MANU/TN/0343/1998 ; Equivalent Citation: 1998(3) CTC493
IN THE HIGH COURT OF MADRAS Nos. 13073 , 13074 ,
23481 , 23482 ,
23506
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. K.K. Venugopal, Senior Counsel for Mr. R. Muthukumarasamy Adv.
For Respondents/Defendant: Mr. N. Natarajan.Senior Counsel for Assisted by Public Prosecutor andMr. R. Balasubramaniam, Special Government Pleader
Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders:
Constitution of India -- Articles 77, 163, 166, 258-A and 361; General Clauses Act, 1897 -- Section 3(60); Indian Penal Code, 1860 -- Sections 13, 21, 120-B, 169, 409, 420 and 477-A; Prevention of Corruption Act, 1988 -- Sections 19 and 30; Code of Criminal Procedure, 1973 -- Sections 17 and 197; Constitution of India (Seventh Amendment) Act, 1956
Cases Referred:
Shambhoo Nath Misra v. State of
Disposition: Petition dismissed
Case Note: Criminal – sanction - Articles 77, 163, 166, 258A and
361 of Constitution of India, Section 3 (60) of General Clauses Act, 1897,
Sections 13, 21, 120B, 169, 409, 420 and Indian Penal Code, 1860, Sections 19
and 30 of Prevention of Corruption Act, 1988, Sections 17 and 197 of Criminal
Procedure Code, 1973 and Constitution of India (Seventh Amendment) Act, 1956 –
petitioner challenged Order of Governor which sanctioned to prosecute her under
Section 197 – allegation that when petitioner held office of chief minister she
committed offences under Section 169 of Code of 1860 and Section 30 of Act of
1988 – based on allegation report submitted by Additional Inspector General of
Police (Crime Branch) after due investigation – Governor independently applied
mind to every aspect of matter and granted injunction – sanction granted by Governor protected by Article 361 and cannot be challenged –
as per Section 197 of Code of 1973 State Government has power to give sanction to prosecute public servant and Section 3 (60) of Act
of 1897 states Governor is also State – hence sanction granted by
Governor was valid – petition dismissed.
ORDER
1. These three writ petitions have been filed by the same writ petitioner. Common contentions have been raised in all the three writ petitions. Hence, all the three writ petitions are disposed of by a common order.
2. In W.P.No. 14625 of 1997, the petitioner prays for the issue of a writ of certiorari calling for the order of sanction issued by the Governor as communicated by the first respondent in G.O.Ms.No. 1516 Public (SC) Department dated 31.12.1996 and quash the said order dated 31.12.1996.
3. W.P.No.8170 of 1997 has been filed praying for the issue of a writ of certiorari to call for the order of sanction issued by the first respondent as communicated by the second respondent in G.O.Ms.No. 1333 Public (SC) Department dated 14.11.1996 and quash the said order of the first and second respondents dated 14.11.1996.
4. W.P.NO. 14644 of 1997 has been filed paying for the issue of a writ of certiorari to call for the order of sanction issued by the Governor as communicated by the, first respondent in G.O.Ms. 614 Public (S.C.) Department dated 2.6.1997 and quash the said order of respondents dated 2.6.1997.
5. Mr.K.K. Venugopal, Senior Counsel submitted arguments in respect of W.P.NOS. 14625 and 14644 of 1997 and Mr.N. Natarajan, Senior Counsel, assisted by the Public Prosecutor and Mr.S.R. Balasubramaniam, Special Government Pleader appeared for the respondents other than Her Excellency the Governor of Tamil Nadu.
6. After the conclusion of the hearing in W.P.Nos. 14625 and 14644 of 1997, the counsel for the petitioner Mr.R. Muthukumaraswamy submitted that the arguments will be the same in W.P.No.8170 of 1997 and that the said W.P.No. 8170 of 1997 may also be disposed of along with W.P.Nos. 14625 and 14644 of 1997.
7. The petitioner, who is common in all the three writ petitions, is the General Secretary of All India Anna Dravida Munnatra Kazhagam Party, which had formed the Government in Tamil Nadu, after it was returned to power in the elections held during the year 1991. The petitioner had been the Chief Minister of Tamil Nadu from 1991-96.
8. According to the petitioner, while she was holding the office of the Chief Minister, an individual filed a memorandum before the then Governor of Tamil Nadu, seeking sanction to prosecute the petitioner for alleged offences under Sections 169 of the Indian Penal Code as well as Section 30 of the Prevention of Corruption Act, alleging that a firm in which the petitioner is a partner had purchased a property belonging to Tamil Nadu Small Industries Corporation (TANSI).
9. The petitioner states that the then Governor of Tamil Nadu, without conducting any enquiry and without issuing notice, passed orders on 23.5.1995 sanctioning prosecution of the petitioner for alleged offences under sections 169, Indian Penal Code and Section 30 of the Prevention of Corruption Act, that the petitioner challenged the said sanction order by filing W.P.No. 5221 of 1995 on the file of this Court contending that the order of sanction granted by the then Governor of Tamil Nadu is illegal, as he is not the appropriate Authority to prosecute the Chief Minister under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, and even assuming that the Governor was the proper Authority, he was not entitled to pass orders granting sanction based on his discretion alone, but he could do so upon the aid and advice of counsel of ministers excluding the Chief Minister and that the petitioner also challenged the said order of sanction dated 23.5.1995 on the ground that it was passed without application of mind and the order is vitiated by mala fides, both malice in facts and malice in law.
10. The petitioner further states that the said Writ Petition No. 5221 of 1995 was taken up for consideration by a Division Bench of this Court and it was dismissed on the ground that the writ petition is not maintainable in view of Article 361 of the Constitution, that as against the order of the Division Bench, the petitioner moved the Supreme Court in S.L.P.No. 10896 of 1995, that the Supreme Court granted leave to the petitioner to file an appeal and the matter was taken on Board as Civil Appeal No. 5605 of 1995, that the Honourable Supreme Court passed orders on 12.9.1995 to file an affidavit with reference to the merits of the case, so that the whole matter could be looked into by the Supreme Court itself and that the order passed by the Governor is without jurisdiction, as the Governor was not the appropriate Authority to grant sanction for prosecution of the Chief Minister and even if so, the decision should be based only upon the aid and advice of council of Ministers.
11. The petitioner also states that on that basis, the Apex Court referred the matter before a Constitution Bench and the matter is still pending, that during April/May 1996, general elections were held and the D.M.K. Party being successful, assumed power and the A.I.A.D.M.K. Party had lost elections, that after the assumption of office, the new Government had registered a series of cases against the petitioner and her erstwhile cabinet colleagues, besides a few officers for alleged offences under the Indian Penal Code and the Prevention of Corruption Act and that by G.O.Ms.No. 1516 Public (SC) Department dated 31.12.1996. Her Excellency the Governor of Tamil Nadu granted sanction to prosecute the petitioner for alleged offences under Section 120-B, Indian Penal Code read with Section 477-A. Indian Penal Code and under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, that the same has been communicated to. the petitioner only during the month of August 1997, and hence the present writ petition.
12. In W.P.No. 14644 of 1997, while tracing the earlier history of assumption of office, sanction by the then Governor, filing of W.P.No. 5221 of 1995 and the pendency of the appeal before the Supreme Court, the petitioner challenged the sanction accorded by Her Excellency the Governor of Tamil Nadu in G.O.Ms.No.614 Public (SC) dated 2.6.1997 for offences under Section 1 of Indian Penal Code read with Sections 13(2) and 13(1)(e) of the Prevention of Corruption Act and under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act. A crime has been registered against the petitioner by the second respondent in this writ petition for acquisition and possession of properties disproportionate to her known source of income.
13. W.P.No.8170 of 1997 has been filed by the very same petitioner, wherein the sanction issued by the Governor of Tamil Nadu in G.O.Ms.No. 1333 Public (SC) Department dated 14.11.1996 has been challenged. In this writ petition also, the petitioner had traced the earlier history leading to the filing of special leave and the reference before the Constitution Bench, which is still pending, according to the petitioner. By the said G.O., sanction has been accorded by the Governor of Tamil Nadu to prosecute the petitioner for alleged offences under Sections 120-B, 409, 420, 169, etc. of Indian Penal Code read with Section 13(2) etc. of Prevention of Corruption Act and it is the third respondent, who had sought for sanction from the first respondent., i.e. the sanction has been issued at the instance of the Additional Deputy Inspector General of Police (Crime) to prosecute the petitioner as well as the former minister for Rural Industries. The sanction order reads thus:
"After fully and carefully considering
the materials, such as copy of the First Information Report in the Crime
Branch, CID., Headquarters Cr.No. 17 of 1996, the statements of witnesses,
connected records and the report of the Additional Director General of Police,
Crime. Chennai placed before him in regard to the said allegations and
circumstances of the case, is satisfied that the said accused Selvi J.
Jayalalitha and Thiru Mohamed Asif should be prosecuted in a Court of law for
the said offences."
15. W.P.No. 14625 of 1997 relates to alleged falsification of records and criminal misconduct with respect to 'Pleasant Stay Hotel', Kodaikanal. The impugned proceedings read thus:
"Whereas the said offences are alleged to have been committed by Selvi J. Jayalalitha and Tr. T.M. Selvaganapathy, while acting or purporting to act in the discharge of their official duties and that at the time of the commission of the said offences, they were employed in connection with the affairs of the Government of Tamil Nadu; and
Whereas the Director, Vigilance and Anti-Corruption, Chennai, on the basis of the investigation conducted in Crime No.3/AC/96 of Directorate of Vigilance and Anti-corruption, Headquarters, Chennai has sought the previous sanction of the Governor of Tamil Nadu to prosecute Selvi J. Jayalalitha, and Tr. T.M. Selvaganapathy in a Court of law along with the others aforementioned, for the said offences; and
Whereas the Governor of Tamil Nadu, being the Authority competent to remove Selvi. J. Jayalalitha and Thiru T.M. Selvaganapathy from their offices, on a full and careful perusal of the material placed before him such as copies of First Information Report in Cr.No.3/AC/96 of Directorate of Vigilance and Anti-corruption, Headquarters, statements of witnesses, and the connected records and documents and the report of Director, Vigilance and Anti-corruption, Chennai dated 6.12.1996, is satisfied that the said Selvi. J. Jayalalitha and T.M. Selvaganapathy, should be prosecuted in a Court of law for the said offences:
Now, therefore, under Section 197(l)(b) of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Tamil Nadu hereby accords sanction to prosecute Selvi J. Jayalalitha Former Chief Minister of Tamil Nadu and Thiru T.M. Selvaganapathy, Former Minister for local Administration of the Government of Tamil Nadu for the said offences and for taking cognizance of such offences by a Court competent jurisdiction."
16. The impugned Government order in W.P.No. 14644 of 1977 relates to possession of disproportionate assets by the petitioner. The relevant portion of the impugned order reads thus:
"Whereas, it has further been stated that, on the basis of the above calculations, Selvi J. Jayalalitha, being a public servant during the said period, is found to have acquired and been in possession of pecuniary resources and properties in her name and in the names of Thirumathi Sasikala Natarajan, Thiru VN. Sudhakaran and Thirumathi J. Elavarasi and the firms floated in their names, which are disproportionate to her known sources of income as on 30.4.1996 to the extent of Rs. 66,65,20,395 (as worked out in Annexure-VII hereto), which she has failed to account for satisfactorily.
Whereas, it has further been stated that, during the period between 1.7.1991 and 30.4.1996 at Chennai, and other places, Selvi J. Jayalalitha, as the Chief Minister of Tamil Nadu, and being a public servant, along with Thirumathi Sasikala Natarajan, Thiru VN, Sudhakaran and Thirumathi J. Elavarasi, were parties to criminal conspiracy, having agreed among themselves to acquire and possess pecuniary resources and properties by Selvi J. Jayalalitha in her name and in the names of Thirumathi Sasikala Natarajan. Thiru VN. Sudhakaran and Thirumathi J. Elavarasi and in the names of the firms floated in their names, which are disproportionate to her known sources of income and for which she has failed to account for satisfactorily, and Thirumathi Sasikala Natarajan, Thiru VN. Sudhakaran and Thirumathi J. Elavarasi abetting Selvi J. Jayalalitha by agreeing to hold the properties thus acquired, in their names and in the names of the firms floated by them, on behalf of Selvi J, Jayalalitha;
Whereas, it has further been stated that, pursuant to the said criminal conspiracy, during the said check period at Chennai and other places, Selvi J. Jayalalitha, being a public servant, committed the offence of criminal misconduct by acquiring and possessing pecuniary sources and properties in her name and in the names of Thirumathi Sasikala Natarajan. Thiru VN. Sudhakaran and Thirumathi J. Elavarasi and in the names of firms floated by them, which are disproportionate to her known sources of income, to the extent of Rs. 66,65,20,395 and for which she has failed to account for satisfactorily.
Whereas, it has further been stated that, in pursuance of the said criminal conspiracy and during the said period, Thirumathi Sasikala Natarajan, Thiru VN. Sudhakaran and Thirumathi J. Elavarasi, abetted Selvi J. Jayalalitha in the commission of the above said offence of criminal misconduct, by holding on behalf of Selvi. J. Jayalalitha, a substantial portion of the aforementioned properties and pecuniary resources, in their own names and in the names of the firms floated in their names.
Whereas, the said acts of Selvi J. Jayalalitha committed along with Thirumathi Sasikala Natarajan, Thiru VN. Sudhakaran and Thirumathi J. Elavarasi. constitute and disclose offence punishable under Section 120-B, Indian Penal Code, read with Section 13(2) and Section 13(1)(a) of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988) and under Section 13(2), read with 13(1)(e) of the said Act;
Whereas, the said Selvi J. Jayalalitha was at the time of the commission of the said offences, employed in connection with the affairs of the State of
Whereas, the Director, Vigilance and Anti-corruption, Chennai, has sought sanction of the Governor of Tamil Nadu to prosecute Selvi J. Jayalalitha in a Court of law for the said offences;
Whereas, Her Excellency, the Governor of Tamil Nadu on an independent, full and careful perusal and consideration of the materials placed before her, such as copy of the FIR in Cr.No. 13/AC/96.HQ of Directorate of Vigilance and Anti- Corruption, Chennai, the complaint of Dr. Subramanian Swamy, filed before the Court of Principal Sessions and Special Judge, Chennai, the statements of witnesses and the accused, the connected records, including copies of house search lists, registered documents, evaluation reports, banks records, the letter dated 15.4.1997 of Thiru N. Kalama Nadia, Superintendent of Police, Vigilance and Anti-corruption, Special Investigation Cell-I, Chennai-35, with enclosures addressed to Selvi J. Jayalalitha and her reply dated 24.4.1997, given through Thiru K.A. Panchapagesan, Advocate, Chennai, etc.. and the reports of the Director, Vigilance and Anti-corruption Chennai cited and the Annexures-I to VII thereto, in regard to the said facts and circumstances of the case, is satisfied, that it is in the interests of justice that Selvi J. Jayalalitha should be prosecuted in a Court of law of the said offences and
Now, therefore, under Section 197(l)(b) Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Tamil Nadu hereby accords sanction for the prosecution of Selvi J. Jayalalitha a, former Chief Minister of Tamil Nadu for the said offences and for taking cognizance of the said offences and for taking cognizance of the said offences by a Court of competent jurisdiction."
17. In all the three writ petitions, identical contentions have been raised by Mr. Venugopal, Senior Counsel for the petitioner and Mr.N. Natarajan, Senior Counsel appearing for respondents other than the Excellency the Governor of Tamil Nadu.
18. Learned counsel for the petitioner pointed out that in Civil Appeal No. 15605 of 1995 on the file of the Supreme Court, their Lordships have referred the matter to a Constitution Bench and the order of reference reads thus:
"Having heard learned counsel, we are of the view that an issue of constitutional importance is raised in these matters and they should be heard by a Bench of Five learned Judges.
Shortly put, the submission on behalf of the Chief Minister of the State of Tamil Nadu and the State of Tamil Nadu is that the Governor of the State was not the appropriate authority to grant sanction for the prosecution of the Chief Minister under the Provisions of Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act; and that, assuming that he was. he was not entitled to decide whether or not to grant sanction only upon the basis of his discretion: he could do so only upon the advice of Council of Ministers other than the Chief Minister.
A decision is sought upon this issue also by States other than the State of
While we think that it is appropriate to refer the matters to a Constitution Bench, we should point out that no delay can be brooked for the Chief Minister continues to remain in office, no prosecution having been launched against her by reason of the stay order of this Court.
The papers shall be placed before the Honourable the Chief Justice for appropriate directions."
19. Based on the contention that has been raised before the Apex Court, Mr.K.K. Venugopal, Senior Counsel contended that the sanction for prosecution of the petitioner, who was the Chief Minister under Section 197 of the Code of Criminal Procedure, which has been made by Her Excellency the Governor of Tamil Nadu, as seen from the impugned orders has not been made on the advice and aid of council of Ministers and hence invalid and non-est.
20. The counsel appearing for petitioner as well as for respondents fairly state that no sanction is required with reference to the offence for which a crime has been registered and charge sheet has been filed subsequently under the provisions of the Prevention of Corruption Act.
21. The Senior Counsel appearing for either side referred to the recent pronouncement of the
"Section 197(1) postulates that 'When any person who is a public servant not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the appropriate Government/Authority'.
The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is the furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent Authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest, However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected.
The question is: when the public servant is alleged to have committed the offences of fabrication of record or misappropriation of public fund etc. can be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseperably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained."
22. Based on the ruling in Shambhoo Nath Misra v. State of U.P. & Ors. MANU/SC/0508/1997 the Counsel appearing for either side submitted as the petitioner is no longer in power, no sanction under the provisions of the Prevention of Corruption Act is required and also for certain offences, which were not integrally connected or inseperably interlinked with the crime committed in the course of same prosecution relating to performance of public duty under colour of public duty.
23. Mr. K.K. Venugopal, Senior Counsel pointed out that Section 120-B, by itself, would be an independent provision under which prosecution could be launched with the prior sanction. It is also pointed out that even if the petitioner had ceased to be Chief Minister, sanction is required under section 197 of the Code of Criminal Procedure with respect to certain of the offences for which a crime has been registered and charge sheet has been filed based on the sanction proceedings.
24. In this respect, the learned counsel for either side draw the attention of this Court to the pronouncement of the
25. The civil appeal, which is pending on the file of the Apex Court arises out of the sanction proceedings ordered by His Excellency the Governor of Tamil Nadu which was the subject matter of challenge before the Division Bench of this Court in Dr. J. Jayalalitha v. Chenna Reddy, Governor of Tamil Nadu and others, 1995 (2) M.L.J. 187. The Division Bench of this Court, while dismissing the writ petition W.P.No.5221 of 1995, held that no writ is maintainable challenging the order of sanction passed by His Excellency the Governor of Tamil Nadu in the light of Article 361 of the Constitution, which provides for immunity. The Division Bench has held thus:
"The fourth respondent has referred to the judgment of the Supreme Court in Janata Dal v. H.S. Chowdhary, MANU/SC/0532/1992 and, read out paragraph 135 wherein the Court has observed that the High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before Court and the issues involved, whether factual or legal, are of great magnitude and cannot be seen in their true perspective without sufficient material. Out attention is also drawn to the latest order of the Supreme Court in Director, Central Bureau of Investigation and others v. Niyamavddi, S.L.P. (Crl.) No. 942 of 1995 dated 5.4.1995. It is observed therein that ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the same. The court said:
"Oflate, the tendency to interfere in the investigation is on the increase and Courts should be wary of its possible consequences."
We agree with the contention of the fourth respondent that the present proceeding is premature. He referred to the judgment of the Supreme Court in State of
Major part of the arguments advanced by learned Senior Counsel for the petitioner was an attack on the validity of the order of the first respondent on different grounds. We do not propose to consider any of them here, in the view we have taken on the maintainability of the writ petition. Suffice it to point out that the petitioner has ample opportunity to raise all those contentions in the proceedings under the Act, if initiated pursuant to the sanction granted by the first respondent. As at present, this petition is premature and not maintainable. We do not accept the contention that the writ petition could be admitted in order that the Court mould the relief ultimately, as the fundamental rights of the petitioner are affected. We have already found that the order of sanction does not in any manner affect any of the fundamental rights of the petitioners."
26. This Division Bench has, in turn, followed the earlier Full Bench judgment of this Court in Mathialagan v. Governor of Tamil Nadu, 1973 (1) M.L.J. 131. This Court is bound by the decision of the Division Bench in Dr. J. Jayalalitha v. Chenna Reddy, Governor of Tamil Nadu and others, 1995 (2) M.L.J. 187 as well as the said Full Bench.
27. The Full Bench judgment of this Court in Mathialagan v. Governor of Tamil Nadu, 1973 (I) M.L.J. 131 and the Division Bench judgment of this Court in Dr. J. Jayalalitha v. Chenna Reddy, Governor of Tamil Nadu and others, 1995 (II) M.LJ. 187 hold the field as on date. Sitting singly, I am bound by the said pronouncements.
28. It is true that the question as to whether the Governor has to sanction the prosecution of a Chief Minister only with the aid and advice of Council of Ministers or whether the Governor could himself, without reference to the cabinet grant sanction of prosecuting the Chief Minister is the larger issue, which has been referred to Constitution Bench by the Apex Court. This would not have the effect of nullifying the earlier pronouncements of this Court, which is binding on me as on today.
29. The mere fact that the Supreme Court had referred the larger question for the decision of a Constitution Bench also will not have the effect of barring the Governor from sanctioning prosecution against the Chief Minister, present or past or the trial being held on the basis of such sanction.
30. In the present case, a perusal of the sanction proceedings themselves would show that the Governor of the State of
31. It is also to be pointed out that the sanction is not being challenged on any other grounds, such as mala fides or malice either factual or legal or as arbitrary or as not warranted on the facts of the case. The only contention on which the sanction is challenged being the same as one that has been referred to a Constitution Bench by the Supreme Court.
32. On the other hand, Mr. N. Natarajan, Senior Counsel appearing for some of the respondents had contended that already sanction order has been passed by the Governor and the same cannot be challenged at all and it is protected by Article 361 of the Constitution.
33. Mr. Natarajan, Senior Counsel also contended that in the light of the later pronouncement of the Apex Court in Shambhoo Nath Misra v. State of U.P. & Ors., MANU/SC/0508/1997, the sanction may not even be necessary on the facts of the case. However, it is not the definite stand of the respondents that sanction may not be required at all on the facts of the case. Further, this question cannot be gone into at this stage.
34. Mr. Natarajan, senior counsel appearing for other respondents excepting Her Excellency the Governor of Tamil Nadu had rightly contended that there is no justification at all to entertain these writ petitions and the petitioner had come before this Court belatedly, as already trial had commenced in respect of the three prosecutions before the
35. Mr. Natarajan also referred to the provisions of the Prevention of Corruption Act and contended that the trial before the
36. Mr.K.K. Venugopal learned Senior Counsel referred to the decision of the Supreme Court in R. Balakrishna Pillai v. State of Kerala and another, MANU/SC/0237/1996 and contended that the issue that has been referred to before the Constitution Bench by the Supreme Court had not been decided by the Division Bench in this case, besides pointing out that by virtue of the provisions in the General Clauses Act, the expression 'Government' in Section 197 would mean the Governor in the case of a Chief Minister or a Minister and they are entitled to the protection under Section 197(1) of the Code of Criminal Procedure.
37. The Supreme Court in R. Balakrishna Pillai v. State of Kerala and another, 1996 S.C. 901 has held thus:
"We may mention that the Law Commission in its 41st Report in paragraph 15. 123 while dealing with section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance of this observation that the expression 'was' came to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.
A Constitution Bench of this Court in M. Karunanidhi v. Union of India, MANU/SC/0159/1979 was required to consider whether a Chief Minister was a public servant within the meaning of Section 21 of the Indian Penal Code and Section 197 of the Code. This Court referred to the decision of the High Court of Bombay in Namdeo Kashinath Aher v. H.G. Vartak, MANU/MH/0065/1970, and extracted the following passage therefrom at p.915 of AIR.
"Whatever be the practical and actual position, the fact remains that it is the Governor, who can accept the resignation of the Ministry or Minister and it is the Governor again who can dismiss or remove the Minister from Office. Under Section 3(6) of the General Clauses Act, 1897, the word 'State Government' has been defined. Clause (c) of Section 3(60) is applicable to the present case and, therefore, the State Government is to mean the Governor for the purpose of the present case. The result, therefore, is that accused No.1 is a public servant, who can be said to be removable only by the State Government, meaning thereby the Governor, and I do not find any difficulty in coming to the conclusion that the second requirement of Section 197, Cr.P.C. also is fully satisfied as far as accused No.1 is concerned."
Taking note of the provisions of Art. 167 (Art. 164 for Ministers), it was pointed out that the Chief Minister is paid from public exchequer for performing a public duty and is, therefore, a public servant within the meaning of Section 197 of the Code, So also a Minister of a State is paid from its public exchequer, he is paid for doing the duty entrusted to him as a Minister and, therefore, on the analogy of the observations relating to the Chief Minister, the Minister must also be held to be a public servant. Since he is appointed or dismissed by the Governor, he would fall within the expression 'a public servant not removable from his office save by or with the sanction of the Government'. In the instant case, as pointed out earlier, by virtue of the provisions in the General Clauses Act, 1897, the expression 'Government' used in Section 197 would mean the Governor in the case of a Chief Minister or a Minister. That being so, we are of the opinion that a Minister would be entitled to the protection of Section 197(1) of the Code."
38. This pronouncement of the
39. Further Section 197(1) of the Code of Criminal Procedure Provides that it is the Government, which has to sanction the prosecution and sub.section (l)(b) of Section 197 also provides that it is the State Government. It is essential to set out the very provision itself:
"Prosecution of Judges and public servants: (1) When any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with previous sanction:
.......... ............. ..............
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a state of State Government.
(provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression 'State Government' occurring therein, the expression 'Central Government' were substituted)"
40. The term 'State Government' has not been defined in the Code of Criminal Procedure. Section 17 of the Indian Penal Code defines the term 'Government' denotes Central Government or the Government of a State. The definition clause in the General Clauses Act Section 3(60) defines the term 'State Government' Section 3(60) reads thus:
"State Government" as respects anything done before the commencement of the Constitution, shall mean, in a Part A State the Provincial Government of the corresponding province, in a Part B State, the authority or person authorised at the relevant date to exercise executive Government in the corresponding acceding State, and in a Part C State, the Central Government; as respects anything done (after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1958) shall mean, in a Part A State, the Governor in a Part B State, the Rajpramukh, and in a Part C State, the Central Government;
(c) as respects anything done or to be done
after the commencement of the Constitution (Seventh amendment) Act, 1958 shall
mean in a State, the Governor and in a Union Territory
42. On a consideration of this provision, the
'Since he is appointed or dismissed by the
public servant not removable from his office save by or with the sanction of
the Government'. In the instant case, as pointed out earlier, by virtue of the
provisions in the General Clauses Act, 1897 the expression 'Government' used in
Section 197
would mean the Governor in the case of a Chief Minister or a Minister. That
being so, we are of the opinion that a Minister would be entitled to the
protection of Section 197(1) of
the Code." (Italics supplied)
44. Section 197 of the Code of Criminal Procedure speaks of the State Government and read with Section 3(60) of the General Clauses Act, it is the Governor and in the present case, the Governor alone has acted, therefore, the sanction for prosecution granted by the Governor is valid.
45. The very statutory provision, which power has been exercised by the Governor enables to apply his mind, satisfy himself and thereafter grant sanction, which is that of the Government. It is not as if the entire order of sanction is not referable to Section 197 of Criminal Procedure Code read with Section 3(60) of the General Clauses Act and it cannot be assumed that the Governor had exercised the powers conferred under Article 163 of the Constitution.
46. It is true that in terms Article 163(1) of the Constitution, excepting functions required by the Constitution to be exercised by the Governor in his discretion, the Governor has to exercise his power on the aid and advice of the council of ministers.
47. In Samsher Singh v. State of Punjab, MANU/SC/0073/1974,
the Apex Court had indicated that the function vested in the Governor either
executive or legislative or quasi judicial in nature is not the personal
satisfaction of the Governor, but the satisfaction in the constitutional sense
in the cabinet system of Government and it has been held thus:
"The President as well as the Governor is the
constitutional or formal head, the President as well as the Governor exercises
his powers and functions conferred on him by or under the Constitution on the
aid and advice of his council of ministers, wave in spheres where the Governor
is required by or under the Constitution to exercise his functions in his
discretion. Whenever the Constitution requires the satisfaction of the
President or the Governor for any exercise by the President or the Governor of
any power of function the satisfaction required by the Constitution is not the
personal satisfaction of the President or Governor but the satisfaction of the
President or Governor in the constitutional sense in the cabinet system of
Government, that is satisfaction of his council of ministers on whose aid and
advice the President or the Governor generally exercises all his powers and
functions. The decision of any Minister or Officer under Rules of Business made
under any of these two Articles 77(3) and 166(3) is
the decision of the President or the Governor respectively. These articles did
not provide for any delegation. Therefore, the decision of a Minister or
Officer under the Rules of Business is the decision of the President or the
Governor.
16. After referring to the several previous
authorities this Court further held: (SCC p. 849 para 57)
For the foregoing reasons, we hold that the President or
the Governor acts on the aid and advice of the Council of Ministers with the
Prime Minister at the head in the case of Union and the Chief Minister at the
head in the case of State in all matters which vests in the Executive whether
those functions are executive or legislative in character. Neither the
President nor the Governor is to exercise the executive function personally."
49. However, it has to be pointed out that the earlier constitution Bench in M. Karunanidhi v. Union of India and others, MANU/SC/0159/1979 has held thus:
"In the instant case, as pointed out
earlier, by virtue of the provisions in the General Clauses Act, 1897 the
expression 'Government' used in Section 197 would
mean the Governor in the case of a Chief Minister or a Minister. That being so,
we are of the opinion that a Minister would be entitled to the protection of
Section 197(1)
of the Code."
51. This Court hastens to add that following the earlier Division Bench as well as Full Bench judgment of this Court, the writ petition has already been held to be not maintainable, but as a contention has been raised on merits as to the Authority of the Governor to sanction prosecution, this question is also required to be considered by this Court and has to be answered.
52. In State of Maharashtra v. Ramdas Srinivas, MANU/SC/0117/1982, identical issue, namely whether the decision to sanction should be that of the Governor himself or on the basis of council of ministers' advice was put in issue before the Division Bench. However, Mr.K.K. Venugopal, Senior Counsel contended that the said decision had been rendered on the basis of concession and it had not decided the issue.
53. On the other hand, Mr.N. Natarajan, Senior counsel contended that it is not solely based on concession, but the
"We may add, there is nothing before
us to think that any such mistake occurred, nor is there any ground taken in
the petition for grant of special leave that the learned Judge proceeded on a
mistaken view that the learned counsel had made a concession that there might
arise circumstances, under which the Governor in granting sanction
to prosecute a minister must act in his own discretion and not on the advice of
the council of ministers. The statement in the judgment that such a concession
was made is conclusive and, if we may say so, the concessions was rightly made.
In the facts and circumstances of the present case, we have, no doubt in our
mind that when there is to be 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."
55. Mr. Natarajan also enumerated various other circumstances and various other constitutional provisions under which either the President or the Governor has to act without the aid of council of ministers. These functions cannot be delegated.
56. In Dharmalingam v. His Execellency Governor of the State of
(i) The executive power in accordance with the provisions of the Constitution
(ii) Powers exercised by the Governor on the aid and advice of the council of ministers headed by Chief Minister and
(iii) Sole discretion.
57. With reference to the third category of powers exercised by the Governor, learned Judge held that the decision cannot be interfered under Article 226 of the Constitution. That was a case where the Governor of the State of Tamil Nadu appointed Tmt. Janaki Ramachandran as the Chief Minister, which was being challenged and the immunity under Article 361 was held applicable to the exercise of power of the Governor as the Governor had appointed the Chief Minister solely in his own discretion and as such, he has complete immunity and his action cannot be called in question. It has been held thus:
"If therefore the law is clear that
with regard to the choice of Chief Minister, the Governor has got an absolute
discretion he cannot be personally called upon the answer. In regard to this
argument, reliance is made on Biman Chandra v. Governor of W.B. The same also
can be called from Practice and Procedure of Parliament by M.M. Kaul wherein
Dr.B.R. Ambedkar, the Chairman of the Drafting Committee remarked that it is
far better to trust me President than to impose any obligation under the
Constitution. In this case, not one word of the mala fide had come to be
attributed to the action of the Governor. Therefore, the writ framed according
to him is not maintainable."
59. It is also to be pointed out in State of Maharashtra v. Ramdas Srinivas, MANU/SC/0117/1982, Chinnappa Reddy, J speaking for the Bench had in fact approved the decision of the Bombay High Court, which had emphasised that the question of sanction is deserved to be decided by the Governor in his individual discretion and also further observed that the decision of the Governor in his own discretion was final.
60. Following the earlier pronouncements of this Court as
well as by the Apex Court
This Court also holds that the impugned
sanction proceedings to prosecute the petitioner cannot be challenged in view
of the constitutional immunity provided under Article 361 of the
Constitution, besides holding that Her Excellency the Governor of Tamil Nadu is
the Authority and competent to sanction the prosecution as the proceedings are
in no way vitiated or suffer with illegality. No costs. Consequently,
W.M.P.Nos. 13073, 13074, 23481, 23482, 23506 and 23507 of 1997 are also
dismissed.
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