N Petition for Special Leave to Appeal CRL No 1523 of 1982
From the judgment and order dated the 12th April 1982 of the Bombay High Court in Criminal Revision Application No 1742 of 1981
LN Sinha Attorney General Dr YS Chitale and Miss A Subhashini for the petitioner
Soli J Sorabjee and Miss Rani Jethmalani for Respondent No 1
AK Sen and BR Handa for Respondent No 2
The order of the Court was delivered by CHINNAPA REDDY J Abdul Rehman Antulay was the Chief Minister of the State of Maharashtra till January 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 sections 161 and 185 of the Indian Penal Code and S of the Prevention 10 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 five crores
The learned Metropolitan Magistrate refused to enteratain the complaint holding that it was not maintainable without the requisite sanction of the Government under section 6 of the Prevention of Corruption Act
Against the order of the learned Metropolitan Magistrate RS Nayak presented a Criminal Revision Application to the High Court of Maharashtra purporting to be under sections 407 and 482 of the Code of Criminal Procedure and article 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 Antualy 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 article 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 article 1632 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 11 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 not to have acted in his discretion
He also invited our attention to article 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 article 136 of the Constitution
But in the present case we do not propose to grant special leave under article 136 of the Constitution solely in order to consider this question firstly because the Criminal Revision a 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
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 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
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 12 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 only the Governor who on his own independently will be entitled to consider that question
 When we drew the attention of the learned Attorney General to the concession made before the High Court Shri AK Sen who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court
We are afraid that we cannot launch into an inquiry as to what transpired in the High Court
It is simply not done
Public Policy bars us
Judicial decorum restrains us
Matters of judicial record are unquestionable
They are not open to doubt
Judges cannot be dragged into the arena
Judgments cannot be treated as mere counters in the game of litigation1 We are bound to accept the statement of the Judges recorded in their judgment as to what transpired in court
We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence
If the judges say in their judgment that something was done said or admitted before them that has to be the last word on the subject
The principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence
If a party thinks that the happenings in court have been wrongly recorded in a judgment it is incumbent upon the party while the matter is still fresh in the minds of the judges to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error
2 That is the only way to have the record corrected
If no such step is taken the matter must necessarily end there
Of course a party may resile and an Appellate I Per Lord Atkinson in Somasundaran vs Subramanian AIR 2 Per Lord Buckmaster in Madhusudan vs Chanderwati AIR 1917 PC 30
13 Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice but he may not call in question the very fact of making the concession as recorded in the judgment
In Rev Mellor 7 Cox
PC 454 Martin was reported to have said we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity
In Ring Emperor vs Barendra Kumar Ghose 1 said  these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive it is not to be criticised or circumvented much less is it to be exposed to animad version
In Sarat Chandra vs Bibhabati Debi 2 Sir Asutosh Mookerjee explained what had to be done It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made the most convenient and satisfactory course to follow wherever practicable is to apply to the Judge without delay and ask for rectification or review of the judgment So the judges record is conclusive
Neither lawyer nor litigant may claim to contradict it except before the judge himself but nowhere else
On the invitation of Mr Sen we have also perused the written submissions made by him before the High Court
We have two comments to make First oral submissions do not always conform to written submissions
In the course of argument counsel often wisely and fairly make concessions which may not find a place in the written submissions
Discussion draws out many a concession
1 2 34 CLJ 302
14 Second there are some significant sentences in the written submissions which probabilise the concession
They are If in the existing case the entire Council of Ministers becomes interested in the use of the statutory power one way or the other the doctrine of necessity will fill up the gap by enabling the Governor by dispensing with the advice of His Council of Ministers and take a decision of his own on the merits of the case
Such a discretion of the Governor must be implied as inherent in his constitutional powers
The doctrine of necessity will supply the necessary power to the Governor to act without the advice of the Council of Ministers in such a case where the entire Council of Ministers is biased
In fact it will be contrary to the Constitution and the principles of democratic Government which it enshrines if the Governor was obliged not to act and to decline to perform his statutory duties because his Ministers had become involved personally
For the interest of democratic Government and its functioning the Governor must act in such a case on his own
Otherwise he will become an instrument for serving the personal and selfish interest of his Ministers
 We wish to say no more
As we said we cannot and we will not embark upon an enquiry
We will go by the judges  record
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 of the Council of Ministers
The statement in the judgment that such a concession was made is conclusive and if we may say so the concession was rightly made
n the facts and circumstances of the present case we have no doubt in our mind that when there is to be a prosecution of the Chief Minister the Governor would while determining whether sanction for such prosecution should be granted or not under section 6 of the Prevention of Corruption Act as a matter of propriety necessarily act in his own discretion and not on the advice of the Council of Ministers
The question then is whether we should permit the State of Maharashtra to resile from the concession made before the High Court and raise before us the contention now advanced by the learned Attorney General
We have not the slightest doubt that 15 the cause of justice would in no way be advanced by permitting the State of Maharashtra to now resile from the concession and agitate the question posed by the learned Attorney General
On the other hand we are satisfied that the concession was made to advance the cause of justice as it was rightly thought that in deciding to sanction or not to sanction the prosecution of a Chief Minister the Governor would act in the exercise of his discretion and not with the aid and advice of the Council of Ministers
The application for grant of special leave is therefore dismissed
SR Petition dismissed


Summary:
Sanction for the prosecution of the Chief Minister under Section 6 of the Prevention of Corruption Act Whether the Governor should act in his discretion or with the aid and advice of the Council of Ministers Constitution of India 1950 Article 163
Dismissing the Special Leave Petition the Court  HELD 11
Supreme Court is bound to accept the statement of the judges recorded in their judgment and therefore it cannot launch into an inquiry as to what transpired in the High Court
It is simply not done
Public policy bars such an action and judicial decorum restrains it
12 C 12
Supreme Court cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence
Matters of judicial record are unquestionable and not open to doubt
Judges cannot be dragged into the arena
If the judges say in their judgments that something was done said or admitted before them that has to be the last word on the subject
Judges record is conclusive
12 C E 13
If a party thinks that the happenings in court have been wrongly recorded in a judgment it is incumbent upon the party while the matter is still fresh in the minds of the judges to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error
That is the only way to have the record corrected
If no such step is taken the matter must necessarily end there
Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice but he may not call in question the very fact of making the concession as recorded in the judgment
12 F H 13 A 9 Rex vs Mellor  quoted with approval
Madhusudan vs Chandrawati AlR  King Emperor vs Barendra Kumar Ghose Sarat Chandra vs Bibhabati Debi Samasundaram vs Subramanian
AIR 1926 PC 136 approved
In the facts and circumstances of the present case it is clear that when there is to be a prosecution of the Chief Minister tho Governor would while determining whether sanction for such prosecution should be granted or not under section 6 of the Prevention of Corruption Act as a matter of propriety necessarily act in his own discretion and not on the advice of the Council of Ministers
14 F G 3
In the instant case the cause of justice would in no way be advanced by permitting the state of Maharashtra to now resile from the concession so made
On the other hand the concession was rightly made before the High Court to advance the cause of justice
15 A