.STATE OF MAHARASIITRA

RAMDAS SHRINIVAS NAYAK & ANR.

July 28, 1982

(0. CHJN1'iAPPA REDDY AND A.P. SEN, JJ.]

• Evidenc~Conclusivt proof of statement1 recorded in the judgment-Any concession made before the court and as recorded in the judgment cannot be res1/ed later, except in rare end appropriate cases-Stage at which the circumstances of . ~\..: the record to be rectified, explained-Constitution of India, Article 136-lnterference by the_Supreme Court, impermi11ible.

Sanction for the prosecution of the Chief Minister under Sectio"n 6 of the "' 0 Prtvention ofC<?rruption Act-Whether the Governor should act in hisdi1cretion 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 : 1:1. 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 CJ

1:2. Supreme Court cannot allow the Statement of the judges to be contradicted by statements at the Bar or by ffidavit and other evidence, Matters of juaicial 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 ihe subject.

Judges record is conclusive. [12 C-E]

J :~. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incument 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 vfitb regard to his conduct was a statement that had been made in erior .. That is the only way. to have the record corrected. If no such step is taken, the nlatter must necessaril>'.' end there.

Of cotlrse, a party may rcsilc and an Appellate Court may_ permit him; in rare and appropriate cases to rcsilc 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 ay not calJ in quf:stion the very fact of making the oncession as recorded in the judgment. (12 F-H, 13 A] ; ·

i. • f

\>,

MAiiARASirtRA v. ilAMl>AS (Chinitappa fteddy, J.)

R•x v. M•llor 7 Cox C.C. 454, quoted with approval.

Madhus'udan v. Chandrawati, A.J.R. 1917 P.C. 30; King Emperor v. •' Bar•nd1a Ku,,; ar Ghose, 28 C.W.N. 170: Sarai Chandra v. Blbhabatl D•bl, 34 Cal.

L.J. 302: Samasundaram v. Subramanian, A.LR 1926 P.C. 136; approved.

2. In the facts and circumstances of the present case, it is clear that, when there is to be a prosecudon of the Chief Minister, the Governor would, while determining whether sanction for sUcb prosecution should be granted or not under sectiOn 6 of the Prevention of Corruption Act, as a matter of propriety, necessarily act io bis 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 resilc from the cOncession so ntade. On the other hand the . concession was rightly made before the High Court to advance the cause of justice. [IS A)

CRIMINAL APPELLATE JURISDICTION : Petition for.Special Leave Jo Appeal (CRL) No. 1523 of 1_982.

From the judgment and order dated the 12th April, 19d2 of the Bombay High Court in Criminal Revision Application No. 1742 of 1981. ·

L.N. Sinha, Attorney General, Dr• Y.S. Chitale, and Miss A.

Subhashini for the petitioner.

'Soll J. Sorabjee and Miss Rani Jethma/ani for Respondent :No. 1.,

A.K. Sen and B.R. Honda for Respondent No. 2.

The Order of the Court was delivered by

••• . CHINNAPPA RBDDf, J. Abdul Rehmn 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 G 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 tb'.e Metropolitan Magistrate, 28th Court, Esplanade, Bombay

, H charging him with the commission of offences punishable under ss. 161 and 185 of the Indian Penal Code and 5 of the Prevention

i il _; ;:. >' . '' 1., ',. '.

SUPREME COURT REPORt!I. r1!J83j j s.c.lt.

of Corruption Act. The substance of the allegation was that Sbri 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 inferested 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 un.der s. 6 of the Prevention of Corruption Act. Against the order of the learned. Metropolitan Magistrate, R. s.· Nayak presented a Criminal Revision Application to the High Court of Maharashtra purporting to be under ss. 407 and 482 of the Code of Criminal Procedure and Art.. 228 of the Constitution. The • State of Maharashtra and Shri Antulay were imp leaded 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 Kofwal, JJ upheld the view that sanction was necessary and dismissed the Revision Application. While dismissing the application, the learned Judges noticed that an applic1tion had 'been made to the Governor of Maharashtra for grant of the requisite sanction" and .observed that the applicat_ion should not be decided by the Law Minister or any. other Minister, but that , "it 'deserved to be decided by the Governor in his indivi_dual 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 Art. 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 hould 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 Art. 163(2), 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 10 act in bis discretion, the decision of the

• 0

i.iAl-iARASkTRA v. RAMDAS (thinnappa i?.eddy, J.) if

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 t<I have acted in his discretion. 'He also invited our aitention to Art. 163 (3) which provides Jhat 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 J; erious consideration by this court under Art. l36 of the Constitution.

But, in the present case, we do not propose to grant special leave under Art. 136 of the Constitution, solely in order to consider this question firstly because the Criminal Revision 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 111ay 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 proposd

action of the concerned Ministry, then in sllch a case situa- , tion 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, indepedently and without any eference to any Ministry, to decide that <iuestion .. " .

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

stiililMB roukt REPoRts ti ~83 J I s.e.R.

Minister, then in that event, he would not .be entitle<! 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 thatin 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 A.K. Sen, who appeared for the State of Maharashtra before the High Coµrt 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. 'fhey are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation''.(') 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 jadges say in their judgment that something was done, said or admitted before them, that bas to be the last word on the subject. The principle is wellsettled 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

en 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 tbe 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

(I) Per Lord Atkinson in Soma•undara• v. Subramaniao, A.LR 1926 P.C.

H t36.

(2) (Per Lord Buckmaster in Madhusudao v. Chaoderwatl, A.1.R. 1917

P.C. 30.

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MAHARASHTRA •• RAMDAS (Chinnappa Reildy, J.) 13

Court may permit him in rare and appropriate cases to resile from a concession on the groudd that the concession. was made on a wrong appreciation of the law and had led to gross injustice; but, he may not qi.II in question the very fact of making the concession as recorded in the judgment . .

In Rev. Mellor, 7 Cox. C.C. 454 Main B was reported to have said : "we must consider the statement of the learned judge as abso- .iute 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 King Emperor v. Barendra Kumar G/.ose (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 v. 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 cpurse 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 conclosive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but

nowher~ 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.

(I) 28 C.W.N, 170.

(2) 34 C.{.,./. 30i.

.IE

SU~REME COURT REPORTS [1983] 1 s.c.R.

Second, there are some significant sentences in the written submis- ·. sions which probabilise the concession. They are: ''If in the existing case, the entire Council of Ministers becomes interested in the use of the statutcry power one way or the other, the doctrine of necessity w!ll fill up the gap by en.abling 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 perfor~ his statutory duties becaus.e 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 ocurred, nor is there any ground taken in the petition for grant of specia) 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 wemay say so, the concession was rightly made.

In 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, tlie Governor would, while tletermining whether sanction for such prosecution should he grante.d or not under s. 6 of the Prevention of Corruption Act, as a matter qf 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 jearne.dAttorney General. We have not the slightest doubt that .

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MAHARASHTRA v. RAMDAS (Chinnappa Reddy, J.) 15 •

tbe cause of justice would in no way be advanced by permitting

A . the State of Maharashtra to now resile from the concesssion and agitaie 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 thught that in deciding to sanction or not to sanction the prosecution of a Chief Minister, ihe Governor would act in the exercise of his discretion and nb.t \vith the .aid and advice of the Concil of Ministers.· The application for graii t of special leave is, therefore, dismissed.

S.R.

Petition dismissed.

' ,,.