Successor of retired Governor if can be answerable for the acts of predecessor.

Srinivasan, J.

This writ petition has been filed by the Dravida Munnetra Kazhagam, represented by its General Secretary, for issue of a writ of certi-orarified mandamus, or any other appropriate writ or direction calling for the records pertaining to Letter No.14/GS/92, dated 111. 1992 of the Secretary to Governor, who is the second respondent herein and to quash the same, and to direct the first and third respondents, namely, the Governor of the State of Tamil Nadu and the Government of Tamil Nadu to grant sanction under Scc.197 of the Code of Criminal Procedure, 1973 and Sec.l9of the Prevention of Corruption Act, 1988 in respect of the application dated 19. 1992 submitted by the petitioner herein.

2. We had a doubt as to the maintainability of the writ petition when the matter came before us on 8. 1993 and we issued notice to the Advocate General to appear before us and argue the question of maintainability. Today, the Advocate General appeared before us and argued the matter. He submitted that the writ petition as framed is not maintainable.

3. The petitioner filed an application on 19. 1992 before the Government of Tamil Nadu requesting the latter to accord sanction for the prosecution of the Chief Minister and other Ministers mentioned therein under Sec.l9 of the Prevention of Corruption Act, 1988and Sec.197 of the Criminal Procedure Code, 1973. The Governor, through his secretary sent a communication in letter No.14/GS/ 92, dated 111. 1992 informing the petitioner that the memorandum of the petitioner was considered and the Governor found no credible basis for a case to sanction prosecution or to comply with other requests. Challenging the said letter, the present writ petition has been filed. As pointed out already the Governor of Tamil Nadu, is the first respondent in this writ petition and the prayer is to quash the letter referred to above and also issue direction to the Governor as well as the Government to grant sanction under Sec.197 of the Criminal Procedure Code and Sec.19 of the Prevention of Corruption Act.

4. Art.361 of the Constitution of India provides that the President, or the Governor or Rajpra-mukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties, the question is whether the said article bars the filing of present writ petition. It is the contention of learned counsel for the petitioner that Art.361 of the Constitution of India would be a bar only if the act of the President or the Governor is one in the exercise and performance of the powers and duties of his office as prescribed in the Constitution. According to him if it is a power which is not prescribed in the Constitution but by some other statutes, the bar will not apply. It is submitted that in the present case, the power which the petitioner wants the Governor to exercise is one under Sec.19 of the Prevention of Corruption Act and Sec.197 of the Criminal Procedure Code. Under Sec.l9of the Prevention of Corruption Act, no court shall take cognizance of an offence punishable under Secs.7, 10, 11, 13 and 15 of the said Act, alleged to have been committed by a public servant except with a prior sanction of the authority competent to remove the person concerned from his office. In the present case, the persons who are sought to be removed from office are the Chief Minister and the Ministers. Hence the competent authority is the Governor. Sec.197 of the Criminal Procedure Code prescribed that no Court shall take cognizance of an offence alleged to have been committed by a person who is a public servant not removable from his office save by or with the sanction of the Government. Again the power has to be exercised only by the Governor. Under both the Acts, the power is exercised qua Governor and not in any other capacity. According to the learned counsel fo