D.A.DESAI - (1.) RESPONDENT Abdul Rehman Antulay (hereinafter referred to as the accused) was the Chief Minister of the State of Maharashtra from 1980 till he submitted his resignation on 12/01/1982, which became effective from 20/01/1982. He thus ceased to hold the office of the Chief Minister from 20/01/1982 but continues to be a sitting member of the Maharashtra Legislative Assembly till today.
(2.) AS the contentions canvassed before this Court are mainly questions of law, facts at this stage having a peripheral relevance in the course of discussion, it is unnecessary to set out the prosecution case as disclosed in the complaint filed by complainant Ramdas Shrinivas Nayak (complainant for short) in detail save and except a few pertinent and relevant allegations. In the process the brief history of the litigation may also be traced. The complainant moved the Governor of Maharashtra by his application dated 1/09/1981 requesting him to grant sanction to prosecute the accused as required by Section 6 of the Prevention of Corruption Act, 1947 ('1947 Act' for short) for various offences alleged to have been committed by the accused and neatly set out in the application. Complainant then filed the first complaint in the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay on 11/09/1981 being Criminal Case No. 76 Misc. of 1981 against the accused and others known and unknown collaborators alleging that the accused in his capacity as Chief Minister and thereby a public servant within the meaning of Section 21 of the Indian Penal Code (IPC) has committed offences under Ss. 161, 165. I. P. C. and S. 5 of the 1947 Act, Section 384 and S. 420 I. P. C. read with Sections 109 and 120-B, I. P. C. The complaint runs into 31 closely typed pages and carried the list of 37 witnesses. The learned Metropolitan Magistrate invited the complainant to satisfy him as to how the complaint for offences under Ss. 161, 165, I. P. C. and S. 5 of the 1947 Act is maintainable without a valid sanction as contemplated by S. 6 of 1947 Act and ultimately held that in the absence of a valid sanction from the Governor of Maharashtra, the complaint filed by the complainant for the aforementioned three offences was not maintainable. The learned Metropolitan Magistrate accordingly held as per order dated 6/10/1981 that the complaint was maintainable only for offences alleged to have been committed by the accused under Ss. 384 and 420 read with Ss. 109 and 120-B of the I. P. C. and directed that the case be fixed for examining the complainant as required by Section 200 of the Cr. P. C. The complainant questioned the correctness of this order in Spl. Criminal Appln. No. 1742 of 1981 filed in the High Court of Judicature at Bombay. In the meantime, another development had taken place which may be briefly noticed. One Shri P. B. Samant, who has also filed an identical complaint against the accused, along with several others filed a Writ Petn. No. 1165 of 1981 in the High Court of Judicature at Bombay challenging the method of distribution of ad hoc allotment of cement in the State of Maharashtra as being contrary to the rule of law and probity in public life. The accused was the second respondent in this petition, the first and third respondents being the State of Maharashtra and Union of India respectively. By an exhaustive speaking order dated 23/09/1981, a learned single Judge of the High Court granted rule nisi and made it returnable on 23/11/1981. The writ petition came up for hearing before another learned single Judge who by his judgment dated 12/01/1982 made the rule absolute. Probably as a sequel to this decision of the High Court, the accused tendered his resignation as Chief Minister on the same day and when the resignation was accepted he ceased to hold the office of the Chief Minister with effect from 20/01/1982.
(3.) SPECIAL Criminal Appln. No. 1742 of 1981 filed by the complainant against the order of the learned Chief Metropolitan Magistrate was dismissed by a Division Bench of the High Court on 12/04/1982. Not the accused but the State of Maharashtra preferred an appeal by special leave under Art. 136 of the Constitution against the decision of the Division Bench of the High Court rejecting the special criminal application. This Court rejected the application for special leave at the threshold on 28/07/1982. Promptly, on the heels of the judgment of this Court, the Governor of Maharashtra on the same day granted the sanction under Section 6 of the 1947 Act to prosecute the accused in respect of specific charges set out in the order according sanction. Armed with this sanction. the complainant filed a fresh complaint in the Court of the SPECIAL Judge, Bombay registered as Criminal Case No. 24 of 1982 against the accused as Accused No. 1 and others known and unknown. In this complaint it is broadly alleged that the accused who was the Chief Minister of the State of Maharashtra between the period August 1980 to September 1981 conceived a scheme of aggrandisement involving obtaining of funds from the members of the public and putting them substantially under his own control for the disbursal of the funds so obtained. The complaint proceeded to refer to the setting up of various trusts and alleged that the corner-stone of the scheme involved receipt by the accused of illegal gratification other than legal remuneration as a motive or reward for doing or forebearing to do any official act, or for showing or forebearing to show in the exercise of his official functions, favour or disfavour to persons, or for rendering or attempting to render any service or disservice to such persons who dealt with the State Government in general and with public servants who formed part of the Government. It was specifically alleged that the scheme devised by the accused was a flagrant abuse of his official position as Chief Minister for obtaining control over funds which would be used for purposes conducive to the interest of the accused himself. The complainant proceeded to so out the abuse of office of Chief Minister by the accused citing various alleged instances such as distribution of ad hoc cement contrary to law and the binding circulars, granting liquor licences as and by way of distribution of Government largesse, issuing no objection certificates for letting out premises by obtaining a price for the same. The running thread through various allegations is that the accused by abusing or misusing his office of Chief Minister obtained or attempted to obtain gratification other than legal remuneration as a motive or reward for doing or forebearing to do any official act as Chief Minister or for showing or forebearing to show in the exercise of his official functions, favour or disfavour to persons etc. To this complaint, the order granting sanction to prosecute the accused made by the Governor of Maharashtra was annexed and produced. After recording the verification of the complainant, the learned SPECIAL Judge took cognizance of the offences and issued process by directing a bailable warrant to be issued in the sum of Rs. 10,000.00 with one surety and made it returnable on 3/09/1983. On the process being served the accused appeared and sought exemption from personal appearance which was granted for a day and the case was adjourned to 18/10/1982 for recording the, evidence of the complainant and his witnesses for the prosecution.;