Tripura High Court
Sri Billal Miah vs The Public Prosecutor on 3 January, 2019
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
CRL.A. No.20 of 2013
Sri Billal Miah
son of Maharam Ali,
[Ex-MLA and President of Tripura
Pradesh Youth Congress
Committee] of village - N.C.
Nagar, P.S. Sonamura, District-
West Tripura
......... Appellant
-Versus-
The Public Prosecutor,
District & Sessions Judges Court,
West Tripura, Agartala
......... Respondent
For the Appellant : Mr. P.K. Biswas, Sr. Adv.
Mr. P. Majumder, Adv.
For the Respondent : Mr. A.K. Bhowmik, Adv. General
Mr. A. Roy Barman, Addl. P.P.
Date of hearing : 25.06.2018
Date of delivery of : 03.01.2019
Judgment & Order
Whether fit for reporting : Yes No
√
BEFORE
THE HON‟BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER
This is an appeal by the convict, hereinafter referred to as the appellant, under Section 374(2) of the Cr.P.C. from the judgment and order of conviction and sentence dated 20.09.2004 Page 2 of 36 delivered in case No. CR.01 of 2000 by the Sessions Judge, West Tripura, Agartala. Initially, the appellant filed the revision petition against the said judgment but later, on his application being Crl.Misc.App.134 of 2013, the said revision petition being Crl. Rev. P. No.81 of 2004 was covered to a criminal appeal by the order dated 08.07.2013. By the said impugned judgment the appellant has been convicted under Sections 500 of the IPC for defaming the defacto complainant [PW-4]. Pursuant to the said conviction, the appellant has been sentenced to suffer 2[two] day's simple imprisonment [2] One complaint was filed against the appellant under Section 199(2) of the Cr.P.C. by the Public Prosecutor, West Tripura, Agartala [PW-1] for taking cognizance, inquiry and trial against the appellant for committing the offence of defamation punishable under Section 500 of the IPC.
The crux of the complaint is that the appellant who was a member of Tripura Legislative Assembly [MLA] made 'scathing and unfounded allegations in a public meeting held on 04.06.2000 to defame the Chief Minister' [PW-4]. The said statements published in a daily newspaper, namely Tripura Darpan on 05.06.2000. For purpose of reference, the news that has been published in the said newspaper and as translated by Page 3 of 36 the complainant and reproduced in the complaint is extracted hereunder:
"Staff correspondent, Agratala, 4th June : Manik Sarkar, the Chief Minister of the so-call poor-friendly left front Government of the state, has very secretly purchased luxurious flat at Salt Lake in West Bengal keeping the toiling masses hungry and pushing their security to uncertainty. Billal Miah, MLA and President of Pradesh Youth Congress said (this) in his speech while addressing the public gathering organized by Barjala Block Congress at Natunbazar Girls School field. „I also have the number of the flat. A veteran member of the state‟s left Front Ministry is also stunned at the Chief Minister‟s (act of) secretly purchasing flat at Salt Lake.
If the Chief Minister throws any challenge regarding this information, I shall disclose all information at the appropriate time and place.
At the meeting, the Pradesh Congress President Birjit Sinha expressed deep concern, mentioning in details the present situation of the state. He said-Chief Minister Manik Sarkar have utterly failed to provide security to the life of the people. Pradesh Congress President Shri Sinha said - a few months ago, the Union Home Minister Lal Krishna Advani had come to the state, not to reckon the situation of the state on the spot, he had come mainly to hold a secret discussion with the terrorists in the matter of release of 4 kidnapped RSS workers. With that aim in view, Advani, on reaching Agartala, had gone to Gandacherra by a helicopter to hold a secret meeting with the extremists. Birjit Sinha expressed intense grievance regarding the role of Advani. He alleged that it was at Advani‟s support that Assam Rifles Brigadier Panwar had hatched the plot of creating disturbances in the state by way of making provocative statements regarding the statistics of races and tribes in the state. He expressed intense grievances since the central government has taken no step to impose President‟s rule with a view to providing security to the life of the people. In the meeting opposition leader Jawahar Saha alleged that the state Government has utterly failed to maintain law and order in the state. He raised allegation to the effect that left Front has started plotting to capture Nuntannagar Samabay Samity is a roundabout way.
Dipak Roy, MLA and state president of INTUC requested congress President, Birjit Sinha at the meeting to state the entire state by organizing a larger movement demanding President‟s Rule in the state. He said, it cannot be tolerated by any means that hundreds of innocent citizens will be help lessly killed by terrorists because of the failure on the part of the left Front Government, particularly that of Chief Minister Manik Sarkar. He said people have no confidence faith in the Left Front Government. Yet Chief Minister Manik Sarkar is forcefully occupying the seat. He invited the Chief Minister to resign without delay and then take the verdict of the people. MLA Prakash Das, Pradesh Women‟s Congress President, Laxmi Nag, Congress Leader Niord Baran Das and Barjala Block Congress President Santi Lal singha were among others who delivered speeches at the meeting expressing deep concern over the present situation of the state and criticizing the Left Front Government."
[Emphasis added] Page 4 of 36 The said unfounded statement tended to defame the Chief Minister [PW-4] and lower his reputation in the estimation of the public. The said statement created a looming suspicion in respect of the sincerity and integrity of the Chief Minister and his discharging the function as the head of the political executive of the State. On 05.06.2000 itself, the Chief Minister by a letter addressed to the appellant had stated that the statement as made by the appellant was false and deliberate in order to defame him. The Chief Minister demanded disclosure of the materials in support of the reckless statements within 48 hours. The Chief Minister in the said letter had stated that if the allegations could be proved by the appellant, he would resign from the Government post and position. The said letter was served on the same date on the appellant. Even the newspaper, namely Tripura Darpan which published the said report had published the substance of the said letter in its issue dated 06.06.2000, but the appellant did not respond or come with any materials. Even did not express his remorse for the said irresponsible act being an MLA. It has been also stated in the complaint that on 10.06.2000 the entire text of the letter was published in Tripura Darpan dated 08.06.2000. Since the offence punishable under Section 500 of the IPC was disclosed in the complaint, cognizance was taken of the said offence and the Page 5 of 36 process was issued for inquiry. On 12.11.2003, on the materials as placed in the inquiry, the charge was framed under Sections 500/501 of the IPC against the appellant when the appellant pleaded not guilty and claimed to face the trial. [3] In order to substantiate the charge, the complainant adduced 4 witnesses including the Editor & Publisher of Tripura Darpan [PW-2] who had confirmed that the appellant had alleged in the meeting convened by Barjala Block Congress that the Chief Minister purchased a luxurious flat secretly at Salt Lake, Kolkata. He has also narrated in the trial that the appellant had challenged that if his allegation was challenged he would disclose the details of the flat. He has also confirmed that he published the content of the letter of the Chief Minister refuting the allegations on 06.06.2000 in his newspaper. Later on, 08.06.2000, the text of the entire letter was published in the said newspaper. PW-2 admitted the relevant news items [Exbt.5] in the evidence. In the cross-examination he stood by his statement. However, he had admitted that he did not produce the manuscript of the report. He had also admitted that the letter of the Chief Minister was translated and then was published in his newspaper.
[4] PW-3, Sri Chandan Sengupta has submitted in the trial that for publication of the said statement made by the appellant, Page 6 of 36 the estimation of the Chief Minister [PW-4] has been lowered. According to him, the Chief Minister is an honest person and he has developed an image in the mind of the people inside and outside Tripura. He has also stated that he knows that the Chief Minister does not have any flat at Salt Lake, Kolkata. In the cross-examination, his statement was not dented at all. [5] PW-4, Sri Manik Sarkar, so far referred as the Chief Minister, has stated in the trial that for publication of the said extremely defamatory statement that he had secretly purchased a luxurious flat at Salt Lake, Kolkata by depriving the downtrodden people without any foundation, he has been defamed. Such falsehood has been practiced to take undue political mileage. He has also stated that on the very same date when the said news item was published by writing a letter he had challenged the appellant to produce materials in support of his allegation within 48 hours. He has also stated that he had made unconditional declaration that if the allegations could be proved, he would relinquish all the posts he had been holding. But the appellant did not give any reply to his letter within the said stipulated time or thereafter. He has further stated that the said news item was published in the said daily newspaper while he was functioning as the Chief Minister of Tripura. He felt defamed for publication of the said news items. He has denied the Page 7 of 36 suggestion that the statement of the appellant did not bring slur against him relating to corruption. He has confirmed in the cross- examination that the appellant did not respond to his letter dated 05.06.2000 [Exbt.3]. Even the appellant did not issue any contradiction against the publication of the said news item. If the newspaper had reported incorrectly, it was the duty of the appellant to give the necessary clarification but no such clarification has been given by him.
[6] PW-5, Sri Makhan Chandra Dey claimed to have been present in the meeting where the appellant addressed and made the said allegation against the Chief Minister. He has categorically stated that the appellant had stated that the Chief Minister keeping the poor people of Tripura in starvation managed to purchase a palatial building at Salt Lake, Kolkata. He had stated that it seemed to him that the said allegation was made to lower the estimate of the Chief Minister in the eye of the common people as the Chief Minister is known to be an honest person. [7] The complainant Sri Pankaj Bhattacharjee [PW-1], the incumbent Public Prosecutor has stated why he filed the complaint. Before filing the complaint, the sanction order from the Government of Tripura as issued by the Legal Remembrancer & Secretary, Law was obtained. He admitted the sanction order [Exbt.1] and the 'defamatory' statement as published in Tripura Page 8 of 36 Drapan on 05.06.2000 [Exbt.2]. He has narrated the allegation that was made by the appellant. He has also brought some other materials including the comments made by a bevy of the senior politicians of the state who expressed their dissatisfaction and surprise over the said comment as according to them, the Chief Minister is an honest man and leads a simple life. In the face of the challenge by the letter of the Chief Minister, the appellant failed to clarify his position within 48 hours in respect of the allegations borne in the news item. He has stated that for production of the manuscript of the newspaper dated 05.06.2000, 06.06.2000 and 08.06.2000, the requisition was made by him but PW-2 has stated that those manuscripts were not traceable. Since the said allegation has damaged the Chief Minister's reputation, as a person of sincerity and integrity the complaint has been filed. PW-1 has stated that the appellant did not submit any piece of paper in support of his version. The complaint was also admitted in the evidence as Exbt.6.
In the cross-examination, nothing could be derive by the defence.
[8] After recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. where he has stated that on 04.06.2000 he delivered a speech in a public meeting at Barjala but he denied to have made a Page 9 of 36 statement that the Chief Minister purchased a luxurious flat at Salt Lake secretly. According to him, the newspaper has published a false news. He has also admitted that he had received a letter from the Chief Minister but he did not give any reply to the said letter. Further, he has stated that he did not deliver any speech alleging that the Chief Minister has purchased a luxurious flat and hence, the question of defamation does not arise. He has also admitted that PW-2 is the Editor of newspaper, called Tripura Darpan. He also stated that he did not make any allegation against the Chief Minister.
No evidence was laid for the defence and on appreciating the evidence, the appellant has been convicted under Section 500 of the IPC and sentenced to suffer 2[two] day's simple imprisonment for committing the said offence by the judgment and order dated 20.09.2004 in case No. CR.01 of 2000. The said judgment and order is under challenge in this appeal. [9] Even though several grounds are resorted in the memorandum of appeal but Mr. P.K. Biswas, learned senior counsel appearing for the appellant has clearly stated before this court that the challenge is based on the question that the sanction order dated 22.06.2000 [Exbt.1] is invalid for contravening the requirement of Section 199(4) of the Cr.P.C. inasmuch as the said sanction order was issued in contrast to the Page 10 of 36 provisions of Article 166 of the Constitution of India. Hence, the said sanction order being invalid cannot be acted upon. By acting upon the said sanction order, the trial court has committed gross and substantive illegality by framing the charge and trying the appellant. Section 199(4) of the Cr.P.C. provides as under:
"....(4) No complaint Under sub- section (2) shall be made by the Public Prosecutor except with the previous sanction-
(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
(c) of the Central Government, in any other case."
[11] For purpose of reference, it would be apposite to reproduce Article 166 of the Constitution of India which has been engrafted for conduct of the business of the government of the of the State.
"166. Conduct of business of the Government of a State (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order on instruction which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."Page 11 of 36
[12] According to Mr. Biswas, learned senior counsel appearing for the appellant that the said sanction order is not a sanction order within the meaning of Section 199 (4) of the Cr.P.C. read with Article 166 of the Constitution. The sanction order dated 22.06.2000 [Exbt.1] has been issued by a person having no competence to issue the sanction order. Mr. Biswas, learned senior counsel while dilating his submission has stated that all executive actions of the government of a state shall be 'expressed' to be taken in the name of the Governor. Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner, as may be specified in rules to be made by the Governor. Mr. Biswas, learned senior counsel has further submitted that there is no such expression in the sanction order in terms of Article 166(1) of the Constitution of India and hence, the sanction order cannot be treated as valid and hence, the trial against a public servant inasmuch as the member of Legislative Assembly is a public servant for purpose of Section 199(4) of the Cr.P.C is unsustainable being wholly illegal. In absence of valid sanction order, taking of cognizance was grossly illegal and hence, the entire trial has turned out to be illegal. The appellant is therefore, liable to be discharged on interfering the impugned judgment and order. To be noted that, Mr. Biswas, learned senior counsel has Page 12 of 36 not advanced any submission on the merit of the appeal. In support of his contention, Mr. Biswas, learned senior counsel has placed reliance on a few decisions of the apex court. In Madan Mohan Singh vs. State of Uttar Pradesh, reported in AIR 1954 SC 637, the apex court has observed inter alia as under:
"7. It is contended by the learned counsel for the appellant that the sanction is not a valid or sufficient sanction in law, firstly because it is not signed by the Excise Commissioner but purports to have been signed by his Personal Assistant.
The other point taken is, that not only there is nothing in the letter, which purports to be a reply to a wireless message received from the Collector of Meerut, to show that the sanction was given in respect of the facts constituting the offence, but the prosecution did not prove, by any extraneous evidence, that the material facts were placed before the sanctioning authority.
The first ground does not impress us much. Mr. R. Dikshit, the Personal Assistant to the Excise Commissioner, has been examined as a witness for the prosecution and he proves another document 'to wit' Ex. P. 11 which purports to be the draft of the letter of which Ex. P-10 is a copy. This draft, according to the witness, constitutes the original order of Excise Commissioner and contains his signature. The witness says:
"On the paper marked Ex. P-11 there is the signature of the Excise Commissioner below the word 'approved'".
We are not sure that this is quite the proper way of according sanction; for the 'approval' might be merely of the correctness of the draft. But at the same time we do not want to be too technical and we would hold therefore that the sanction was in fact given by the Excise Commissioner.
8. The other point raised by the learned counsel for the appellant seems to us however to be of considerable substance. As the Privy Council pointed out in the case of Gokul Chand Dwarkadas v. The King : AIR 1948 PC 82 at p. 84 (A), the burden of proving that the requisite sanction has been obtained rests on the prosecution, and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might appear on the face of the sanction or might be proved by extraneous evidence. In the present case the facts constituting the offence do not appear on the face of the letter Ex. P-10. It was consequently incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. This they did not attempt to do.
A question was put to Mr. Dikshit (P.W. 6) who gave evidence on this point as to whether the material facts were brought to the notice of the Excise Commissioner. The reply given by the witness is as follows:
Page 13 of 36
„A detail of this case has been sent to the Excise Commissioner. The said details are in the confidential file at my place. I do not want to show these details.‟ We think that the appellant is right in his contention that the prosecution instead of proving what facts were placed before the Commissioner deliberately withheld them from the Court. The sanction must therefore be held to be defective and an invalid sanction could not confer jurisdiction upon the court to try the case. The appeal is entitled to succeed on this point alone; but we consider it proper to record our decision on the second point also as in our opinion the view taken by the High Court, on the merits of the case, appears to be plainly unsupportable."
[Emphasis added] [13] In Gour Chandra Rout and Anr. vs. the Public Prosecutor, Cuttack, reported in AIR 1963 SC 1198, the apex court had occasion to enunciate the law in the manner as reproduced hereunder:
"Section 198 of the Code prohibits a court from taking cognizance of certain offences, including those under ss. 500 and 501, 1. 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 Act 26 of 1955, among other provisions, a new one, S. 1998-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 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 cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made- by the Public Prosecutor.‟ (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 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;Page 14 of 36
(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.
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 concern his conduct in the discharge of his public functions and consequently the Public Prosecutor could file a complaint. But the 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, however, that the evidence of the Governor instead of supporting the contention, goes directly against it. Mr. Sukthankar has stated in his 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.‟ What S. 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 consultation 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 defamatory statement being of a trivial nature or having been made by an irresponsible person or for some other reason should be 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 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 Page 15 of 36 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 sanction 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, therefore, 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 lodging of a complaint. While it is no doubt true that it is the sanctioning authority which has to apply its mind to the facts of a case before according sanction and that in forming the function of according the sanction in 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 personally 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 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. All the same the initiative to 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.
4. 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 exami- nation--in-
chief is that the Home Secretary had been 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 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 Page 16 of 36 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....."
[Emphasis added] [14] Having referred to Shanti Sports Club & Anr. vs. Union of India & Ors., reported in (2009) 15 SCC 705 for purpose of demonstrating how rigorously and strictly the provisions of Article 166 of the Constitution of India has to be observed, Mr. Biswas, learned senior counsel has contended that the apex court was unambiguous in enunciating the law thus:
"41. The issue deserves to be considered from another angle. All executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the concerned State, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that:
„77.(3) the President shall make rules for more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.‟ Likewise, Article 166(3) lays down that:
„166.(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.‟
42. This means that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government."
[Emphasis added] Page 17 of 36 [15] In State of Uttaranchal & Anr. vs. Sunil Kumar Vaish & Ors., reported in 2011 AIR SCW 5486, the apex court has observed how to operate under Article 166 of the Constitution in the following terms:
"18. In our view, the State Government had rightly rejected the recommendations made by the District Magistrate for payment of Rs.70,99,951.50 because while doing so, the concerned officer conveniently ignored the fact that Ram Rattan Lal had already been declared as unauthorised occupant of the land in question. In the face of the decision taken by the State Government, the High Court could not have relied upon the recommendations made by the District Magistrate by treating the same as an order of the State Government. It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the president or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
19. A nothing recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
- State of Punjab v. Sodhi Sukhdev Singh: AIR 1961 SC 493, Bachhittar Singh v. State of Punjab : AIR 1963 SC 395, State of Bihar v. Kripalu Shankar : (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan : (1993) 2 SCC 84, Sethi Auto Service Station v. DDA : (2009) 1 SCC 180 and Shanti Sports Club v. Union of India: (2009) 15 SCC 705."
[Emphasis added] [16] Mr. A.K. Bhowmik, learned Advocate General appearing for the State has submitted that the proposition as advanced by Mr. Biswas, learned senior counsel appellant is grossly misplaced Page 18 of 36 inasmuch as there is valid sanction order signed and issued by the Legal Remembrancer & the Secretary, Law Department 'by order'. The said sanction order has to be deemed to have issued in the name of the Governor inasmuch as the Rules of Executive Business of the State of the Government of Tripura, 1972 which has been framed in exercise of the powers conferred by clauses (2) & (3) of Article 166 of the Constitution of India delegates such authority to the Law Secretary of the government. In that Rules, the definition of the Secretary has been provided as under:
"Rule 2[(1)(c) „Secretary‟ means a Principal Secretary, a Commissioner & Secretary, a Secretary to the Government of the State and includes an Additional Secretary, a Joint Secretary, a Deputy Secretary and an Under Secretary]"
[17] Mr. Bhowmik, learned Advocate General has submitted that by the said Rules the Secretary, Law Department has been authorized by the Governor to take decision and authenticate such decision in the name of and by the order of the Governor in respect of 'all matters' relating to judiciary [First Schedule, allocation of business among the departments (see Rule 4); Law Department [A] Legal Affairs- serial 16]. Since the Secretary to the Law Department has authenticated the said sanction order it cannot be questioned inasmuch as clause (2) of Article 166 provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such Page 19 of 36 manner as may be specified in rules to be made by the Governor, and the validity of an order 'on instruction' which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. In support of his contention, Mr. Bhowmik, learned Advocate General has placed reliance on a few decisions of the apex court. In Dattatraya Moreshwar vs. the State of Bombay & Ors., reported in AIR 1952 SC 181, while dealing with the consequence of non-compliance of Article 166 of the Constitution, the apex court had occasion to observe inter alia as under:
"7. Ground No. 2: On this head the argument of learned counsel for the petitioner is that no valid order of confirmation has been made in proper legal form at all and that a confidential communication from the Home Department to the District Magistrate cannot be regarded as an order under section 11(1)of the Act. Learned Attorney General urges that section 11 (1) of the Act contemplates only the taking of an executive decision, namely the confirmation of the detention order and contends that the sub-section does not contemplate the making of a formal order. He draws our attention to section 3 of the Act which expressly refers to an order of detention and points out that section 11 (1) does not refer to any order of confirmation.
Reference may, however, be made to section 13 which authorises the appropriate Government to revoke or modify the order of detention. In this section also there is no reference to any order of revocation or modification but nevertheless revocation or modification must imply an executive decision. Under section 11 (1), as under section 13, the appropriate Government has to apply its mind and come to a decision. Whether we call it an order or merely an executive action makes no difference in the legal incidents of the decision. Section 11 (1) plainly requires an executive decision as to whether the detention order should or should not be confirmed. The continuation of the detention as a physical fact automatically follows as a consequence of the decision to confirm the detention order and, for reasons stated above, does not require any further executive decision to continue the detention.
It follows, therefore, that the Preventive Detention Act contemplates and requires the taking of an executive decision either for confirming the detention order under section 11 (1) or for revoking or modifying the detention order under section
13. But the Act is silent as to the form in which the executive decision, whether it is described as an order or an executive action, is to be taken. No particular form is prescribed by the Page 20 of 36 Act at all and the requirements of the Act will be fully satisfied if it can be shown that the executive decision has in fact been taken. It is at this stage that learned counsel for the petitioner passes on to article 166 of the Constitution and contends that all executive action of the Government of a State must be 624 expressed and authenticated in the manner therein provided. The learned Attorney-General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of nothings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a standstill.
I agree that every executive decision need not be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially notified or to be communicated it should normally be ex- pressed in the form mentioned in Article 166 (1). i.e., in the name of the Governor. Learned Attorney-General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in article 166 does not make the decision itself illegal, for the provisions of that article, like their counterpart in the Government of India Act, are merely directory and not mandatory as held in J.K. Gas Plant Manufacturing Co. (Rampur) Ltd. and Others v. The King- Emperor : [1947 FCR 141 at P.154-9].
In my opinion, this contention of the learned Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. The considerations which weighed with their Lordships of the Federal Court in the case referred to above in the matter of interpretation of section 40 (1) of the 9th Schedule to the Government of India Act, 1935, appear to me to apply with equal cogency to Article 166 of the Constitution. The fact that the old provisions have been split up into two clauses in Article 166 does not appear to me to make any difference in the meaning of the article.
Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision, call it an order or an executive action, for the confirmation of an order of detention under section 11 (1) that Act does not itself prescribe any particular form of expression of that executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law re-Page 21 of 36
quires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under section 11 (1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circum- stances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question.
*** *** *** (19) Even if clause (1) of article 166 is taken to be an independent provision unconnected with clause (2) and having no relation to the purpose which is indicated therein, I would still be of opinion that it is directory and not imperative in its character. It prescribes a formality for the doing of a public act. As has been said by Maxwell (Maxwell on Interpretation of Statutes, pp.379-380):
„where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and govern- ment of those on whom the duty is imposed, or in other words as directory only.‟ In the present case the order under section 11 (1) of the Preventive Detention Act purports to be an order of the Government of Bombay and is signed by the officer who was competent to sign according to the rules framed by the Governor under article 166 of the Constitution, and in these circumstances I am unable to hold that the order is a nullity even though it has not been expressed to be made in the name of the Governor. The result is that both the grounds fail and the petition is dismissed."
[Emphasis added] In the same line, a decision of the apex court in State of Bombay vs. Purushottam Jog Naik, reported in AIR 1952 SC 317 has been relied by Mr. Bhowmik, learned Advocate General to refer the following passages on the effect of omission:
"8. The first ground on which the learned High Court Judges proceeded was that the detention order of the 17th July was defective as it was not expressed in proper legal form. The basis of their reasoning is this.
9. Article 166(1) of the Constitution requires that:
„All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.‟ Page 22 of 36 It will be seen that the order of detention states in the preamble „Whereas the „Government‟ of Bombay is satisfied...‟ and the operative part of the order runs:
„Now, therefore ...... the „Government‟ of Bombay is pleased to direct etc.‟ It does not say that the Governor of Bombay is pleased to direct. The learned Judges held that this is not an order expressed to be made in the name of the Governor and accordingly is not protected by clause (2) of article 166. They conceded that the State could prove by other means that a valid order had been passed by the proper authority, but they held that the writing, (Record No. 3), which purports to embody the order, cannot be used to prove that a valid order was made because the formula set out in article 166(1) was not employed. We are unable to agree.
10. Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regarding the permissible limits of departure from the language of a Statute or of the Constitution will be worthwhile, but when all is said and done we must look to the substance of article 166 and of the Order.
11. The short answer in this case is that the order under consideration is „expressed‟ to be made in the name of the Governor because it says "By order of the Governor." One of the meanings of „expressed‟ is to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor. In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there."
[Emphasis added] [18] Even Mr. Bhowmik, learned Advocate General has placed reliance on Sahib Singh Mehra vs. State of Uttar Pradesh, reported in AIR 1965 SC 1451, where the apex court had occasion to observe as follows:
"5. Of the points sought to be urged for the appellant, we did not allow one to be urged. It was that there was no proof that the Government bad sanctioned the lodging of the complaint. This point had not been taken in the Courts below and was not even taken in the petition for special leave. What was urged in the petition for special leave was that one of the questions of law which arose in the case for consideration was whether the charge framed was the one for which sanction was granted or the requisite complaint was filed. This question is very much different from the question whether the Government did grant Page 23 of 36 the sanction or whether the granting of the sanction by the Government had been duly proved in the case.
6. The other points urged are : (1) that the sanction granted was a general sanction and not with respect to the defamation of any particular Public Prosecutor or Assistant Public Prosecutor and that such sanction was not contemplated by law; (2) that it is not proved that the appellant had any intention to harm the reputation of any particular Public Prosecutor or Assistant Public Prosecutor; (3) that there was no evidence that the remarks were defamatory of any particular group; (4) that the prosecution did not lead any evidence to establish that the defamed group had any reputation which could be banned and (5) that the remarks were for public good.
7. Before dealing with the contentions raised for the appellant, we may refer to the provisions of law which enable a Public Prosecutor to Me a complaint for an offence under S. 500 I.P.C. committed against a public servant. Section 198, Cr. P.C. provides inter alia that no Court shall take cognizance of an offence falling under Chapter XXI (which contains Ss. and 500 I.P.C.) except upon complaint made by some person aggrieved by such offence. Section 198B, however, is an exception to the provisions of S. 198 and provides that notwithstanding anything contained in the 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 any public servant, employed in connection with the affairs of a State, in respect of his conduct in the 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 made by the Public Prosecutor. It is thus that a Public Prosecutor can file a complaint in writing in the Court of Session directly with respect to an offence under S. 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions. Sub-s. (3) of S. 198B provides that no complaint under sub-s. (1) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of a complaint under S. 500 I.P.C. The sanction referred to above, in this case, and conveyed by the Home Secretary to the Inspector-General of Police, was a sanction for making a complaint under S. 500 I.P.C. against the appellant with respect to the article under the heading 'Ulta Chor Kotwal Ko Dante', in the issue of 'Kaliyug' dated September 12, 1960, containing defamatory remarks against the Assistant Public Prosecutor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions. The sanction was therefore with respect to defamation of two persons (i) R. K. Sharma, Assistant Public prosecutor, Aligarh; and (ii) the other police prosecuting staff of Government of Uttar Pradesh, which would be the entire prosecuting staff in the State. There was thus nothing wrong in the form of the sanction."
[19] Having that decision in the perspective, Mr. Bhowmik, learned Advocate General has contended that save and except projecting some suggestions during the cross-examination of Page 24 of 36 PW-1 no substantive challenge has been thrown against the sanction order. For purpose of reference, the relevant part of the said cross-examination of PW-1 is extracted hereunder:
"It is not a fact that Annexure-1 is not the sanction in the real sense of the term.
It is not a fact that Exhibit-1 is merely a communication though captioned under the term „sanction‟.
It is not a fact that sanction order has been issued without the consent of the Chief Minister.
It is also not a fact that Exhibit-1 does not suggest that it contents the sanction of the Chief Minister."
[20] As a sequel to such contention, in respect of any defect in the order which is not substantive in nature Mr. Bhowmik, learned Advocate General has pressed into service another apex court's decision in R. Chitralekha vs. State of Mysore, reported in AIR 1964 SC 1823, "The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Art. 166 of the Constitution. As the argument turns upon the for= of the said annexure it will be convenient to read the material part thereof.
„sir, Sub : Award of marks for the „interview‟ of the candidates seeking admission to Engineering Colleges and Technical Institutions.
With reference to your letter No. AAS. 4.ADW/63/2491, dated the 25th June, 1903, on the subject mentioned above, I am directed to state that Government have decided that 25 per cent of the maximum marks.....
Yours faithfully, Sd/-
S. NARASAPPA, Under Secretary to Government, Education Department.‟ Ex facie this letter shows that it was a communication of the order issued by the Government under the signature of the Under Secretary to the Government, Education Department. Under Art., 166 of the Constitution an executive action of the Government of a State shall be expressed to be taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such, manner as may be specified in rules to be made by be Governor and the Page 25 of 36 validity of an order which is so authenticated shall not be called in question on the ground that it is not an order made by the Governor.
If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground that it is not an order made by the Governor. It is con- tended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held pursuant to that order. The law on the subject is well- settled. In Dattatreya Moreshwar Pangarkar v. The State of Bombay : AIR 1952 SC 181 Das J., as he then was, observed:
„Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself... Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity.
Therefore' all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under section 11(1).‟ The same view was reiterated by this Court in The State of Bombay v. Purshottam Jog Naik : AIR 1952 SC 317, where it was pointed out that though the order in question then was defective in form it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions: see Ghaio Mall and Sons v. The State of Delhi : AIR 1959 SC 65 , and it is, therefore, settled law that provisions of Art. 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. The judgment of this Court in Bachhittar Singh v. The State of Punjab : AIR 1963 SC 395 does not help the appellants, for in that case the order signed by the Revenue Minister was not communicated to the party and, therefore, it was held that there was no effective order.
5. In the light of the aforesaid decisions, let us look at the facts of this case. Though Annexure IV does not conform to the provisions of Art. 166 of the Constitution, it ex facie says that an order to the effect mentioned therein was issued by the Government and it is not denied that it was communicated to the selection committee. In neither of the affidavits filed by the appellants there was any specific averment that no such order was issued by the Government. In the counter-affidavit filed by B. R. Varma, Deputy Secretary to the Government of Mysore, Education Department, there is a clear averment that the Government gave the direction contained in Annexure IV and a similar letter was issued to the selection committee for admissions to Medical Colleges and this averment was not denied by the appellants by filing any affidavit. In the circumstances when there are no allegations at all in the affidavit that the order was not made by the Government, we have no reason to reject the averment made by the Deputy Secretary to the Government that the order was issued by the Government. There are no merits in this contention."
[Emphasis added] Page 26 of 36 [21] Mr. Bhowmik, learned Advocate General has referred Samsher Singh vs. State of Punjab & Anr., reported in (1974) 2 SCC 831 for a limited purpose of showing that how the Governor functions under Article 166 of the Constitution. In the following passages, the apex court had occasion to hold as under:
"30. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rule-. for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Article 77 (3)and 166(3) respectively. Wherever the Constitution requires the satisfaction of Presidents the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles' 123, 21-3, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the Personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government.
The reasons are these. It is the satisfaction of the, Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transactions of the business of the Government and the allocation of business among the ministers of the said business. The rules of business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the rules of business make under these two Articles viz., Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.
31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor as the case may be, arc sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the, Minister. Ile official is merely the machinery for the discharge of the functions entrusted to a Page 27 of 36 Minister [See Halsubry's laws of England 4th Ed. Vol. I paragraph 748 at p. 170 and Carleton Ltd. v. Works Commissioners: (1943) 2 AU. E.R. 560]."
[22] In his fairness, Mr. Bhowmik, learned Advocate General has relied on a decision of the apex court in State of Maharashtra through CBI vs. Mahesh G. Jain, reported in 2013 CRI. L. 3092, where the apex court having dwelled upon the aspect of onus in proving that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out constituting an offence and further, in respect of hyper technical approach to test its validity, has observed as follows:
"7. In Mohd. Iqbal Ahmed v. State of Andhra Pradesh: AIR 1979 SC 677 this Court lucidly registered the view that it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out constituting an offence and the same should be done in two ways; either (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.
8. In Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others: (1995) 6 SCC 225 it has been ruled that the grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction.
9. In C.S. Krishnamurthy v. State of Karnataka: (2005) 4 SCC 81 it has been held as follows: -
„...sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction Page 28 of 36 of the sanctioning authority is apparent by reading the order.‟
10. In R. Sundararajan v. State by DSP, SPE, CBI, Chennai :
(2006) 12 SCC 749, while dealing with the validity of the order of sanction, the two learned Judges have expressed thus: -
„it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated.‟
11. In State of Karnata v. Ameerjan : (2007) 11 SCC 272 it has been opined that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
12. In Kootha Perumal v. State through Inspector of Police, Vigilance and Anti-Corruption : (2011) 1 SCC 491, it has been opined that the sanctioning authority when grants sanction on an examination of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.
13. From the aforesaid authorities the following principles can be culled out: -
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.Page 29 of 36
g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
[Emphasis added] [23] Mr. Bhowmik, learned Advocate General has further submitted that from perusal of the sanction order, it expressly surfaces that the sanctioning authority has perused the materials placed before him and thereafter having satisfied of commission of defamation granted the sanction for prosecution and hence, by any stretch the sanction order cannot be termed invalid. To buttress his contention, he has also referred a decision of the apex court in State of Bihar & Anr. vs. Sunny Prakash & Ors., reported in (2013) 3 SCC 559, where the apex court has observed as under:
"19. Mr. Venugopal, learned senior counsel for the contesting respondents heavily relied on the principles laid down in State of Bihar and Others vs. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, (2005) 9 SCC 129. The said decision also arose from a dispute concerning the absorption of about 4000 employees working in teaching and non-teaching posts in 40 colleges affiliated to various Universities which were taken over as Constituent Colleges in accordance with the provisions of the Bihar State Universities Act, 1976. It was contended on behalf of the State of Bihar that power to sanction additional posts and appointments against the same in the affiliated colleges is within the exclusive jurisdiction and power of the State under Section 35 of the Act. It was also contended that certain decisions of the Government that were taken after the change of elected Government had no prior approval of the Council of Ministers. The decision by the Cabinet, approval by the Chief Minister on behalf of the Cabinet is sine qua non for treating any resolution as a valid decision of the Government. It was also stated that in the absence of Cabinet approval, the order dated 01.02.1988 which was issued by the Deputy Secretary to the Government of Bihar has no legal efficacy. It was further argued by the State that any valid order of the Government has to be formally expressed in the name of the Governor in accordance with Article 166 of the Constitution. In para 64 [Bihar Rajya M.S.E.S.K.K. Mahasangh and Others],, this Court has held thus:Page 30 of 36
„64. So far as the order dated 18-12-1989 is concerned, the State being the author of that decision, merely because it is formally not expressed in the name of the Governor in terms of Article 166 of the Constitution, the State itself cannot be allowed to resile or go back on that decision. Mere change of the elected Government does not justify dishonouring the decisions of previous elected Government. If at all the two decisions contained in the orders dated 1-2-1988 and 18- 12-1989 were not acceptable to the newly elected Government, it was open to it to withdraw or rescind the same formally. In the absence of such withdrawal or rescission of the two orders dated 1-2-1988 and 18- 12-1989, it is not open to the State of Bihar and State of Jharkhand (which has been created after reorganisation of the State of Bihar) to contend that those decisions do not bind them.‟ From the above conclusion, it is clear that merely because of change of elected Government and the decision of the previous government not expressed in the name of Governor in terms of Article 166 of the Constitution, valid decision cannot be ignored and it is not open to the State to contend that those decisions do not bind them."
[24] Mr. Bhowmik, learned Advocate General even though has relied a decision of the apex court in Rajdeep Sardesai vs. State of Andhra Pradesh & Ors., reported in (2015) 8 SCC 239, but the question as considered in that report on how the satisfaction has to be formed by the government at the time of granting sanction is not very relevant in the present case. [25] Finally, Mr. Biswas, learned senior counsel appearing for the appellant having supplied a copy to Mr. Bhowmik, learned Advocate General appearing for the State has placed an order of sanction under No.F.18(2)SI/91/(Vol-V) dated 17.08.2005 to contend before this court that in that sanction order it has been clearly recorded that the Governor on consideration of the fact and circumstances of the case on the basis of the materials placed before him granted the sanction to prosecute under Page 31 of 36 clause- A of sub-Section 4 of Section 199 of the Cr.P.C. According to Mr. Biswas, learned senior counsel, this is the correct procedure and the procedure that has been followed in the case in hand is grossly illegal, not merely defective. [26] Having appreciated the submissions advanced by the learned counsel for the parties and scrutinized the records, this court finds that the charge as framed against the appellant has been established to the hilt and in the hearing no challenge has been taken up against the finding of conviction returned on appreciation of the evidence. The conduct of the appellant is culpable and depraved inasmuch as not a single piece of evidence could be placed by the appellant in his defence. But the substantive question that requires response from this court is whether the sanction order [Exbt.1] has been given by a person, competent to issue such sanction order for prosecution. Article 166 of the Constitution of India has divided in two clear parts viz.
(i) all executive action of the government of a State shall be expressed to be taken in the name of the Governor and (ii) order and other instruments made and executed in the name of Governor shall be authenticated in such a manner as may be specified in rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is an order or instrument Page 32 of 36 made or executed by the Governor. It is an undisputed fact that the sanction order in question has not been issued in the name of the Governor nor has been shown to have issued by the order of the Governor. In view of the provision of the rules of executive business it has been contended that all matters relating to the judiciary has been placed under the authority of the Law Department which is represented by its Secretary. In terms of Rule 4 [under Part-I- Allocation and Disposal of Business] of the Rules of Executive Business of the Government of the State of Tripura, 1972 the business of the government is transacted in the departments specified in the first schedule and is classified and distributed between those government departments as laid down therein. There is no difficulty in appreciating and understanding the said provision in respect of assignments of transaction of the government by the said rule. But this court finds difficulty to gather any express authorization in respect of granting sanction required by the statute. There is no procedure dealing in respect of delegation of authority to grant sanction required by the statutes by the Governor in this regard. The general authorization in respect of all matters relating to judiciary is in the considered opinion of this court is not an express authorization nor a legal authorization to grant sanction as mandatorily required by the statute for prosecution. Even though Page 33 of 36 this court is reluctant to take notice of the order dated 17.08.2005 as produced by Mr. Biswas, learned senior counsel appearing for the appellant but the procedure as reflected in the said order is consistent with the provisions of Article 166 of the Constitution. It is the consistent law that it is obligatory for the prosecution [the onus rule] to prove that valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. Even in Mahesh G. Jain (supra) the said law has been restated. Even though Mr. Bhowmik, learned Advocate General has submitted that the materials were placed before the competent authority and having been satisfied the said sanction order was issued but if there is no authorization and there is no express authorization, as stated, in the Rules of Executive Business whether the Secretary is a competent person to grant such sanction. The answer must be in the negative. In absence of any express rules in this regard, all the relevant papers ought to have been placed before the Governor and the Governor would have passed the appropriate order on perusal of those records. The order could have been issued by a person authorized by the Governor expressly in his name. In Madan Mohan Singh (supra) the apex court has observed that it is the onus of the prosecution to prove the fact that all materials based on which the sanction was sought were Page 34 of 36 placed to the competent authority, here the Governor. In this case, though in the sanction order it has been recorded 'by order' but from that word it cannot be inferred by whose order. If it was by the order of the Governor or before the Governor all the materials were placed for granting sanction and on the basis of his sanction recorded in the file, the said order was issued under his authorization, this court is constrained to observe that no such material has been placed in the evidence to prove that there was a valid sanction order issued by the competent person. In Gour Chandra Rout (supra) the apex court in unequivocal terms has laid down the law that it is the sanctioning authority which has to apply his mind to the fact of a case before according sanction and according the sanction is not merely performing a ministerial act. It is a quasi judicial act, though falls in the executive domain. It has been further observed in Gour Chandra Rout (supra) that from the evidence of the Governor it transpired clearly that there was no express authorization of the Secretary by the Governor. The mere fact that the said Secretary says that sanction to the prosecution was authorized by the Governor means nothing as he has not produced the file showing the Governor's authorization. On that premise, the view of the High Court accepting the Secretary's evidence as the proof of authorization was set aside. These are not mere defects or Page 35 of 36 technical omissions as sought to be pointed out by Mr. Bhowmik, learned Advocate General. Even in Dattatraya Moreshwar (supra), it has been observed that strict compliance with the requirement of Article 166 given an immunity to the order, in that it cannot be challenged on the ground that it is not an order made by the Governor. The pre-requisite is therefore is compliance of the requirement of Article 166 to have that immunity as provided by the second part. The objection raised by Mr. Bhowmik, learned Advocate General in respect of not projecting any challenge to the sanction order [Exbt.1] is not accepted by the court in view of the cross-examination carried out by the defence. The challenge is manifest but the prosecution has failed to prove the valid sanction. In absence of any express authorization, the sanction order issued by the Legal Remembrancer & the Secretary Law Department cannot be held valid inasmuch as the constitutional provision as embodied in Articles 77 (3) and 166 (3) of the Constitution requires satisfaction of the Governor. Unless by the Rules of Executive business or the rules made by the Governor, the allocation in the form of authorization is made expressly providing the authority to issue sanction order, no other person except the Governor can consider the materials based on which the sanction is sought and decide the issue of granting the sanction appropriately. In Page 36 of 36 Samsher Singh (supra) the law has been clearly laid down by the apex court.
[27] Having observed thus, this court is of the view that the prosecution has failed to prove the substance of requirement and hence, cognizance or framing of charge in absence of the valid sanction order was grossly erroneous and illegal. As corollary, the appellant is liable to be discharged. Accordingly, it is ordered. The sureties are exonerated from their respective obligations.
In the result, the appeal stands allowed.
Send down the LCRs.
JUDGE Sujay