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SUPREME COURT OF INDIA
O. CHINNAPPA REDDY AND A.P. SEN, JJ.
State of Maharashtra, Petitioner
Versus
Ramdas Shrinivas Nayak and another, Respondents.
Petition for Special Leave to Appeal (Crl.) No. 1523 of 1982
Decided on 28-7-1982.
Advocates appeared
Mr. L. N. Sinha, Attorney General, Dr, Y. S. Chitale, Sr. Advocate and Miss A Subhashini, Advocate with them, for Petitioner; Mr. Soli J. Sorabjee, Sr. Advocate and Miss Rani Jethmalani, Advocate with him (for No. 1) and Mr. A. K. Sen, Sr. Advocate and Mr. B. R. Handa, Advocate with him (for No. 2), for Respondents.
* Criminal Revn. Appln. No. 1742 of 1981, D/- 12-4-1982 (Bom).
Held in the facts and circumstances of the present case, we have no doubt in our mind that when there is to he a prosecution of the Chief Minister, the Governor would, while determining whether sanction for such prosecution should be granted or not under section 6 of the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers. (Para 10)
(ii) Constitution of India, 1950- Article 136-Grant of special leave Criminal Revision dismissed by High Court in favour of State-However, High Court making certain observations on concession of counsel for State-State filing special leave against such observations-Whether maintainable? (No)
Held the question posed by the learned Attorney General is no doubt an important question, probably worthy of serious consideration by this court under Article 136 of the Constitution. But, in the present case, we do not propose to grant special leave under Article 136 of the Constitution, solely in order, to consider this question firstly because the Criminal Revision Application itself has been dismissed by the High Court and secondly-and this is important-there was an express concession made in the High Court by the Respondents that in the situation presented by the facts of the present case, the Governor should act in the exercise of his individual discretion. (Para 1)
(iii) Civil Procedure Code, 1908-Order 3 Rule 4-Confession made by counsel in Court referred in the judgment-Whether can be challenged in appellate court? (No)-Can appellate court allow the party to resile from the concession? (In rare cases)- Whether in the present case State of Maharashtra be permitted to resile from the concession made before High Court of Bombay? (No)-Case law discussed- Whether written submissions point out making of oral concession? (Yes)
Held the principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error Per Lord Buckmaster in Modhusudan v. Chanderwatt, A.I.R. 1917 P.C. 30. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. (Para 4)
Held further that the cause of justice would in no way be advanced by permitting the State of Maharashtra to now resile from the concession and agitate the question posed by the learned Attorney General. (Para 11)
Held also (regarding written submissions) we have two comments to make: First, oral submissions do not always conform to written submissions. In the course of argument, counsel, often, wisely and fairly, make concessions which may not find a place in the written submissions. Discussion draws out many a concessions. Second, there are some significant sentences in the written submissions which probabilise the concession. (Para 9)
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JUDGMENT
CHINNAPPA REDDY, J. :— Abdul Rehman Antulay was the Chief Minister of the State of Maharashtra till Jan. 12, 1982. While he was yet holding the office of Chief Minister, one Ramdas Shrinivas Nayak, an erstwhile Member of the Maharashtra Legislative Assembly, professing a keen, interest in clean administration and so keeping a watchful eye on centres of power and sources of corruption, filed a complaint against Shri Antulay, in the court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay charging him with the commission of offences punishable under Ss. 161 and 185 of the Penal Code and S. 5 of the Prevention of Corruption Act. The substance of the allegation was that Shri Antulay founded and controlled a number of trusts called by various names, freely and falsely making it appear that the Prime Minister and the Government of Maharashtra were either interested or had sponsored the trusts, collected contributions and donations for the alleged benefit of the Trusts by misuse of his position and power by dispensing favours and holding out threats and thereby placed himself in a position where he could juggle and manipulate a sum of over Rs. 5 crores. The learned Metropolitan Magistrate refused to entertain the complaint holding that it was not maintainable without the requisite sanction of the Government under S. 6 of the Prevention of Corruption Act, Against the order of the learned Metro politan Magistrate R. S. Nayak presented a Criminal Revision Application to the High Court of Maharashtra, purporting to be under Ss. 407 and 482 of Criminal P. C. and Art. 228 of the Constitution. The State of Maharashtra and Shri, Antulay were impleaded as Respondents. During the course of the pendency of the Criminal Revision Application, Shri Antulay resigned his position as the Chief Minister of the State of Maharashtra. By an elaborate order dated April 12, 1982, Gadgil and Kotwal, JJ. upheld the view that sanction was necessary and dismissed the Revision Application. While dismissing the application, the learned Judges noticed that an application had been made to the Governor of Maharashtra for grant of the requisite sanction and observed that the application should not be decided by the Law Minister or any other Minister, but that "it deserved to be decided by the Governor in his individual discretion". The State of Maharashtra though not aggrieved by the dismissal of the Criminal Revision Application, seeks special leave to appeal to this Court under Art. 136 of the Constitution against the judgment of the High Court of Maharashtra in so far as the judgment may be said to have directed the Governor of Maharashtra to exercise his individual discretion in deciding the question whether sanction should or should not be granted to prosecute Shri Antulay. The learned Attorney General, who appeared for the State of Maharashtra, raised the contention that it was not for the Court to decide whether in respect of a particular matter, the Governor should act in his discretion, or with the aid and advice of the Council of Ministers and that under Art. 163 (2), if any question arose whether any matter was or was not a matter as respects which the Governor was by or under the Constitution required to act in his discretion, the decision of the Governor in his discretion was final, and the validity of anything done by the Governor was not liable to be called in question on the ground that he ought or ought not to have acted in his discretion. He also invited our attention to Art. 163 (3) which provides that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. The question posed by the learned Attorney General is no doubt an important question, probably worthy of serious consideration by this court under Art, 136 of the Constitution. But, In the present case, we do not propose to grant special leave under Art. 136 of the Constitution, solely in order to co
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