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TMI Blog1995 (4) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... regards its maintainability and ordered notice of motion. The three respondents in the said writ petition contended that the same was not maintainable and relied upon the judgment of a Division Bench of this Court, to which one of us was a party, in Dravida Munnetra Kazhagam, etc. v. The Governor of Tamil Nadu and Ors. (1994)1 L.W. 145. A learned Judge of this Court passed an order on 22.9.1994 dismissing the said writ petition as not maintainable in view of the ruling of the Division Bench referred to above. 2. The fourth respondent filed S.L.P. No. 17944 of 1994 in the Supreme Court of India against the said order. The Supreme Court ordered notice in that petition and on behalf of the first respondent herein an affidavit was filed before the Supreme Court by his Secretary praying for time till 31.5.1995 to take a decision on the petition given to him by the fourth respondent herein. Referring to the said affidavit the Supreme Court passed the following order on 20.2.1995: Since the affidavit has been filed on behalf of the Governor by his Secretary asking for time till 31.5.1995 for taking decision on the application made by the petitioner, the matters are adjourned to 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord sanction on the petition of Dr. Subramanian Swamy to prosecute Chief Minister J. Jayalalitha for offences under Section 169, I.P.C. and Section 13(1)(d) (e) of Prevention of Corruption Act. 4. Challenging the validity of the said order, the petitioner has filed this writ petition with a prayer to issue a writ of certiorari calling for the records of the first respondent in respect of the said order arid quash the same. The second respondent in this writ petition is the Secretary to the Governor of State of Tamil Nadu and the third respondent is the State of Tamil Nadu represented by its Chief Secretary. When the petition was posted for admission in the usual course before a learned single Judge of this Court notice was taken by a counsel on behalf of respondents 1 and 2. The fourth respondent took notice as party-in-per-son. After hearing Senior Counsel for the petitioner, learned Counsel for respondents 1 and 2 and the fourth respondent the learned Judge passed an order on 6.4.1995 expressing his opinion that in view of the importance of issues involved, the matter should be posted before a Bench of two Judges for hearing and determination. He directed the papers to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of us was a party; dismissed the writ petition as not maintainable by order dated 13.9.1993, relying upon the provisions of Article 361 of the Constitution of India. The relevant case law was considered in detail and in particular reliance was placed on the judgment of a Full Bench of this Court in Mathialagan v. Governor of Tamil Nadu (1973)1 M.L.J. 131, in which the following passage occurs: Neither the Supreme Court in this case, nor the other cases we referred to of the High Courts, has held that the personal immunity afforded by Article 361(1) to the Governor did not avail where his bona fides were questioned. They have not held that where his bona fides are questioned, he can personally be called to enter his defence. In our opinion, his personal immunity extends to such a case as well 7. Though the petitioner was not eo nomine party to the said proceeding; she was impleaded as the second respondent in the writ petition filed by the fourth respondent in W.P. No. 7996 of 1994 and she is also a party to S.L.P. No. 17944 of 1994. Thus being aware of the ruling of the Division Bench against the maintainability of a writ petition against Governor, in view of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stage and taken a stand supporting the petitioner. One of the contentions raised by the petitioner in her affidavit is that the first respondent while granting sanction under Section 19 of the Prevention of Corruption Act is functioning only as the State Government. The Explanation given by learned senior counsel for the State Government is that the State Government will face practical and legal difficulties in implementing the impugned order of the first respondent. If that is so, the function of the Chief Secretary, who is representing the State Government is only to approach the first respondent and get clarifications. At any rate, it would have been much better if the State Government had waited till this Court decided to entertain the writ petition before entering the fray and joining hands with the petitioner; 9. Now we proceed to consider the contentions of learned senior counsel for the petitioner. We have already referred to the fact that the judgment of the Division Bench in Dravida Munnetra Kazhagam case (1994)1 L W. 145, is based on the earlier rulings on the subject and in particular the dictum of the Full Bench of this Court in Mathialagan's case (1973)1 M.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Parliament approved the Proclamation issued by the President. After referring to the facts, the court said in paragraph 123: The unflattering episode shows in unmistakable terms the Governor's unnecessary anxiety to dismiss the Ministry and dissolve the Assembly and also his failure as a constitutional functionary to realise the binding legal consequence of and give effect to the orders of this Court. What is worse, the Union Council of Ministers also chose to give advice to the President to issue the proclamation on the material in question. It is not necessary to comment upon the validity of the proclamation any further save and except to observe that prima facie the material before the President was not only irrational but motivated by factual and legal mala fides. The proclamation was, therefore, invalid. Our attention is also drawn to paragraph 281, wherein Jeevan Reddy, J. has dealt with the words provisions of this Constitution occurring in Article 356(1) of the Constitution. 10. We are unable to accept the contention of the petitioner's senior counsel. The Supreme Court had no necessity to consider the immunity of the Governor under Article 361 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect-matters of challenge in Bommai's case , were the proclamations issued by the President of India under Article 356 of the Constitution. Our attention is drawn to the distinction between the provisions of Article 74 and Article 163 of the Constitution. While under Article 74 the President shall, in the exercise of his functions, act in accordance with the advice of the Council of Ministers with the Prime Minister at the head, under Article 163, an exception is carved out in so far the Governor is by or under the Constitution required to exercise his functions in his discretion. 12. Sanction to prosecute the Chief Minister is the exclusive function of the Governor to be exercised by him in his discretion. Vide: State of Maharashtra v. R.S. Nayak . It is erroneous to say that the view of the Supreme Court was based on a concession made by counsel. A perusal of the relevant part of the judgment shows that the court has expressed its opinion that the said concession was rightly made. 13. Hence, we hold that nothing has been placed before us to warrant reconsideration of the earlier ruling of the Division Bench in Dravida Munnetra Kazhagam v. The Governor of Tamil Nadu (1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to Kehar Singh v. Union of India , wherein the extent of power of the President of India to grant pardon under Article 74 of the Constitution was considered by the court. 16. Strong reliance is placed on the following passage in Gokulchand Dwarkadas v. The King A.I.R. 1948 P.C. 82: It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offense charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter: it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example that on political or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he officer. Whether sanction should be granted or not may conceivably depend upon considerations extraneous to the merits of the case. But, where prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of a permission, while a direction is in the nature of a command. 19. In Biswabhusan Naik v. The State of Orissa , the court after referring to the dictum of the Privy Council in Gokulchand Dwarkadas v. The King A.I.R. 1948 P.C. 82, said: (6) The judgment of the Judicial Committee relates to Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943 but the principles apply here. It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form or in writing or for it to set out the facts in respect of which it is given than it was under Clause 23 of the Order-which their Lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged but an omission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the sanction and the object of sanction is nothing more than to ensure the discouragement of frivilous, doubtful and impolitic prosecutions. 22. In M.K. Mohan Raj v. State represented by Inspector of Police, Vigilance and Anti Corruption, Cuddalore 1986 L.W. (Crl.) 412, it was held that an order under Section 6 of the Prevention of Corruption Act, 1947 is only an administrative order and cannot be called as a quasi-judicial order. The contention of the petitioner that the order involved civil consequences was rejected. The Court referred to the decision in Surjit Singh v. State of Punjab I.L.R. 1980 P H. 11, wherein the same view had been expressed. 23. In State of Bihar v. P.P. Sharma , the Supreme Court put its seal of approval on the proposition that order sanctioning prosecution is only an administrative act and not a quasi-judicial nor a lis involved. The court said that the order need not contain reasons and a proper applications of mind to the existence of a prima facie evidence of the commission of the offence is only a precondition so grant or refuse to grant sanction. In the same judgment the Court has rejected the argument that filing F.I.R. violated Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he registration of the case, that is, on 21.11.1987. The evidence has to be gathered after a thorough investigation and placed before the court on the basis of which alone the court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, we are sure, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contention that the complaint should be thrown over-board on the mere unsubstantiated plea of mala fides. Even assuming that Dharam Pal has laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. In this connection the following view expressed by Bhagwati, C.J., in Sheonandan Paswan v. State of Bihar , may be referred to: It is a well established proposition of law that a criminal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Of late, 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 W.B. v. Mohammed Khalid , wherein the court observed that the High Court has to necessarily accept the averments in the order of sanction on their face value. In the view we have taken under Article 361 of the Constitution, there is no question of our considering the acceptability of the averments in the impugned sanction order. The fourth respondent also dealt with the objects of the Prevention of Corruption Act as enunciated in K. Veeraswami v. Union of India . Though it is not necessary for us to consider the objects of the said Act in these proceedings, we would like to point out that the Supreme Court observed in that judgment that the said Act was intended to cover all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the impugned order of sanction, it could have been filed without the first respondent as a party and the court would have been bound to consider the same. We are unable to agree with any of those contentions. We cannot assume non-existent state of things and answer hypothetical questions. We are only considering the maintainability of the writ petition as presented before us now. The questions raised by learned senior counsel for the State Government do not really arise for our considerations in this writ petition. 34. At one stage, learned senior counsel for the State Government contended that a Chief Minister will not fall within the four corners of Section 169 of the Indian Penal Code and Section 197 of the Criminal Procedure Code. As rightly pointed out by learned senior counsel for the first respondent the Supreme Court in M. Karunanidhi v. Union of India held that Chief Minister or Minister is a 'public servant' within the meaning of the Code. 35. It is then argued that there can be no private complaint under the provisions of the Prevention of Corruption Act. According to learned Counsel, under Section 4, every offence punishable under the Act shall be tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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