UMA NATH SINGH, J. - (1.) THIS Writ Petition has been filed with prayers for issuance of (i) a writ, order or direction in the nature of Certiorari for quashment of the order dated 3.6.2007 passed by the Governor of Uttar Pradesh whereby he has refused to grant sanction for prosecution of opposite parties no. 8 and 9, namely, Ms. Mayawati, former Chief Minister, U.P. and the then Member of Parliament (Rajya Sabha) and Shri Naseemuddin Siddiqui, Member of Legislative Assembly in the case arising out of charge sheet dated 15.2.2007 filed in the FIR RC -00620033A0018 vide Criminal Case No. 4 of 2007 registered under Sections 120B, 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act; (ii) a writ, order or direction in the nature of mandamus directing the C.B.I. to proceed in the matter in accordance with law and (iii) any other order or direction, deemed fit and proper in the facts and circumstances of the case.
(2.) THE petitioner claims to have filed this writ petition in public interest as according to him the subject matter affects the public at large. The Petitioner has stated that he has no personal or private interest in the matter and there is no authoritative pronouncement by Hon'ble the Supreme Court of India or by this Court on the questions raised in this petition. He claims to be a practising Advocate at the Lucknow Bench of the Allahabad High Court and also states that he is devoted to the cause of upholding the Rule of Law. He wants that the persons who are occupying the High Public Offices and are involved in misappropriation of public funds be punished in accordance with law. It is alleged that the present Writ Petition, filed in public interest, is an attempt on the part of the petitioner to highlight the well entrenched nexus of corrupt politicians and Constitutional functionaries in order to scuttle the course of law and the process of prosecution by abusing their offices. The petitioner filed Writ Petition No. 733 (MB) of 2011 wherein he impugned the order dated 5.6.2007 passed by the then Special Judge (CBI) refusing to take cognizance against Ms. Mayawati and Shri Naseemuddin Siddiqui on the ground that the statutory sanction under Section 197 Cr.P.C. has not been obtained by the investigating agency, i.e. the Central Bureau of Investigation (hereinafter to be referred to as the CBI). That Writ Petition was dismissed by this Court vide the order dated 5.11.2012 with following observations: - "We are not deciding the controversy as supra as we have already stated in earlier part of the judgment that the sanctioning authority considers the facts and materials of the case which are collected by the investigating officer during investigation. In this case, sanctioning authority has already refused to accord sanction for the prosecution and the order of sanctioning authority is not challenged before us. Next submission of the counsel for the petitioners is that this court should direct the CBI to challenge the order of the magistrate of refusal to take cognizance or direct the designated court to proceed in accordance with law. In connection with this submission, it is necessary to point out that in the absence of sanction for the prosecution magistrate or designated court can not proceed in accordance with law. Therefore, this court can not issue any such direction which is not in accordance with law. The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possible vexatious criminal proceedings for offence alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servant to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and power to grant or refuse sanction is the exclusive jurisdiction of the sanctioning authority. As observed by the Apex Court in the case of Army Head Quarter Vs. CBI (supra) 'the legislature has conferred "absolute power" on the statutory authority to accord sanction or to withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority." In the case of Rambhai Nathabhai Gadvi Vs. State of Gujrat (supra) it has been held, "If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction." In view of the above, there can not be any such direction to trial court to proceed after refusal of sanction for the prosecution." According to the averments made in the petition, from a bare perusal of the aforesaid observations, it appears that the Coordinate Bench which decided the aforesaid writ petition declined to interfere in the matter on the ground that it is the absolute power of the sanctioning authority to accord or not to accord the sanction and the court has no role on the subject. And in such a situation the court could not proceed without sanction of the competent authority. It is also stated in the petition that the order of sanctioning authority dated 3.6.2007 was not challenged earlier because no sanction was needed for the prosecution in the present matter and it was mala fide exercise on the part of the CBI to approach the sanctioning authority and to obtain an order of refusal of sanction. But since this Court has categorically held that once the sanctioning authority refused to accord sanction, the Court is absolutely barred to take cognizance, therefore, it has become necessary to challenge the order of the sanctioning authority dated 03.06.2007. Since the right and need to challenge the order of sanctioning authority has arisen from the judgment of this Court passed on 05.11.2012, there is no delay and laches in filing the writ petition. The physical running of time has not resulted in creating a vested right in favour of any individual, which this Court may not be inclined to disturb. Besides, it is a public interest litigation against the corrupt practices of persons holding high public offices, therefore, it is always open to court to condone the delay and laches and proceed with the matter. It is also pleaded in the petition that this Court has to keep in mind the well established cardinal principle of criminal jurisprudence that a crime never dies and it is the solemn duty of courts to bring the perpetrators of crime to book as a matter of public policy even if the opportunity comes after a lapse of some time. It is submitted that against the refusal of sanction by the Governor, an application was filed before Hon'ble the Apex Court in the pending Writ Petition (C) No. 13381 of 1984, M.C. Mehta vs. Union of India, inter alia with following prayer: "...... this Hon'ble Court may kindly be pleased to issue an appropriate writ direction or order: (i)Concerning the legal validity of CBI seeking a sanction for the prosecution of Uttar Pradesh Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui under Section 197 Cr.P.C. by calling for the record of the materials It placed before the Governor for seeking such sanction. (ii)Directing CBI to produce a copy of the June 3, 2007 sanction order of His Excellency the Governor of U.P. passed in connection with the case pending before the Special Judge/competent court based on FIR RC 0062003A0018. (iii)Passing appropriate directions on the legal validity or otherwise of the June 3, 2007 order of His Excellency the U.P. Governor refusing under Section 197(1) Cr.P.C. sanction for the prosecution of Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui in relating to FIR RC 0062003A0018 registered against them by the CBI pursuant to the September 18,2003 order of this Hon'ble Court in IA 376 in CWP No. 13381 of 1984 and the investigation on which with the opinion of the CBI Superintendent of Police was directed by this Hon'ble Court on November 27, 2006 to be placed the court/Special Judge concerned for deciding the matter in accordance with law, and (iv)Declaring that the sanction orders passed under Section 197(1) Cr.P.C. are in the public domain and hence cannot be classified as secret." The aforesaid application was dismissed with the following observations: "We may observe that while entertaining public interest litigation in a given case, this Court may exercise a jurisdiction to set aside the decision of a constitutional authority, but we are not concerned with such a situation. We, therefore, are of the view need not go further than what we have already said in our order, dated 27.11.2006 to go into the correctness or otherwise of the order of the Governor. If no sanction of the Governor was required or if he has committed an error in passing the said order, the appropriate court, in our opinion, would be entitled to deal therewith, but not this Bench." (Annexure -3) During the earlier tenure from 2002 -2003 of opposite parties no. 8 and 9, as the Chief Minister and Cabinet Minister of the State, a plan to beautify the Taj Mahal in Agra and in the process, to reclaim land from the Yamuna river and to divert its course, was mooted. During the course of implementation of the said project, financial bungling to the tune of Rs. 17 crores came to light. Subsequently, an interlocutory application was filed in Hon'ble the Apex Court by someone, in Writ Petition (C) No. 13381 of 1984, M.C.Mehta vs. Union of India and others, praying for, inter alia, stern action against those who were involved in the aforesaid misdeeds. During the course of disposal of aforesaid application, Hon'ble the Apex Court vide the order dated 16.7.2003 directed the CBI to conduct a preliminary enquiry and submit a report before the court, and by another order dated 21.8.2003, the Hon'ble Court directed the CBI to enquire into the assets of the persons involved in the Taj Corridor scam. However, the later order and the investigation in pursuance of the said order is not relevant for the purpose of the present petition. After the receipt of the report of the preliminary enquiry conducted by the CBI, Hon'ble the Apex Court vide the order dated 18.9.2003 directed the CBI to register an FIR against the persons involved in the offences including opposite parties no. 8 and 9. In pursuance of the direction issued by Hon'ble the Apex Court, the CBI registered a case as RC No. 0062003A0018 against opposite parties no. 8 and 9 and probably some other persons under Sections 120B, 420, 467, 468 and 471 IPC. After conclusion of the investigation, the CBI drew a charge sheet against opposite parties no. 8 and 9 under sections 120B read with Sections 420, 467, 468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. From a perusal of the charge sheet it would be revealed that the CBI itself had taken a stand that for prosecution of the private respondents, sanction under Section 197 Cr.P.C. is required. Consequently, in stead of filing the charge sheet and seeking the attendance of the private respondents before the trial court, it placed the charge sheet before the Governor of U.P. for the purpose of obtaining sanction. Shri T.B. Rajeshwar, holding the office of the Governor of U.P., vide his order, dated 3.6.2007 refused to grant sanction for prosecution of the opposite parties no. 8 and 9 in the matter pertaining to the FIR RC0062003A0018. According to the petitioner the action of the CBI in making an attempt to obtain sanction for prosecution of the private respondents, apart from being illegal, was in violation of the direction given by Hon'ble the Apex Court in its order dated 27.11.2006 wherein the CBI was asked to place the charge sheet along with the evidence/material collected by it. Thereafter the CBI filed the charge sheet before the concerned court on the ground that the CBI has not been able to procure the necessary sanction under Section 197 Cr.P.C. refused to take cognizance and issue process. The investigating officer submitted the prayer as under in the charge sheet: "47 That the aforesaid facts disclose commission of offences under Section 120B read with Section 420, 467, 468, 471, IPC and 120B read with Section 13(2) and 13(1)(d) of P.C. Act 1988, and substantive offence thereof against Ms. Mayawati Govt. U.P. 48 That it is further submitted that requirement of prosecution sanction against each accused under Section 19 of P.C. Act and 197 of Cr.P.C. is mentioned as below: S.No. Name of the accused 19 PC Act 197 Cr.P.C. Competent authority 1 Ms. Mayawati Not required Required Hold official position abused Govt. of U.P. 2 Mr. Naseemuddin Siddiqui Not required Hold official position abused Govt. of U.P. 49.That it is submitted that this report is being filed pursuance to the direction of Hon'ble Supreme Court vide judgment, dated 27.11.2006 in IA no. 431 in W.P. (C) No. 13381 of 1981 of M.C. Mehta (petitioner) vs. Union of India and others (copy enclosed) in which, it was directed inter alia as below: "We accordingly direct the CBI to place the evidence material collected by the investigation team along with the report of the S.P. as required under Section 173(2) Cr.P.C. before the concerned court/special judge, who will decide the matter in accordance with law." According to the petitioner from a perusal of the charge sheet, it is evident that the prosecution sanction order under Section 19 of the Prevention of Corruption Act is not required against Ms. Mayawati and Shri Naseemuddin Siddiqui. However, the sanction for prosecution under Section 19 of the Prevention of Corruption Act was also refused by His Excellency the Governor, which is patently illegal.
(3.) IT is also the submission that the order of the Governor of U.P. is actuated with mala fide because when the CBI had collected sufficient evidence in support of its case against Ms. Mayawati and Shri Naseemuddin Siddiqui, there was hardly any occasion for the Governor to have applied his mind in the matter. It is also a contention in the petition that the malafide is obviously on account of the fact that during the relevant point of time, the Congress Party, which had come in power at the centre and had appointed a new Governor, had solicited the support of Bahujan Samaj Party, headed Ms. Mayawati for the presidential elections. As a quid pro -quo gesture, the members of the Congress Party had offered to bail out Ms. Mayawati and her associate, Shri Naseemuddin Siddiqui in the pending criminal proceeding related to the Taj Corridor. In fact, Ms. Mayawati is herself on record to have said that the Congress Party had offered her to bail out in pending criminal cases on the consideration of an electoral alliance. A bare reading of the impugned order, shows that the Governor passed the same after seeking opinion of legal experts. The opinion of Mr. Gopal Subramanium, the then Additional Solicitor General of India was sought and on the basis of his opinion dated 31.5.2007, the impugned order was passed. The relevant portion of the impugned order passed by the Governor has been referred to and is reproduced in the petition as under: "The CBI had forwarded a report of the Superintendent of Police C.B.I., Lucknow, on the Taj Heritage Corridor case, along with the documents, to the Chief Secretary, Govt. of U.P. on 22.02.2007, with the request for grant of sanction from the competent authority, the Governor, under Section 197 of Cr.P.C. against Ms. Mayawati, Chief Minister of Uttar Pradesh and Mr. Naseemuddin Siddiqui, Minister in the Government of Uttar Pradesh, in CBI Case No.RC 0062003A0018 U/s 120B read with 420, 467, 468, 471 and Section 120B IPC read with 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences thereof. The file was retained in the Law Department and was put up to the Chief Minister, Mr. Mulayam Singh Yadav along with the brief opinion of the Advocate General, U.P. on 07.05.2007. The Chief Minister signed the same day and sent the file to Raj Bhavan on 08.05.2007." It is also pointed out that if the file submitted to the Governor already contained the opinion of Advocate General of the State of U.P., that opinion also should have been reflected in the impugned order. There is no any mention as for what reasons the Governor was required to seek the advice of Additional Solicitor General of India, who is not a Law Officer of the State of U.P. It is also submitted that in considering the materials for grant of sanction, the Governor exercises the executive power of the State and does not act as an agent of the Central Government (and certainly not as an agent of any political party). There is yet another caustic averment in the petition that the act of obtaining the opinion of Additional Solicitor General of India, clearly indicates that the opinion was managed by the Congress Party which had solicited the support of Ms. Mayawati for election to the President of India. It is also an argument that Shri T. B. Rajeshwar, who was holding the office of the Governor of U.P. having been appointed at the behest of the Congress Party, rushed to help Ms. Mayawati on the line of action planned by the managers in Congress Party. The Governor not only refrained from acting on the advice of the Council of Ministers but also referred the matter to the Additional Solicitor General for latter's advice against the mandate of constitution and in violation of the duty of State Law officers.;