KOYA v. MUTHUKOYA — 1976 DIGILAW 177 (KER)

Judgment :- 1. This is a second revision filed by the complainant in C.C.No.1 of 1971 on the file of the judicial Magistrate of the 1st Class, Androth Island. There was some doubt expressed by a Division Bench of this Court, to which I was also a party, that a second revision would not lie and the matter was referred to a Full Bench. By the time the matter came before the Full Bench, the Supreme Court ruled in an identical matter in P. Philip v. Director of Enforcement, New Delhi (1976 KLT. 247), that in proceedings, initiated prior to the coming into force of the new Criminal Procedure Code, the bar under S.399(3) of that Code does not apply. Now therefore, there is no bar in hearing this revision petition. 2. This case had a chequered career. A private complaint was filed against four persons. The 4th accused is the Sub-Registrar of Androth Island in 1970. The offences disclosed in the complaint are under S.468 and 471 IPC. The complaint was dismissed on 12 51971 for the non-appearance of the complainant. A criminal revision petition was filed questioning the dismissal of the complaint. It was allowed on 7 21972 and the complaint was restored to file. On 22 41972, A4 filed a petition contending that the Magistrate could not take cognizance of the complaint for want of sanction under S.197 of the Crl.P.C., he being a public servant removable only by the State Government. On 1112 1972, A4 was ordered to be removed from the array of parties. The petitioner took the matter in revision before the Sessions Judge, Calicut. The said revision was dismissed on 10-41974. It is against this order that the present revision is filed. 3. The short question that falls for decision in this case is, whether the Administrator, Lakshadeep, is a "State Government" within S.197 of the Crl. P.C. Incidentally, the question whether the allegations against A4 in the complaint constitute any offence committed by him in discharge of his official duties, also arises. The petitioner would contend that the accusation against A4, who is the respondent here, has nothing to do with his official duties and therefore S.197 is not attracted. 4. Before considering the questions of law involved in this case it will be useful to refer to the averments in the complaint against the 4th accused. The petitioner would contend that the accusation against A4, who is the respondent here, has nothing to do with his official duties and therefore S.197 is not attracted. 4. Before considering the questions of law involved in this case it will be useful to refer to the averments in the complaint against the 4th accused. The complainant is the husband of a lady. Isabi by name, who died on 18-8--1970. The properties that belonged to deceased Isabi were given on coprapattam to one Syed Muhammed, by the complainant. The latter was looking after the properties on the strength of documents executed by deceased Isbai in his favour. On 2311 1970, some persons, at the instance of the first accused, trespassed upon the said properties. The pattamdar made a complaint to the police. The first accused produced a registered document asserting right over the property. The police dropped the case relying upon the said document. The complainant took a registration copy of the said document. He then understood it to be a gift deed executed by his wife, in favour of the first accused, in relation to properties which were with him. I extract Para.7 and 10 from the complaint which contain the accusations against the accused. 5. Counsel for the revision petitioner would contend that the accusations contained in Para.7 is that all the accused conjointly brought this document into existence by adopting deceitful means. The accusations, if properly scanned and scrutinised, it is contended, do not implicate the 4th accused, the respondent before me, in any act done in discharge of his official duties. The counsel for the respondent would however, contend that the accusations contained in Para.10 would clearly indicate that the respondent was acting in discharge of his official duties though negligently, which may be an offence under S.81 of the Indian Registration Act. 6. On a reading of Para.7 of the complaint it is seen that the accusations contained therein have nothing to do with the official duties of the 2nd respondent However, the accusations contained in Para.10 of the complaint disclose acts done by him in the discharge of his official duties. The complaint cannot be truncated. Both Para.7 and 10 have to be taken into account. The complaint cannot be truncated. Both Para.7 and 10 have to be taken into account. If they are read together it becomes clear that at lease in one portion of the complaint there are allegations against the 4th accused, of his having done something in discharge of his official duties. That being so, the argument by the petitioner's counsel that the complaint does not contain materials against the 4th accused, of his having done anything in discharge of his official duties cannot be accepted. The authorities cited in support of his contention and reported in Bhagwan Prasad Srivastava v. N. P. Mishra (AIR. 1970 SC. 1661), Prabhakar V. Sinari v. Shankar Anant Verlekar (AIR. 1969 SC. 686) and Vaidyanatha Ayyer v. State of Kerala (1961 KLT.144) need not be considered in view of the clear averments in Para.10 of the complaint. The first point raised before me, therefore fails. 7. The next contention is that the respondent before me is not a public servant, to prosecute whom, sanction under S.197 is necessary. S.197 of the old Crl. P. C. reads as follows: "197. (1) When any person who is a judge within the meaning of S.19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 - (a) in the case of a person employed in connection with (he affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government. (2) The Central Government or the State Government as the case may be, may determine the person by whom, the manner in which the offence or offences for which, the prosecution of such Judge, (Magistrate) or public servant is to be conducted, and may specify the Court before which the trial is to be held". The Indian Registration Act was made applicable to the Androth Island as per Regulation.8 of 1965. The Indian Registration Act was made applicable to the Androth Island as per Regulation.8 of 1965. S.6 of the Indian Registration Act reads as follows: "The State Government may appoint such persons whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub-Registrars of the several Sub-districts, formed as aforesaid, respectively". From the above section it is clear that the competent authority for appointing a Sub-Registrar is the State Government. Ext. Dl. produced in the case, is a telegram by the Administrator to the following effect: "The Administrator hereby appoints the Tahsildar, Androth as the Sub-Registrar, Androth with immediate effect until K. V. Mohammad new Amin joins duty (stop) Notification under issue (stop) Tahsildar should take charge work at once from Deputy Amin in charge (stop) Addressed Tahsildar (Repeated) Amin to hand over charge". From this it has to be presumed that the 4th accused, Sub-Registrar, was appointed by the Administrator. 8. It cannot be disputed, that the respondent, who is a public servant, is appointed by the administrator. It is also admitted that he could be removed by the Administrator. What then remains is the question whether the administrator of the Laccadive Island is a 'State Government' within the meaning of S.197 of the Crl. P. C. 9. In the Laccadive, Minicoy and Amindivi Islands (Laccadive Regulation.1965) Regulation.8 of 1965 'administrator' means the administrator of the Island appointed by the President under Art.239 of the Constitution. S.6(1) (b) of the said regulation reads as follows: "6. P. C. 9. In the Laccadive, Minicoy and Amindivi Islands (Laccadive Regulation.1965) Regulation.8 of 1965 'administrator' means the administrator of the Island appointed by the President under Art.239 of the Constitution. S.6(1) (b) of the said regulation reads as follows: "6. (1) In any Act or in any of the rules, notifications, orders, regulations and bye-laws made or issued thereunder and extended to the Islands by this Regulation, (a) any reference to any provision of law not in force, or to any functionary not in existence, in the Islands, shall be construed as a reference to the corresponding law in force, or to the corresponding functionary in existence, in the Islands: Provided that, (i) (ii) ~ ~~~ ~ ~~~ ~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ (b) any reference to the State Government shall be construed as a reference to the Central Government and, unless the Central Government otherwise directs in any case, also as including a reference to the Administrator"; The Counsel for the respondent would contend that this provision clearly implies that any reference to State Government includes reference to the administrator also. But the counsel for the petitioner would contend that this clause does not clothe him with such authority. I am afraid this contention cannot be accepted. A reading of S.6(1) (b) could clearly indicate that in any Act, rules, notifications etc, which are extended to the Island by this regulation, any reference to 'State Government' shall also include an "administrator". [ do not think that this clause admits of any other construction. In this case, we are concerned only with Clause.6(1) (b) and this clause makes the position clear, that reference to State Government includes the administrator also. 10. Support could be had for this conclusion from Art.239 (1) and (2) of the Constitution. The Administrator is appointed by the President and the administration of a union territory the Laccadive is admittedly a union territory has to be carried on by the administrator. It might be contended and it is contended before me that Art.239 (1) does not contain any provision which makes the administrator of the union territory, a State Government. But a reference to Art.239 (2) makes the position clear. It might be contended and it is contended before me that Art.239 (1) does not contain any provision which makes the administrator of the union territory, a State Government. But a reference to Art.239 (2) makes the position clear. Under this sub-article, the President is given the power to appoint the Governor of a State as the administrator of an adjoining Union territory also and where such Governor is so appointed, he shall exercise his functions as such administrator, independently of his council of Ministers. If the argument of the petitioner's counsel is to be accepted, then in cases where a Governor of a State is appointed as the administrator of a union territory and the said Governor functions as such administrator in the absence of his council of Ministers the union territory not having a council of Ministers it will have to be held that the Governor under such Circumstances also is not a State Government. I do not think that such a construction is possible. Reading Art.239 (1) and (i) together it is clear that an administrator of a union territory is on a par with a State Government. 11. The matter receives support from two notifications issued by the Administrator and also from the provisions of the Conservation of Foreign Exchange Regulation and Prevention of Smuggling Activities Act, Act 52 of 1974 (COFE POSA). In S.2(f) of the Act "State Government", in relation to a Union territory, means the administrator thereof. It might be contended that the said Act cannot be called in aid for the purpose of this case. At any rate, the definition there, is admittedly serviceable in a large measure, to find out whether the administrator in a union territory is deemed normally to be a State Government or not. 12. Two notifications issued by the administrator can be usefully read here. In the Laccadives Gazette, Volume : 4, Number: 9, dated 1 81969 there is a notification dated 15th June, 1968 as follows: "F. No. 2/23/68/SS. Whereas the Administrator, Union Territory of Laccadives, Kavaratti is satisfied that the book entitled "Gandhi Hatya Ani Mee" in Marathi by Gopal Hodse published by G.V. Behere. In the Laccadives Gazette, Volume : 4, Number: 9, dated 1 81969 there is a notification dated 15th June, 1968 as follows: "F. No. 2/23/68/SS. Whereas the Administrator, Union Territory of Laccadives, Kavaratti is satisfied that the book entitled "Gandhi Hatya Ani Mee" in Marathi by Gopal Hodse published by G.V. Behere. Asmita Prakashan, 461/1, Sadashiv Peth, Tilak Path, Poona-2 and printed by M. H. Patwardhan at Sangam Press Private Limited, 383, Narayan Peth Poona-2 contains matter which promotes feelings of enmity and hatred between the Hindus and Muslims in India and the publication of which is punishable under S.153-A of the I.P.C. 1860 (Act XLV of 1860) Now, therefore, on the above stated grounds and in exercise of the powers conferred by S.99-A of the Criminal Procedure Code, 1898 (Act V of 1898), the Administrator, Union Territory of Laccadives, Kavaratti hereby declares to be forfeited to this Administration every copy of the said book and all other documents containing copies, re-prints and translation of or extracts from the said book". This notification is issued under S.99-A of the Crl. P. C. S.99-A of the Crl. P. C. reads as follows: "Where (a) any newspaper, or book as defined in the Press and Registration of Books Act, 1867, or (b) any document, wherever printed, appears to the State Government to contain any seditious matter ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ ~~~ declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, ... ... ... ... The administrator can exercise power under S.99-A only if he is the State Government of the territory over which he has power of administration. 13. The 2nd notification is in Laccadives Gazette, Volume: 4, No. 26 dated 12 11969, issued by the Administrator. Union Territory of Laccadive, Minicoy and Amindivi Islands, which reads as follows: "F. Fo. 2/117/68-Genl. II. In exercise of the powers conferred by sub-section (1) of secrion 15 of the Mines and Minenals (Regulation and Development) Act, 1957 (Central Act 67 of 1957) read with the Government of India, Ministry of Home Affairs. Union Territory of Laccadive, Minicoy and Amindivi Islands, which reads as follows: "F. Fo. 2/117/68-Genl. II. In exercise of the powers conferred by sub-section (1) of secrion 15 of the Mines and Minenals (Regulation and Development) Act, 1957 (Central Act 67 of 1957) read with the Government of India, Ministry of Home Affairs. Notification No. F. 2/6/58 J.11 dated 20-3-58, The Administrator, Union Territory of Laccadive, Minicoy and Amindivi Islands makes the following Rules for regulating the grant of permits for the quarrying of building stones in the Laccadive, Minicoy and Amindivi islands." Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, Act 67 of 1957, reads: "Power of State Governments to make rules in respect of minor minerals. (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of prospect ing licences and mining leases in respect of minor minerals and for purposes connected therewith." The administrator in this case has exercised power under S.15 to issue the notification in question and he can do so only if he is the State Government over the territory about which he was appointed by the President. 14. The definition in 2 (f) of COFEPOSA and the above notifications leave no room to doubt that the administrator appointed by the President over the union territory in question, is the State Government of that territory. 15. I have therefore no doubt that the administrator who appointed A4 and who admittedly has the power to remove him, is a State Government within the ambit of S.197 and as such a complaint filed against A4, who is the respondent before me, containing accusations amounting to acts in discharge of his official duties, without sanction is incompetent. In my judgment, therefore the view taken by the courts below are justifiable and correct. In the result the Criminal Revision Petition is dismissed. Since the petition is directed only against the respondent there is no bar for the prosecution to proceed against the other accused. Dismissed.