State of Maharashtra Vs. Ramdas
Shrinivas Nayak & ANR  INSC 56 (28 July 1982)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, A.P. (J)
CITATION: 1982 AIR 1249 1983 SCR (1) 8 1982
SCC (2) 463 1982 SCALE (1)554
CITATOR INFO :
RF 1984 SC 684 (5) RF 1988 SC1531 (143) R
1989 SC 129 (9) RF 1991 SC1420 (62)
Evidence - Conclusive proof of statements
recorded in the judgment - Any concession made before the court and as recorded
in the judgment cannot be resiled later, except in rare end appropriate case -
Stage at which the circumstances of the record to be rectified, explained -
Constitution of India, Article 136 - Interference by the Supreme Court,
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
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 C] 1:2. 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] 1:3. 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 v. Mellor 7 Cox C.C. 454, quoted with approval.
Madhusudan v. Chandrawati, A.l.R. 1917 P.C.
30; King Emperor v. Barendra Kumar Ghose, 28 C.W.N. 170: Sarat Chandra v.
Bibhabati Debi, 34 Cal. L.J. 302. Samasundaram v. Subramanian. A.I.R 1926 P.C.
2. 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]
CRIMINAL APPELLATE JURISDICTION: 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
L.N. Sinha, Attorney General, Dr. Y.S.
Chitale, and Miss A. Subhashini for the petitioner.
Soli J. Sorabjee and Miss Rani Jethmalani for
Respondent No. 1.
A.K. Sen and B.R. 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 ss. 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 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
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 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 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 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 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 Art. 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 Art. 136
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 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
Kotwal, J. put it even more explicitly and
"...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 A.K. 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 litigation".(1) 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 v. Subramanian, A.I.R 1926 P.C. 136.
(2) (Per Lord Buckmaster in Madhusudan v.
Chanderwati, A.I.R. 1917 P.C. 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. P.C. 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 v. 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
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 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) 28 C.W.N. 170.
(2) 34 C.L.J. 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 s. 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
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.
S.R. Petition dismissed.