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2004 Supreme(MP) 853
2006 (1) JLJ 91
(SUPREME COURT)
N. Santosh Hegde, S.N. Variava, B.P., Singh,
H.K. Sema and S.B. Sinha, JJ.
M.P. Special Police Establishment v. State of M.P. and others
Civil Appeals No. 7256 and 7257 of 2004;
against the order M.P. High Court passed in LPAs No. 36 and 48 of 1999.
reported in 2003 (2) JLJ 62;
Decided on 5.11.2004.
Soli. J. Sorabji with Ms. Shireen for appellant;
S.K. Agnihotri and Rohit K. Singh for State;
Vivek K. Tankha and Ashok H. K. Gupta for respondent No.4.
Headnote:(1) Penal Code, 1860 -- S. 120 B -. Criminal P.C. 1973 -- S. 197-prosecution of minister for offence under S. 120 B. IPC -- Council of Ministers not granting sanction -- it is for the Court 10 arrive at conclusion during trial regarding commission of conspiracy -- absence of such a relevant consideration vitiates the administrative order of refusal of sanction -- sanction of Governor based on advice of Lokayukta is valid.
Rajendra 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(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and also for the offences of criminal conspiracy punishable under Section 120-B of the Penal Code. It must be mentioned that by the time the report was given, the two Ministers had already resigned. 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 is 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.
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 were 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. [Paras 3 to 5
Held: A sanction was asked for and granted only in relation to an offence under section 12GB of the Penal Code. It is now trite that it may not be possible in a given case even to prove conspiracy by direct evidence. It was for the Court to arrive at the conclusion as regards commission of the offence of conspiracy upon the material placed on record of the case during trial which would include the oral testimonies of the witnesses. Such a relevant consideration apparently was absent in the mind of the Council of Ministers when it passed an order refusing to grant sanction. It is now well settled that refusal to take into consideration a relevant fact or acting on the basis of irrelevant and extraneous factors not germane to the purpose of arriving at the conclusion would vitiate an administrative order. In this case, on the martial disclosed by the report of the Lokayukta, it could not have been concluded, at the prima facie stage, that no case was made out. [Para 29
We have, on the premises aforementioned, no hestitation to hold that the decision of the Council of Ministers was ex-facie irrational whereas the decision of the Governor was not. In a situation of this nature, the writ Court while exercising its jurisdiction under Article 226 of the Constitution as also this Court under Articles 136 and 142 of the Constitution can pass an appropriate order which would do complete justice to the parties. [Para 31
(2) Constitution of India - Art. 163-- sanction for prosecution of any Minister or Chief Minister or a State under the Prevention of Corruption Act and/or Penal Code--Governor should acts in his discretion without the aid the advice of Council of Ministers.
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. [Para 8
Held: Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister whereas a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself. (1982) 2 SCC 463 relied on. 2003 (2) JLJ 62 reversed. [Para 19
(3) Constitution of lndia -- Arts. 239 (2), 356, 200, 371 A(1) (b), 371 A(1) (d), 371 A(2)(b), Sch. VI paras 9(2) and 18(3) -- Governor -- may act only on his discretion under these Articles -- irrespective of advice from Council of Ministers. (1974)2 SCC 831 relied on. 2003(2) JLJ 62 reversed. [Para 12
(4) Judgment -- matters of judicial record are unquestionable and cannot be doubted. (1982) 2 SCC 463 relied on. (2003) (2) JLJ 62 reversed. [Para 13
(5) Constitution of India -- Art. 163 -- prosecution of Minister or Chief Minister -- advice of Council of Ministers –if facts and circumstances indicate likelihood of bias on part of Ministers, Governor (1997) may act in his own discretion. Judicial Review of Administrative Action by De Smith Woolf and Jowell, 5th End, 527 (2001) 1 SCC 182=(1997) 2 SCC 745, (1969) 2 SCC 262 and (1991) 1 SCC 104 relied on. 1980 (supp.) SCC 330 and (2001) 2 SCC 330 distinguished. 2003 (2) JLJ 62 reversed. {Para 14, 18 and 21}
¼1½ naM lafgrk] 1860& &/kkjk 120[k& &naM çfØ;k lafgrk] 1973& &/kkjk 197& &naM lafgrk dh /kkjk 120[k ds v/khu vijk/k ds fy, ea=h dk vfHk;kstu& &eaf=ifj"kn us eatwjh çnku ugha dh& &"kM;a= fd, tkus ds ckjs esa fu"d"kZ fopkj.k ds nkSjku U;k;ky; dks fudkyuk gksrk gS& &,slh lqlaxr ckr ij fopkj ugha fd, tkus ls eatwjh ds badkj dk ç‘kklfud vkns‘k nwf"kr& &yksdkqDr dh lykg ij vk/kkfjr jkT;iky dh eatwjh oS/k gSA jktsUnz dqekj flag vkSj fclkgwjke ;kno e-ç- ljdkj esa ea=h FksA muds fo#) yksdk;qDr ls f‘kdk;r dh xbZ fd mUgksaus 7-5 ,dM+ Hkwfe] bankSj fodkl çkf/kdj.k }kjk vftZr fd, tkus ds ckn Hkh mlds iwoZru Lokfe;ksa dks voS/k :i ls ns nhA vUos"k.k ds i‘pkr yksdk;qDr us ;g vfHkfu/kkZfjr djrs gq, fjiksVZ is‘k dh fd nksuksa eaf=;ksa dks Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 13¼2½ ds lkFk ifBr /kkjk 13¼1½ ¼?k½ ds v/khu rFkk naM lafgrk dh /kkjk 120 ds v/khu naMuh; vkijkf/kd "kM;a= ds vijk/k ds fy, Hkh vfHk;ksftr djus ds i;kZIr vk/kkj gSA ;g mYys[k vko‘;d gS fd ftl le; rd fjiksVZ dh xbZ] nksuksa eaf=;ksa us igys gh R;kxi= ns fn;k FkkA
nksuksa eaf=;ksa dks vfHk;ksftr djus ds fy, eaf=ifj"kn ls eatwjh ds fy, vkosnu fd;k x;kA eaf=ifj"kn us vfHkfu/kkZfjr fd;k fd nksuksa eaf=;ksa ds fo#) ys‘kek= Hkh lkexzh miyC/k ugha gS ftlls fu"d"kZ fudkyk tk lds fd mUgksaus fdlh ls fey dj vkijkf/kd "kM;a= fd;k gSA vr% eaf=ifj"kn us bl vk/kkj ij eatwjh nsus ls badkj dj fn;k fd muds fo#) çFke n`"V;k ekeyk fl) ugha fd;k x;k gSA
fQj jkT;iky us eaf=ifj"kn dk fufo‘p; n`f"V esa j[krs gq, eatwjh ds çnk; ij fopkj fd;kA jkT;iky us jk; O;Dr dh fd miyC/k nLrkost vkSj lk{; ;g n‘kkZus ds fy, i;kZIr gSa fd vfHk;kstu ds fy, çFken`"V;k ekeyk fl) gks x;k gSA rnuqlkj jkT;iky us naM çfØ;k lafgrk dh /kkjk 197 ds v/khu vfHk;kstu ds fy, eatwjh çnku dj nhA ¼iSjk 3 ls 5½
vfHkfu/kkZfjr % eatwjh dsoy naM lafgrk dh /kkjk 120[k ds v/khu vijk/k ds laca/k esa ek¡xh vkSj çnku dh xbZ FkhA ;g vc lkekU; ckr gS fd fdlh ekeys esa çR;{k lk{; }kjk "kM;a= lkfcr djuk Hkh laHko ugha gksA fopkj.k ds nkSjku ekeys ds vfHkys[k ij ykbZ xbZ lkexzh ij] ftlesa lkf{k;ksa dk ekSf[kd ifjlk{; lfEefyr gksxk] "kM;a= dk vijk/k fd, tkus ds ckjs esa fu"d"kZ ij U;k;ky; dks igq¡puk gksrk gSA çdVr% tc eaf=ifj"kn us eatwjh çnku djus ls badkj djus dk vkns‘k ikfjr fd;k rc mudk /;ku ,slh lqlaxr ckr ij ugha x;kA ;g vc lqLFkkfir gS fd lqlaxr rF; ij fopkj djus ls badkj djus ;k fu"d"kZ ij igq¡pus ds ç;kstu ds fy, ,slh vlaxr vkSj vlac) ckrksa ds vk/kkj ij tks lqlaxr ugha gks] dk;Z djus ls ç‘kklfud vkns‘k nwf"kr gks tkrk gSA bl ekeys esa] yksdk;qDr dh fjiksVZ }kjk çdV dh xbZ lkexzh ij] çFken`"V;k çØe ij ;g fu"d"kZ ugha fudkyk tk ldrk Fkk fd ekeyk fl) ugha gqvk gSA ¼iSjk 29½
iwoksZfyf[kr Hkwfedk esa] gesa ;g vfHkfu/kkZfjr djus esa fcYdqy Hkh ladksp ugha gS fd eaf=ifj"kn dk fofu‘p; Li"Vr% v;qfDr;qDr Fkk tcfd jkT;iky dk fofu‘p; ugha FkkA bl çÑfr dh fLFkfr esa fjV U;k;ky;] lafo/kku ds vuqPNsn 226 ds v/khu viuh vf/kdkfjrk ds lkFk lafo/kku ds vuqPNsn 136 vkSj 142 ds v/khu bl U;k;ky; dh vf/kdkfjrk dk ç;ksx djrs le; ,slk leqfpr vkns‘k ikfjr dj ldrk gS ftlls i{kdkjksa ds lkFk iw.kZ U;k; gksA ¼iSjk 31½
¼2½ Hkkjr dk lafo/kku& &vuq- 163& &Hkz"Vkpkj fuokj.k vf/kfu;e vkSj@;k naM lafgrk ds v/khu jkT; ds ea=h ;k eq[;ea=h ds vfHk;kstu ds fy, eatwjh& &jkTiky dks eaf=ifj"kn dh lgk;rk vkSj lykg ds fcuk vius foosdkuqlkj dk;Z djuk pkfg,A
fopkj.kh; ç‘u ;g gS fd D;k jkT;iky Hkz"Vkpkj fuokZ.k vf/kfu;e vkSj@;k Hkkjrh; naM lafgrk ds v/khu vijk/kksa ds fy, eaf=;ksa ds vfHk;kstu ds fy, eatwjh ds çnku ds ekeys esa eaf=ifj"kn dh lgk;rk vkSj lykg ds fo#) vius foosdkuqlkj dk;Z dj ldrk gS\ ¼iSjk 8½
vfHkfu/kkZfjr % vfHk;kstu dh eatwjh ds çnk; ds ekeys esa lkekU;r% jkT;iky }kjk vius foosdkuqlkj ugha vfirq eaf=ifj"kn dh lgk;rk vkSj lykg ds vuqlkj dk;Z fd;k tkuk visf{kr gSA rFkkfi] eq[;ea=h ;k ea=h ds vfHk;kstu dh eatwjh ds çnku ij fopkj djrs le; viokn gks ldrk gS tgk¡ vkSfpR;o‘k jkT;iky dks vius foosdkuqlkj dk;Z djuk iM+ ldrk gSA ,slh gh fLFkfr rc gksxh tc eaf=ifj"kn Lo;a dks fu%‘kDr ;k fugZfdr dj nsA ¼1982½2 ,l lh lh 463 voyafcrA 2003¼2½ ts ,y ts 62 myVk x;kA ¼iSjk 19½
¼3½ Hkkjr dk lafo/kku& &vuq- 239¼2½] 356] 200] 371d¼1½ ¼[k½] 371d¼1½ ¼?k½] 371 ¼2½ ¼[k½] NBoha vuqlwph iSjk 9¼2½ rFkk 18¼3½& &jkTiky& &bu vuqPNsnksa ds v/khu dsoy vius foosdkuqlkj dk;Z dj ldrk gS& &eaf=ifj"kn dh lykg ls fujis{kA ¼1974½2 ,l lh lh 831 voyafcrA 2003¼2½ ts ,y ts 62 myVk x;kA ¼iSjk 2½
¼4½ fu.kZ;& &Ukf;d vfHkys[k dh ckrsa vfook| gksrh gSa rFkk mu ij lansg ugha fd;k tk ldrkA ¼1982½2 ,l lh lh 463 voyafcrA 2003¼2½ ts ,y ts 62 myVk x;kA ¼iSjk 13½
¼5½ Hkkjr dk lafo/kku& &vuq- 163& &ea=h ;k eq[;ea=h dk vfHk;kstu& &eaf=ifj"kn dh lykg& &rFksa vkSj ifjfLFkfr;ksa ls eaf=;ksa dh vksj ls iwokZxzg dh laHkkouk bafxr gks rc jkT;iky Lo;a ds foosdkuqlkj dk;Z dj ldrk gSA fM fLeFk] oqYQ ,aM tkoyÑr T;wfMf‘k;y fjO;w vkQ ,MfefuLVªsfVo] ,sD‘ku] iape laLdj.k 527] ¼2001½ 1 ,l lh lh 182] ¼1997½ 2 ,l lh lh 745] ¼1969½2 ,l lh lh 262 rFkk ¼1991½ 1 ,l lh lh 104 voyafcrA 1980 ¼lIyh-½ ,l lh lh 330 rFkk ¼2001½ 2 ,l lh lh 330 çHksfnrA 2003¼2½ ts ,y ts 62 myVk x;kA ¼iSjk 14] 18 ,oa 21½
Variava, J. -- 1. Leave granted.
2. These appeals are against the judgement of the Madhya Pradesh High Court dated 10.1.2003.
3. Briefly stated, the facts are as follows:
Respondents 4 (in both these appeals), i.e. Rajendra 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(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and also for the offences of criminal conspiracy punishable under section 120B of the 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 is 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 were 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 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 63 of the Constitution. 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 of 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 v. Ramdas Shrinivas Nayak [(1982) 2 SCC 463] was placed before the Division Bench. The Division Bench. however, held that the observation 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 12.9.2003 it has been directed that these appeals be placed before a Bench of five Judges. Accordingly, these appeals are before this Bench.
10. Article 163 of the Constitution reads as follows:
"163. Council of Ministers to aid and advise Governor -- (l) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he has by or under this Constitution required to exercise his functions or any of them in his direction.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion
