P. Karthikeyan vs S. Ananthanarayanan

M. Karpagavinayagam, J.—Mr. P. Karthikeyan, the complainant, the petitioner herein has preferred this revision before this Court, against

the order of the First Additional Sessions Judge, Pondicherry in Crl. R.P. No. l of 1989, dated 10-10-1989, reversing the order of the Sub-

Divisional Judicial Magistrate, Pondicherry, passed in C.C.No.263 of 1988, dated 28-10.1988.

The petitioner was working as a Post-Graduate Teacher in Vivekananda Government Boys Higher Secondary School, Villianur, Pondicherry.

The respondent Ananthanarayanan, was the Principal of the said school. By a Memorandum dated 28-1-1986, a charge sheet was issued to the

complainant, and an enquiry was conducted against him. The Enquiry Officer, after finishing the enquiry, submitted a report to the

respondent/Principal, who was the Disciplinary Authority for taking appropriate action. The respondent being the disciplinary authority, accepted

the finding given in the Enquiry Report and ordered compulsory retirement of the complainant/petitioner from service.

On 4-5-1987, the said communication was sent to the complainant by registered post. On receipt of this order, the complainant filed an appeal

against the said order. In the mean time, the respondent/principal published the said order of compulsory retirement, in the official Gazette dated

4/8/1987.

Since the complainant felt that the publication of the said news in the Official Gazette was made with the intention to defame him, he filed a

complaint before the Sub-Divisional Judicial Magistrate, Pondicherry in C.C. No. 263 of 1988 on 4-1-1988. In the meantime, before filing the

complaint on 21-8-1987, the complainant sent a Memorandum to the Lt. Governor, Pondicherry, requesting sanction to prosecute the

respondent/Principal, for the offence u/s 500 I.P.C. Since no sanction was granted, the above said complaint was filed, even without the sanction.

It is mentioned in the complaint, that sanction is not necessary, as the publication was done in the official Gazette, by the respondent/Principal

only in the personal capacity, and not as a Disciplinary Authority.

On service of summons, the respondent/Principal, appeared before the Court, and raised the preliminary objection before the lower Court, that

the complaint could not be maintained as no sanction had been obtained u/s 197 Cr. P.C.

After hearing the parties, the learned Sub-Divisional Judicial Magistrate, held that the question of sanction u/s 197 Cr. P.C, does not arise in this

case, because, the respondent/accused had made the publication in the Official Gazette in his personal capacity as Principal, and not as a

disciplinary authority. Aggrieved over this order, the respondent filed a revision before the First Additional Sessions Judge, Pondicherry, in Crl.

R.C. No. 1 of 1989, which was, as aforesaid, allowed, holding that the preliminary objection raised by the accused was a valid one, and that the

publication in the Official Gazette was made by the respondent herein in the capacity as a Government servant, who is removable by the

Government of Pondicherry, in the discharge of his official duty. As such, the complaint, which was made against the respondent was not valid in

law. Hence this revision before this Court.

Learned counsel for the petitioner, would with vehemence contend that the revision court ought not to have held on the basis of the documents

not referred in the complaint, that the respondent published the order of compulsory retirement in his official capacity, more particularly when the

complainant stated in his complaint that the said publication was published only in his personal capacity.

This submission was repelled with equal vehemence by the Public Prosecutor, Pondicherry.

At the outset, I may mention that the Public Prosecutor, Pondicherry, could not appear on behalf of the respondent/accused, as it is settled

law, that though the accused seems to be a Government servant, he could not be defended by the Public Prosecutor, who is supposed to represent

the case of the State alone. However, since Public Prosecutor entered appearance in this case, this Court allowed him to argue as amicus curiae,

to assist the Court.

The short point that arises for consideration in this case is, as to whether the revision Court, on the disputed question of fact, could decide, on

perusal of the documents not referred to in the complaint, to the effect that the complaint was not valid, as the Government Servant committed

offence in the discharge of the official duty, and as such, the sanction was necessary u/s 197 Cr. P.C.

It is no doubt true, that in the private complaint it has been mentioned that the publication of the order of compulsory retirement of the

petitioner in the Official Gazette on 4-8-1987, by the respondent is in the personal capacity as Principal. It is also mentioned mat when the appeal

was filed before the Disciplinary Authority, the Disciplinary Authority has to stay all proceedings, but curiously enough, the respondent published

the order of compulsory retirement in the Official Gazette, which would go to show the criminal intention of the respondent to defame the

complainant. It must be borne in mind, at this stage, mat out of three documents referred in the complaint, the third document is the memorandum

sent by the complainant to the Lt. Governor, date 21-8-1987, requesting sanction for prosecution of the respondent Principal.

The order of Revision Court would show that the original of this document was summoned from the Government, and the learned Sessions

Judge perused the said document, and on the basis of mat, the Sessions Judge observed mat the complainant sought for permission to prosecute

against the said Principal, who made the publication in the official gazette. From this, it is clear, without any sanction, the petitioner/complainant had

come forward with this private complaint, by stating that no such sanction is necessary, since the publication was done only in his personal

capacity.

During the course of submissions made before this Court, the learned Public Prosecutor, also filed a communication made to the Public

Prosecutor, by the Government of Pondicherry, stating that the said order of compulsory retirement was passed by the respondent/accused in his

official capacity, i.e., as Disciplinary Authority, and that the Principal of Higher Secondary School is conferred with Head of Office power in

respect of Government transaction, and so the respondent/accused being the Head of Office of the Institution, caused the said publication, in the

Official Gazette in his official capacity. It is also mentioned in the said communication, that the respondent/accused had already retired from

Government service on superannuation.

In this context, this Court has to consider, whether the order passed by the revision Court is valid or not?

As indicated earlier, there is dispute with regard to the fact, whether the publication was made by the respondent/Principal, either in his

personal capacity or in his official capacity, as a Disciplinary Authority. Straight away this question could be answered, as that question of fact

could be decided only during the course of trial. But it is surprising to see, that the trial Court, while dismissing the application raising the

preliminary objection, concluded, even before the trial, that the publication was made by the respondent only in his personal capacity, which, in my

view, is quite wrong. The trial Court, could have, very well said, that such point could be decided only during the course of trial. In the same way,

merely on perusing the original file summoned from the Government, the Sessions Judge, observed that the publication was made not in the

personal capacity, but only in his official capacity.

However, this Court could very well go into the question, whether sanction is necessary, in the light of the present facts and circumstances of

the case.

A perusal of the Official Gazette filed along with the complaint would show that the publication of the order of compulsory retirement of the

complainant was made by the respondent/Principal, as Disciplinary Authority. It is mentioned in the last paragraph of the order, notified in me

Gazette, that ""in exercise of the powers conferred by rule 12 read with rule 15(4) of the Central Civil Services (Classification, Control and Appeal)

Rules, 1965, the undersigned hereby impose on Thiru P. Karthikeyan, Post-Graduate Teacher (Tamil) in the Vivekananda Government Boys''

Higher Secondary School, Villianur, the penalty of compulsory retirement with immediate effect."" Therefore, the averment in the complaint that the

publication was made in the official Gazette on 4-8-1987, by the respondent, in his personal capacity may not be correct, in the light of the

materials produced and the documents referred to in the complaint.

However, without going to the merits of the order passed by the Courts below, I feel that the complaint could not be maintained, on the

following reasons :-

(i) This complaint was taken on file for the offences under Sections 499 and 500 I P.C. The crux of the indictment in the complaint is that the

accused made the publication in the Official Gazette, of the order of compulsory retirement of the complainant, with an intention to defame the

complainant. But, there is no averment, either in the complaint or in the sworn statement, either due to the above publication, the imputation,

prestige, image and reputation of the complainant has been lowered down in the estimation of the public.

(ii) According to the definition of ''defamation'' as provided in Section 499 of the Indian Penal Code, ""Whoever, by words either spoken or

intended to be read, or by signs or by visible representations, makes or punishes any imputation concerning any person intending to harm, or

knowing or having reason to believe that such imputation will harm the reputation of such person, is said, to defame that person.

(iii) Explanation 4 to Section 4991.P.C., runs as follows :-

No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or

intellectual character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that

person, or caused it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

(iv) Thus, a conjoint reading of Section 499 I.P.C., with this Explanation 4, would make it clear, that in the complaint, there shall be an averment to

the effect, that because of the imputation the complainant''s reputation had been lowered in the estimation of others. As indicated earlier, this

important ingredient is absent in the complaint and in the sworn statement.

(v) While interpreting Section 499 I.P.C., and Explanation 4 thereto, this Court in Miss. Violet Wapshare v. Miss. Maureen Fround (1970 L.W.

(Crl.) 4), held as follows:-

The word ''harm'' used here relates to imputations on a man''s character made and expressed to others; so as to lower him in their estimation and

anything which lowers him merely in his own estimation certainly does not constitute defamation.

(vi) In a recent Judgment of the Supreme Court in Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and Others, , while answering similar

question, the Apex Court, after extracting Section 499 I.P.C., and Explanation 4 thereto, observed as follows:-

A reading of the complaint does not contain any of the allegations constituting the offence of defamation punishable u/s 5001.P.C. The contents of

the magazine are alleged to be defamatory against the Marwari community, lowering them in the estimate of the public or their reputation is

lowered in the society. But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the Court of the

Judicial Magistrate, First Class in Court No.4, at Pune does not contain any of the allegations so as to constitute the offence of defamation defined

in Section 499 and punishable u/s 5001.P.C.

(vii) Therefore, in the absence of the said averment in the complaint, with reference to the fact of the reputation of the petitioner having been

lowered down in the estimation of the others, I feel mat sufficient ground is not made out for proceeding further, by taking cognizance of the

complaint.

So, in view of the above legal situation, in the absence of the averment stated supra, the complaint that has been filed by the petitioner against

the respondent could not be said to be valid in law. Therefore, on these reasoning, I hold that the learned Judicial Magistrate ought not to have

taken cognizance of the said complaint, and as such, the order of the Sessions Court could be sustained on this ground, though there is no

necessity to go into the reasoning given by the Sessions Court, to set aside the order of cognizance passed by the trial Court.

In the result, the revision is dismissed.