The Judgment of the Court was delivered by

Bhaskaran Nambiar, J.:— A sitting judge of this Court is sought to be prosecuted, not for anything done after he was appointed as a Judge or while he was discharging his duties as a Judge of the High Court, but for alleged grave irregulatities, said to have been committed more than ten years back, in respect of Government cases, when he functioned, for a short period, as Government Pleader. Government did not then pursue the Government Pleader after he resigned from office and the Government did not now accord sanction to the petitioner to prosecute him.

2. The petitioner, claiming that he is a freedom fighter, a recipient of political pension, and a social worker, states that he came to know in 1984 about the grave irregularities committed in 1972-1974 and “promptly” filed a complaint before the Chief Judicial Magistrate Court, Ernakulam, alleging that the accused had committed an offence under S. 166 of the Indian Penal Code. Of course, he has no case that the Government Pleader handled any case in which he was personally interested or affected, or that any injury was caused to him directly except the injury to the social worker in the cause of public welfare for the vindication of public rights. He also stated that no sanction was required under S. 197 of the Code of Criminal Procedure, but as a matter or abundant caution took steps to obtain sanction also. He moved the Chief Secretary on 15th November, 1984, enclosing a copy of the complaint already filed and stating thus:—

“I am herewith enclosing a copy of the complaint submitted by me before the Chief Judicial Magistrate Court, Ernakulam, against a former Govt. Pleader of the High Court of Kerala. The complaint is filed for an offence under S. 166 of the Indian Penal Code. The Government Pleader concerned was at the time of commission of the offence a public servant. Though I have been advised to state that no sanction is really necessary in the light of recent Supreme Court decisions, by way of abundant caution I am requesting to accord necessary sanction for prosecuting the accused.

I may state that the Government had already conducted an enquiry into the matter and had found the accused guilty but no prosecution was launched or steps taken because of the resignation submitted by him. This is a matter being brought to the notice of the court to avoid justice being defeated. I therefore request you that in view of the prima facie case established, against the accused, the necessary sanction may be accorded.”

3. The Government passed an order thus:—

“With reference to your letter cited, I am directed to inform you that there is no record available with Government to examine whether there is even a prima facie case against Shri. K. Sukumaran, former Government Pleader for launching any prosecution. Therefore, your request for sanction cannot be accorded”.

4. This order was communicated in the form of a letter by the Law Secretary who “was directed” to inform the petitioner accordingly. We have been told that the complaint filed before the Chief Judicial Magistrate was dismissed and he has moved this Court in revision. That petition has not yet been disposed of. Meanwhile, he filed this writ petition under Art. 226 of the Constitution challenging the communication (Ext. P3) refusing sanction. A learned single Judge, before whom this case was posted for admission, ordered thus:—

“This is an Original Petition wherein a brother Judge of this Court is a party. I feel that it is more appropriate that it should be heard by a Division Bench even at the stage of admission. Place the records before the Hon'ble Chief Justice for orders regarding posting”.

5. This is how the matter has come before the Division Bench.

6. The counsel for the petitioner, Shri K. Ramakumar, contends that a Government Pleader of the High Court is appointed by the Government, that sanction to prosecute has to be accorded or refused only by the appointing authority, and an order refusing sanction by the Law Secretary is without jurisdiction. He further adds that the reasons given for refusing sanction are totally irrelevant and sanction has been refused arbitrarily. He proceeds to state that normally records are not created before the commission of an offence and to insist on records, before sanction is accorded is imposition of an impossible condition. He, therefore, invokes the jurisdiction of this Court under Art. 226 of the Constitution to quash the Government ‘Order’ and prays for the issue of a writ of mandamus for a consideration of the application for sanction and for grant of sanction.

7. The issuance of a writ of certiorari in exercise of the powers under Art. 226 of the Constitution is not a matter of course. It is issued ex debito justiae. Interests of justice should demand the exercise of the extra-ordinary jurisdiction.

8. The complaint filed before the Chief Judicial Magistrate disclosed vague allegations, that, once upon a time, during 1972-1974, the Government Pleader deliberately avoided conducting cases properly and the Government thus lost several cases, that he “deliberately kept away the files until the time for filing the appeal got expired”; that contrary to instructions, applications to condone the delay in filing the appeals were not filed, and that he appeared in cases where his wife, an Advocate, appeared for the private parties and thus she had “access” to Government files and there was thus “serious loss to Government”. The particulars of the case were not mentioned. Evidently, the petitioner had nothing to do with those cases. He was not a party to those proceedings and he was not directly or personally affected. He states that the particulars of the “abhorrent conduct” can be seen from the files in connection with a writ appeal filed in 1971. This complaint, it is said, discloses an offence under S. 166 of the Indian Penal Code and on this basis sanction is sought.

9. S. 166, I.P.C reads thus:—

“166. Public servant disobeying law, with intent to cause injury to any person. Whoever, being a public servant knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause or knowing it to be likely that he will by such disobedience, cause injury to any person, shall be punished with simple imprisonment, for a term which may extend to one year, or with fine, or with both”.

10. The conduct of the petitioner disentitles him to any relief from this Court. He seeks sanction to prosecute for an offence alleged to have been committed in 1972-1974. Sanction is sought in 1984. On his own showing, he has not suffered any injury as contemplated under S. 166, I.P.C; and for that reason, possibly he did not move any authority for even ten years. He awakes in 1984 when he says he got information about the commission of offence years back. As it is, the cognizance of the offence is hopelessly barred in view of S. 468(b) of the Code of Criminal Procedure where a one year period of limitation is prescribed for an “offence punishable with imprisonment for a term not exceeding one year”. S. 469 of the Code may also not apply to the petitioner for an extension of the period of limitation. S. 469 states that when the commission of the offence is not known to the person aggrieved by the offence, time will run from the first day on which such offence comes to the knowledge of such person. Therefore, the person aggrieved by the offence in S. 469 can only mean, at least with reference to S. 166 of the Indian Penal Code, the person to whom injury has been caused. The injury in that context can only be legal injury and the petitioner has not suffered any legal injury. Otherwise, the bar of limitation prescribed under S. 468 of the Code loses its relevance as, any member of the public can file complaints without regard to the period of limitation by an “innocent” allegation that he came to know of the commission of the offence only the previous night.

11. Moreover, the petitioner has not stated how he got the information in 1984 about the commission of the offence in 1972-1974. If he did get full and correct information, it is ununderstandable why he did not make a full disclosure of all the facts and figures to support his wild allegations if he did not get full information, there is no reason why he should file any criminal complaint at all. This is not the type of person in whose favour the extra-ordinary jurisdiction under Art. 226 should be exercised.

12. In the circumstances, and on the facts highlighted, we have considerable doubts even about the bona fides of the petitioner. He files a criminal complaint against a sitting Judge, about two years after the Judge assumed office. He rests his cause in the criminal court on events which happened about 13 years back. He is personally ignorant of those facts as he was in no way connected with those incidents. He makes allegation unsupported by facts and figures and requires the court to conduct an enquiry and then convict. We have considerable doubts whether the petitioner, for reasons best known to himself, is not attempting to interfere with the due course of justice and to intimidate the Judge and deter him from discharging his duties without fear or favour”. This is a dangerous trend which has to be nipped in the bud. It has to be considered in other appropriate proceedings, preferably by the Advocate General, whether the filing of the complaint in the circumstances will not itself warrant action under the Contempt of Courts Act.

13. It is, therefore, surprising that an advocate of this Court has taken up his cause, in this state of affairs, and proceeded to champion his case, before the Chief Judicial Magistrate Court, Ernakulam and before the Government and also before this Court.

14. It is profitable to remember the weighty observation of the Supreme Court in 1. Brahma Prakash Sharma v. 2. Sham Lal (AIR 1954 S.C 10):

“It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court's administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well-established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law. Mr. Mookerjea, J. ‘In re Motilal Ghose’, AIR 1918 Cal. 988 at p. 994 (I)”.

15. A member of the Bar occupies a position of dignity and trust; but “in regard to matters of contempt”, the members of the Bar do not occupy any privileged or higher position than ordinary citizens (AIR 1954 S.C 10). Of course, the petitioner has reminded us in his petition “May you be ever so high, the law shall be above you”

16. The independence of the judiciary is a constitutional assurance. This inspires the members of the Bar and on the Bench to work together to maintain the unflinching independence of the judiciary and the highest traditions of the profession. If a member of the Bar hurls an attack against a sitting Judge of the High Court in respect of anything done or omitted to be done before he became a Judge, proceeds to file a complaint in a criminal court against him and makes allegations which tend to create an apprehension in the minds of the public “regarding the integrity, ability and fairness of a Judge”, it is a very serious matter which should require attention for necessary action under the Contempt of Courts Act and/or under the Advocates' Act. We are not expressing any final opinion in this matter as it is for the authority charged with initiating action under the relevant statutes to take note of these developments, assess the gravity of the allegations, ascertain the motive behind this belated criminal proceedings and consider all relevant facts and then decide what action has to be taken in accordance with law. It may also have to be considered, then, whether the criminal complaint is not filed only because the Government Pleader has now become a Judge of the High Court.

17. In C.K Daphtary v. O.P Gupta ((1971) 1 SCC 626 : AIR 1971 S.C 1132 at 1144) it was held thus:—

“We are unable to agree with him that a scurrilous attack on a Judge in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the Judiciary. If confidence in the Judiciary goes, the due administration of justice definitely suffers”

18. Rustom Cawasjee v. Union of India ((1970) 2 SCC 298 : AIR 1970 S.C 1318 at 1320) is also profitable:—

“……We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may not be actionable, attributing improper motives, or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of Courts, administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril”.

19. Even on the contentions advanced before us, the petitioner is not entitled to any relief under Art. 226 of the Constitution. A Government Pleader of the High Court is appointed by the Government. The order is usually issued by the Law Secretary “by order of the Governor”. In the present case the Government decided to refuse sanction and the fact was communicated by the Law Secretary. As sanction to prosecute under S. 197 of the Code of Criminal Procedure is to be granted by the appointing authority, the same authority can refuse sanction also. The Law Secretary of the Government is thus competent to refuse sanction to prosecute a Government Pleader or an Ex-Government Pleader. In this case, moreover, the Law Secretary was only communicating the decision of the Government as is clear from Ext. P3 which begins thus:— “I an directed to inform you……” The contention, therefore, that the impugned order was issued without jurisdiction cannot stand.

20. The petitioner has been informed that the records are not available with reference to the allegations in respect of events which took place years back. The petitioner himself does not produce any document. It cannot, therefore, be said that the reasons given are untenable or that there has been an arbitrary exercise of refusal of sanction.

21. The petitioner has a contention that no sanction was required. If no sanction is required, he need not have approached the Government. If his letter for sanction was addressed to the Chief Secretary and if according to the rules of business it is the Law Secretary who has to discharge the functions on behalf of the Government, the petitioner cannot insist that the Chief Secretary himself should issue the order because the petitioner chose to address him.

22. The petitioner contends that the appointing authority is the Governor. This will not advance the petitioner's cause because he has no case that he has filed any application for sanction before that authority.

23. In the result, this original petition has no merits and is dismissed. A copy of this judgment will be sent to the Advocate General.

24. Dismissed.