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TMI Blog2004 (11) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... so for the offences of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. It must be mentioned that by the time the report was given the two Ministers had already resigned. Sanction was applied for from the Council of Ministers for prosecuting the two Ministers. The Council of Ministers held that there was not an iota of material available against both the Ministers from which it could be inferred that they had entered into a criminal conspiracy with anyone. The Council of Ministers thus refused sanction on the ground that no prima-facie case had been made out against them. The Governor then considered grant of sanction keeping in view the decision of the Council of Ministers. The Governor opined that the available documents and the evidence was enough to show that a prima-facie case for prosecution had been made out. The Governor accordingly granted sanction for prosecution under Section 197 of the Criminal Procedure Code. Both the Ministers filed separate Writ Petitions under Articles 226 and 227 of the Constitution of India assailing the Order of the Governor. A Single Judge of the High Court held that granting sanction for prosecuting the Ministers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendered by Ministers to the Governor shall not be inquired into in any court." Mr. Sorabjee submits that even though normally the Governor acts on the aid and advice of the Council of Ministers, but there can be cases where the Governor is by or under the Constitution required to exercise his function or any of them in his discretion. The Constitution of India expressly provides for contingencies/cases where the Governor is to act in his discretion. Articles 239(2), 371A(1)(b), 371A(2)(b), 371A(2)(f) and Paragraphs 9(2) and 18(3) of the Sixth Schedule are some of the provisions. However, merely because the Constitution of India expressly provides, in some cases, for the Governor to act in his discretion, can it be inferred that the Governor can so act only where the Constitution expressly so provides. If that were so then Sub-clause (2) of Article 163 would be redundant. A question whether a matter is or is not a matter in which the Governor is required to act in his discretion can only arise in cases where the Constitution has not expressly provided that the Governor can act in his discretion. Such a question cannot arise in respect of a matter where the Constitution expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers. 56. Similarly Article 200 indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State." The law, however, was declared in the following terms: "154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. It is recognized that there may be situations where by reason of peril to democracy or democratic principles an action may be compelled which from its nature is not amendable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers. Mr. Sorabjee also points out that this Court in the case of Ramdas Shrinivas Nayak (supra) has carved out a further exception. In this case, an MLA filed a complaint against the then Chief Minister of Maharashtra in the Court of Metropolitan Magistrate, 28th Court, Esplanade, Bombay, charging the Chief Minister with commission of offences punishable under Sections 161 and 185 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act. The Metropolitan Magistrate refused to entertain the complaint without requisite sanction of the Government under Section 6 of the Prevention of Corruption Act. Against the Order of the Metropolitan Magistrate, R.S. Nayak filed a Criminal Revision Application in the High Court of Bombay wherein the State of Maharashtra and Shri Antulay were impleaded as Respondents. During the pendency of this Criminal Revision Application, Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an express concession had been made in the High Court to the effect that in circumstances like this bias may be apparently inherent and thus it would be a justified ground for the Governor to decide on his own, independently and without any reference to any Ministry. Before this Court it was sought to be contended that no such concession had been made out. This Court held that public policy and judicial decorum required that this Court does not launch into an enquiry whether any such concession was made. It was held that matters of judicial records are unquestionable and not open to doubt. It was held that this Court was bound to accept the statement of the Judges recorded in their Judgment, as to what transpired in Court. This Court then went on to hold as follows: "10. We may add, there is nothing before us to think that any such mistake occurred, nor is there any ground taken in the petition for grant of special leave that the learned Judges proceeded on a mistaken view that the learned counsel had made a concession that there might arise circumstances, under which the Governor in granting sanction to prosecute a minister must act in his own discretion and not on the advice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dn. at p.527) where two different spectrums of the doctrine have been considered]. Another exception to the aforementioned general rule was noticed in Bhuri Nath and Others etc. vs. State of Jammu & Kashmir and Others reported in (1997) 2 SCC 745, where the Governor was to chair the Board in terms of the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 on the premise that in terms of the statute he is required to exercise his ex officio power as Governor to oversee personally the administration, management and governance of the Shrine. It was observed that the decision taken by him would be his own on his personal satisfaction and not on the aid and advice of the Council of Ministers opining: "... The exercise of powers and functions under the Act is distinct and different from those exercised formally in his name for which responsibility rests only with his Council of Ministers headed by the Chief Ministers." In the case of A. K. Kraipak vs. Union of India reported in 1969 (2) SCC 262, the question was whether a selection made by the Selection Board could be upheld. It was noticed that one of the candidates for selection had become a member of the Selection Board. A Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naqishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund." On the basis of the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould enable an element of bias or malice to operate by which the Central Government could prosecute persons who are political opponents. This Court negatived this contention on the ground that the power was vested in a very high authority and therefore it could not be assumed that it was likely to be abused. This Court held that as the power was conferred on a high authority the presumption would be that the power would be exercised in a bonafide manner and according to law. Mr. Tankha also relied upon the case of State of Punjab vs. V.K. Khanna, reported in 2001 (2) SCC 330. In this case, two senior IAS Officers in the State of Punjab were sought to be prosecuted after obtaining approval from the then Chief Minister of Punjab. Thereafter, there was a change in the Government. The new Government cancelled the sanction granted earlier. The question before the Court was whether the action in withdrawing the sanction was fair and correct. This Court held that fairness was synonymous with reasonableness and bias stood included within the attributes and broader purview of the word "malice". This Court held that mere general statements were not sufficient but that there must be cogent e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of its constitutional functions. To repeat only in a case of 'apparent bias', the exception to the general rule would apply. On the same analogy in absence of any material brought on records, it may not be possible to hold that the action on the part of the Council of Ministers was actuated by any malice. So far as plea of malice is concerned, the same must be attributed personally against the person concerned and not collectively. Even in such a case the persons against whom malice on fact is alleged must be impleaded as parties. However, here arises another question. There are two competing orders; one of the Council of Ministers, another by the Governor, one refusing to grant sanction another granting the same. The Council of Ministers had refused to grant sanction on the premise that there existed no material to show that the Respondent No. 4 in each appeal has committed an offence of conspiracy, whereas the Governor in his order dated 24th September, 1998 was clearly of the view that the materials did disclose their complicity. A F.I.R. was lodged in relation to the commission of offence on 31st March, 1998. The Lokayukta for the State of Madhya Pradesh admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for and granted only in relation to an offence under Section 120B of the Indian Penal Code. It is now trite that it may not be possible in a given case even to prove conspiracy by direct evidence. It was for the Court to arrive at the conclusion as regard commission of the offence of conspiracy upon the material placed on records of the case during trial which would include the oral testimonies of the witnesses. Such a relevant consideration apparently was absent in the mind the Council of Ministers when it passed an order refusing to grant sanction. It is now well-settled that refusal to take into consideration a relevant fact or acting on the basis of irrelevant and extraneous factors not germane for the purpose of arriving at the conclusion would vitiate an administrative order. In this case, on the material disclosed by the Report of the Lokayukta it could not have been concluded, at the prima-facie stage, that no case was made out. It is well-settled that the exercise of administrative power will stand vitiated if there is a manifest error of record or the exercise of power is arbitrary. Similarly, if the power has been exercised on the non-consideration or non-application o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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