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2024 (9) TMI 1710 - HC - Indian LawsMaintainability of petitions before the Governor and the complaints before the concerned Court - approval under Section 17A of the Act is mandatory or not - Section 17A of the Act requires only a Police Officer to seek approval from the Competent Authority - want of application of mind in the order of the Governor - sufficient reasons to be recorded in the file of the decision making authority and the same culled out in parts in the impugned order - decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision or not - reference to Section 218 of BNSS in the impugned order vitiates the entire order - prima facie role of the petitioner is established or not. Whether the petitions before the Governor and the complaints before the concerned Court were justified in the fact situation? - HELD THAT - After cancelling the resolution it appears that a Technical Committee was appointed by Government to go into the illegalities of MUDA. The Technical Committee is said to have submitted its report highlighting huge corruption and fraud played by MUDA officials. When all these inquiries were going on a complaint comes to be registered by 3rd and 4th respondents before the jurisdictional police on 3-07-2024. The jurisdictional Police though acknowledged the complaint did not take it further. On 12-07-2024 both the 3rd and 4th respondents register complaints before the Commissioner of Police. This was in compliance with clause (1) of sub-section (2) of Section 154 of the Cr.P.C.. Even then no action is taken. The 4th respondent then approaches the Lokayukta on 26-07-2024 to register a complaint against the petitioner. When things stood thus the 3rd and 4th respondents file their respective private complaints before the Special Court constituted exclusively to deal with criminal cases against MPs and MLAs. It is then the 3rd respondent knocks at the doors of the Governor seeking approval/sanction to prosecute the petitioner as obtaining under Section 17A of the Act. The facts narrated would clearly justify the complaints/petitions by the complainants. Whether the approval under Section 17A of the Act is mandatory in the teeth of facts? - Whether Section 17A of the Act requires only a Police Officer to seek approval from the Competent Authority? - HELD THAT - This Court considered the importance and purport of Section 17A. The petitioner is a public servant and the allegations against him are wanting to be investigated into. If investigation has to ensue it must pass through the gates of 17A. Therefore an approval under Section 17A from the hands of the Competent Authority is imperative as it is the mandate of the statute. Without an approval under Section 17A no enquiry inquiry or investigation can commence against a public servant. The High Court has issued a circular to all the concerned Court for implementation of the said directions. The approval under Section 17A of the PC Act is mandatory to be obtained in the teeth of the obtaining facts. It is not necessary for the police officer to seek approval from the hands of the Competent Authority in a private complaint. It is the complainant whomsoever it is should discharge the duty of seeking approval from the hands of the Competent Authority a caveat only in a private complaint registered under Section 200 of the Cr.P.C. or under Section 223 of the BNSS. Whether the order of the Governor suffers from want of application of mind? - Whether it would suffice for reasons to be recorded in the file of the decision making authority and the same culled out in parts in the impugned order? - HELD THAT -Whether the order of the Governor suffers from nonapplication of mind. The order that is communicated to the petitioner is quoted. Complete proceedings in the file maintained in the Secretariat of the Governor are also quoted supra. The Secretary of the Governor has communicated the decision of the Governor which thus contains all the material though excerpts of the decision. The decision runs into several pages. The entire file; the documents that are in the file run into 1200 pages are perused. The comparative chart of the complaint replies and the analysis are in great elaboration. This Court is not testing the order passed by the Disciplinary Authority or an Officer of the State. It is testing the order passed by the high functionary. The high functionary in the case on hand is the Governor. It is no doubt true that reasons cannot be supplied by way of statement of objections. That would be a situation where there are no reasons even in the file. Therefore the said judgment would not become applicable to the facts of the case. Copious reasons are found in the file and even in the impugned order. There are no hesitation to hold that it does bear application of mind. Therefore the submission of the learned senior counsel for the petitioner qua application of mind would tumble down like a pack of cards. Whether the decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision? - HELD THAT - A feeble attempt is made by the learned senior counsel for the petitioner that the Governor refers to two other petitions but no show cause notices were issued on those two petitions. Those petitions are of respondents 4 and 5. The Governor though in three lines of a particular paragraph observes that there are petitions of other petitioners also; he does not deliberate upon the contents of those petitions and it is no law that prior to grant of an approval under Section 17A the person against whom the approval is sought should be heard in the matter. If natural justice is stretched to the extent of hearing the person against whom a complaint is registered prior to registration of the crime it would be stretching it to an unimaginable extent. If the submission of the learned senior counsel for the petitioner is to be accepted every person against whom approval is sought a notice will have to be issued to the person against whom such approval is sought under Section 17A of the act. It is akin to hearing an accused before registering the FIR. This is not the purpose of law. Merely because the Governor has in the case at hand issues a show cause notice only to seek a reply from the hands of the petitioner or the Cabinet it does not mean that it must comply with the principles of natural justice. If the submission of the learned senior counsel for the petitoner is accepted it would undoubtedly be stretching natural justice to an unnatural extent as prior to registration of the crime every accused will have to be heard. Likewise prior to approval being granted the person against whom approval is sought will have to be heard. This is turning the law topsy-turvy. Therefore the multi-pronged attack on the order of the Governor on the aforesaid contention/s does not hold water as none of the submissions of the learned senior counsel for the petitioner against the order of the Governor qua the approval under Section 17A are acceptable. Whether reference to Section 218 of BNSS in the impugned order vitiates the entire order? - HELD THAT - What was sought before the Governor in the petition filed by the 3rd respondent was in fact approval under Section 17A of the Act. Though the petition was worded sanction it was in fact not a sanction but an approval under Section 17A of the Act. The operative portion of the order of the Governor is indicative of the fact that both approval and sanction under Section 218 are granted. The crime is yet to be registered and investigated into. Therefore granting of sanction under Section 218 of BNSS would not arise at this juncture as investigation itself is yet to take place. The learned Solicitor General has admitted that observation or grant of sanction under Section 218 of BNSS at this juncture was erroneous. The order could be considered only as an order under Section 17A of the Act. Therefore no submissions are made qua Section 218 of BNSS by any of the counsel representing the parties. It is therefore it is deemed appropriate to restrict and read the order only as an approval under Section 17A of the Act and not an order for grant of sanction under Section 218 of BNSS. Whether prima facie role of the petitioner is established? - HELD THAT - The allegations would require investigation in the least for the reason that if the petitioner was not in the seat of power helm of affairs the benefit with such magnitude would not have flown. It has highterto never flown to any common man nor can it in future flow. It is unheard of for a common man to get these benefits in such quick succession bending the rule from time to time. Therefore the petitioner may not have put his signature made a recommendation or taken a decision for bringing him into the offence against him under the Act but the beneficiary is not a stranger. The beneficiary of these acts is the wife of the petitioner. It is the open proclamation which is in public domain by the petitioner himself that if MUDA gives him Rs. 62 crores he would give back the property. Therefore merely because the wife of the petitioner has indulged in all these acts legal or illegal the petitioner cannot be said to be completely ignorant of what is happening in the life of his wife qua these factors. It prima facie depicts stretching of the arms of undue influence and portrays abuse of power of the seat of the Chief Minister or any other post held by the petitioner. Conclusion - i) The complainants were justified in registering the complaint or seeking approval at the hands of the Governor. ii) The approval under Section 17A of the PC Act is mandatory in the fact situation. iii) Section 17A nowhere requires Police Officer to seek approval in a private complaint registered under Section 200 of the Cr.P.C./223 of BNSS against a public servant for offences punishable under the provisions of the Act. It is the duty of the complainant to seek such approval. iv) The Governor in the normal circumstance has to act on the aid and advice of the Council of Ministers as obtaining under Article 163 of the Constitution of India but can take independent decision in exceptional circumstances and the present case is one such exception. v) No fault can be found in the action of the Governor exercising independent discretion to pass the impugned order. vi) It would suffice if the reasons are recorded in the file of the decision making authority particularly of high office and those reasons succinctly form part of the impugned order. A caveat reasons must be in the file. Reasons for the first time cannot be brought before the constitutional Court by way of objections. vii) The Gubernatorial order nowhere suffers from want of application of mind. It is not a case of not even a semblance of application of mind by the Governor but abundance of application of mind. viii) Grant of an opportunity of hearing prior to approval under Section 17A is not mandatory. If the authority chooses to do so it is open to it. ix) The decision of the Governor of alleged hottest haste has not vitiated the order. x) The order is read to be restrictive to an approval under Section 17A of the Act and not an order granting Sanction 218 of BNSS. xi) The facts narrated in the petition would undoubtedly require an investigation. In the teeth of the fact that the beneficiary of all these acts is not anybody outside but the wife of the petitioner. Application disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered in the judgment are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Justification of Petitions and Complaints The petitions and complaints were justified due to the sequence of events involving alleged irregularities and misuse of power by the petitioner, who is the Chief Minister. The facts revealed a series of transactions and decisions that led to undue advantage to the petitioner's family, warranting an investigation. Issue 2 & 3: Approval under Section 17A of the PC Act The approval under Section 17A is mandatory as it acts as a protective filter against malicious prosecution of public servants. The law mandates that no enquiry or investigation can commence without prior approval from the competent authority. The court held that it is not only the police officer but also the complainant who can seek such approval, especially in private complaints. Issue 4 & 5: Application of Mind by the Governor The Governor's order did not suffer from non-application of mind. The decision-making process involved a thorough examination of the materials and was supported by reasons recorded in the file. The court emphasized that reasons in the file suffice, and detailed reasoning in the order itself is not mandatory for high offices like the Governor. Issue 6: Alleged Haste in Decision-making The court found that the alleged haste in issuing the show cause notice did not vitiate the decision. The urgency was justified given the gravity of the allegations, and the Governor's actions were not arbitrary or mala fide. Issue 7: Reference to Section 218 of BNSS The reference to Section 218 of BNSS was acknowledged as erroneous since the crime was yet to be investigated. The court restricted the order to an approval under Section 17A of the PC Act, not a sanction under Section 218 of BNSS. Issue 8: Prima Facie Role of the Petitioner The court found that the petitioner's family benefited significantly from the transactions in question, indicating a prima facie case for investigation. The petitioner, being in a position of power, was likely involved, directly or indirectly, in the decisions leading to undue advantage for his family. 3. SIGNIFICANT HOLDINGS The court upheld the Governor's decision to grant approval under Section 17A for investigation, emphasizing the need for a neutral and objective inquiry into the allegations. The judgment reinforced the principle that public servants, especially those in high office, should not shy away from investigations when serious allegations are made. The court concluded that the Governor acted within his discretion, independent of the Council of Ministers' advice, due to the apparent bias and conflict of interest. The judgment highlighted the importance of accountability and transparency in public office, quoting Benjamin Disraeli: "All power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist."
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