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GAUHATI HIGH COURT
A.K.Patnaik, D.Biswas, JJ.
Nabin Chandra Kalita -Appellant
Versus
State of Assam and Ors. -Respondent
PIL No. 21 of 1998
Decided On : 14-10-1999
The Governor of Assam withheld sanction for prosecution of Sri Prafulla Kumar Mahanta, Chief Minister of Assam, respondent No.7. The petitioner has prayed for a writ of Certiorari quashing the order dated 5.2.98 withholding the sanction for prosecution of Sri Prafulla Kumar Mahanta, respondent No.7 and a writ of Mandamus commanding the respondents to reexamine the matter relating to sanction for prosecution against respondent No.7 in the light of materials collected by the Central Bureau of Investigation during investigation both-before and after the filing of charge sheet.
Fact of the Case:
Case No.12/93 was registered by the Superintendent of Police, Vigilance and Anti Corruption, Assam in Police Station Anti Corruption Bureau (ACB) against nine accused persons. The allegation against the aforesaid nine accused persons was that they entered into a criminal conspiracy and caused drawal of Rs.44,70,60,521 from the public exchequer against issue of Letters of Credit of approximate amount of Rs.1 crore during the period from 1986-92 by preparing fake and fictitious bills and also by forging Letters of Credit for purchase of medicines and construction work by abusing their position as public servants knowing fully well that there was no justification for drawal of such huge amount and thereby they defrauded the Govt. and acquired huge property disproportionate to their known sources of income.
Finding of the Court:
The Governor of Assam is not answerable to any Court for exercise and performance of the powers and duties of his office under the Constitution. The order of the Governor under section 197, CrPC or section 19 of the PC Act, 1988 is really an order of the State Govt. Such an order of the State Govt. can be challenged before a Court as has been clarified in the second proviso to Article 361(1) of the Constitution. The Governor is not a necessary party in a proceeding before a Court challenging his order under section 197, CrPC or section 19 of the PC Act, 1988 granting sanction or withholding sanction for prosecution of a Chief Minister or a Minister so long as the challenge is not on the ground of mala fide on the part of the Governor. The Court can examine the legality of an order passed by the Governor under section 197, CrPC or section 19 of the PC Act, 1988 on grounds other than mala fide on the part of the Governor and thereafter pass an effective order for compliance by the State Govt.
Issues: 1. Whether the Governor of Assam is answerable to any Court for exercise and performance of the powers and duties of his office under the Constitution? 2. Whether the Governor is a necessary party in a proceeding before a Court challenging his order under section 197, CrPC or section 19 of the PC Act, 1988 granting sanction or withholding sanction for prosecution of a Chief Minister or a Minister? 3. Whether the Court can examine the legality of an order passed by the Governor under section 197, CrPC or section 19 of the PC Act, 1988 on grounds other than mala fide on the part of the Governor?
Ratio Decidendi: 1. The Governor of Assam is not answerable to any Court for exercise and performance of the powers and duties of his office under the Constitution. 2. The Governor is not a necessary party in a proceeding before a Court challenging his order under section 197, CrPC or section 19 of the PC Act, 1988 granting sanction or withholding sanction for prosecution of a Chief Minister or a Minister so long as the challenge is not on the ground of mala fide on the part of the Governor. 3. The Court can examine the legality of an order passed by the Governor under section 197, CrPC or section 19 of the PC Act, 1988 on grounds other than mala fide on the part of the Governor and thereafter pass an effective order for compliance by the State Govt.
Final Decision: Writ petition dismissed.
This is a public interest litigation questioning the legality and validity of the action of the Governor of Assam in withholding sanction to the prosecution of Sri Prafulla Kumar Mahanta, Chief Minister of Assam, respondent No.7.
2. The facts briefly are that on 14.8.93 Case No.12/93 was registered by the Superintendent of Police, Vigilance and Anti Corruption, Assam in Police Station Anti Corruption Bureau (ACB) against nine accused persons. The nine accused persons are Dr. Dayal Saikia, Dr. Inamul Haque, Dr. J.C. Deori, Dr. Tileswar Baruah who were working as Officer In-charge of the Intensive Cattle Development Project, Demow (for short, ICDP, Demow) at dtfferent times during the period 1986-92, Sri SC Bharali and Sri MC Gohain who were working as Treasury Officers, Sibsagar, Sri NN Phukan who was working as Senior Accountant of ICDP, Demow, Sri D. Bora and Sri Gul Mohammad who were working as Accountants, ICDP, Demow during the period 1986-92. The allegation against the aforesaid nine accused persons was that they entered into a criminal conspiracy and caused drawal of Rs.44,70,60,521 from the public exchequer against issue of Letters of Credit of approximate amount of Rs.1 crore during the period from 1986-92 by preparing fake and fictitious bills and also by forging Letters of Credit for purchase of medicines and construction work by abusing their position as public servants knowing fully well that there was no justification for drawal of such huge amount and thereby they defrauded the Govt. and acquired huge property disproportionate to their known sources of income. Initially, the investigation was entrusted to one Sri Rupen Bora, Inspector, by the Superintendent of Police, Anti Corruption Bureau, Assam, Guwahati. Subsequently however the Govt. of Assam decided to entrust the case to the Central Bureau of Investigation for a thorough investigation and by notification dated 3.5.94 of the Govt. of Assam, the case was transferred to the Central Bureau of Investigation, and by notification dated 12.5.94, the Govt. of India authorised the Central Bureau of Investigation to register the case for investigation. Accordingly, the case was registered afresh as RC-3(A)/94/ACU-H on 17.5.94 in CBI, ACU H Branch, Delhi and investigation was undertaken. After investigation, the Superintendent of Police, Central Bureau of Investigation, Special Police Establishment, ACU n, New Delhi, submitted a report recommending prosecution of forty persons under section 120B read with sections 420, 467, 471 and 477A, Indian Penal Code and under section 13(2)-read with section 13 (1) (d) of the Prevention of Corruption Act, 1988, (for short, PC Act, 1988). The aforesaid Forty persons who were to be prosecuted as per the recommendation of the Superintendent of Police GBI, included Sri Prafulla Kumar Mahanta, Chief Minister, Assam and Sri Nakul Das, ex Veterinary Minister, Assam. A copy of the report of the Superintendent of Police, CBI was sent to the Govt. of Assam by the Additional Director, Central Bureau of Investigation, Special Police Establishment, New Delhi by his letter dates 26.12.97 with the request to accord sanction for prosecution of the said Sri Prafulla Kumar Mahanta and Sri Nakul Das under section 19(1)(c) of the PC Act, 1988 and under section 197 of the Code of Criminal Procedure, (for short CrPC). By order dated 5.2.98, the Governor of Assam sanctioned prosecution of Sri Nakul Das, former Minister, Animal Husbandry and Veterinary Department, Govt. of Assam. By another order dated 5.2.98, the Governor of Assam withheld grant of sanction to prosecute Sri Prafulla Kumar Mahanta on the ground that the CBI investigation had not made out a prima facie case against him. Thereafter a charge sheet dated 15.7.98 was filed by the Central Bureau of Investigation in the Court of Special Judge, Assam, Guwahati against 38 accused persons. In the said charge sheet it was mentioned that necessary sanction for prosecution of 22 per
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