Jagjiwan Lal vs Krishen Chand Sharma

Shri Jagjiwan Lal has filed this petition under S.561A, Cr. P.C. for quashing the criminal proceedings initiated on the complaint filed by Shri

Krishen Chand, respondent herein, in the Court of SubJudge, Judicial Magistrate, Jammu.

Shri Krishen Chand, complainantrespondent in his complaint under S.500, R.P.C. has alleged that the accusedpetitioner gave an interview to the

correspondent of the local daily ""Kashmir Times"" on or about Aprl. 18, 1985, making a false accusation against him that he was trying to plunder

the modesty of female teacher Mrs. Indu Bala, which interview was published in the same paper in its issue of April. 18, 1985, thereby causing

harm to his reputation and personal character. Learned SubJudge Judicial Magistrate, Jammu, after recording the statement of the

complainantrespondent and Shri Ved Bhasin, editor of ""Kashmir Times"", issued process against the accusedpetitioner under S.500, R.P.C.

Afterwards, finding the summons not to have been served upon the petitioner, the Court issued bailable warrants for the arrest of the petitioner.

I have heard learned counsel for the parties and perused the record before me. Learned counsel appearing for the petitioner has argued that the

trial Court has wrongly held the petitioner not to be a public servant when being a Cabinet Minister, he was a public servant and without obtaining

sanction, as required under S.197, Cr. P.C. the complaint was not competent. He has further contended that the trial Court after recording the

statement of the complainant insisted for further evidence and the statement of Shri Ved Bhasin, editor of Kashmir Times, recorded later on did not

make out a prima facie case for issuing process and as such the process issued by the Court is required to be quashed. According to him, because

of political rivalry existing in the area, the respondent herein who is a petty government official, has been made an instrument in dragging the

petitioner herein to litigation and defaming him unnecessarily. Learned Counsel for the respondent, on the other hand, has pleaded that the

petitioner was not at all a public servant as defined in the Ranbir Penal Code and moreover, the accusation levelled by him against the respondent

could not be termed to be an act done by him under the colour of his office and under such circumstances, the trial Court was right in issuing

process against the petitioner. I have considered these respective contentions raised either side.

The petitioner is admittedly a Cabinet Minister in the J.andK. Govt. ""Public Servant"" has been defined in S.21, R.P.C. Cl. Nineth of this section

which is relevant to the facts of the present case, runs as under :

Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to take any survey,

assessment or contract on behalf of the Government or to execute any revenueprocess, or to investigate or to report, on any matter affecting the

pecuniary interests of the Government or to make, authenticate or keep any document relating to pecuniary interests of the Government, or to

prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the

Government, or remunerated by fees or commission for the performance of any public duty.

Such question came up for consideration of this Court in case Bakshi Ghulam Mohammad v. G.M. Sadiq, AIR 1968 J.and K. 98, wherein it was

held that the Minister of a State was a public servant. Same point was also considered by their Lordships of the Supreme Court in AIR 1979 SC

898 : (1979 Cri LJ 773) and Chief Minister and Minister were held to be public servants within the meaning of S.21 (12) of the Indian Penal Code

which corresponds to S.21(9) of our Ranbir Penal Code. In this authority their Lordships have held as under :

The use of the words 'other public servants' following a Minister of the Union or of a State clearly shows that a Minister would also be a public

servant as other public servants contemplated by S.199(2) of the Code are the Code being a statute complementary and allied to the Penal Code

can be looked into for the purpose of determining the real meaning and import of the words 'public servant' as used in the aforesaid section.

xx xx xx

Three facts, therefore, have been proved beyond doubt :

That a Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his

constitutional functions.

That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him.

That the said salary is paid to the Chief Minister or the Minister from the Government funds.

It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution

provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges.

The salary given to the Chief Minister is conterminous with his office and is not paid like other constitutional functionaries such as the President and

the Speaker. These facts, therefore, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is,

therefore, a public servant within the meaning of S. 21(2) of the Penal Code.

Learned counsel for the respondent has referred to an old authority of this Court (194849) 7 JKLR 261 wherein Prime Minister of our State was

held to be not a public servant within the meaning of the Ranbir Penal Code. In this authority the Court discussed the words ""His Highness

occurring in various sections of the Ranbir Penal Code and the Code of Criminal Procedure. The law has now been tremendously changed and the

words ""His Highness"" have since been deleted. This authority therefore, does not apply in any manner to come to a conclusion as to whether a

Minister is a public servant or not.

It is clear from the definition of 'public servant' as appears in S. 21(9), R.P.C. that every officer in the service or pay of the government or

remunerated by fees or commission for the performance of any public duty, shall be a public servant within the meaning of this section. The

definition of 'public servant' therefore, includes every officer in the service or pay of the Government. The above referred authority, AIR 1979 SC

898 : (1979 Cri LJ 773) (supra) has clearly concluded that a Minister or a Chief Minister would be covered by the expression ""a person in the pay

of the Government.

S. 35 of the Constitution of Jammu and Kashmir provides that there shall be a Council of Ministers with Chief Ministers at the head to aid and

advise the Governor in exercise of his functions. S.36 authorises the Governor to appoint the Chief Minister and other Ministers on the advice of

the Chief Minister. Under Sec. 39, they have to hold the office during the pleasure of the Governor. S.41 makes the provision for the salaries and

allowances of the Ministers. It emerges that the Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him. He gets

salary for the public work done or public duty performed by him and the said salary is paid to him from the Government funds. In view of these

facts and the above referred authority of the Supreme Court AIR 1979 SC 898 : (1979 Cri LJ 773) (supra) which also approves the authority of

this Court AIR 1968 J and K 98 (supra) it can easily be held that the petitioner herein, who is a Cabinet Minister is a public servant within the

meaning of S.21 of the Ranbir Penal Code.

Now we come to S.197, Cr. P.C. which provides that when any public servant, who is not removable from his office save or with the sanction

of the government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official

duty, no court shall take cognizance of such offence except with the previous sanction of the Government. The object of this section is primarily to

guard against vexatious proceedings against public servants. Before such criminal proceedings are launched against public servant, it has been

considered proper that the well considered opinion of a superior authority is obtained. The bar imposed by section is absolute. In order to attract

the provisions of this section, three conditions are essentially to be satisfied: firstly, that a person complained of is a public servant; secondly, the

accused must be a person removable from the office only with the sanction of the State Govt. and, thirdly, he must be accused of an offence

alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. In the present case, the first condition is

satisfied because the petitioner herein is a public servant. So far the second condition is concerned, the petitioner is not removable from the office

with the sanction of the State Government. He can only be removed by the Governor. Now it is to be seen whether the Governor includes the

State Government as contained in Sec. 197, Cr. P.C. Sec. 26 of the Constitution of Jammu and Kashmir provides that the head of the State shall

be designated as the Governor and the executive power of the State shall be vested in him which shall be exercised by him either directly or

through officers subordinate to him. The Minister is subordinate to the Governor and is also removable by him. It can thus be safely said that the

Governor being head of the State is to be considered as Government also in terms of the provisions of Sec. 197, Cr. P.C.

So far third condition is concerned, it is to be seen whether the offence alleged to have been committed by him, was committed while acting or

purporting to act in the discharge of his official duties. In order to appreciate and discuss such point, the relevant publication is required to be done

which is as under : 4. The cases on which the High Court has ""relied were cases where the circumstances showed that the accused had

Katra School : charges and countercharges (By our Correspondent) Jammu April 17.....

(JK News) Political capital is sought to be derived out of a row between a female teacher and the officiating Headmaster of Government Middle

School, Katra and in the process the students and their parents made the pawn and the school made the arena to settle scores by the rival political

groups and their leaders.

A group of teachers in the school had been resorting to strike and Dharana for ten days, as protest against the alleged attempt on assault by the

Head Master, Mr. K.C. Sharma, on a female teacher of the school. The strike and Dharna was lifted Yesterday after a senior teacher took over

as Head Master of the School and Mr. K.C. Sharma was transferred from there.

However, the T.E. Officer Reasi and D.E.O., Udhampur who held enquiry into the episode have held the lady teacher responsible for committing

irregularity in marking the answer paper of some students of second primary class. It is alleged that she raised the marks of a student obtaining only

zero marks out of 75 to 40, of an other student obtaining only 4 marks to 39 and of the third one obtaining 12 marks to 38, the answer papers are

reported to have been confiscated by the District Education Officer, Udhampur.

Mr. Rishi Kumar Kaushal, the BJP leader has charged that the agitating teachers have the backing of the Minister for Estates and Protocal, Mr.

Jagjivan Lal, who represents Reasi Katra Constitutency in the State Assembly and that they are only trying to brow beat the headmaster. Mr.

Kaushal has also alleged that the head master is sought to be implicated in a false case, while the enquiry by the D.E.O. has found the lady teacher

guilty of gross irregularity and bungling.

On the other hand, Mr. Jagjivan Lal, on whom this correspondent called on to know his version has alleged that the T.E.O., Reasi and D.E.O.,

Udhampur are conniving with RSS and 'Jan Sangh' elements who are trying to create law and order problem at Katra as a desparate move to

regain political foothold there. He charged that the T.E.O., Reasi is the wife of an RSS activist of Reasi and that the D.E.O., Udhampur is also

playing in the hands of 'Jan Sangh' elements and trying to shield the headmaster who is guilty of trying to plunder the modesty of the female teacher.

He said that the female teacher has testified that Mr. K.C. Sharma the officiating headmaster tried to molest her.

Mr. Jagjivan Lal also refuted the allegation of Mr. Kaushal that the A.D.M., Reasi has acted on his instance in transferring Mr. K.C. Sharma from

the school, and manoeuvring to appoint the female teacher involved as the headmaster. He said that a teacher senior to Mr. K.C. Sharma from

another School has been appointed as headmaster and that Mr. Sharma was only officiating as headmaster. He said that the entire enquiry against

the female teacher was politically motivated and was a conspiracy among the D.E.O., Udhampur and T.E.O., Reasi, the involved Headmaster and

Mr. Rishi Kumar Kaushal.

The respondentcomplainant has picked up the words ""guilty of trying to plunder the modesty of the female teacher"" which according to him, are

defamatory. The interpretation of words ""accused of any offence alleged to have been committed by him while acting or purporting to act in the

discharge of his official duty"" occurring in Sec. 197, Cr. P.C., is not free from difficulty. There have been a number of decisions on this point and it

is not easy to reconcile all of them. In case Jagjit Chandra v. Th. Avtar Singh 1971 Kash LJ 89 : (1971 Cri LJ 300), this Court has held that the

expression ""acting or purporting to act in the discharge of his official duty"" must be interpreted liberally otherwise strictly speaking, there can be no

case which can come within the scope of this Section. It has further been held in para 26 of this judgment :

I have mentioned only some of the cases to give an indication of the principles upon which the question of applying S.197, Cr.PC depend. As has

been held by the Supreme Court in AIR 1955 SC 287 : (1955 Cri LJ 857) the expression 'acting or purporting to act in the discharge of his official

duty 'must be interpreted liberally otherwise strictly speaking there can be no case which can come within the scope of Sec. 197 Cr.PC. The Privy

Council has laid down the test that a police officer can only be said to act or purport to have acted in the discharge of his official duty if the act is

such as lies within the scope of his official duty. The Patna High Court has said that it must be connected with the official act so as to form part of

the same transaction so on and so forth. In fact whether the action of any Public Servant as described in Sec. 197 Cr.P.C is covered by the

protection given thereunder is essentially a question of fact to be determined by all the circumstances of the case. No abstract principles can be laid

down which will apply to all cases. In deciding such cases Courts have to keep in mind variations in the temperaments, approaching to a certain

problem and reacting to certain situations by the different individuals. Some people have more control over their feeling, others are more extrovert.

The conduct of each has to be dispassionately analysed and understood. The same principle applies to judge also. As a resume of the above

authorities would indicate some of the decisions seem to be irreconcilable with some others, this difference in approach can also be explained on

the same hypothesis.......

In AIR 1955 SC 309 : (1955 Cri LJ 865), the principle laid down is that it is not every offence committed by a public servant that requires

sanction for prosecution under S.197 Cr. P.C. nor even every act done by him, while he is actually engaged in the performance of his official

duties, but if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by

virtue of the office, then sanction would be necessary.

In AIR 1955 SC 287 : (1955 Cri LJ 857) it has been held that if S.197 Cr. P.C. is construed too narrowly it can never be applied, for, of

course, it is not part of an official duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act,

because an official act can be performed in the discharge of official duty as well as in dereliction of it.

In AIR 1956 SCM : (1956 Cri LJ 140), it has been held that the Court must find out as to whether the fact and the official duty are so

interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of

the needs and requirements of the situation.

Taking into consideration the above quoted law on the subject, now we have to consider the publication under question. This publication

shows that a group of teachers in Govt. Middle School, Katra, had been resorting to strike and Dharna for 10 days as a protest against the alleged

attempt to assault by the respondentcomplainant, who was functioning as officiating headmaster, on a female teacher of the school which strike and

Dharna was lifted after a senior teacher took over as headmaster of the school and the respondentcomplainant transferred from there. It also

appears from this publication that enquiry was held by T.E.O. Reasi and D.E.O., Udhampur against the conduct of the complainantrespondent.

The whole publication does not attribute the remarks to the petitioner but most of the publication is on behalf of the correspondent of the

newspaper. There is only last but one para in this publication which speaks of the conversation the correspondent had with the petitioner, who told

him that T.E.O., Reasi and D.E.O., Udhampur are playing in the hands of 'Jan Sangh' elements and trying to shield the headmaster who was guilty

of trying to plunder to modesty of a female teacher. In the first para of the publication, the correspondent has reported that the political capital was

sought to be derived out of a row between a female teacher and the officiating headmaster of Govt. Middle School, Katra, and in the process the

students and their parents made a pawn and the school made the arena to settle scores by the rival political groups and their leaders. In fact, the

correspondent has involved the complainant respondent for the alleged attempt to assault a female teacher of the school.

The petitioner was elected from the Reasi assembly constituency of which Katra is a part thereof. He is a cabinet minister even though holding

different portfolio. As a legislator and also a minister he is certainly concerned with his constituency and particularly with the administrative matters

of that constituency. The complainantrespondent has not come with a plea that there was no strike or Dharna of the teachers for his misconduct

with the female teacher as reported in the impugned publication. He is also silent about the enquiry conducted by T.E.O., Reasi and D.E.O.,

Udhampur regarding his conduct. The remarks alleged to have been made by the petitioner regarding his guilty of trying to plunder the modesty of

a female teacher which was a topic of the strike, and Dharna, can certainly be connected with his performance of official duty as minister as well as

legislature of that part. It can thus be held that the petitioner is accused of an offence alleged to have been committed by him while acting or

purporting to act in the discharge of his official duties.

In view of the above discussion, all the three conditions invoking Sec. 197 Cr. P.C. are satisfied in the present case and the petitioner could

not have been prosecuted without obtaining proper sanction.

Learned counsel for the respondent has referred to an authority of this Court reported as 1974 Kash LJ 239, and according to him, the best

course for the petitioner was to approach the trial Court and without adopting that course, the present petition is not maintainable. I think learned

counsel is not correct in his contention.

In the above referred authority, para 7 is most relevant on the point which runs as under :

It is true that findings given in the former case the trial in which resulted in an acquittal of the petitioners shall have a vital bearing on the later case

and its ultimate fate. But the mere fact that the earlier case resulted in an acquittal by itself would not bar the second trial. There may be a number

of circumstances in respect of which the findings given in the earlier case may be conclusive yet there may be some other circumstances which may

be brought on the record uninfluenced by the findings in the earlier case. This is for the prosecution in the course of the trial to establish how the

accused are guilty of an offence under Section 295A. The trial court shall in the course of the trial, have to examine in detail, all the facts and

circumstances to arrive at a conclusion and record a finding of guilt or innocence. In a case in which the allegation, if proved, would constitute an

offence and in which the whole material has not so far been brought on record and the prosecution evidence has not been recorded in full, it is not

possible to hold that the proceedings are in abuse of the process of the Court. An interference under S.561A Cr.P.C. by the High Court at an

interim stage would tantamount in substance to preventing a case to be tried in accordance with law and thereby usurping the jurisdiction and the

power of the trial court to bring its mind to bear upon the case and to record a finding one way or the other. It is true that the amplitude and the

scope of the power of the High Court under S.561A is really wide and extensive but the fact remains that the power has to be very sparingly

exercised and that too for preventing injustice or the abuse of the powers or the process of the Court.

It cannot be denied that the Criminal P.C. does not empower a Magistrate to recall his own order and it is only Sec.561A Cr.P.C. which confers

inherent powers on the High Court alone. In AIR 1977 SC 2432 : (1978 Cri LJ 187), it has been held that there is no provision in the Criminal

P.C. empowering a Magistrate to review or recall a judicial order passed by him and inherent powers under S.561A Cr.P.C. are only given to

High Court and unlike S.151 C.P.C. subordinate criminal courts have no inherent powers.

The other aspect which requires consideration is as to whether prima facie case has been made out by the complainantrespondent in order to

issue process against the petitioner. The respondentcomplainant got recorded his statement on 2551985 when he filed the complaint before the

trial Court. The trial Court, however, directed him to produce further evidence in support of his case and he on 1271985, produced Shri Ved

Bhasin, editor of Kashmir Times as his witness whose statement was recorded on that date. This witness has deposed that he published the report

in his newspaper of Aprl.18, 1985, after getting the news from JK News Agency. He has further stated that he was not present in the interview or

press conference and according to him, he has also not with him the said report. The offence of defamation consists of three essential ingredients,

namely, (1) making or publishing any imputation concerning any person, (2) such imputations must have been made by words either spoken or

intended to be read or by signs or by visible representations, and, (3) the said imputation must have been made with the intention to harm or with

knowledge or having reason to believe that it will harm the reputation of the person concerned. The complainant is required to establish these

ingredients in order to make the court to come into action against the culprit. In AIR 1959 Raj 280, it has been held that report of a speech made

in the newspaper is not admissible in evidence to prove the speeches. The party must produce the persons who had made the speeches or the

persons in whose presence such speeches were made or the reporter of the newspaper in whose presence the speeches were made and who had

sent the report to be published in the paper.

Same principle has been laid down in AIR 1961 Mys 106 wherein their Lordships have held that newspaper report could not be treated as

substantive offence and it could not also be evidence of facts stated therein unless the correspondent who made the report was examined. In the

instant case, the correspondent, who allegedly interviewed the petitioner, has not been examined nor has any evidence been brought on record to

show that the defamatory remarks were, in fact, made by the petitioner. Shri Ved Bhasin, editor of Kashmir Times, who has been produced as a

witness has no knowledge about the interview nor could he produce the report of the agency which was published by him. Thus there is no prima

facie case made out for which the process could have been issued against the petitioner.

In view of the above discussed position of law, facts and other circumstances, it is a fit case where inherent powers of this Court under

Sec.561A Cr.P.C. are to be exercised in order to prevent the abuse the process of the Court and also to secure ends of justice. As such the

petition is allowed and the proceedings before the trial Court are quashed.