The main legal point established in the judgment is that the Governor can act in his discretion and grant sanction for prosecution when the decision of the Council of Ministers is irrational and based on non-consideration of relevant factors.

Judgment

S. N. Variava, J.

( 1 ) LEAVE granted.

( 2 ) THESE Appeals are against the Judgment of the Madhya Pradesh High Court dated 10th January, 2003.

( 3 ) BRIEFLY stated the facts are as follows: respondents No. 4 (in both these Appeals), i. e. Rajender Kumar Singh and Bisahu ram Yadav, were Ministers in the Government of M. P. A Complaint was made to the lokayukta against them for having released 7. 5 acres of land illegally to its earlier owners even though the same had been acquired by the indore Development Authority. After investigation the Lokayukta submitted a report holding that there were sufficient grounds for prosecuting the two Ministers under Section 13 (l) (d) read with Section 13 (2) of the Prevention of corruption Act, 1983 and also for the offences of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. It must be mentioned that by the time the report was given the two Ministers had already resigned.

( 4 ) SANCTION was applied for from the council of Ministers for prosecuting the two ministers. The Council of Ministers held that there was not an iota of material available against both the Ministers from which it could be inferred that they had entered into a criminal conspiracy with anyone. The Council of ministers thus refused sanction on the ground that no prima-facie case had been made out against them.

( 5 ) THE Governor then considered grant of sanction keeping in view the decision of the council of Ministers. The Governor opined that the available documents and the evidence was enough to show that a prima-facie case for prosecution had been made out. The Governor accordingly granted sanction for prosecution under Section 197 of the Criminal Procedure Code.

( 6 ) BOTH the Ministers filed separate Writ petitions under Articles 226 and 227 of the constitution of India assailing the Order of the governor. A Single Judge of the High Court held that granting sanction for prosecuting the ministers was not a function which could be exercised by the Governor "in his discretion" within the meaning of these words as used in article 163 of the Constitution of India. It was held that the Governor could not act contrary to the "aid and advice" of the Council of Ministers. It was further held that the doctrine of bias could not be applied against the entire council of Ministers and that the doctrine of necessity could not be invoked on the facts of the case to enable the Governor to act in his discretion.

( 7 ) THE Appellants filed two Letters Patent appeals which have been disposed off by the impugned Judgment. The Division Bench dismissed the Letters Patent Appeals upholding the reasoning and Judgment of the Single judge. It must be mentioned that the authority of this Court in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak reported in 1982 (2) SCC 463 was placed before the division Bench. The Division Bench, however, held that the observations made therein may apply to the case of a Chief Minister but they could not be stretched to include cases of ministers.

( 8 ) THE question for consideration is whether a Governor can act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of sanction for prosecution of Ministers for offences under the Prevention of Corruption Act and/or under the Indian Penal Code.

( 9 ) AS this question is important, by Order dated 12th September, 2003 it has been directed that these Appeals be placed before a bench of five Judges. Accordingly these Appeals are before this Bench. Article 163 of the Constitution of India reads as follows:

"163. COUNCIL OF MINISTERS TO aid AND ADVISE GOVERNOR. (1) there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is no