Decided on July 28,1982



Chinnappa Reddy, J. - (1.) Abdul Rehman Antulay was the Chief Minister of the State of Maharashtra till Jan. 12, 1982. While he was yet holding the office of Chief Minister, one Ramdas Shrinivas Nayak, an erstwhile Member of the Maharashtra Legislative Assembly, professing a keen, interest in clean administration and so keeping a watchful eye on centres of power and sources of corruption, filed a complaint against Shri Antulay, in the court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay charging him with the commission of offences punishable under Ss. 161 and 185 of the Penal Code and S. 5 of the Prevention of Corruption Act. The substance of the allegation was that Shri Antulay founded and controlled a number of trusts called by various names, freely and falsely making it appear that the Prime Minister and the Government of Maharashtra were either interested or had sponsored the trusts, collected contributions and donations for the alleged benefit of the Trusts by misuse of his position and power by dispensing favours and holding out threats and thereby placed himself in a position where he could juggle and manipulate a sum of over Rs. 5 crores. The learned Metropolitan Magistrate refused to entertain the complaint holding that it was not maintainable without the requisite sanction of the Government under S. 6 of the Prevention of Corruption Act, Against the order of the learned Metro politan Magistrate R. S. Nayak presented a Criminal Revision Application to the High Court of Maharashtra, purporting to be under Ss. 407 and 482 of Criminal P. C. and Art. 228 of the Constitution. The State of Maharashtra and Shri, Antulay were impleaded as Respondents. During the course of the pendency of the Criminal Revision Application, Shri Antulay resigned his position as the Chief Minister of the State of Maharashtra. By an elaborate order dated April 12, 1982, Gadgil and Kotwal, JJ. upheld the view that sanction was necessary and dismissed the Revision Application. While dismissing the application, the learned Judges noticed that an application had been made to the Governor of Maharashtra for grant of the requisite sanction and observed that the application should not be decided by the Law Minister or any other Minister, but that "it deserved to be decided by the Governor in his individual discretion". The State of Maharashtra though not aggrieved by the dismissal of the Criminal Revision Application, seeks special leave to appeal to this Court under Art. 136 of the Constitution against the judgment of the High Court of Maharashtra in so far as the judgment may be said to have directed the Governor of Maharashtra to exercise his individual discretion in deciding the question whether sanction should or should not be granted to prosecute Shri Antulay. The learned Attorney General, who appeared for the State of Maharashtra, raised the contention that it was not for the Court to decide whether in respect of a particular matter, the Governor should act in his discretion, or with the aid and advice of the Council of Ministers and that under Art. 163 (2), if any question arose whether any matter was or was not a matter as respects which the Governor was by or under the Constitution required to act in his discretion, the decision of the Governor in his discretion was final, and the validity of anything done by the Governor was not liable to be called in question on the ground that he ought or ought not to have acted in his discretion. He also invited our attention to Art. 163 (3) which provides that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. The question posed by the learned Attorney General is no doubt an important question, probably worthy of serious consideration by this court under Art, 136 of the Constitution. But, In the present case, we do not propose to grant special leave under Art. 136 of the Constitution, solely in order to consider this question firstly because the Criminal Revision Application itself has been dismissed by the High Court and secondly - and this is important - there was an express concession made in the High Court by the Respondents that in the situation presented by the facts of the present case, the Governor should act in the exercise of his individual discretion.
(2.) Gadgil, J. referred to the concession in the following words: " However, I may observe at this juncture itself that at one stage it was expressly submitted by the learned counsel on behalf of the respondent that in a case if it is felt that bias is well apparently inherent in the proposed action of the concerned Ministry, then in such a case situation notwithstanding the other Ministers not being joined in the arena of the prospective accused, it would be a justified ground for the Governor on his own, independently and without any reference to any Ministry, to decide that question."
(3.) Kotwal, J. put it even more explicitly and said: ".............At one stage it was unequivocally submitted by the learned counsel on behalf of the respondents in no uncertain terms that even in this case notwithstanding there being no accusation against the Law Minister as such if the court feels that in the nature of things a bias in favour of the respondent and against a complainant would be manifestly inherent, apparent and implied in the mind of the Law Minister, then in that event, he would not be entitled to consider complainant's application and on the equal footing even the other Ministers may not be qualified to do so and the learned counsel further expressly submitted that in such an event, it would be only the Governor, who on his own, independently, will be entitled to consider that question.";

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