Mehta Vs. Union of India & Ors  Insc 1031 (10 October 2007)
Sinha,S.H. Kapadia & D.K. Jain
NO. 465 OF 2007 IN WRIT PETITION (CIVIL) NO. 13381 OF 1984 S.B. SINHA, J :
Whether this Bench should consider the correctness of an order passed by the
Governor of Uttar Pradesh refusing to grant sanction for prosecution of Ms. Mayawati
and Shri Naseemuddin Siddiqui is the prime question involved in this
public interest litigation was entertained by this Court in a writ application
filed by the writ petitioner. This Court with a view to ensure proper
maintenance of cultural heritage of India as also the ecology has been passing
orders in the writ petition from time to time.
project known as Taj Heritage Corridor Project was initiated by the
Government of Uttar Pradesh. One of the main purpose for which the same was
undertaken was to divert the River Yamuna and to reclaim 75 acres of land
between Agra Fort and the Taj Mahal and use the reclaimed land for constructing
food plazas, shops and amusement activities. The said activities on the part of
the Government of Uttar Pradesh was brought to the notice of this Court. An
exception thereto was taken. A detailed inquiry was directed to be made by the
Central Bureau of Investigation (CBI). Upon consideration of the report
submitted before it by CBI, this Court in its order dated 18.09.2003 directed
it to register a First Information Report and make further investigation in
accordance with law. CBI investigated into the matter, including the roles
played by Ms. Mayawati, the then Chief Minister, and Mr. Naseemuddin Siddiqui,
the then Minister for Environment, Government of Uttar Pradesh. Investigations
were also carried out against some officers.
was later on asked to furnish a self-contained note as regards its findings
against the erring officers and holders of public posts. A detailed report was
submitted by it. A question arose as to what directions, if any, should be
issued by this Court having regard to the conflict in opinions expressed by
different authorities of CBI in regard to Ms. Mayawati and Mr. Naseemuddin Siddiqui.
said question was considered by this Court in its judgment and order dated
27.11.2006 in M.C. Mehta (Taj Corridor Scam) v. Union of India and Others
[(2007) 1 SCC 110].
Indisputably, the said order of this Court has been complied with. It now
appears that the learned Special Judge directed CBI to obtain sanction of the
Governor of Uttar Pradesh. By reason of an order dated 03.06.2007 the Governor
of Uttar Pradesh has refused to accord the same.
Krishan Mahajan, learned Amicus Curiae, who has been assisting this Court very
ably in the matter, filed an application, inter alia, praying for :
the light of the facts and circumstances mentioned above it is most humbly
prayed that this Honble court may kindly be pleased to issue an
appropriate writ, direction or order :
Concerning the legal validity of the CBI seeking a sanction for the prosecution
of Uttar Pradesh Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui
under Section 197 Cr. P.C. by calling for the records of the materials it
placed before the Governor for seeking such sanction.
Directing the CBI to produce a copy of the June 3, 2007 sanction order of His Excellency
the Governor of U.P. passed in connection with the case pending before the
Special Judge/competent court based on FIR RC 0062003A0018.
Passing appropriate directions on the legal validity or otherwise of the June 3, 2007 order of His Excellency the U.P.
Governor refusing under Section 197 (1) Cr. P.C.
for the prosecution of Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui
in relation to FIR RC 0062003A0018 registered against them by the CBI pursuant
to the September 18, 2003 order ofthis Honble Court in I.A. 376 in CWP
13381/1984 and the investigation on which with the opinion of the CBI
Superintendent of Police was directed by this Honble Court on Nov. 27,
2006 to be placed before the concerned court/Special Judge for deciding the
matter in accordance with law.
Declaring that the sanction orders passed under Section 197(1) Cr. P.C. are in
the public domain and hence cannot be classified as secret.
Mahajan, in support of the said application, would submit that the task of
protection of cultural heritage having been undertaken by this Court and
keeping in view the provisions of Article 49 of the Constitution of India, the
Court should interfere in the matter and set aside the order of the Governor of
Uttar Pradesh refusing to accord sanction to prosecute Ms. Mayawati and Mr. Naseemuddin
Siddqui, keeping in view the political scenario in the country, as CBI may not
show any further interest in the matter at all.
urged that in a case of this nature, sanction in terms of Section 197 of the
Code of Criminal Procedure is not imperative.
doubt it is an unique case. In exercise of its jurisdiction under Article 32 of
the Constitution of India and having regard to Article 49 and clause (g) of Article
51A of the Constitution of India, this Court while entertaining the public
interest litigation at the instance of the writ petitioner had been taking all
steps which have been thought necessary and proper in the matter. The question
which, however, has arisen for our consideration is, should we undertake such
an exercise. No doubt, a First Information Report has been lodged at the
instance of this Court. Yet again this Court thought it fit to issue requisite
directions in its order dated 27.11.2006 directing the learned Special Judge to
apply its mind on the materials collected during investigation by CBI and pass
appropriate orders thereupon.
Court has been exercising its jurisdiction in public interest. It has been
exercising its jurisdiction to issue a writ of continuous mandamus in the light
of the decision of this Court in Vineet Narain and Others v. Union of India
[(1998) 1 SCC 226].
have no doubt in our mind that judiciary may step in where it finds the actions
on the part of the Legislature or the Executive are illegal or unconstitutional
but the same by itself would not mean that public interest litigation, in a
case of this nature, should be converted into an adversarial litigation. The
jurisdiction of the court to issue a writ of continuous mandamus is only to see
that proper investigation is carried out. Once the court satisfies itself that
a proper investigation has been carried out, it would not venture to take over
the functions of the Magistrate or pass any order which would interfere with
its judicial functions. Constitutional scheme of this country envisages dispute
resolution mechanism by an independent and impartial tribunal. No authority,
save and except a superior court in the hierarchy of judiciary, can issue any
direction which otherwise take away the discretionary jurisdiction of any court
of law. Once a final report has been filed in terms of sub-section (1) of
Section 173 of the Code of Criminal Procedure, it is the Magistrate and
Magistrate alone who can take appropriate decision in the matter one way or the
other. If it errs while passing a judicial order, the same may be a subject
matter of appeal or judicial review. There may a possibility of the prosecuting
agencies not approaching the higher forum against an order passed by the
learned Magistrate, but the same by itself would not confer a jurisdiction on
this Court to step in. We should not entertain the application of the learned
Amicus Curiae on such presupposition. A judicial order passed by a Magistrate
may be right or wrong, but having regard to the hierarchy of the courts, the
matter which would fall for consideration before the higher court should not be
a subject matter of a decision of this bench. In an unlikely event of the
interested parties in not questioning such orders before the higher forum, an
independent public interest litigation may be filed.
are not unknown where this Court has entertained public interest litigation in
cases involving similar question under Article 32 of the Constitution of India.
[See Rajiv Ranjan Singh Lalan VIII v. Union of India [(2006) 6 SCC 613].
will not be out of place to mention that in Vineet Narain (supra), this Court
categorically stated that unless a proper investigation is made followed by a
proper prosecution under the general law applicable to such investigation, the
rule of law will lose its significance. This Court in its order dated
27.11.2006 upon noticing Vineet Narain (supra) and Union of India v. Prakash P.
Hinduja and Another [(2003) 6 SCC 195] held :
Analysis of the above judgments shows that there is a clear-cut and
well-demarcated sphere of activities in the field of crime detection and crime
of an offence is the field reserved for the executive through the Police
Department, the superintendence over which vests in the State Government. The
executive is charged with a duty to keep vigilance over the law and order
situation. It is obliged to prevent crime. If an offence is committed
allegedly, it is the States duty to investigate into the offence and bring
the offender to book. Once it investigates through the Police Department and
finds an offence having been committed, it is its duty to collect evidence for
the purposes of proving the offence. Once that is completed, the investigating
officer submits report to the court requesting the court to take cognizance of
the offence under Section 190 CrPC and his duty comes to an end. Therefore,
there are well-defined and well- demarcated functions in the field of crime
detect ion and their subsequent adjudication by the court. Lastly, the term
investigation under Section 173(2) of the Criminal Procedure Code
includes opinion of the officer in charge of the police station as to whether
there is sufficient evidence or reasonable ground of suspicion to justify the
forwarding of the case to the court concerned or not. This opinion is not legal
evidence. At the stage of Section 173(2) the question of interpretation of
legal evidence does not arise. In any event, that function is that of the
The parameters within which this Court should function in such matters are,
is one thing to say that this Court will not refrain from exercising its
jurisdiction from issuing any direction for protection of cultural heritage and
the ecology and environment; but then in discharge of the said duty, this Court
should not take upon itself the task of determining the guilt or otherwise of
an individual involved in the criminal proceeding. It should not embark upon an
enquiry in regard to the allegations of criminal misconduct so as to form an
opinion one way or the other so as to prima facie determine guilt of a person
or otherwise. Any direction which could be issued, in our opinion, has already
been issued by us on 27.11.2006, stating :
We, accordingly, direct CBI to place the evidence/material collected by the
investigating team along with the report of the SP as required under Section
173(2) CrPC before the court/Special Judge concerned who will decide the matter
in accordance with law. It is necessary to add that, in this case, we were
concerned with ensuring proper and honest performance of duty by CBI and our
above observations and reasons are confined only to that aspect of the case and
they should not be understood as our opinion on the merits of accusation being
investigated. We do not wish to express any opinion on the recommendations of
the SP. It is made clear that none of the other opinions/recommendations
including that of the Attorney General for India, CVC shall be forwarded to the court/Special Judge concerned. 12.
We do not think that we should go beyond the same.
may observe that while entertaining a public interest litigation in a given
case, this Court may exercise a jurisdiction to set aside the decision of a
constitutional authority, but we are not concerned with such a situation.
therefore, are of the view that we need not go further than what we have
already said in our order dated 27.11.2006 to go into the correctness or
otherwise of the order of the Governor. If no sanction of the Governor was
required or if he has committed an error in passing the said order, the
appropriate court, in our opinion, would be entitled to deal therewith, but not
We, therefore, are of the opinion that this Bench should not entertain the
application filed by the learned Amicus Curiae. The said application is
dismissed with the aforesaid observations.