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1983 DIGILAW 313 (KER)

T. A. RAJENDRAN v. STATE OF KERALA

1983-12-02

U.L.BHAT

body1983
Judgment :- 1. Following the unfortunate events in Alleppey on Milad-e-sheriff day in 1982 which led to the death of a Muslim boy, there were protests at several places including Trivandrum on the next day namely, 30-12-1982. The Council of Ministers which was more or less in session throughout that day decided to keep a low police profile in Trivandrum. Evidently, this helped anti-social elements to go on a spree of burning, looting and destruction of private and public property. Arson led to one death and by night-fall the military was called in and law and order restored. These events led to the present petitioner who is said to be the editor of a news magazine to file a private complaint before the Judicial Magistrate of the Second Class, Trivandrum against the Chief Minister and all other Ministers in the Council of Ministers as well as the Director General of Police alleging offences under S.118 and 221 IPC. read with S.107,108 and 109 IPC. The complaint was filed on 30-7-1983 and was numbered as Crl.M.P.1946 of 1983 and was made over to the Chief Judicial Magistrate, Trivandrum, who, after hearing the petitioner, held that the complaint was defective for want of sanction under S.197 of the Code and dismissed the complaint. The revision petition is directed against this order. 2. To a query from court whether the complaint was not belated, the learned counsel for the revision petitioner explained the events preceding the complaint. Even on 10-1-1983, the petitioner filed OP. 229 of 1983 in this Court under Art.226 of the Constitution of India seeking the aid of the court in invoking Art.356 of the Constitution for dismissal of the Ministry for breakdown of constitutional machinery in the State. The petition was dismissed saying that the court could not act in the matter. On 12-1-1983, he filed OP.No. 294 of 1983 under Art.226 of the Constitution of India seeking a writ of mandamus directing the Home Secretary of State Government to start investigation into the alleged offences under IPC., including S.118 against the Chief Minister of the State and the Minister for Home Affairs and under S.221 IPC., against the Director General of Police. The Original Petition was dismissed on 19-1-1983, the decision having been reported in Rajendran v. Vayalar Ravi & others (1983 KLT.100). The Original Petition was dismissed on 19-1-1983, the decision having been reported in Rajendran v. Vayalar Ravi & others (1983 KLT.100). The court took the view that the petitioner had an alternative remedy available under the provisions of the Code. The writ appeal filed by the petitioner was dismissed on 3-2-1983. It appears, the petitioner filed a petition on 17-2-1983 before the Chief Secretary to the Government seeking sanction under S.197 of the Code of Criminal Procedure. He also filed OP. 3988 of 1983 under Art.226 of the Constitution of India seeking a direction to the Government to grant sanction. It was dismissed on 4-7-1983 expressing the view that the Government is expected to deal with the matter. Thereafter, the petitioner again moved the Chief Secretary for grant of sanction and since he did not receive any reply he filed a criminal complaint on 30-7-1983. Learned Public Prosecutor submitted before me that the request for sanction has been turned down. 3. The only question which arises for consideration at this stage is whether sanction under S.197 Cr.P.C. is necessary. Learned counsel for the petitioner did not seriously challenge the finding of the learned Magistrate to the effect that prosecution against the Director General of Police (the then D.G. of Police and the present D.G. of Police are officers belonging to the IPS. cadre) requires sanction under S.197 of the Code. Learned counsel made a faint suggestion that the word "Government" in the main part of S.197(1) of the Code means only the State Government. The argument is that the section relates only to the case of a judge or a Magistrate or a public servant not removable from his office save by or with the sanction of the State Government. There is absolutely no support for this extreme contention. Clause (a) relates to Central Government and clause (b) relates to State Government. Naturally, the expression "Government" in the main pact of the sub-section would take in both the Central and the State Governments. There is no dispute that the person then holding the office of the Director General of Police is a public servant not removable from his office save by or with the sanction of the Central Government. In this view, sanction would be necessary to prosecute him and for want of sanction the dismissal of the complaint against him is sustainable. 4. In this view, sanction would be necessary to prosecute him and for want of sanction the dismissal of the complaint against him is sustainable. 4. Learned counsel for the petitioner has no dispute that accused 1 to 19 in the complaint, that is, the Chief Minister and other members of the Council of Ministers of the State Government, are public servants. That is a position which has been well established (see State of Maharashtra v. Ramdas Shrinivas Nayak (AIR. 1982 SC. 1249), N. K. Aher v. H. C. Vartak (AIR. 1970 Bombay 385) and M. Karunanidhi v. Union of India (AIR. 1979 SC. 898)). 5. The main contention of learned counsel for the petitioner is that though the Chief Minister and members of the Council of Ministers are public servants, they are not "removable from their office save by or with the sanction of the Government" and therefore S.197 of the Code will not apply to any prosecution directed against them. Learned counsel explained that the power of dismissal is vested in the Governor and not the Government and also that the Chief Minister and Council of Ministers are removable from office when a motion of no confidence is passed by the legislative assembly. Of course, when such a motion is passed by the legislative assembly, the Council of Ministers is expected to resign from office and on their failure to do so, they may face dismissal by the Governor in exercise of his constitutional powers. 6. I think the decisions which I have mentioned above are clear authorities against the stand taken by the petitioner. In particular, the decision of the Bombay High Court in Vartak's case covers the entire field. Under S.3(60) clause (c) of the General Clauses Act, State Government has been defined to mean the Governor. Governor has the constitutional authority to accept resignations of the Council of Ministers or a member of the Council of Ministers and he can remove or dismiss the Council of Ministers or a member of the Council of Ministers. Therefore, the Chief Minister and the Members of the Council of Ministers fall within the purview of subsection (1) of S.197 of the Code. In this view, sanction would be necessary to prosecute accused 1 to 19. I may notice that one of the Ministers sought to be prosecuted, the then Deputy Chief Minister, is no more. 7. Therefore, the Chief Minister and the Members of the Council of Ministers fall within the purview of subsection (1) of S.197 of the Code. In this view, sanction would be necessary to prosecute accused 1 to 19. I may notice that one of the Ministers sought to be prosecuted, the then Deputy Chief Minister, is no more. 7. The last contention urged by learned counsel for the petitioner is that the acts or omissions alleged against the accused are not those committed by them while acting or purporting to act in the discharge of their duties and therefore S.197 of the Code is not attracted. It is difficult to accept this argument. The whole tenure of the complaint is that the Council of Ministers consciously decided not to deploy police force in and around Trivandrum and directed the Director General of Police to maintain a low police profile and thereby the police force was kept inactive with the result that anti-social elements had a field day. When a sensitive issue like the one, which led to the events in question, surfaces, naturally the Minister concerned or even the Council of Ministers may choose to discuss the situation to decide appropriate measures to be taken. It is for the appropriate authority concerned to decide what forces are to be used to maintain law and order and in what manner and to what extent. That is a part of performance of the duties of the authority concerned. When the Council of Ministers takes a decision to deploy the police force in strength to meet a situation, that would be an act done in the performance of the public duties of the Council. Equally, when the Council of Ministers, on an overall consideration of the circumstances obtaining at a given time, decides not to deploy police force or not to use force in a particular situation in a particular way, that is also an act done in the performance of its public duties. Same is the position of the Director General of Police. It is therefore clear that the acts or omissions alleged against the accused are acts or omissions done or omitted to be done in the performance of their public duties. The provisions of S.197 of the Code are clearly attracted. Same is the position of the Director General of Police. It is therefore clear that the acts or omissions alleged against the accused are acts or omissions done or omitted to be done in the performance of their public duties. The provisions of S.197 of the Code are clearly attracted. Of course, one always hopes that the authority concerned takes a wise and correct decision in matters like this as in other matters. But, where on account of insufficient data, inexperience, rnisjudgment of the situation or miscalculation or such other reasons, a wrong decision is taken and the same is shown by subsequent events to be wrong or inadequate, that is more a matter for political judgment by the legislature or the people and not by the court of law, unless it be that the act or omission falls squarely within the definition of any of the offences under the Indian Penal Code or any other law. In the result, since I am in agreement with the view taken by the learned Magistrate that sanction is necessary for the prosecution of the accused and since sanction has not been obtained, the impugned order is not liable to be interfered with. The petition is dismissed. Dismissed. Sri. Varghese, counsel for the petitioner, made an oral request for leave to appeal to Supreme Court under Art.134 of the Constitution of India. In the facts and circumstances of the case, I do not find that this is a case fit for appeal to Supreme Court. The request for leave is rejected. Issue carbon copy of this order to the petitioner on usual terms. Leave refused.