The State vs Shrimati Kartar Devi and another

Gurdev Singh, J.—The Public Prosecutor instituted a complaint in the Court of the Sessions Judge, Hissar under sections 500 and 501 of the Indian Penal Code against the respondents Shrimati Kartar Devi and Chatar Singh for the publication of a news-item in the issue of Hindi monthly "Harijan Pukar", dated Ist November, 1964, which was alleged to be defamatory of Shri G.L. Nagpal, Sub Divisional Magistrate, Sirsa. On an objection being taken by the accused that the sanction accorded for their prosecution was not valid, the learned Sessions Judge has refused to proceed with the trial and quashed the proceedings against the respondents by his order, dated 31st July, 1965.

The Code of Criminal Procedure, 1893, as amended in the year 1955, makes a special provision for the trial of offences of defamation of public servants in respect of their conduct in discharge of public functions by the Court of Session in accordance with the procedure laid down in section 198B of the Code. Sub-section (3) thereof lays down :

198B (3). No complaint under sub section (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, of 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 authorized in this behalf by the Government concerned;

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

It is not disputed that before the complaint against the respondents could be lodged, sanction for their prosecution had to be obtained from the Government of the State of Punjab as it existed prior to its recent Reorganization on 1st November, 1966. The Public Prosecutor placed two orders of sanction on record, Exhibits P.B. and P.C. for the prosecution of the respondents, which are in identical terms. To appreciate the point in controversy, one of them Exhibit P.B. may be reproduced here :

Whereas the Governor of Punjab is satisfied that on the 1st of November, 1964, Shrimati Kartar Devi, then working as the Editor of the "Harijan Pukar", a Hindi monthly published from Rohtak, had edited a report captioned "S.D.M. Hissar Ka Ek Harijan Vakil Ke Sath Appatti-Jank Vevhar", in the issue of the said monthly, dated the 1st November, 1964, containing statements defamatory of Shri Girdhari Lal Nagpal, S.D.M., Sirsa, district Hissar, in repect of his conduct in the discharge of his public functions and which he knew or had reasons to belive to be defamatory.

And whereas the said report discloses that the said Shrimati Kartar Devi has committed an offence punishable u/s 500 of the Indian Penal Code.

Now, therefore, as required by clause (c) of sub-section (3) of section 198B of the Code of Criminal Procedure, 1898, the Governor of Punjab, is pleased to sanction the prosecution of the said Shrimat Karta Devi u/s 500 of the Indian Penal Code.

Dated Chandigarh the 28th April, 1965.

Sd/- Jagdish Chandra, Deputy Secretary to Government, Punjab. Home Department.

The contention raised before the trial Court on behalf of the respondents was that these sanction orders were not made by the competent authority as the Deputy Secretary (Home), who had signed them, was not the Government of the State of Punjab, which alone was authorized to sanction the respondents'' prosecution. In accepting this contention and holding that the sanction was not accorded by the Government, which alone was the competent authority in such cases, the learned Sessions Judge relied upon the admission of Shri B.K. Gurtu, P.W. 2, Superintendent, Press Branch, Home Department, Punjab, Civil Secretariat, Chandigarh that the matter was never placed before the Governor. Though it was urged by the learned Public Prosecutor that the sanctions were valid as the matter had been considered by the Home Minister, the learned Sessions Judge brushed aside this contention in these words :

Firstly, there is nothing in the evidence of Shri B.K. Gurtu to indicate that the Home Minister dispassionately considered the matter and came to the conclusion that the presecution of the two accused persons should be ordered. Above all, it may be mentioned again that the Home Minister does not constitute the "Government" as defined in 1961 P.L.R. 238.

The first part of these observations is not borne out by the record, as on reference to the evidence of Shri B.K. Gurtu, P.W. 2 to which the learned Sessions Judge seems to hive casually adverted, we find that he had specifically stated :

The matter was put up before the Home Minister. The news-item accompanied by the departmental report was considered by him. He ordered the prosecution of the Editor, Printer and Publisher of the "Harijan Pukar". The order was signed by Shri Jagdish Chander, Deputy Secretary (Home) It is Exhibit P.B. It relates to the prosecution of Shrimati Kartar Devi, Editor. Exhibit P.C. is the order signed by Shri Jagdish Chander, Deputy Secretary (Home) according the sanction for the prosecution of Chatar Singh, Printer and Publisher of the "Harijan Pukar.

This statement of Shri Curtu, which was not challenged at the trial and remains unrebutted, proves beyond any manner of doubt that the question of sanctioning the respondent''s prosecution was considered by the Home Minister, and it was he who had ordered their prosecution, though the formal orders which were produced in Court bore the signatures of the Deputy Secretary (Home).

The form and the manner in which such orders made by the Government are to be issued is provided in the Rules of Business of the Punjab Government, Part II. Rule 8 thereof provides :

All orders of instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor. Then comes rule 9(1), which lays down :

Every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant Secretary or such other office as may be specially empowered by the Governor in that behalf, and such signature shall be deemed to be the proper authentication of such order or instrument.

It is thus obvious that the sanction orders produced in the case before us are in proper form and the Deputy Secretary (Home), whose signatures thereon appear, was empowered to authenticate the same. The signatures of Shri Jagdish Chander, Deputy Secretary (Home), appearing on these orders are by way of authentication, and they cannot be held to imply that these orders were made by him personally without reference to the Home Minister. On the other hand the evidence of Shri B.K. Gurtu, to which reference has been made earlier, leaves no doubt that the Home Minister had sanctioned prosecution on due consideration of the matter. There is not the least warrant for the assumption made by the learned Sessions Judge that "there is nothing in the evidence of Shri B.K. Gurtu to indicate that the Home Minister dispassionately considered the matter and came to the conclusion that the prosecution of the two accused persons should be ordered." Thus, the short question that remains for our consideration is whether the Home Minister of the State was not competent to accord the sanction.

Though the learned Sessions Judge has observed that the Home Minister did not constitute the Government of the State, which is the sanctioning authority under clause (c) of sub-section (3) of section 198B of the Code of Criminal Procedure, the respondents'' Learned Counsel, Shri B.S. Bindra, his conceded that the personal consideration of the matter by the Governor was not required, and under the Rules of Business of the Punjab Government, the Home Minister was competent to accord the necessary sanction.

In coming to the conclusion that the sanction-orders produced in this case were not made by the competent authority the learned Sessions Judge has sought support from the decisions of this Court in Tara Chand Verma v. The State (1961) 63 P.L.R. 238 and Master Girdhari Lal v. The State Cr.A. 89 of 1963, (Criminal Appeal No 88/of 1963, decided on 30th March; 1964). His attention does not appear to have been invited to a later Division Bench decision of this Court in the State v. Bishan Sarup Cr.A. No. 956 of 1964 (Criminal Appeal No. 956 of 1964, decided on 29th November, 1965), wherein both these Single Bench decisions were considered. Falshaw C.J., with whom H.K. Khanna J. concurred, distinguished both the earlier decisions of this Court on which the learned Sessions Judge has relied. Adverting to his earlier judgment in Tara Chand Verma''s case 1 (supra) the learned Chief Justice after pointing out that the writing for which the accused was being prosecuted in that case was defamatory of a Deputy Minister, observed:

The case thus was covered by the provisions of section 198B (3) (b) and not (c) as in the present case. The "sanction for the prosecution of the accused begins with the words ''Whereas the Governor of Punjab is satisfied'', and it bore the signature of Mr. E.N. Mangatrai, Secretary to the Council of Ministers, but the sanction was merely headed as being u/s l98B (3), and it was not specified whether it was under (b) or (c) I held that the sanction was defective because it should have been issued by the Secretary to the Council of Ministers in his own name as the sanctioning authority

The distinction pointed out by the learned Chief Justice is obvious as the language of clauses (b) and (c) of sub-section (3) of section l98 B leaves no doubt that the sanctioning authorities in the two cases are different. Whereas under clause (c), which is relevant lor the purpose of the case before us, the sanctioning authority is the Union or State Government concerned, under clause (b), which relates to the prosecution of persons guilty of defamation of Ministers the sanctioning authority is the Secretary to the Council of Ministers or any Secretary to the Government authorized by the Government. Even in Tara Chand Verma''s case 1 (supra), the learned Chief Justice had observed:

The idea appears to be that if a Minister is defamed, it should be left to a responsible civil servant to decide whether the special procedure should be sanctioned, and if a civil servant is defamed, it is left to the Government, i.e., the Governor acting on the advice of his Council of Ministers, to decide whether the case is a fit one for sanction.

The later part of these observations apply to the case before us, and thus the decision in Tara Chand Verma''s case 1 (supra) is of no avail to the respondents. Again, the judgment of S.B. Capoor J in Master Girdhari Lal v. the State 2 (Criminal Appeal No. 89 of 1963. supra) was distinguished by the learned Chief Justice thus -

The case decided by S.B. Capoor J. was a case in which the person alleged to have been defamed was a public servant, in fact a Deputy Superintendent of Police, and, therefore, the sanctioning authority was the State Government, or in other words the Governor acting on the advice of his Council of Ministers or on the advice of the individual Minister concerned. It was, however, brought out in the evidence that the sanction had been given by the Deputy Secretary in the Home Department without refrence to the Home Minister. The same Superintendent of the Press Branch who gave evidence in the present case had stated in that case that after examining in his Branch the offending article was sent to the Deputy Secretary (Home) who after examination sanctioned the prosecution of the accused. In these circumstances, the sanction was held to be bad and the appellant was acquitted. In the present case, however, there is the statement of the Superintendent of the Press Branch that the matter was first considered in his Branch, then by the Deputy Secretary (Home), then by the Home Secretary and the prosecution was only instituted after it had been approved by the Home Minister.

The case State v. Bishan Sarup Dalwala (supra) 3 decided by the Division Bench, was also from the judgment of the same learned Sessions Judge against hose order the present appeal has been preferred.

As in the present case, he had then held the sanction order to be invalid observing that there was nothing in the statement of the Superintendent Press Branch to indicate that the Home Minister himself had dispassionately considered the matter and came to the conclusion that the prosecution of the accused should be ordered. Dealing with these observations of the learned Sessions Judge, Falshaw C.J. said:

As a matter of fact, I do not think it would be possible for the Superintendent of the Press Branch to make any statement beyond what he did, namely, that the matter went through the official chain described to the Home Minister, and it could not possibly lie in his mouth to say whether any of these officers or the Ministers gave proper consideration to the matter. At the same time, I do not consider it is necessary to produce the Deputy Secretary (Home, the Home Secretary and the Minister as witnesses to prove that they gave the matter proper consideration and, in my opinion, this is to be presumed. The only question, therefore, is whether the sanctioning of prosecution of this kind lay within the business allotted to the Home Minister under the Rules of Business of the Punjab Government.

The learned Chief Justice then examined the relevant Rales of Business and came to the conclusion that the Home Minister was competent to accord sanction for the prosecution under clause (c) of sub-section (3) of section 198B of the Code of Criminal Procedure. This authority of the Division Bench is on all fours with the present case, and if I may say so with respect, lays down the correct law.

In fact, in the case before us the State stands on a stronger footing as Shri B.K. Gurtu, P.W. 2, in his evidence has specifically stated that the papers relating to the sanction for the prosecution of the respondents were not only submitted to the Home Minister for his orders through the Department channel, but they were also considered by him and it was the Home Minister himself who had ordered the respondents'' prosecution. We thus find that the sanction accorded for the prosecution of the respondents is valid and the learned trial Judge was not justified in refusing to proceed with their trial. The appeal is, accordingly, accepted and the order of the trial Court, dated 31st July, 1965, is set aside. The records shall be remitted to the Court of Session at Hissar for trial of the respondents in accordance with law. The respondents are directed to appear before the trial Court on 6th November, 1967.

Jindra Lal, J.

I agree.