madhya pradesh high court quashes fir against madhya pradesh governor ram naresh yadav
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Madhya Pradesh High Court Quashes FIR Against Madhya Pradesh Governor Ram Naresh YadavTRANSCRIPT
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W.P. No.3346/2015
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No. 3346/2015
Shri Ram Naresh Yadav ..Petitioner
Versus
State of M.P. and others .Respondents
=============================================
Coram:
Honble Shri Justice A. M. Khanwilkar, Chief Justice Honble Shri Justice Rohit Arya, J.
Whether approved for reporting? - Yes.
================================================
Shri Ram Jethmalani, learned Senior Advocate with Shri
Adarsh Muni Trivedi, Senior Advocate assisted by Shri Ashok
Kumar Singh, Shri Surinder Datt Sharma and Shri Mahendra
Pateriya Advocates for the petitioner.
Shri Ravish Chandra Agrawal, learned Advocate General
with Shri P.K.Kaurav, Additional Advocate General and Shri
Prakash Gupta, Panel lawyer for the respondent/State.
Shri Vikram Singh, Advocate for the Union of India.
=============================================
Reserved on : 17.04.2015
Date of Decision : 05.05.2015
J U D G M E N T
[Delivered on 05th
May of 2015]
Per: A.M.Khanwilkar, Chief Justice:
This petition under Article 226 of the Constitution of India,
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W.P. No.3346/2015
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is, essentially, for quashing of F.I.R. No.4/2015 qua the
petitioner lodged at Police Station, S.T.F., Bhopal on 24.02.2015
for offences punishable under Sections 417, 420, 467, 468, 471,
477-A and 120-B of Indian Penal Code read with Section 65 and
66 of Information Technology Act, Section 7, 13 (1D), 13 (2)
and 15 of the Prevention of Corruption Act, 1988 and Section 3
(d), 1, 2/4 of M.P.Manyata Prapt Pariksha Adhiniyam, 1937.
2. The petitioner has been named as accused No.10 in the said
FIR. The FIR reads thus :-
QkWeZ ua + 1
izFke lwpuk izfrosnu /kkjk 154 n +izfdz;k lafgrk ds vUrxZr FIRST INFORMATION REPORT (Under Sec. 154 Cr. P.C.)
1- ftyk& Hkksiky Fkkuk& ,l-Vh-,Q- e-iz- o"kZ 2015 iz-l-dz- 04@15
fnukad 24-02-2015
2 +1 fo/kku& Hkkjrh; n.M lafgrk& /kkjk& 417] 420] 467] 468]
471] 477d] 120ch
2 fo/kku& lwpuk izkS|ksfxdh vf/kfu;e&2005 /kkjk&
65]66
3 fo/kku& e-iz- ekU;rk izkIr ijh{kk vf/kfu;e&1937
/kkjk&3?k&12 lgifBr /kkjk&4
4 fo/kku& Hkz"Vkpkj fuokj.k vf/kfu;e&1988 /kkjk&7]
131&Mh&III] 132] 15
3-v lanfHkZr jkstukepka lkUgk dz.
............................................................................. c ?kVuk dk fnu & ouj{kd HkrhZ ijh{kk fnukad 03-03-2013 ds
iwoZ ls vafre ijh{kk ifj.kke fnukad 12-06-2013 rd
l Fkkus ij lwpuk izkIr gksus dk fnukad& 24-02-2015 le; 17-
05 cts jks-lk- dz- & 611
4- lwpuk dk izdkj fyf[kr@ekSf[ke
5- ?kVuk LFky %& v Fkkus ls fn'kk o nwjh iwoZ 4 fdeh +
c ?kVuk LFky dk irk ------- O;kie dk;kZy; Hkksiky chV ua
+& fujad
l ?kVuk LFky vU; Fkkuk {ks=kf/kdkj gS rks Fkkuk & fujad
ftyk & fujad
6- vfHk;ksxh@lwpukdrkZ % v uke & Mh-,l- c?ksy
c firk@ifr@ikyd dk uke Lo-Jh vkj-,e-,l- c?ksy
l tUe fnukad@o"kZ 01-07-1957 M jk"Vh;rk & Hkkjrh;
r ikliksVZ ua +&& fujad tkjh fnukad & fujad tkjh
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W.P. No.3346/2015
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gksus dk LFkku & fujad
d O;olk; & mi iqfyl v/kh{kd [k irk& e-iz- ,l-Vh-
,Q- Hkksiky
7- Kkr@vKkr@lansgh@vkjksih dk iw.kZ fooj.k
vko';drkuqlkj i`Fkd i`"B dk iz;ksx djsa
1& MkW + iadt f=osnh] rRdkyhu fu;a=d] O;kie 2& fufru
eksfgUnzk] lhfu;j flLVe ,ukfyLV O;kie 3& lh-ds- feJk] lgk;d
izksxzkej] O;kie 4& Hkjr feJk] 5&jk?kosUnz flag rksej] 6&
latho lDlsuk] 7& vt; JhokLro] 8& rjax 'kekZ] 9& lq/khj 'kekZ]
10& jkeujs'k ;kno] jkT;iky 11& y{ehdkar 'kekZ] iwoZ ea=h 12&
MkW- vt; 'kadj esgrk 13&Hkwisunz JhokLro] 14& lEcfU/kr
vH;fFkZ;ksa ds firk jk/kkLokeh lRlax O;kl ds lnL; 15& 212250
panzohj flag pkSgku] 16& 219493 nsosUnz eksgrqjs] 17& 232588 eksgu
flag] 18& 234901 ftrsUnz oekZ] 19& 235939 lqjsUnz dqekj j?kqoa'kh]
20& 236565 ns'kjkt flag] 21& 236994 _"khds'k 'kekZ]
22& 241355 lrh'k dqekj ;kno] 23& 243042 HkwisUnz HknkSfj;k] 24&
243472 jksfgr jk;] 25& 244204 'k'kh Hkw"k.k JhokLro] 26& 244552
lanhi dqekj iVsy] 27& 245887 lwjt flag] 28& 248741 chuk flag]
29& 249109 eksfgr 'kekZ] 30& 249243 egs'k dqekj] 31& 249350
'k=q/ku flag] 32& 250803 nhid jktiwr] 33& 252245 euh'k dqekj
;kno] 34& 252516 vfHk"ksd ujokjs] 35& 0254768 jktk Bkdqj] 36&
262773 deys'k jk;] 37& 272521 thrsUnz dqekj ik.Ms] 38&
273240 u;ad lDlsuk] 39& 280875 vfer ;kno] 40& 285884
vk'kk pkSgku] 41& 297762 lans'k j?kqoa'kh] 42& 299490 nhid
j?kqoa'kh] 43& 299982 'kkghu ckuks] 44& 301174 lat; flag] 45&
304875 Hkwisnz flag] 46&305194 lanhi dqekj ;kno] 47& 305296
jkds'k flag] 48& 307916 ftrsUnz flag HknkSfj;k] 49& 312058 lq/khj
'kekZ] 50& 317562 /kesZUnz flag] 51& 318239 vjosUnz dq'kokg] 52&
318528 jkeujs'k flag] 53& 321999 jkgqy dq'kokgk] 54& 328309
izoh.k j?kqoa'kh] 55& 328783 fou; flag rksej] 56& 329050 jktho
dqekj nhf{kr] 57& 329579 fo'kky iVsy] 58& 331228 :is'k f}osnh]
59& 331978 mes'k dqekj nqcs] 60& 332188 foosdkuan j?kqoa'kh]
61& 332284 Hkxoku flag] 62& 332304 'kSysUnz iqjfo;k] 63&
333081 jfld fcgkjh j?kqoa'kh] 64& 333115 'kSysUnz dqekj j?kqoa'kh]
65& 333179 lanhi iqjfo;k] 66& 333257 Hkkjr flag Bkdqj] 67&
333420 vk'kh"k j?kqoa'kh] 68& 335310 lquhy j?kqoa'kh] 69& 388944
lso dqekj fryxkao] 70& 391909 d`".k vorkj rksej] 71& 392854
vthr flag tkSuokj] 72& 393072 lrsUnz 'kekZ] 73& 394098 lqjsUnz
flag] 74& 394721 Hkku flag] 75& 397501 xksfoUn 'kekZ] 76&
412144 eqds'k 'kekZ] 77& 414610 vfHkuo 'kekZ] 78& 424083 foius'k
f}osnh] 79& 425108 eusUnz flag iVsy] 80& 426810 /khjsUnz f}osnh]
81& 426930 lat; flag] 82& 437171 f'kojkt flag nkaxh] 83&
440173 euh'k flag] 84& 443311 vfuy dqekj lkdsr] 85& 444508
ftrsUnz dqekj peZdkj] 86& 445562 czt fd'kksj] 87& 445678
dfiy dqekj lsu] 88& 454009 izhre flag pkSgku] 89& 463507
iq"isUnz dq'kokg] 90& 469033 d`".kiky flag xkSj] 91& 484110 ;'k
fuxe] 92& 485781 eksgu flag fxjukj] 93& 486939 fues'k
mnsfu;k] 94& 487375 dsfuFk ikWy] 95& 487574 c`ts'k jktiwr] 96&
491003 f'ko izrki j?kqoa'kh] 97& 492393 vfer lsu] 98& 492897
jfoUnz lsu] 99& 492965 ohjsUnz dqekj ;kno] 100& 492993 'kjn
;kno] 101& 493356 y{ehdkar nqcs ,oa vU;A
8- vfHk;ksxh@lwpukdrkZ }kjk lwpuk fn;s tkus esa foyEc dk
dkj.k& vU; izdj.k dh foospuk o
tkap ij ls
9- vig~r@lEc+) lEifRr dk iw.kZ fooj.k vko';drkuqlkj
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W.P. No.3346/2015
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i`Fkd i`"B dk iz;ksx djsa fujad
10- vig~r@lEc) lEifRr dk dqy ewY; & fujad
11- exZ@vdky e`R;q lwpuk dzekad ;fn gks fujad
12- izFke lwpuk fooj.k & vko';drkuqlkj i`Fkd i`"B dk iz;ksx
djsaA
eSa ,l0Vh0,Q0 e/;izns'k Hkksiky esa mi iqfyl v/kh{kd ds in ij
inLFk gwaA Fkkuk jktsUnz uxj ftyk bUnkSj ds vijk/k dzekad &
539@13] /kkjk 419] 420] 467] 468] 471] 120ch] 201 Hkkjrh; n.M
lafgrk 65 lwpuk izkS|ksfxdh vf/kfu;e 25] 27 vk;q/k vf/kfu;e] 34
vkcdkjh vf/kfu;e ,oa e/;izns'k ekU;rk izkIr ijh{kk vf/kfu;e
1937 dh /kkjk 3?k 1] 2@4 ,oa Fkkuk ,l-Vh-,Q- ds vijk/k dzekad
12@13 /kkjk 420] 467] 468] 471] 120&ch Hkkjrh; naM lafgrk 65]
66 lwpuk izkS|kfxdh vf/kfu;e] /kkjk 3?k & 1] 2@4 e/;izns'k
ekU;rk izkIr ijh{kk vf/kfu;e& 1937 dh foospuk esjs }kjk dh tk
jgh gSA mDr izdj.kksa dh foospuk ds nkSjku Fkkuk jktsUnz uxj]
ftyk bankSj e0iz0 ds vijk/k dzekad& 539@13 esa e/;izns'k
O;kolkf;d ijh{kk eaMy] Hkksiky ds fizalhiy flLVe ,ukfyLV
vkjksih fufru eksfgUnzk ds dk;kZy; ds pSEcj esa yxs dEI;wVj ds
lhih;w dh fnukad 26-07-13 dks tIr lsds.M gkMZfMLd ijh{k.k gsrq
Mk;jsDVzsV vkWQ QkWjsfUld lkbZal] xka/kh uxj xqtjkr Hksth xbZ FkhA
tgka ls ijh{k.k i'pkr gkMZfMLd e; Dyksu ,oa izfrosnu ds fnukad
06-06-2014 dks izkIr gqbZA e/;izns'k ,l0Vh0,Q0 dh rduhdh Vhe
dks bl gkMZfMLd dk Dyksu ,oa vijk/k dzekad&12@13 dh foospuk
esa O;kolkf;d ijh{kk eaMy] Hkksiky ds dEI;wVj 'kk[kk ds vks,evkj
LdSuj ls tqM+h gkMZfMLd ds Dyksu ,oa lgk;d izksxzkej lh-ds- feJk
ds vkWfQl ds dEI;wVj dh gkMZfMLd dk Dyksu feyku gsrq fn;k
x;kA rduhdh Vhe }kjk ijh{k.k i'pkr vius i= dzekad
,lVh,Q@Vsdlsy@,Q09@2014 fnukad 20-10-14 ds ek/;e ls
gkMZfMLd Dyksu esa miyC/k MkVk dk izfrosnu izLrqr fd;k x;kA
mDr izfrosnu dk voyksdu djus ij O;kolkf;d ijh{kk e.My
}kjk vk;ksftr ijh{kkvksa ds fo"k; esa ,lVh,Q }kjk foosfpr izdj.k
ds vfrfjDr dqN vU; ijh{kkvksa ds fo"k; esa lafnX/k QkbZysa izkIr gqbZA
mDr lafnX/k QkbZyksa esa O;kie }kjk o"kZ 2013 esa vk;ksftr ouj{kd
HkrhZ ijh{kk dh Hkh ,d QkbZy izkIr gqbZA mDr ijh{kk ds laca/k esa
O;kie ls tkudkjh izkIr dj ,lVh,Q dh Vh rduhdh Vhe dks
lafnX/k QkbZy ds MkVk ls feyku gsrq miyC/k djkbZ xbZA ,l-Vh-,Q-
dh rduhdh Vhe }kjk vius i= dzekad
,lVh,Q@Vsdlsy@,Q&11@2014 Hkksiky fnukad 22-11-14 ds
ek/;e ls izfrosnu izLrqr fd;k x;k] ftlesa mUgksaus O;kie ds
fizalhiy flLVe ,ukfyLV fufru eksfgUnzk ds dk;kZy; ds dEI;wVj
ls tIr lsd.M gkMZfMLd lh&6 esa ouj{kd HkrhZ ijh{kk 2013 ls
lacaf/kr feyh lafnX/k QkbZy dk] lgk;d izksxzkej lh-ds- feJk ds
vkWfQl ds dEI;wVj ls tIr gkMZfMLd lhds,e&1 ,oa O;kie ls
izkIr ouj{kd ijh{kk] 2013 ds ijh{kk ifj.kke dh eSiQkbZy ls feyku
djus ij 87 vH;fFkZ;ksa] ftuds jksy uEcj o uke ds vkxs fjekdZ esa
e/;LFk dk uke ,oa muds ifj.kke MkVk esa vUrj gksuk ys[k fd;k gS]
tks vH;FkhZ fuEu gSa& 1& 212250 panzohj flag pkSgku] 2& 219493
nsosUnz eksgrqjs] 3& 232588 eksgu flag] 4& 234901 ftrsUnz oekZ] 5&
235939 lqjsUnz dqekj j?kqoa'kh] 6& 236565 ns'kjkt flag] 7& 236994
_f"kds'k 'kekZ] 8& 241355 lrh'k dqekj ;kno] 9& 243042 HkwisUnz
HknkSfj;k] 10& 243472 jksfgr jk;] 11& 244204 'k'kh Hkw"k.k
JhokLro] 12& 244552 lanhi dqekj iVsy] 13& 245887 lwjt flag]
14& 248741 chuk flag] 15& 249109 eksfgr 'kekZ] 16& 249243
egs'k dqekj] 17& 249350 'k=q/ku flag] 18& 250803 nhid jktiwr]
19& 252245 euh'k dqekj ;kno] 20& 252516 vfHk"ksd ujokjs] 21&
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W.P. No.3346/2015
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0254768 jktk Bkdqj] 22& 262773 deys'k jk;] 23& 272521
thrsUnz dqekj ik.Ms] 24& 273240 e;ad lDlsuk] 25& 280875 vfer
;kno] 26& 285884 vk'kk pkSgku] 27& 297762 lans'k j?kqoa'kh] 28&
299490 nhid j?kqoa'kh] 29& 299982 'kkghu ckuks] 30& 301174
lat; flag] 31& 304875 HkwisUnz flag] 32& 305194 lanhi dqekj
;kno] 33& 305296 jkds'k flag] 34& 307916 ftrsUnz flag HknkSfj;k]
35& 312058 lq/khj 'kekZ] 36& 317562 /keZsUnz flag] 37& 318239
vjosUnz dq'kokg] 38& 318528 jkeujs'k flag] 39& 321999 jkgqy
dq'kokg] 40& 328309 izoh.k j?kqoa'kh] 41& 328783 fou; flga rksej]
42&329050 jktho dqekj nhf{kr] 43& 329579 fo'kky iVsy] 44&
331228 :is'k f}osnh] 45& 331978 mes'k dqekj nqcs] 46& 332188
foosdkuan j?kqoa'kh] 47& 332284 Hkxoku flag] 48& 332304 'kSysUnz
iqjfo;k] 49& 333081 jfld fcgkjh j?kqoa'kh] 50& 333115 'kSysUnz
dqekj j?kqoa'kh] 51& 333179 lanhi iqjfo;k] 52& 333257 Hkkjr flag
Bkdqj] 53& 333420 vk'kh"k j?kqoa'kh] 54& 335310 lquhy j?kqoa'kh]
55& 388944 lso dqekj fryxke] 56& 391909 d`".k vorkj rksej]
57& 392854 vthr flag tkSuokj] 58& 393072 lrsUnz 'kekZ] 59&
394098 lqjsUnz flag] 60& 394721 Hkku flag] 61& 397501 xksfoUn
'kekZ] 62& 412144 eqds'k 'kekZ] 63& 414610 vfHkuo 'kekZ] 64&
424083 foius'k f}osnh] 65& 425108 eusUnz flag iVsy] 66& 426810
/khjsUnz f}osnh] 67& 426930 lat; flag] 68& 437171 f'kojkt flag
nkaxh] 69& 440173 euh'k flag] 70& 443311 vfuy dqekj lkdsr]
71& 444508 ftrsUnz dqekj peZdkj] 72& 445562 czt fd'kksj] 73&
445678 dfiy dqekj lsu] 74& 454009 izhre flag pkSgku] 75&
463507 iq"isUnz dq'kokg] 76& 469033 d`".kiky flag xkSj] 77&
484110 ;'k fuxe] 78& 485781 eksgu flag fxjukj] 79& 486939
fues'k mnsfu;k] 80& 487375 dsfuFk ikWy] 81& 487574 c`ts'k
jktiwr] 82& 491003 f'ko izrki j?kqoa'kh] 83& 492393 vfer lsu]
84& 492897 jfoUnz lsu] 85& 492965 ohjsUnz dqekj ;kno] 86&
492993 'kjn ;kno] 87& 493356 y{ehdkar nqcsA bu 87 vH;fFkZ;ksa
,oa muds uke ds vkxs mYysf[kr fjekdZ ds dkWye esa e/;LFkksa ds
laca/k esa Fkkuk ,lVh,Q ds vijk/k dzekad 18@14 /kkjk 420] 467]
468] 471] 477d] 120ch Hkkjrh; n.M lafgrk] e/;izns'k ekU;rk
izkIr ijh{kk vf/kfu;e dh /kkjk 3?k&12 lgifBr /kkjk&4 ,oa
Hkz"Vkpkj fuokj.k vf/kfu;e dh /kkjk 131&Mh] 132 esa iqfyl
vfHkj{kk esas fy;s x;s vkjksih O;kie ds rRdkyhu fizlhiy flLVe
,ukfyLV fufru eksfgUnzk ,oa rRdkyhu fu;a=d@lapkyd iadt
f=osnh] rRdkyhu flLVe ,ukfyLV vt; lsu ,oa lgk;d izksxzkej
panzdkr feJk ls iwNrkN djus ij fufru eksfgUnzk }kjk mDr
vH;fFkZ;ksa ds laca/k esa dqN yksxks ds uke mls lh/ks izkIr gksuk rFkk
dqN uke rRdkyhu fu;a=d iadt f=osnh }kjk nsuk rFkk muds
crk;s vuqlkj lwph esa fjekdZ ds dkWye esa uke mYysf[kr djuk ,oa
mDr leLr vH;fFkZ;ksa ds laca/k esa ,d Qkby ,Dly lhV esa rS;kj
djuk] ftuesa vH;FkhZ dk jksy ua-] lsaVj dzekad] ,Dtke flVh dzekad]
lh,Q use] lh-,y- use] fjekZd gkbZ ekDlZ] vVsEIV] CySad VksVy]
fjDok;MZ] VwMw] lsV] ,p- VksVy ds dkWye esa iwjh tkudkjh mlesa
fd;s x;s ifjorZu vuqlkj Qkby rS;kj djuk crk;kA fjekdZ ds
dkWye esa mYysf[kr e/;LFk ds ckjs esa Hkjr esjk fe= ,oa iM+kslh
Hkjr feJk gS] ftlds }kjk 20 vH;fFkZ;ksa ds uke dh fyLV mlds
vkWfQl esa jk?kosUnz rksej ds }kjk Hkjr feJk ds dgus ij fyQkQsa esa
Vscy ij j[kh fyLV nsuk] lDlsuk ls vk'k; jk/kkje.k bathfu;fjax
dkWyst okys latho lDlsuk ls gS] ftlds }kjk ckr djds mlds
vkneh vt; JhokLro ds ek/;e ls 21 vH;fFkZ;ksa ds uke dh lwph
fHktokuk] rjax ls vk'k; rjax 'kekZ IykusV MhEt+ Vwj ,.M VsoYl
ds ekfyd ls gS] ftlds }kjk 10 vH;fFkZ;ksa ds uke nsuk] vt;
esgrk ls vk'k; MkW- vt; 'kadj esgrk Hkksiky ds;j gkWLihVy okys
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W.P. No.3346/2015
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ls gS] ftlds ifjfpr egky{eh dEI;wVj ,oa VzsoYl ,tsUlh okys
HkwisUnz JhokLro }kjk MkW- vt; 'kadj esgrk ds 7 uEcj LVkWQ ds ,-
Vh-,l- VsDuksykWth dk;kZy; esa vkdj 03 vH;fFkZ;ksa ds uke nsuk]
**vkj,l,lch** ls vk'k; **jk/kkLokeh lRlax O;kl** ls gS] ftlds nks
lnL;ksa ds yM+dksa ds uke muds firk }kjk nsuk vkSj bu vH;fFZk;ksa
ds laca/k esa dksbZ jkf'k ugha feyuk] tcfd Hkjr feJk ds vH;fFkZ;ksa ls
lacaf/kr jkf'k Hkjr feJk }kjk izkWiVhZ ds dke esa yxkuk o ckn esa
fglkc djuk crk;k x;kA blds vfrfjDr 'ks"k vH;fFkZ;ksa ds uke
O;kie ds fu;a=d iadt f=osnh }kjk nsuk ,oa muds }kjk crk;s x;s
vuqlkj ,oa nh xbZ lwph@izos'k i= dh Nk;kizfr ls mYysf[kr
e/;LFkksa ds uke gkbZ@lq/khj yks ls vk'k; vkd`fr xkMZu fuoklh
[kuu dkjksckjh lq/khj 'kekZ ls] xouZj ls vk'k; e-iz- ds orZeku
jkT;iky Jh jkeujs'k ;kno ls] fefuLVj ls vk'k; rRdkyhu
rduhdh ,oa mPp f'k{kk ea=h y{ehdakr 'kekZ ls] fefuLVj okbZQ ls
vk'k; ea=h iRuh ls] ftlesa ,d vH;FkhZ ds izos'k i= dh Nk;kizfr esa
ea=k.kh fy[kk gksus ls iwNus ij iadt f=osnh }kjk mDr uke
y{ehdkar 'kekZ ds ;gka ls gh feyuk rFkk fdlh efgyk ea=h ;k ea=h
dh iRuh dk gksxk dgus ij mYys[k djuk crk;k gSA lq/khjgkbZ ,oa
lq/khjyks ds uke okys vH;fFkZ;ksa dh izkFkfedrk muds crk, vuqlkj
fd dkSu egRoiw.kZ gS ,oa dkSu lkekU; gS] ds vuqlkj mYys[k djuk
o mDr vH;fFkZ;ksa ls dksbZ jkf'k ugha feyuk crk;kA bl laca/k esa
iadt f=osnh us iwNrkN djus ij lq/khj gkbZ ,oa lq/khj yks ds
uke okys vH;fFkZ;ksa ds laca/k esa lq/khj 'kekZ }kjk ckr djds muds
vkneh ls 08 vH;fFkZ;ksa dh lwph fHktokuk rFkk mDr lwph esa ls 02
vH;fFkZ;ksa dks vko';d :i ls mRrh.kZ djus ,oa 'ks"k dks O;oLFkk
vuqlkj mRrh.kZ djus dk dgus ij] gkbZ dk eryc vko';d :i ls
mRrh.kZ djus ,oa yks dk eryc lkekU; ifjfLFkfr esa O;oLFkk vuqlkj
mRrh.kZ djus gsrq fufru eksfgUnzk dks dguk crk;kA blh izdkj
xoZuj ls lacaf/kr 05 vH;fFkZ;ksas ds ckjs esa] e/;izns'k ds jkT;iky
jkeujs'k ;kno }kjk uke nsuk] blh izdkj] fefuLVj okbZQ okys 01
vH;FkhZ dk uke ea=hth Jhy{ehdkar 'kekZ th ds ;gka ls feyuk ,oa
mDr vH;FkhZ ds izos'k&i= dh Nk;kizfr esa ea=k.kh fy[kk gksuk ,oa
fdlh ea=h dh iRuh ls lacaf/kr vH;FkhZ gksuk crk;kA fefuLVj okys
fy[ks gq, 17 vH;fFkZ;ksa ds uke ea=hth Jh y{ehdkar 'kekZ th ds
;gka ls] ftuesa ls dqN uke muds }kjk lh/ks ,oa dqN uke muds
dk;kZy; ls izkIr gksuk crk;k rFkk bu vH;kfFkZ;ksa ds laca/k esa dksbZ
jkf'k izkIr gksuk ugha crk;k gSA
fufru eksfgUnzk }kjk ouj{kd HkrhZ dh ijh{kk ds mDr 87
vH;fFkZ;ksa dh vks-,e-vkj- lhV Ldsfuax ds ckn feuhLVkWax :e esa tek
gksus ds i'pkr~] Ldsu fd;s x;s MkVk esa] bl ,Dlsy 'khV ds vuqlkj
vadksa esa lh-ds- feJk ls ifjorZu djkdj ifj.kke ?kksf"kr gksus ds ckn]
vkj-Vh-vkbZ- ds varxZr tkudkjh nsus ds cgkus lh-ds- feJk ds ek/;e
ls feuhLVkWax :e ls vks-,e-vkj- 'khV fudyokdj] Ldsu MkVk esa
fd;s x;s ifjorZu ds vuqlkj gh [kkyh xksys Hkjuk@Hkjokuk crk;k
gSA
bl izdkj O;kie ds mijksDr of.kZr rRdkyhu
vf/kdkfj;ksa@deZpkfj;ksa }kjk "kM;a=iwoZd lqfu;ksftr rjhds ls yksd
lsod gksrs gq, vius inh; drZO;ksa dk nq:i;ksx djrs gq, vuqfpr
ykHk izkIr djus ds fy;s lhV esa mYysf[kr mijksDr vH;fFkZ;ksa ,oa
muds of.kZr e/;LFkksa] ftuds ek/;e ls muds uke izkIr gq, Fks] dks
vuqfpr ykHk igqapkus ds fy;s mijksDr vafdr 87 vH;fFkZ;ksa ds vadksa
esa ifjorZu djrs gq,] mDr vH;fFkZ;ksa dks ouj{kd HkrhZ ijh{kk 2013
esa mRrh.kZ djus gsrq dwV jpuk djrs gq, mudh vks-,e-vkj- lhV ds
Ldsu MkVk esa NsM+NkM+ dj] vad c
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W.P. No.3346/2015
7
vH;fFkZ;ksa }kjk vuqfpr rjhds ls e/;LFkksa ds ek/;e ls fo'ks"k ykHk
izkIr djrs gq, O;kie ds vf/kdkjh@deZpkjh rFkk e/;LFkksa ds lkFk
feydj ;kstukc) rjhds ls laxfBr vijkf/kd fxjksg ds :i vijk/k
?kfVr fd;k gSA bl izdkj lacaf/kr O;kie vf/kdkfj;ksa@deZpkfj;ksa]
muls ;k muesa ls fdlh ls flQkfj'k djus okys] e/;LFkksa ,oa mDr
vH;fFkZ;ksa dk ;g d`R; /kkjk& 417] 420] 467] 468] 471] 477d]
120&ch] Hkkjrh; naM lafgrk ,oa 3?k12 lgifBr /kkjk 4 e/;izns'k
ekU;rk izkIr ijh{kk vf/kfu;e 1937 ,oa lwpuk izkS|ksfxdh vf/kfu;e
dh /kkjk 65] 66 rFkk Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk
7&131&Mh&III 132] 15 ds varxZr naMuh; vijk/k gksus ls izdj.k iathc) dj foospuk esa fy;k x;kA
13- dk;Zokgh tks fd xbZ % mijksDr fooj.k ls /kkjk % 417]
420] 467] 468] 471] 477d 120&ch] Hkkjrh; naM lafgrk ,oa
3?k12 lgifBr /kkjk 4 e/;izns'k ekU;rk izkIr ijh{kk vf/kfu;e
1937 ,oa lwpuk izks|ksfxdh vf/kfu;e dh /kkjk 65] 66 rFkk
Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 7] 131&Mh&III 132] 15 dk izdj.k iathc) dj foospuk esa fy;k x;k rFkk m-iq-v- th-ih-
vxzoky dks izdj.k foospuk gsrq lkSaik x;k] ;k {ks=kf/kdkj ds
n`f"Vxr Fkkuk fujad ftyk fujad dks LFkkukarfjr fd;k x;k ;k n-
iz-la- dh /kkjk 157 c ds varxZr dk;Zokgh dh xbZA
vfHk;ksxh@lwpukdrkZ dks iz-lw- i= i
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W.P. No.3346/2015
8
being party to the conspiracy along with other co-accused. The
petitioner has prayed for quashing of FIR qua him. The grounds
stated in the writ petition, inter-alia, are that if a person bonafide
believing that the candidate who has applied for the job has
adequate fitness for that job and there is nothing in his character
and antecedent to disqualify him recommends his name for
consideration, that by itself will not constitute commission of
any offence much less a cognizable offence. Further, no FIR
could have been registered against the petitioner without a
preliminary enquiry for ascertaining the genuineness of the
information and whether it amounts to commission of
cognizable offence. That was mandatory as has been held by the
Constitution Bench of the Supreme Court in the case of Lalita
Kumari Vs. Government of U.P. and others1. The second
ground urged in the writ petition, is that, the Special
Investigation Team (SIT) appointed by the High Court for
monitoring the investigation of VYAPAM examination scam
crimes was aware of the material submitted by a responsible
leader of a long standing and Member of Rajya Sabha Shri
Digvijay Singh along with his signed affidavit - mentioning that
1 2014 (2) SCC 1
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W.P. No.3346/2015
9
the excel sheet to which reference has been made in the FIR has
been forged by alteration and the name of Governor has been
substituted in place of the Chief Minister. That information
ought to have been verified before registration of FIR. At the
same time, however, it is conceded by the petitioner that the said
material pertained to selection of Teachers and not Forest
Guards, which is the subject matter of the impugned FIR. The
third ground urged in the writ petition, is that, the FIR does not
disclose that the informant had personal knowledge of the
factum of Governor having made any recommendation nor the
informant has mentioned that the Governor had communicated
with him in that behalf. On the other hand, the allegations in the
FIR refer to some intermediary and the statement made by
unknown and undisclosed intermediary. That cannot be used to
implicate the Governor of the State. The next ground urged is
that the Governor is a highly respected statesman who is now
more than 87 years old having unblemished record in various
capacities including being Member of Parliament and Chief
Minister of State of Uttar Pradesh. It is then contended that the
petitioner has been suffering from serious health problems and
was admitted to Intensive Care Unit (ICU) for sometime before
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W.P. No.3346/2015
10
being discharged and is under constant supervision of Doctors
and medication. It is also contended that the order passed by this
Court in suo-moto proceedings being Writ Petition
No.6385/2014 (in which investigation by STF of VYAPAM
Scam Crimes is being monitored by the High Court), on
20.02.2015, was being misinterpreted to mean that sanction is
accorded to STF to proceed against the petitioner (Governor).
For that, the said order needs to be clarified and/or partially
revoked as it has been passed without giving opportunity to the
petitioner, ex debito justitiae, keeping in mind the legal principle
expounded in A.R.Antulay Vs. R.S.Nayak and another2 and
Ruppa Hurra Vs. Ashok Hurra3. Further, the petitioners right
to a fair trial is being violated thereby his right under Article 21
of the Constitution of India has been abridged. It is then urged
that the petitioner has not communicated orally or in writing, to
anyone, muchless recommended any candidate whatsoever for
any job concerning examination conducted by VYAPAM. It is
then contended that the accused Nitin Mohindra is in custody
since 18th
July, 2013. During the interrogation he must have
concocted a false theory. That fake theory is being used to name 2 (1988) 2 SCC 602
3 (2002) 4 SCC 388
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W.P. No.3346/2015
11
the petitioner as one of the offender. Further, the Investigating
Agency has misused the provision of Section 162 of Cr.P.C. by
recording statements of co-accused whilst in custody. As the FIR
is based on such statements though formally signed by a Police
Officer, it is the product of the information given by the
co-accused. The person who made such false disclosure should
have signed the FIR as informant and for which reason it must
be declared that no use can be made of that document (impugned
FIR) to proceed against the petitioner being the Governor of the
State. It is next urged in the writ petition that the impugned FIR
is a public document and after its registration is required to be
reported to the Court having jurisdiction to try the case. As a
result, the registration of FIR against the petitioner during his
term of office, by itself, results in infringement of constitutional
immunity extended to the Governor under Article 361 (2) of the
Constitution of India. It is next contended that the police officer
investigating the crime has not even asked for permission to
meet the petitioner to verify or enquire about the disclosure
made by Nitin Mohindra who is in custody for quite sometime.
According to the petitioner, the disclosure now made by Nitin
Mohindra is questionable because, it has been made whilst in
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W.P. No.3346/2015
12
custody of police for a long time. Long delay in disclosure of the
information also necessitated a preliminary enquiry in view of
exposition in Lalita Kumaris case. The next ground urged in
the petition, is that, the petitioner is entitled for complete
immunity against any criminal proceedings in terms of Article
361 (2) and (3) of the Constitution of India. It is then contended
that the FIR as lodged by the STF is false and frivolous and is
based on statements of co-accused who are in custody for more
than 1 years and further that STF (Investigating Agency) is
adopting pick and choose method and acting under political
pressure and not following the procedure prescribed under the
law.
4. These are the grounds urged in the writ petition for
quashing of the impugned FIR qua the petitioner. The petitioner
has asked for a further declaration that a preliminary enquiry
must be held to find out as to whether the alleged action of the
petitioner is based on (i) some credible evidence and (ii) it
amounts to commission of cognizable offence, for the purpose of
Lalita Kumaris case.
5. During the oral arguments Shri Ram Jethmalani, learned
Senior counsel appearing for the petitioner submitted that the
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W.P. No.3346/2015
13
core issue is about the complete constitutional immunity
extended to the incumbent occupying the office of Governor, in
terms of Article 361 of the Constitution of India. Having regard
to the nature of constitutional duties and powers of the Governor,
that can be interfered with only if the constitution permits to do
so. The institution of criminal action against the Governor
cannot be justified on the basis of any legislation made by the
Parliament which inevitably would impede the constitutional
rights and duties to be discharged by the Governor wholly or
partly. He placed emphasis on the observations of Jurist Story in
his commentaries on the Constitution of United States, which
has been quoted with approval by the Supreme Court in the case
of Union Carbide Corporation and others Vs. Union of India
and others4 at page 641, Jurist Story has observed thus :-
There are. Incidental powers, belonging to the executive department, which
are necessarily implied from the nature of the
functions, which are confided to it. Among
these, must necessarily be included the power
to perform them. The President cannot, therefore, be liable to arrest, imprisonment, or
detention, while he is in the discharge of the
duties of his office; and for this purpose his
person must be deemed, in civil cases at least,
to possess an official inviolability.
4 1991 (4) SCC 584
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W.P. No.3346/2015
14
Reliance is also placed on Paragraphs 101, and 170 to 180 of
the same decision.
6. Having said this, the learned counsel would then submit
that the imperativeness of immunity from arrest of the Governor
has been explicitly ordained by Article 361 (3) - which must be
protected and preserved because of the nature of duties and
constitutional powers exercised by him. The immunity given
under Article 361 completely eclipses the statutory powers
vested in the police qua the Governor. The police cannot be
allowed to whittle down that privilege and immunity by
resorting to ordinary process under the Code of Criminal
Procedure. He further submits that the plenitude of expression
whatsoever used in Article 361 (2), is very wide. It not only
encompasses the bar of taking cognizance of the criminal
offence by the Court but also registration of FIR against the
Governor by the police, during the term of his office. For, the
First Information Report (FIR) in respect of a cognizable offence
is a criminal proceeding instituted; and considering the mandate
of Section 157 of Cr.P.C., the police officer is obliged to
forthwith submit report to the specified Court in that behalf. That
partakes the color of institution of a criminal proceeding in the
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W.P. No.3346/2015
15
Court. To buttress this submission, reliance has been placed on
the decision of the Full Bench of Kerala High Court in the case
of Albert Vs. State of Kerala5. It is then argued that the
criminal proceedings in any Court referred to in Article 361 (2)
of the Constitution must be understood in the context of the
expression whatsoever, which follows the expression criminal
proceedings; and if conjointly read with the legislative scheme
for registration of FIR as stipulated in Cr.P.C., in respect of
cognizable offence including the immediate mandatory follow
up steps to be taken by the police officer and the concerned
Court before which the report is submitted, it must follow that
the immunity is absolute and complete in that regard. In other
words, it is not limited to the stage of Court taking cognizance of
the offence after filing of the charge-sheet/police report under
Section 173 of the Code but also for registration of FIR against
the Governor during his term of office. Any other interpretation
would be doing violence to the intendment of Article 361 (2) and
inevitably entail in whittling down the complete immunity from
the institution of criminal proceedings against the Governor
during his term of office. Reliance has been placed on the
5 AIR 1966 Kerala 11
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W.P. No.3346/2015
16
decision of the Division Bench of the Allahabad High Court in
the case of Emperor Vs. Johri6. The Division Bench of the
Allahabad High Court has held that making of a false charge to
the police of a cognizable offence entails in institution of
criminal proceedings within the meaning of Section 211 of I.P.C.
Further, the expression criminal proceeding also refers to
police investigation as well as to prosecution.
7. In substance, the argument is that the purport of Article 361
of the Constitution is of complete prohibition - even for
registration of FIR in respect of a cognizable offence against the
Governor during his term of office. Thus, it is prayed that the
FIR registered against the petitioner deserves to be quashed qua
the petitioner.
8. It is then submitted that by virtue of the bar stipulated in
Clause (3) of Article 361 and the complete immunity provided to
the Governor during his term of office from arrest or
imprisonment, the Court must issue appropriate writ and also
direct the Investigating Agency not to take any coercive action
of any kind against the petitioner such as by ordering his
appearance at the police station or compulsorily subjecting him
6 AIR 1931 All. 269
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W.P. No.3346/2015
17
to interrogation in connection with the alleged offence.
9. In the context of the relief to quash the FIR, it is submitted
that in any case, the present FIR does not reveal any facts which
would constitute commission of offence by the petitioner in
particular, with reference to the sections (offences) mentioned
therein. In that, no facts are stated as to what accused No.10, the
present petitioner, had done or illegally omitted to do except
being named as one of the 101 accused cited therein. Reliance is
placed on the celebrated decision in the case of State of
Haryana and Ors Vs. Bhajanlal and others7, wherein the
Court ruled that FIR can be quashed if the allegations made in
the FIR even if believed to be true do not prima facie constitute
or make out a case against the accused or where the allegations
made in the FIR even if proved to be true do not disclose a
cognizable offence. It is submitted that the petitioner had
allegedly recommended five candidates amongst the other
candidates named by the co-accused. That by itself is not
enough to constitute the alleged offence. Further, that evidence
is wholly inadmissible being hit by Sections 25
and 26 of the Evidence Act as well as
7 1992 Suppl. (1) SCC 335
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W.P. No.3346/2015
18
Section 162 of the Cr.P.C. The statement of co-accused can
never be proved against another co-accused in a Court of law;
and, therefore, in law, it cannot be made the basis of any
accusation against the petitioner. It is also submitted that the FIR
is based on information revealed from Computer Disc seized by
the police. That material cannot be used unless it is disclosed to
the petitioner. Reliance is placed on the decision of the Supreme
Court in the case of Additional District Magistrate, Jabalpur
Vs. S.S. Shukla8 in particular, paragraph 415, in support of the
argument that the Court cannot use any evidence not disclosed to
the accused. It is also contended that the Investigating Agency
(STF) itself was not fully convinced about the truthfulness and
veracity of the excel sheets prepared by accused No.2 as is
referred to in the FIR. For, several persons named/mentioned as
middlemen in the said excel sheets have not been named as
accused in the FIR, for reasons best known to the Investigating
Agency. The FIR does not disclose the circumstances in which
accused No.1 and accused No.2 came in police custody on
24.02.2015 for recording of their statements. For, they were in
judicial custody in connection with other crimes of the same
8 1976 (2) SCC 521
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W.P. No.3346/2015
19
type. Notably, complainant (informant) Baghel, is a police
officer. He has merely referred to the statements of co-accused
in the FIR, without disclosing as to why those statements have
been recorded by him after lapse of more than 1 years whilst
the accused Nos. 1 and 2 were in custody. The FIR does not
explain the delay in recording those statements, which,
inevitably, is a case of inexplicable delay in registration of FIR.
That, there is variance between the factual position disclosed by
accused Nitin Mohindra and another accused Pankaj Trivedi.
Taking their statements as it is, there is nothing to indicate that
the Governor had interacted directly with Nitin Mohindra. He
further submits that the requirement of Section 154 of the Code
is that, there must be informant to give information and which
in turn is recorded by the police officer. The Police officer who
recorded the statements of Nitin Mohindra and Pankaj Trivedi or
for that matter any other police officer could not become
informant himself. Moreover, the statements of co-accused
recorded by the police during the course of investigation of some
other crime cannot be treated as information given but as having
been extracted from the co-accused whilst in police custody. It is
then contended that with reference to the description
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W.P. No.3346/2015
20
Rajbhawan, the Investigating Agency has named O.S.D. of the
Governor as accused. In absence of any further evidence, it is
not possible to attribute involvement of the petitioner (Governor)
in commission of the alleged offence. The entry in the excel-
sheets, according to the petitioner, is a cover for somebody who
can be linked on credible and admissible evidence.
10. In substance, it is contended that the impugned FIR is
founded on the inadmissible statements of accused No.1 and 2
dated 24.02.2015. Accordingly, the FIR qua the petitioner
deserves to be quashed and that the dignity of the office of
Governor must be maintained by directing restraint from any
coercive action.
11. Although Mr. Jethmalani has prayed for quashing of FIR
qua the petitioner but at the same time he submits on instructions
of the petitioner that the petitioner does not want to impede the
investigation of the crime and that he will extend full
cooperation for investigation of the alleged crime as may be
necessary. The petitioner will ensure that all necessary
information requisitioned by the Investigating Officer within his
control will be furnished and clear instructions in that behalf to
all the officials in his office will be issued. If, in the course of
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W.P. No.3346/2015
21
investigation, any information is required from the petitioner, he
would provide that information to the Investigating Officer,
provided the concerned police officer must observe proper
protocol so as not to undermine the dignity of the office of the
Governor. Besides the oral arguments, Shri Jethmalani tendered
written submissions as per the liberty given to him, after
conclusion of the arguments.
12. The petition has been resisted by the respondent/State. Shri
Ravish Chandra Agrawal, learned Advocate General appearing
for the State essentially relied on the decision of the Hyderabad
High Court in the case of H.E.H. the Nizam Rajpramukh of
Hyaderabad per Khan Bahadur C.B. Tarapurwala, General
Power of Attorney Vs. The State through the District
Magistrate, Hyderabad City9. He submits that registration or
institution of FIR in police station cannot be equated with
criminal proceedings in any Court and so understood the
immunity granted under Article 361 (2) of the Constitution is
not attracted. In other words, registration of FIR
in respect of cognizable offence against the Governor and
moreso in respect of his acts of commission or omission which 9 AIR 1955 Hyderabad 241
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W.P. No.3346/2015
22
are not in furtherance of powers and duties of the office of the
Governor or purporting to have been discharged by him in
exercise and performance of these powers and duties, can be said
to be protected or immunity granted in that behalf to the
Governor during his term of office.
13. Learned Advocate General has also relied on the Supreme
Court decision in the case of R.R.Chari Vs. State of Uttar
Pradesh10
, H.N.Rishbud and another Vs. State of Delhi11
,
Jamuna Singh and others Vs. Bhadai Shah12
. Besides relying
on these decisions, the learned Advocate General invited our
attention to the material already gathered by the Investigating
Agency during the course of investigation of the alleged crime.
According to the learned Advocate General, there is ample
material in the FIR as well as collected during enquiry
/investigation after registration of the impugned FIR to indicate
complicity of the named accused including the petitioner in the
commission of the alleged offence and that further enquiry is
underway. In substance, the argument of the learned Advocate
General is that there is no impediment or bar in registration of
10. AIR 1951 SC 207
11. AIR 1955 SC 196
12. AIR 1964 SC 1541
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W.P. No.3346/2015
23
FIR by the police in respect of cognizable offence against the
Governor which has been committed de-hors the powers and
duties of the Governor or purporting to have been done by the
Governor in exercise and performance of his constitutional
powers and duties. According to him, institution/registration of
FIR is before the police officer and not in any Court and thus
provisions of Article 361 (2) are not applicable. The learned
Advocate General, however, has not filed any written
submissions.
14. Shri Vikram Singh, counsel appearing for the Attorney
General/Union of India has filed written submissions even
before opening his oral argument. According to the learned
counsel, the well established rules of interpretation require that
the meaning and intention of the framers of the Constitution - be
it Parliament or a Constituent Assembly must be ascertained
from the language of that Constitution itself with the motives of
those who framed it. He submits that the expression criminal
proceedings and the word institute mentioned in Article 361
(2) are not defined in Cr.P.C. The meaning of those words,
therefore, must be understood as are understood in common
parlance. He has relied on the meaning of these words given in
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W.P. No.3346/2015
24
Blacks Law Dictionary (6th
edn 1990 at Page 374). The criminal
proceeding means a proceeding which lies under the law of
procedure in a criminal court and which is in accordance with
some requirement of, or is performed under some power
conferred by, the relevant procedural provisions. It means some
steps taken before a Court against person or persons charged
with violation of the criminal law. Further, if the investigation
referred to in Chapter XIV of the Cr.P.C. is a proceeding
it necessarily follows that it is a criminal proceeding; and the
very fact that expression criminal proceedings in Section 211
of the I.P.C. is not qualified by the word judicial or by anything
else, goes to show that it is a proceeding before a Court of law
or other Tribunal. It is wide enough to include a proceeding
under the said Chapter of the Criminal Procedure Code.
It is submitted that criminal law is set in motion by
giving information to the police about the commission of
cognizable offence and the police are bound to investigate that
accusation and file report under Section 173 of the
Cr.P.C. For understanding the meaning of expression
institute as occurring in Article 361 (2) of the Constitution,
reliance has been placed on the decision in In re The Vexatious
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W.P. No.3346/2015
25
Actions, 1896. In re Bernard Boaler13
as referred to in Prems
Judicial Dictionary Vol. 1 Page 886.
15. Our attention was also invited to the decision of Division
Bench of this Court in Dr. S.C.Barat and another Vs. Hari
Vinayak Pataskar and others14
, wherein the order passed by
the Chancellor of the Jabalpur University was the subject matter
of challenge. The argument was that Article 361 gives absolute
personal immunity to the Governor for all his public acts and
partial immunity for all his private acts; that the immunity under
Clause (1) of Article 361 was not only in respect of the exercise
and performance of the powers and duties under the Constitution
of his office by the Governor or for any act done or purported to
be done by him in exercise of those powers and duties but also in
respect of the exercise and performance of the powers and duties
conferred under the Governor under any Act or Rule and for any
acts done or purported to be done in exercise of those powers;
and that there were in Clause (1) no words to limit the protection
given by that Clause to the exercise and performance of the
powers and duties under the Constitution of his office by the
Governor or to acts done in exercise of those powers has been
13
1914 1 KB 122 14
AIR 1962 MP 73
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W.P. No.3346/2015
26
considered. Reliance is also placed on the decision of the
Karnataka High Court in the case of Dr. Smt. Mangala Sridhar
Vs. the Karnataka Governor Secretriate Office and others15
wherein suspension order passed against the petitioner - who
was a member of the Karnataka Public Service Commission,
was subject matter of challenge. The argument that the order
passed by the Governor was not justiciable has been considered,
primarily in the context of the purport of Article 317 of the
Constitution. He also placed reliance on the decision of the
Supreme Court in the case of Babubhai Vs. State of Gujarat
and others16
, which dealt with the question of permissibility of
filing two successive FIRs in respect of the same incident.
16. In substance, it has been argued by Shri Vikram Singh that
the act of registration of FIR does not offend or violate the
provisions enshrined in Article 361 (2) of the Constitution. At
the same time with reference to the observation found in the case
of Vijay Pratap Singh Vs. Ajit Prasad and ors.17
, it is
submitted that the immunity conferred on the Governor is
absolute so long as he holds office.
15
(2014) 4 AIR Kant R 615 16
(2010) 12 SCC 254 17
AIR 1966 All. 305
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W.P. No.3346/2015
27
17. After having considered the rival submissions, we find that
the primary question is about the extent of immunity bestowed
on the Head of a State be it President or Governor in terms of
Article 361 of the Constitution of India. That Article posits
protection of President and Governor of a State. For considering
the matters in issue, the protection extended to the Governor in
terms of Clause (2) and Clause (3) of Article 361 will be
relevant. We, therefore, deem it apposite to reproduce the same
which reads thus :-
361. Protection of President and Governors and Rajpramukhs -
(1)
(2) No criminal proceedings whatsoever shall be
instituted or continued against the President, or the Governor
[***] of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the
President, or the Governor [***] of a State, shall issue from
any court during his term of office.
(4) ..
18. It is well established position that a special approach must
be adopted for the interpretation and construction of the
provisions in the Constitution to determine the meaning of its
parts in keeping with its broad and basic purposes and
objectives. For, the nature of a Constitution of a Soveriegn
Republic as observed by the Supreme Court in the case of State
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28
of Karnataka Vs. Union of India and another18
, is meant to
endure and stand the test of time, the strains and stresses of
changing circumstances, to govern the exercise of all
Governmental powers, continuously, and to determine the
destiny of a nation could be said to require a special approach so
that judicial intervention does not unduly thwart the march of the
nation towards the goals it has set before itself. The Court went
on to observe that the dynamic needs of the nation, which a
Constitution must fulfill, leave no room for merely pedantic
hairsplitting play with words or semantic quibblings. The Court,
however, cautioned that in doing so under the guise of a judicial
power, which certainly extends to even making the Constitution,
in the sense that they may supplement it in those parts of it
where the letter of the Constitution is silent or may leave room
for its development by either ordinary legislation or judicial
interpretation, can actually nullify, defeat, or distort the
reasonably clear meaning of any part of the Constitution.
19. In the case of Synthetics and Chemicals Ltd. and others
Vs. State of U.P. And others19
, the Supreme Court observed that
the the courts are not free to stretch or to pervert the language of
18
AIR 1978 SC 68 19
(1990) 1 SCC 109
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29
an enactment in the interests of any legal or constitutional
theory. It went on to observe that Constitutional adjudication is
not strengthened by such an attempt but it must seek to declare
the law but it must not try to give meaning on the theory of what
the law should be, but it must so look upon a Constitution that it
is a living and organic thing and must adapt itself to the
changing situations and pattern in which it has to be interpreted.
The Court further added that each general word would be held
to extend to all ancillary or subsidiary matters which can fairly
and reasonably be comprehended. The provision of
Constitution must be interpreted as an organic document in the
light of the experience gathered.
20. In the case of R.C. Poudyal v. Union of India and
others20
, in paragraph 79, the Supreme Court observed that the
interpretation of constitutional document, "words are but the
framework of concept and concepts may change more than
words themselves". It is further observed that the significance of
the change of the concepts themselves is vital and the
constitutional issues are not solved by a mere appeal to the
meaning of the words without an acceptance of the line of their
20
AIR 1993 SC 1804
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30
growth. Further, 'the intention of a Constitution is rather to
outline the principles than to engrave details'.
21. Keeping these cardinal principles in mind, we may
endeavour to give meaning to the words found in Article 361 (2)
in particular, which are not otherwise, defined either in the
Constitution or the provisions of Criminal Procedure Code,
namely, criminal proceedings, whatsoever and institution,
in any Court.
22. The plain language of Clause (3) leaves no manner of
doubt that the arrest or imprisonment of the Head of a State
during his term of office pursuant to any process, is
completely prohibited. Some discussion, however, has become
necessary in the context of Clause (2), which envisages that
no criminal proceedings whatsoever shall be instituted or
continued against the Head of a State in any Court during his
term of office.
23. The moot question before us is : whether registration of
First Information Report under Section 154 of the Cr.P.C. in
respect of commission of cognizable offences under I.P.C. or
other penal laws, against the Governor during his term of office,
by name, is also prohibited within the sweep of this Clause?
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24. Indubitably, First Information Report is registered in the
concerned police station and not in any Court as such. If so
literally understood, the rigours of Article 361 (2) will not be
attracted. But, registration of FIR on receipt of information
disclosing cognizable offence as a general rule is made
mandatory in terms of Section 154 of the Cr.P.C., as held by the
Constitutional Bench of the Supreme Court in Lalita Kumaris
case (supra). The two fold objective of immediate and
compulsory registration of FIR is to set the criminal process in
motion and is well documented from the very start; preventing
embellishment of relevant matter at a later stage. It is also to
ensure transparency in the criminal justice delivery system and
functioning of police providing for an efficient means to check
power of police as also for judicial oversight for the same. The
Court then went on to observe that the FIR may be of two types
namely duly signed FIR by the informant to the Police Officer
and second being FIR registered by police itself on any
information received other than by way of an informant.
25. In the present case, the FIR is of the latter category.
Registration of FIR is for setting the criminal action in motion.
As a concomitant, it must follow that it is the first step towards
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institution of criminal process.
26. Two further questions may have to be dealt with to find an
answer to the contention canvassed by the petitioner. Firstly,
whether FIR would qualify the expression criminal
proceedings, by itself; and secondly whether institution of
FIR in the police station can be deemed to be criminal
proceedings instituted in any Court. Only whence the protection
and immunity extended in Clause (2) will be attracted.
27. For dealing with the former question, we may have to bear
in mind that the expression criminal proceedings is neither
defined in the Constitution of India or the Code of Criminal
Procedure, 1973. It is, however, well settled that the expression
criminal proceedings is wider than the expression judicial
proceedings defined in Section 2 (i) of the Code. The
expression judicial proceedings in the Code predicates that it
includes any proceeding in the course of which evidence is or
may be legally taken on oath. The registration of FIR would
certainly not qualify the definition of judicial proceedings.
But, as aforesaid, the expression criminal proceedings, being
wider than the expression judicial proceedings, must
encompass the act of institution or registration of First
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33
Information Report by the police officer which is to set in
motion criminal action.
28. The expression proceeding simplicitor and in particular
resorted to by a police officer is mentioned in sub Section (2) of
Section 156 of the Code. The term proceedings has been
defined in the Law Lexicon. The two of them given below bring
out the essential import of the words, has been stated as
follows :-
(1) The word procedings ordinarily relates to forms of law, to the modes in which judicial transactions
are conducted. (2) The term proceedings is a very comprehensive term and generally speaking means a
prescribed course of action for enforcing a legal right
and hence it necessarily embraces the requisite steps by
which a judicial action is invoked.
29. The word proceeding simplicitor is also used in Section
310 of the Code with reference to action to be taken by the
Police. These provisions leave no manner of doubt that
proceeding can be other than enquiry or a trial and including acts
and duties of police or Magistrate to be discharged as per the
provisions in the Code being statutory action. This lends support
to the view that we are taking and which is in consonance with
the settled legal position that the act of registration of FIR by the
police officer is no less a criminal proceedings, which ignites
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the criminal process in respect of any cognizable offence.
30. Having said this, we may now turn to the second part of the
question posed in para 26 above. For that, we may once again
usefully refer to the dictum of the Apex Court in the case of
Lalita Kumari (supra) which takes the view that the objective
of registration of FIR under Section 154 is to set the criminal
process in motion. Further, the Officer-in-charge of a police
station by following procedure under Section 154 of the Code,
after registration of FIR in respect of cognizable offence, by
virtue of Section 157 (1), is obliged to forthwith send a report of
the same to the Magistrate empowered to take cognizance of
such offence upon a police report. Upon receiving such report as
predicated in Section 159 of the Code, the Magistrate can direct
an investigation, or, if he thinks fit, at once proceed, or depute
any Magistrate subordinate to him to proceed, to hold a
preliminary enquiry or otherwise to dispose of, the case in the
manner provided in the Code.
31. In addition, Section 167 of the Code empowers the
Magistrate to remand the accused to police custody or judicial
custody as the case may be, even before filing of the report of
police officer on completion of investigation as required under
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Section 173 of the Code. Similarly, even before filing of the
police report under Section 173 of the Code and taking
cognizance of the crime, the Magistrate is empowered to declare
the person against whom warrant has been issued as an
absconder and publish written proclamation requiring him to
appear as per Section 82 of the Code and to attach the property
of such absconding person as per Section 83 of the Code. Failure
of the Magistrate to act upon that report does not make it any
less criminal proceeding instituted before the Court.
32. The word institute has not been defined in the Code or the
Constitution. The common parlance meaning of that word can be
traced to definition given in Prems Judicial Dictionary Vol. 1
Page 886 which reads thus :-
Institute It means, set on foot; commence, Instituted in respect of legal proceedings means, commencal
Blackborne v. Blackborue, (1868) 37 L.J. (P and M),
accused; to appoint an heir by will. A counter claim is a
proceeding instituted Hoodbarrs v. Cathcart, (1895) 1 Q.B. 873. Institute when applied to legal proceedings, signified the commencement of the proceedings. When
we talk of instituting an action we understand brining an action. Criminal proceedings cannot be said to be
instituted until a formal charge is openly made against the accused by complaint before a Magistrate. The word instituted in S. 3 (5) of the Workmens compensation Act can therefore taken as meaning
setting on foot enquiry and is more than a mere filing of a claim. Suppiah Chettiar v. Chinnathurai 1957 Mad.
216 (220).
Institute legal proceedings It may mean taking any step in an action which, if taken, would lead to the
grant of relief. (1960) 1 All. E.R. 183 (187) 1957 Mad.
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36
216 (220).
Instituted (proceedings) See (1897) 1 Q.B. 159., 19 Bom.46.
Institution The term institution does not mean merely the original institution or the first establishment
of a society, since that may be altered as many
institutions have been, but the purposes to which it is
applied at the present time. (1960) 3 ALL. E.R. 715
(728) (1849) 3 Exch. 349. It means an undertaking
formed to promote some defined purpose having in view
generally the instruction or education of public. 1896
A.C. 500.
Institution of proceedings The word institute means laying of an information before a Magistrate.
Mere presentation of challan by police under S. 173,
Cr.P.C., in a Magistrates Court or mere presentation of complaint by a private individual cannot be said to
constitute the institution of proceedings. 1944 S. 103,
(1914) I. K.B. 122 (123) = 109 L.T. 822 = 23 Cox. C.C.
631, 1927 C. 721. (1939) 3 All. E.R. 540. Institution of
proceedings do not include search, arrest, investigation.
1928 P. 146 See 1957 Mad. 216 (220).
33. No doubt mere registration of FIR by the police may not be
institution of proceedings before any Court, but by
interpretative process, keeping in mind the legislative scheme of
the follow up actions to be taken by the police as also the
Magistrate immediately with the registration of FIR, it clearly
denotes that the FIR is laid before the Magistrate for discharging
statutory duties specified in Section 159 of the Code. A priori,
mere registration of FIR under Section 154 must be deemed to
be criminal proceedings instituted before the Court (Magistrate).
It must, therefore, attract Clause (2) of Article 361 of the
Constitution, being criminal proceedings whatsoever instituted
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37
in the Court. Inasmuch as, consequent to forwarding of FIR to
the Court it is effectively laid before the Magistrate and
resultantly deemed to be instituted in the Court. Viewed thus, in
law, the police is prohibited even from registration of FIR in
respect of cognizable offence against the Head of a State - as
envisaged in Article 361 (2) of our Constitution.
34. We are inclined to take this view also because, in law, it is
not permissible for the police officer to merely register the FIR
in respect of the cognizable offence and do nothing more. The
factum of registration of FIR is required to be communicated to
the Magistrate alongwith FIR. Once the FIR is placed before the
Magistrate it partakes the colour of criminal proceedings
instituted in the Court within the meaning of Clause (2) of
Article 361. It would have been a different matter if the
provisions such as Section 157 and 159 of the Code were absent.
Because of these provisions, the FIR does not remain in the
police record muchless confidential, but is required to be placed
before the Court contemporaneously so as to enable the Court to
act upon it and issue appropriate directions even before taking
cognizance of the case. Taking any other view would open an
avenue to register malicious and vexatious FIR making out a
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case of commission of cognizable offence against the Head of a
State and thus render the immunity under Article 361 of the
Constitution redundant and expendable. In the context of the
intent behind extending such immunity to the Head of a State it
is imperative to hold that the police is prohibited from even
registering FIR against the Head of a State during his term of
office because of the bar contained in Article 361 (2).
35. Notably, the immunity bestowed on the incumbent in the
office of Governor under Article 361 (2) and (3) is unqualified
and absolute. It is not limited to offences committed in discharge
of official acts as Head of a State, unlike in the matters covered
by Article 361 (1) or 361 (4). This view is inescapable also
because of the expression whatsoever following the expression
criminal proceedings in Clause (2) of Article 361. The sweep
of expression criminal proceedings of all types including in
the form of submission of report by a police officer to the
Magistrate empowered to take cognizance, would thus attract
Clause (2) of Article 361 of the Constitution.
36. Considering the immunity or privilege extended to the
Heads of the State because of their constitutional duties and
powers, this interpretation would be unyielding and inexorable.
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39
Indeed, the privilege in Clause (2) and Clause (3) of Article 361
is confined during the term of office and there would be no such
bar to proceed, soon after the incumbent ceases to hold the office
either by efflux of time or because of resignation or removal.
37. Although the learned Advocate General had stoutly relied
on the decision of the Hyderabad High Court in the case of
H.E.H. the Nizam Rajpramukh of Hyaderabad per Khan
Bahadur C.B. Tarapurwala, General Power of Attorney
(supra), that case was to question the order passed by the
District Magistrate directing the Commissioner, City Police, to
make an enquiry in respect of the information received from
private party and submit a report about the alleged offence
against the Governor, being barred by Article 361 (2). On a close
scanning of the said decision, it is noticed that the Division
Bench in no unambiguous terms after analyzing host of
decisions of the Courts in India and foreign Courts as also after
undertaking comparative studies of the sweep of immunity and
privilege extended to the Head of a State in other countries,
expounded the rationale underlying the immunity afforded to the
executive Heads. It went on to observe that interpretation of
Article 361 (2) must be such as to be consistent with it and
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40
further that intendment. In para 38, the Court opined that there is
fine distinction between taking cognizance of an offence and
institution of criminal proceedings. The latter must be looked at
from the point of view of something done to commence such
proceedings. In para 40, it is held that the object of such
provision is not only to prohibit the Heads of the executive from
being exposed to criminal proceedings during their term of
office, but also to avoid any publicity whatever in relation to
any alleged offence, because it is necessary in the interests of
the State and good government that those persons should as long
as they are holding the office, be kept free from involvement in a
criminal Court. The Court after adverting to the legal precedents
opined that the insertion of the word whatsoever makes a great
difference in the interpretation of an exempting clause, and to
enlarge its operation. Indeed, in the later part of the decision in
para 45 while considering the question whether laying of an
information or the issue of search warrant by a Magistrate before
he orders enquiry or investigation may amount to institution of a
criminal proceedings, it opined that the words, whatsoever
used with the words criminal proceedings in Article 361 (2),
might enlarge the scope of this immunity it did not decide that
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question finally having held that the application before the
Magistrate in that case was a complaint.
38. In para 41, the Court then articulated two other questions
for its consideration, namely (1) as the order of the Magistrate to
the police to investigate was passed under sub section (3) of
Section 156 of the Code, it is not an act of Court but is of a
purely executive nature; and (2) that an information to a
Magistrate does not amount to institution of criminal
proceedings.
39. In para 42, the Court rejected the argument that the order of
the Magistrate to the police to investigate passed under Section
156 (3) of the Code is not an act of the Court but must be
deemed to be an executive order. At the end the Court opined
that every action taken by a Magistrate which is empowered to
take under the provisions of the Code, is a criminal proceeding
and such criminal proceedings are instituted when some step is
taken to initiate criminal proceedings or making an enquiry.
40. In paragraph 45, the Court observed that when an
immunity has been conferred on any person it must be so
construed as to limit it to the person on whom it is conferred and
cannot be extended to others who under the law may be liable.
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Further, though the laying of an information or the issue of
search warrant by a Magistrate before he orders enquiry or
investigation may not strictly speaking amount to institution of
criminal proceedings yet the word whatsoever used following
the words criminal proceedings in Clause (2) of Article 361
enlarges the scope of this immunity. In the ultimate analysis the
Court held that the District Magistrate could not have issued the
impugned order being prohibited by Article 361 (2) of the
Constitution. We find that the dictum in this decision is more
beneficial to the petitioner.
41. Even the decision of the Supreme Court in the case of
Jamuna Singh and others (supra) will be of no avail to the
respondents. The said decision is in respect of a petition or
complaint filed before the Magistrate and in particular on the
question when he applies his mind resulting in institution of a
case. That interpretation will have to be understood in the
context of the expression judicial proceeding as defined in
Cr.P.C. In this case the Supreme Court was called upon to
interprete the meaning of words institution of case. The
Supreme Court held that the said words were not defined in the
Code. The Court then observed that a case can be said to be
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instituted in a Court only when the Court takes cognizance of
the offence alleged therein. However, for considering the sweep
of the expansive words used in Article 361 (2) of the
Constitution and the intent of the framers of the Constitution for
extending absolute protection to the Head of a State, the
restricted meaning to the words institution of a case in the
Court in the context of the procedural provision in the Code
concerning judicial proceedings will be counter productive and
untenable.
42. Reliance placed on the decision of the Supreme Court by
the learned Advocate General in the case of R.R.Chari (supra),
in our opinion, is also inapposite. There can be no difficulty in
accepting the argument that ordinarily in the case of
cognizable offences the Magistrate takes cognizance when the
police completes its investigation and approaches the Magistrate
for the issuance of the process, whence the Magistrate applies
his mind. This dictum of the Supreme Court is in the context of
provisions of the Prevention of Corruption Act. That will be of
no avail for interpreting the sweep of words criminal
proceedings in Clause (2) of Article 361 of the Constitution
which is much wider than the expression judicial proceedings
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44
defined in the Code coupled with the restricted scope of Section
197 of the Code regarding prohibition to take cognizance of the
offence in absence of a lawful sanction of the Government in
that behalf.
43. The decision of the Supreme Court in the case of
H.N.Rishbud and another (supra) also does not take the matter
any further for the respondents. That is an authority on the steps
involved in the investigation of a cognizable offence. The Court
has noted five steps in the investigation as per the scheme of the
Code. It is no more possible to contend that registration of FIR
by the police officer is not a proceeding for setting in motion the
criminal process/action, after the decision of the Constitution
Bench of the Supreme Court in Lalita Kumaris case (supra).
44. Even in the case of Devarapalli Lakshminarayana
Reddy and others Vs. V.Narayana Reddy and others21
the
Court was called upon to examine the meaning of expression
taking cognizance of offence in respect of a private compliant.
None of these decisions except the decision of the Division
Bench of Hyderabad High Court is nearest to the point in issue.
45. Turning to the Supreme Court decision in the case of
21
AIR 1976 SC 1672
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45
Babubhai Vs. State of Gujarat and others22
pressed into
service by the counsel appearing for the Union of India, in para
20, the Court noted that registration of FIR under Section 154 of
Cr.P.C. is a very important document. It is the first information
of a cognizable offence recorded by the officer in charge of the
police station. It sets the machinery of criminal law in motion
and marks the commencement of the investigation which ends
with the formation of an opinion under Section 169 and 170
Cr.P.C., as the case may be, and forwarding of a police report
under Section 173 Cr.P.C. This decision restates the legal
position that the registration of FIR in respect of cognizable
offence is to set the criminal process in motion and is the first
step in that regard. Consequent to registration of FIR, however,
as the Magistrate is expected to take follow up action and is
empowered to proceed in the manner predicated in Section 159
of the Code, upon receipt of the report from the police officer
which is required to be forwarded by the police officer
contemporaneously under Section 157 (1) of the Code, it must
partake the colour of a criminal proceeding instituted before the
Court for the purpose of attracting prohibition stipulated in
22
(2010) 12 SCC 254
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46
Article 361 (2), if it is against the Head of a State by name
during his term of office.
46. Taking any other view would result in negating the
immunity and absolute prohibition envisaged in Article 361 (2)
for insulating the Head of a State from any possible exposure to
malicious publicity of his involvement in any offence instituted
during his term of office. We cannot be oblivious about the
contemporary situation of presence of any number of self styled
investigative journalists indulging in analysis of matters in
public domain - commonly known as trial by media - as soon as
any criminal action is registered, before the commencement of
the trial and even before collection of evidence by the police, in
disregard of persons reputation by creating a widespread
perception of guilt or innocence before, or after a verdict in a
Court of law. A priori, to hold that FIR is registered by the
police officer and, therefore, is not a criminal proceeding
instituted before the Court within the meaning of Article 361 (2)
inspite of sufficient indication in the provisions of the Code
about the statutory duties of the Magistrate upon receipt of such
information, would be a pedantic approach.
47. The purposive interpretation of the expansive words
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47
criminal proceedings whatsoever conjointly read with
instituted in any Court, is imperative to uphold the spirit of
Article 361 in particular Clauses (2) and (3) thereof and to
subserve and further the intent of the framers of our Constitution
of providing absolute protection to the Head of a State during
his term of office. This approach is necessary keeping in mind
that there is bound to be some time gap between the placing of
the report before the Magistrate after its registration by the
Police.
48. Indubitably, the efficacy of the legal provisions and the
legislative scheme cannot be decided on the basis of happening
or non happening of the event of placing the FIR before the
Magistrate soon after it is registered by the police or for that
matter Magistrate not taking any immediate action thereon.
Whereas, the interpretation of Article 361 (2) must be on the
assumption that as soon as the FIR is registered by the police, in
law, it is transmitted to and laid before the Magistrate
contemporaneously. That partakes the colour of institution of
criminal proceedings whatsoever before the Court for the
purposes of Article 361 (2). Thus, it is essential to hold that with
the registration of FIR under Section 154 of the Code, it is
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48
deemed to be a criminal proceeding instituted before the Court.
This interpretation will obviate any possible argument that until
the report is received by the Magistrate it does not assume the
character of criminal proceeding instituted before the Court; and
taking advantage of that anomaly, justify publicity of the matter
so reported to the police against the Head of a State which
must be eschewed. We are of the opinion that only this purposive
interpretation will further the spirit of Article 361 (2) of the
Constitution which intrinsically guarantees absolute protection
from any malicious campaign or publicity against the Head of a
State, so as not to undermine the solemnity of that office. This
view is inevitable because the protection bestowed on the Head
of a State by Clause (2) of Article 361, in that sense is wider than
the express prohibition stipulated in clauses (1) and (4) of the
same Article in respect of specified matters referred to therein
limited to the acts done or purporting to be done in exercise and
performance of the powers and duties of his office or personal
capacity to provide an official inviolability.
49. Mr. Jethmalani, rightly drew analogy from the dictum in
Paragraph 101 in the case of Union Carbide Corporation
(supra) wherein it is observed that the President cannot be liable
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49
to arrest, imprisonment, or detention, while he in the discharge
of the duties of his office; and for this purpose his person must
be deemed, in civil cases, at least, to possess an official
inviolability. In this decision, the Supreme Court not only
adverted to the observations of Jurist Story in his commentaries
on the Constitution of United States, as has been reproduced in
the earlier part of this judgment, but also referred to the source
of immunity given to the Head of a State, principle underlying
whereof must be read as integral part of Article 361 (2).
Reference has been made to the decision of the Supreme Court
of United States in a case concerning immunity from civil
liability [Richard Nixon v. Ernest Fitzgerald23
] which reads
thus :-
..This Court necessarily also has weighed concerns of public policy especially as illuminated by
our history and the structure of our government.. . In the case of the President the inquiries into history and policy, though mandated independently by
our cases, tend to converge. Because the Presidency did
not exist through most of the development of common
law, any historical analysis must draw its evidence
primarily from our constitutional heritage and structure.
Historical inquiry thus merges almost at its inception
with the kind of public policy analysis appropriately undertaken by a federal court. This inquiry involves
policies and principles that may be considered implicit
in the nature of the Presidents office in a system structured to achieve effective government under a
constitutionally mandated separation of powers. (L Ed p.367)
23
457 US 731 : 73 L Ed 2d 349
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50
. In view of the special nature of the Presidents constitutional office and functions, we think it
appropriate to recognize absolute Presidential immunity
from damages liability for acts within the outer perimeter of his official responsibility. Under the Constitution and laws of the United
States the President has discretionary responsibilities in
a broad variety of areas, many of them highly sensitive.
In many cases it would be difficult to determine which
of the Presidents innumerable functions encompassed a particular action
50. We may usefully refer to the circumspection and a word of
caution expressed in the decision of Lalita Kumaris case
(supra), that even though as a rule, on receipt of information
disclosing cognizable offence, the police is obliged to register
FIR under Section 154 of the Code but would be justified in not
doing so, in certain exceptional cases before verification. After
verification in such cases, the police has discretion not to register
the FIR merely because the information given discloses
commission of cognizable offence. This circumspection is
expected to be observed in respect of high officials who
otherwise can be prosecuted after taking prior sanction of the
competent Authority. In the case of the Head of a State, however,
the protection must be held to be absolute - as it is not dependent
on any prior sanction. Therefore, applying the principle
underlying the dictum of the Supreme Court, when information
disclosing involvement of any Head of a State is given or
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51
received, it would be the bounden duty of the police to ensure
that no FIR is registered against the Head of a State during his
term of office.
51. The Full Bench of Kerala High Court in the case of Albert
(supra) has held that giving information to the police about the
commission of cognizable offence amounts to initiation of
criminal proceeding. Our attention was also invited to the
exposition in the case of Emperor (supra). Even the Allahabad
High Court while interpreting Section 211 of I.P.C. opined that if
a man who set the criminal law in motion by making a false
charge to the police of a cognizable offence institutes criminal
proceedings within the meaning of that provision. It was thus
rightly argued that approach of purposive construction of the
expansive expression whatsoever and the expression criminal
proceedings instituted in any Court found in Article 361 must be
adopted to uphold the intendment of and the purpose underlying
the absolute protection given to the Head of a State. This
argument commends to us.
52. Learned counsel for the Union of India, however, had
placed reliance on the decision of Kings Bench Division in In
re The Vexatious Actions, 1896 (supra). In that decision, the
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Court was called upon to examine the meaning of words legal
proceedings in the concerned Act. Considering the legislative
scheme of the said enactment, the Court opined that expression
legal proceedings do not include criminal proceedings.
However, as already observed by us earlier, the expression
criminal proceedings found in Article 361 is very wide when
tested in the light of expression proceedings simplicitor in the
Criminal Procedure Code to include even actions of the police as
also the Magistrate on receipt of the report from the police
officer and before taking cognizance upon submission of police
report under Section 173 of the Code. In our opinion, therefore,
the abovesaid decision will be of no avail.
53. The decision of the learned Single Judge of the Karnataka
High Court in the case of Dr. Smt. Mangala Sridhar (supra)
relied by the learned counsel for the Union of India, in our
opinion, is also inapposite. In that case, the order of suspension
passed by the Governor of the State of Karnataka in exercise of
powers conferred under Clause (2) of Article 317 of the
Constitution was the subject matter of challenge. The
observations made by the High Court in the context of that
challenge will be of no avail to interprete the sweep of Article
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361 and in particular Clauses (2) and (3) thereof, which are
markedly distinct. As is noticed, the immunity extended to the
Head of a State in terms of Article 361 (2) is absolute on
fulfillment of the conditions specified therein, inter-alia the
proceedings must be criminal proceedings instituted in any
Court. Article 361 (3) predicates absolute prohibition of issuing
process of arrest or imprisonment of the Head of a State by any
Court during his term of office. The moot question examined in
that decision was whether the power to be exercised by the
Governor was discretionary in nature and not based on the aid
and advice of the Council of Ministers and that the exercise of
discretion is not justiciable.
54. Even the decision in the case of Dr. S.C.Barat and
another (supra) of the Division Bench of this Court will be of no
avail to the respondents