NABIN CHANDRA KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is a public interest litigation questioning the legality and validity of the action of the Governor of Assam in withholding sanction to the prosecution of Sri Prafulla Kumar Mahanta, Chief Minister of Assam, respondent No.7.

(2.) The facts briefly are that on 14.8.93 case No. 12/93 was registered by the Superintendent of Police, "Vigilance and Anti-Corruption, Assam in Police Station-Anti-Corruption Bureau (ACB) against nine accused persons. The nine accused persons are Dr. Dayal Saikia, Dr. Inamul Haque, Dr. J.C. Deori, Dr. Tileswar Baruah who were working as Officer-in- Charge of the Intensive Cattle Development Project, Demow (for short, 'ICDP, Demow') at different times during the period 1986-92, Sri S.C. Bharali and Sri M.C. Gohain who were working as Treasury Officers, Sibsagar, Sri N.N. Phukan who was working as Senior Accountant of ICDP, Demow, Sri D. Bora and Sri Gul Mohammad who were working as Accountants, ICDP, Demow during the period 1986-92. The allegation against the aforesaid nine accused persons was that they entered into a criminal conspiracy and caused drawal of Rs. 44,70,60,521/- from the public exchequer against issue of Letters of Credit of approximate amount of Rs. 1 crore during the period from 1986-92 by preparing fake and fictitious bills and also by forging Letters of Credit for purchase of medicines and construction work by abusing their position as public servants knowing fully well that there was no justification for drawal of such huge amount and thereby they defrauded the Government and acquired huge property disproportionate to their known sources of income. Initially, the investigation was entrusted to one Sri Rupen Bora, Inspector, by the Superintendent of Police, Anti-Corruption Bureau, Assam, Guwahati. Subsequently however the Government of Assam decided to entrust the case to the Central Bureau of Investigation for a thorough investigation and by notification dated 3.5.94 of the Government of Assam, the case was transferred to the Central Bureau of Investigation, and by notification dated 12.5.94, the Government of India authorised the Central Bureau of Investigation to register the case for investigation. Accordingly, the case was registered afresh as RC-3(A)/94/ACU-II on 17.5.94 in CBI, ACU-II Branch, Delhi and investigation was undertaken. After investigation, the Superintendent of Police, Central Bureau of Investigation, Special Police Establishment, ACU-II, New Delhi, submitted a report recommending prosecution of forty persons under Section 120-B read with Sections 420,467,471 and477-A, Indian Penal Code and under Section 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act, 1988, (for short, TC Act, 1988). The aforesaid forty persons who were to be prosecuted as per the recommendation of the Superintendent of Police, CBI, included Sri Prafulla Kumar Mahanta, Chief Minister, Assam and Sri Nakul Das, Ex-Veterinary Minister, Assam. A copy of the report of the Superintendent of Police, CBI was sent to the Government of Assam by the Additional Director, Central Bureau of Investigation, Special Police Establishment, New Delhi by his letter dated 26.12.97 with the request to accord sanction for prosecution of the said Sri Prafulla Kumar Mahanta and Sri Nakul Das under Section 19(l)(c) of the PC Act, 1988 and under Section 197 of the Code of Criminal Procedure, (for short, 'Cr.PC'). By, order dated 5.2.98, the Governor of Assam sanctioned prosecution of Sri Nakul Das, former Minister, Animal Husbandry & Vety. Department, Government of Assam. By another order dated 5.2.98, the Governor of Assam withheld grant of sanction to prosecute Sri Prafulla Kumar Mahanta on the ground that the CBI investigation had not made out a prima- facie case against him. Thereafter a charge- sheet dated 15.7.98 was filed by the Central Bureau of Investigation in the Court of Special Judge, Assam, Guwahati against 38 accused persons. En the said charge-sheet it was mentioned that necessary sanction for prosecution of 22 persons who were public servants had been obtained from the competent authorities under Section 19(l)(c) of the PC Act, 1988 and Section 197, Cr.P.C., but sanction for prosecution of Sri Prafulla Kumar Mahanta had been withheld by the competent authority. The petitioner has prayed for a writ of certiorari quashing the order dated 5.2.98 withholding the sanction for prosecution of Sri Prafulla Kumar Mahanta, respondent No. 7 and a writ of mandamus commanding the respondents to re-examine the matter relating to sanction for prosecution against respondent No. 7 in the light of materials collected by the Central Bureau of Investigation during investigation both before and after the filing of charge-sheet.

(3.) Some preliminary questions relating to maintainability of the writ petition were raised by Mr P.G. Barua, learned Advocate General, Assam and by Mr R.K. Jain, learned Senior Counsel appearing for respondent No. 7. Mr Barua, learned Advocate General submitted that when the Governor grants, or withholds sanction for prosecution linden Section 197, Cr.P.C. or under Section 19 of the PC Act, 1988, he exercises his own individual discretion and does not act on the aid and advice of the Council of Ministers. In support of this submission, he relied on the decision of the Supreme Court in State of Maharashtra-Vs- Ramdas Shrinivas Nayak, AIR 1982 SC 1249 wherein the Supreme Court held that in deciding to sanction or not to sanction the prosecution of a Chief Minister, the Governor acts in exercise of his discretion and not with the aid and advice of the Council of Ministers. Mr Barua further argued that when the Governor acts not on the aid and advice of the Council of Ministers but in his own discretion, his action cannot be called in question in a Court of law in view of the protection given to the Governor under Article 361 of the Constitution, In support of this contention Mr Barua relied on the observations of K. Ramaswamy, J. in paragraphs l45 and 146 of the judgment in S.R. Bommai-Vs-Union of India, as reported in AIR 1994 SC 1918 to the effect that when the President acts not necessarily on the aid and advice of the Council of Ministers but otherwise under Article 356(1) of the Constitution, his satisfaction is a subjective one and such satisfaction is immune from challenge in a Court of law. Mr Barua also cited the decision of the Madras High Caurt in Dravida Munnetra Kazhagam-Vs- Government of Tamil Nadu & Two Others reported in 1994-I-ILW 145 wherein a Division Bench of the Madras High Court after considering the decisions of different High Courts has come to the conclusion that the power contemplated under Section 19 of the PC Act, 1988 as well as Section 197, Cr.P.C. is to be exercised only by the Governor as such and not in any other capacity and consequently he will be entitled to protection of immunity afforded by Article 361 of the Constitution. Mr Barua cited several other decisions of different High Courts other than this Court in support of his contention that when the Governor exercises his discretion and does not act on the aid and advice of the Council of Ministers, his action is protected from challenge in a Court of law under Article 361 of the Constitution.