PACHHALLOOR NOOHU Vs. PUBLIC PROSECUTOR

JUDGEMENT

(1.) APPELLANT who was the Editor, Printer and Publisher of an evening daily "aswamedham" has been convicted under - Sections 500 and 501, I. P. C. and sentenced to a fine of Rupees 100/-, with a default sentence of simple imprisonment for two weeks under the latter Section (no separate sentence being awarded under the former count) by the learned Additional Sessions Judge. Trivandrum. on a complaint instituted by the Public Prosecutor, pursuant to a sanction Ext. P-3 granted under Section 198-B (3) (b) by P. W. 4, Special Secretary to the Government of Kerala who was authorised by the order Ext. P-2 issued by the Government in that behalf. The substance of the complaint was that the appellant had committed the above offences by publishing a news item (Ext. P-1 (a)) under the title " (Original in Malayalam omitted ). " In the issue of the paper (Ext. P-1) dated 22-11970, which was defamatory of Mr. Mohammad Koya (P. W. D who was the then Home Minister. In the Court below, the appellant contested the validity of the sanction and claimed the protection of Exceptions 1. 2 and 9 to Section 499. I. P. C. The learned Judge overruled these defences and finding Ext. P-1 (a) to be defamatory of P. W. 1 convicted the appellant.

(2.) THE principal contention of the appellant was directed against the validity of the sanction Ext. P-3. The first limb of this contention was based upon the language of Section 198-B (3) (b ). Sub-section (3) provides that no complaint under Sub-section (1) shall be made by the Public Prosecutor except with the previous sanction of the authorities specified in Clauses (a) to (c) depending upon the persons mentioned in Sub-section (D. against whom the offences under Chapter XXI of the Indian Penal Code (Defamation) are committed. So far as relevant Clause (b) provides that in the case of a Minister of a State Government, the sanction contemplated by Sub-section (3) must be that 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. In the present case the sanction Ext. P-3 was granted not by the Secretary to the Council of Ministers (who is the Chief Secretary) but by the Special Secretary (P. W. 4) who was authorised by the Government Order Ext. P-2 in that behalf. It was argued on behalf of the appellant that if there is any Secretary to the Council of Ministers, as there was one in Kerala, he alone could accord the sanction and not any Secretary even if the latter is authorised in that behalf by the Government. In aid of this contention counsel placed emphasis on the expression "if any". I find it impossible to accept this contention either on the language of the clause or on its legislative intent. No provision of law was placed before me which makes it mandatory that the Council of Ministers should have a Secretary. That apart, what a fair reading of the clause means is that if there is a Secretary to the Council of Ministers he or any Secretary to the Government, might grant the sanction, the former without any authorisation and the latter under an authorisation by the Government in that behalf. The object of the provision is to confer the power of granting sanction on more officers than one and not to make them mutually exclusive or to restrict the power to one officer-that is plain from the clause. As to the use of the word 'or' in clause, the following passage from the judgment of Latham, C. J. , in 73 Commonwealth Law Reports 304 (313) followed in Travancore Forward Bank Ltd. v. State of Kerala 1958 Ker LT 537. is worth reproduction: When the word 'or' is used in relation to two or more alternatives, it is not necessarily the case that the alternatives are "mutually exclusive. The question as to whether they are mutually exclusive or not must be determined by applying the general rule that words should be construed to ascertain the intention of the provision in question to be collected from the whole of its terms.

(3.) THE object and purport of Clause (b) is to enlarge the classes of officers who could grant the sanction and not to make them mutually exclusive. The reasons are obvious. The Secretary to the Council of Ministers might be away, or he might be too busy or he might be related to the defamed Minister concerned or antagonistic to the accused. In the former two cases, if no one else could accord the sanction, it might happen that a clear case could not be brought before a Court of law within the period of six months prescribed by Subsection (4 ). In the latter cases the sanction issued by him carries the obvious risk of being challenged as vitiated by bias or mala fides. What the clause seeks to do is to eliminate these contingencies by conferring power on more functionaries than one. The appellant's contention which makes them mutually exclusive will only negative the intention of the provision besides being against the plain language of the clause. That contention must be rejected. Exhibit P-3 is not liable to challenge on the ground that it was granted only by a Secretary (P. W. 4) although authorised in that behalf and not by the Secretary to the Council of Ministers.