He has not

pleaded or proved that the statements are true, that or he satisfied himself about the truth of the same, after bonafide enquiries. He merely claimed

that there were rumours about the matters mentioned by him in Ex. P-3 (a). Thus the non-examination of Thiru Karunanidhi is not of any

importance having regard to the facts and circumstances of this case. Hence it could act be said that the learned Sessions Judge erred in dispensing

with the evidence of Thiru Karunanidhi, though he has failed to give satisfactory reasons for the same.

For the foregoing reasons, we find that the appellant is not entitled to the benefit of Explanation 9 to S. 499 , I. P.C.

In the connected cases against another accused an argument was advanced about the validity of the sanction accorded by the Chief Secretary to

the Government of Tamil Nadu under S. 198-B Crl. P. C Though this point was not specifically argued in this case, we shall deal with it briefly. Ex.

P-2 in this case has been signed by the Chief Secretary to the Government. Under S. 198-B(3)(b), in the case of Ministers of a State Government,

sanction should be accorded by the Secretary to the Council of Ministers, if any, or any Secretary to the Government authorised in the behalf by

the Government concerned. The argument is Ex. P-2 is signed by the Chief Secretary to the Government and there is nothing in the order to show

that he was authorised by the Government to sanction the prosecution. There it a fallacy in this argument. In the case of Ministers, the person who

should give the necessary sanction is the Secretary to the Council of Ministers, if any, and only in the absence of such an official, sanction should be

accorded by any secretary to the Government, authorised by the Government. In this case, Thiru C.A. Ramakrishnan in not only the Chief

Secretary to the Government of Tamil Nadu, but also the Secretary to the Council of Ministers. It is, therefore, open to him to give the necessary

sanctions as Secretary to the Council of Ministers. It is true he has signed Ex. P. as C.A. Ramakrishnan and described himself as the Chief

Secretary to Government. But even at the top of Ex.P.2 it is clearly stated that it relates to the proceedings of the Chief Secretary to the

Government of Tamil Nadu and Secretary to the Council of Ministers. Further, in the operative portion of the document relating to execution, Thiru

C.A. Ramakrishnan has described himself as the Chief Secretary to the Government of Tamil Nadu and Secretary to the Council of Ministers, in

according the necessary sanction.

The conviction of the appellant under S. 500 I.P. C, and the sentence of S.I. for three months and a fine of Rs. 1000 and in default to S.I. for

three months, are correct and they are confirmed. But the sentence of imprisonment is ordered to run concurrently with that imposed on the

appellant in Crl. Apl 552 of 1967 and Crl. R.C. 361 of 1969 on the file of this Court.