Crl. Rev. No. 3150 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No. 3150 of 2010 Date of Decision: December 24, 2010 Mohinder Singh Shastri and another …..Petitioners Vs. State of Haryana …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. J.S. Bedi, Advocate for the petitioners. -.- M.M.S. BEDI, J. (ORAL) Legality and propriety of order dated May 6, 2010 passed by Additional Sessions Judge , Panchkula has been challenged through the instant petition. Vide impugned order, an application filed by the petitioners for discharge on account of invalid, improper and defective sanction for prosecution has been dismissed by the trial Court. The petitioner Mohinder Singh and Krishan Chander have been ordered to be Crl. Rev. No. 3150 of 2010 [2] charged under Sections 420, 467, 468, 471, 120-B IPC read with Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act. The petitioners are members of Haryana Public Service Commission, (for short ‘the HPSC’). In brief the case of the prosecution against the petitioners is that a requisition was sent by Haryana State Pollution Control Board, (for short ‘the HSPCB’) on June 30, 2004 to fill four posts of Environmental Engineers. In the said requisition, the age limit for appointment was mentioned as 20 to 40 years. The HPSC wrote a letter to the HSPCB to send the requisition through Commissioner and Secretary, Department of Environment. On September 14, 2004, Commissioner and Secretary to the Haryana Government, Department of Environment, sent a letter to the HPSC saying that Government agreed with the requisition sent by HSPCB and requested the Commission to proceed with the process. On the receipt of said requisition, the Commission issued an advertisement on September 16, 2004 with last date of submission of applications as October 14, 2004. On October 20, 2004, HSPCB sent another letter requesting the HPSC that age limit of the candidates is to be mentioned as 17 to 40 years and in case of candidates possessing the requisite qualifications and who are already in service of the Government, Board or Corporations, the upper age limit shall be such as prescribed by Government from time to time and the HPSC was requested to issue corrigendum. On October 26, 2004, on the request of HSPCB a corrigendum was issued by HPSC in which upper age limit was mentioned as 17 to 40 years (5 years relaxable for employees of Crl. Rev. No. 3150 of 2010 [3] Government, Boards and Corporations). The last date of submissions of applications was extended upto November 2, 2004. After the issuance of corrigendum before the closing date i.e. November 2, 2004, the Commission received 9 applications from candidates with requisite qualifications who are already in service of Government, Boards and Corporations. The case of the prosecution is that Phool Kumar, Shish Pal, Kishan Kumar, though were not eligible being over-age, were selected by the Commission. Connivance is attributed to petitioners and Yudhvir Singh, Chattar Singh, Mahender Singh Shastri. Petitioner Krishan Chand, ex-Chairman of HPSC had allegedly prepared the corrigendum on October 26, 2004 with an oblique motive to give opportunity to those candidates who have been selected after relaxation. Petitioners at the time of framing of charges had raised a grievance that sanction to prosecute the petitioners, as given by the Governor, is invalid. The application for discharge was dismissed and the petitioners were charged with Sections 420, 467, 468, 471, 120-B IPC read with Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, vide order dated May 6, 2010. Sh.J.S. Bedi, learned counsel for the petitioners has vehemently contended that the prosecution cannot be launched against the petitioners and cognizance cannot be taken against them as it transpires from the file relating to sanction to prosecute obtained under RTI shows that the sanction to prosecute as required under Section 197 Cr.P.C. has not at all been put before the Council of Ministers and it had been sent directly to the Crl. Rev. No. 3150 of 2010 [4] Government, whereupon the Governor of Haryana accorded sanction to prosecute exercising his discretion without the aid and advice of Council of Ministers. It has been submitted that grant of sanction under Section 197 Cr.P.C. is a statutory executive function and not a constitutional discretionary function as per the mandate of Article 163 of the Constitution of India. The Governor under Article 163 of the Constitution of India must act in this sphere as per the advice of the Council of Ministers and or contrary to the advice of Council of Ministers. Strong reliance was placed on the judgment of the Apex Court in M.P. Special Police Establishment Vs. State of M.P. and others, (2004) 8 SCC 788 to contend that governor is required to act on the aid and advice of Council of Ministers and not in his discretion. The Governor can exercise his discretion in situations where bias is inherent or manifest in the advice, or in those rare situations where on facts bias becomes apparent, or where decision of Council of Ministers is shown to be irrational and based on non-consideration of relevant factors; or if Council of Ministers disables or disentitles itself, or where as a matter of propriety Governor may have to act in his own discretion. Learned counsel also placed reliance on the judgment of Shamsher Singh Vs. State of Punjab and another, AIR 1974 SC 2192 which had been followed. I have heard counsel for the petitioners and considered the ratio of the judgments cited. It is not out of place to mention here that in M.P. Special Police Establishment’s case (supra) the Apex Court, in context to the provisions of Articles 226, 136, 142 and 163 of the Constitution of India, has held that the jurisdiction of High Court and Supreme Court for Crl. Rev. No. 3150 of 2010 [5] the purpose of judicial review to determine whether the exercise of powers by Governor independently or of contrary to advice of Council of Ministers extends only to the passing of an appropriate order which could do complete justice to parties. In order to examine whether the Governor who is admittedly appointing authority as well as authority competent to remove the petitioners as members of HPSC has acted illegally as he had acted without the aid and advice of Council of Ministers headed by Chief Minister in his own discretion. I have gone through the sanction order annexure P-11 passed by Chief Secretary of Government which is based upon the sanction of Governor of Haryana under Section 197 (1) Cr.P.C. and under Section 19 of the Prevention of Corruption Act, 1988. Counsel for the petitioners has also placed on record the documents obtained by the petitioners under the Right to Information Act, which have been appended with the petition as annexure P-9. A perusal of annexure P-9 indicates that file for obtaining sanction to prosecute, as required under Section 197 Cr.P.C. was put up before the Legal Remembrance for his advice. The L.R. had advised that it was necessary that sanction of prosecution should be obtained from His Excellency the Governor of Haryana. The contention of counsel for the petitioners is that as per file notings annexure P-9, there was no material pertaining to case i.e.police file submitted for consideration to the Governor/ Chief Secretary. Only drafts of sanction orders were sent to Governor/ Chief Secretary which was approved by them without there being Crl. Rev. No. 3150 of 2010 [6] any material. It was contended that reading of the file notings reflect that file for obtaining sanction to prosecute was placed before the Governor for the first time on May 6, 2009 which was returned on the ground “all such files should be routed through the Chief Minister under his signatures.” The Chief Minister had put his sanction on the file on May 8, 2009 and on the same day it was signed by H.E. the Governor and it was returned to Chief Minister who also saw it and sent the same to his P.S. who made an endorsement “that the Chief Minister has seen”. It was also submitted by Mr.J.S.Bedi that challan file runs into 100 of pages and it was not possible to receive the file, examine the bulky material and send on the same day back. The order of sanction to prosecute has been passed in mechanical manner and without application of mind. The main plea which has been raised by counsel for the petitioners is that the Governor has granted sanction in his own discretion whereas he was required to grant the sanction on the aid and advice of Council of Ministers as per provisions of Article 163 (1) of the Constitution of India. It has been mainly urged that Governor can exercise his discretion to grant sanction of prosecution only on the advice of Council of Ministers except in few situations which have been mentioned by the Apex Court in Shamsher Singh’s case (supra) and in M.P. Special Police Establishment case (supra). In M.P. Special Police Establishment case (supra) Lokayukta, a Vigilance Authority (a former Judge of Supreme Court) made a compliant against two Ministers in the Government of Madhya Pradesh that they had Crl. Rev. No. 3150 of 2010 [7] released 7.5 acres of land illegally to its earlier owners even though the same had been acquired by Indore Development Authority. After investigation the Lokayukta submitted a report holding that there were sufficient grounds for prosecuting the two Ministers under the provisions of Prevention of Corruption Act and under Section 120 –B of the IPC (criminal conspiracy). The Council of Ministers refused sanction on the ground .that there was no prima facie case made out against the Ministers, but the Governor acted contrary to the aid and advice of Council of Ministers. The question which arose before the Court was whether the Governor can act in his discretion against the aid and advice of Council of Ministers in the matter of grant of sanction for prosecution of Ministers. The Single Judge and Division Bench of High Court held that Governor had no discretion to act against the aid and advice of Council of Ministers. The Hon’ble Supreme Court extending the scope of judicial review held that there was material available against the two Ministers and the decision of Council of Ministers was ex-facie, irrational whereas the decision of the Governor was not. The Supreme Court held that High Court had failed to consider the said aspect of the matter. It was held that in facts and circumstances of that case if the Governor cannot act in his own discretion, there would be a complete break down of the rule of law inasmuch as it would be open for Governor to refuse sanction inspite of the overwhelming material showing that a prima facie case is made out. The writ petition filed by the Ministers against the order of the Governor sanctioning prosecution Crl. Rev. No. 3150 of 2010 [8] was dismissed. A perusal of the judgment indicates that finally the Apex Court had approved the action of the Governor holding that the Governor can act in his discretion against the aid and advice of Council of Ministers in the matter of grant of sanction for prosecution of Ministers in that case. The authority of the Governor to exercise his discretion independent of the advice of the Council of Ministers was upheld in M.P. Special Police Establishment case (supra). It is pertinent to observe that exception laid down in Shamsher Singh’s case (supra) under which the Governor can act in his discretion was upheld but it was further held that the exceptions laid down for exercise of personal discretion by the Governor were not exhaustive. Following the ratio of Shamsher Singh’s case (supra), it was held that normally Governor is required to act on the aid and advice of Council of Ministers and not in his discretion. There may be situations where exercise of such discretion by himself may be proper. The following exceptional situations were envisaged by the Apex Court (i) where bias is inherent and/ or manifest in the advice, or ii) in those rare situations where on facts bias becomes apparent, or (iii) where decision of Council of Ministers is shown to be irrational and based on non-consideration of relevant factors; Crl. Rev. No. 3150 of 2010 [9] or (iv) if Council of Ministers disables or disentitles itself; or (v) where as a matter of propriety Governor may have to act in his own discretion. So far as the matter in Shamsher Singh’s (supra) case is concerned, it was a case where the High Court on the basis of report of an enquiry officer nominated by Director of Vigilance, terminated the services of a probationer Subordinate Judicial Officer. Seven Judge Bench of Supreme Court considered whether the Governor could act by personally applying his mind or whether under all circumstances he must act only on the aid and advice of Council of Ministers. The Apex Court after considering various Constitutional powers of President and Governor finally held that appointment as well as removal of member of Subordinate Judicial service is an executive action of the Governor to be exercised on the aid and advice of Council of Ministers in accordance with the provisions of Constitution, as such the order of termination of service of the Judicial Officer was set aside, besides holding that it was as a matter of punishment and violated provisions of Article 311 (2) of the Constitution of India. The facts of Shamsher Singh’s case (supra) and that of M.P. Special Police Establishment case (supra) were required to be considered in view of the repeated observations of the Apex Court that reliance on a decision without looking into the background of the case is not permissible. Each case presents its own features and reliance on a decision without Crl. Rev. No. 3150 of 2010 [10] looking into the factual background of the case is not always proper. It is not permissible to pick out a word or a sentence from the judgment, divorced from the context of the question under consideration. The observations in the judgment should be considered in the light of the questions which were before the Court. In this context reference can be made to the observations of the Apex Court in following judgments:- 1. Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362. 2. Government of Maharashtra Vs. Smt. Gowramma, 2008 (1) Law Herald (SC) 483. 3. State of Rajasthan Vs. Ganeshi Lal, 2008 (1) Law Herald (SC) 275. A perusal of the judgment in M.P. Special Police Establishment case (supra) reflects that the Apex Court had upheld the order of the Governor to grant sanction of prosecution in contravention to the aid and advice of the Council of Ministers, meaning thereby that the authority of a Governor to act independently has been acknowledged. It has also been clarified that Governor, no doubt, is required to act on the aid and advice of Council of Ministers but his authority and discretion to act independently has not been curtailed. The Governor exercises his executive powers by passing a number of orders. The orders passed by the Governor of a State for the purpose of judicial review came up before the Division Bench of Bombay High Court in Partap Singh Rane Vs. Government of Goa, AIR 1999 Bom. 53 and it was held that the orders passed by Governor Crl. Rev. No. 3150 of 2010 [11] of a State under Article 163 of the Constitution fall in four broad categories which are as follows:- “i) The exercise of executive power in accordance with provisions of Constitution by or under the order of the Governor, wherein full Judicial review is available; ii) orders passed by the Governor, on the aid and advice of Council of Ministers headed by the Chief Ministers, wherein full judicial review is available; iii) Order like the grant of pardon under Article 161 and the orders passed by the President on the report submitted by the Governor under Article 356 on account of which limited judicial review is available; and iv) Where the Governor acts without the AID AND ADVICE of the Council of Ministers (headed by Chief Minister) and acts in his own discretion (here no judicial review is permissible).” The grievance of the petitioners is that the Governor has acted without the aid and advice of the Council of Ministers headed by the Chief Minister and has acted in his own discretion. The said administrative action of the Governor is not subject to judicial review but in the interest of justice I have carefully seen the circumstances of this case which indicates that Crl. Rev. No. 3150 of 2010 [12] H.E. the Governor has not arbitrarily exercised the jurisdiction to grant sanction. The extract of the file produced by the petitioners shows that the Chief Minister who heads the Council of Ministers has been consulted. It will not be appropriate at this stage of the trial to hold that neither the Chief Minister, the Head of the Council of Ministers nor the Governor had not applied their mind to the file produced before them for grant of sanction. It is a mixed question of law and fact whether the sanction has been granted without the production of entire file before the competent authority. It is pertinent to refer to the Constitutional provisions for the purpose of judicial review. Article 163 (1) (2) and (3) reads as follows:- “163. Council of Ministers to aid and advise Governor . (1) There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. Crl. Rev. No. 3150 of 2010 [13] (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.” Article 163 (2) specifically provides that if any question arises whether a particular act of Governor is discretionary or not, shall not be called in question. Section 163 (3) of the Constitution also debars a Court whether any, and if so what advice was tendered by Ministers to the Governor. The Apex Court in M.P. Special Police Establishment case (supra) lays down a word of caution for the Courts to exercise powers of judicial review in the matters of exercise of powers by Governor independently of or contrary to the advice of Council of Ministers. It has been held that the jurisdiction of High Court and the Supreme Court in such cases should be exercised only where an appropriate order is required to be passed to do complete justice to the parties. Considering the scope of judicial review and taking into consideration the provisions of Article 163 (2) and (3) of the Constitution and the parameters for exercise of executive discretion of the Governor as per the judgments in Shamsher Singh’s case (supra) and M.P. Special Police Establishment case (supra), no ground is made out at this stage to quash the charge against the petitioners solely on the ground that the Governor has granted sanction in his discretion without the aid and advice of the Council of Ministers especially when the order of sanction has been passed with the approval of the Chief Minister, the head of Council of Minister. Dismissed in limine. Crl. Rev. No. 3150 of 2010 [14] Nothing mentioned in this order will prejudice the rights of the petitioners during the course of trial, on merits. December 24, 2010 (M.M.S.BEDI) sanjay JUDGE