Madhya Pradesh High Court
Shri Ram Naresh Yadav vs The State Of Madhya Pradesh on 5 May, 2015
Bench: A. M. Khanwilkar, Rohit Arya
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
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Coram:
Hon'ble Shri Justice A. M. Khanwilkar, Chief Justice
Hon'ble Shri Justice Rohit Arya, J.
Whether approved for reporting? - Yes.
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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.
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Reserved on : 17.04.2015
Date of Decision : 05.05.2015
JUDGMENT
[Delivered on 05th May of 2015] Per: A.M.Khanwilkar, Chief Justice:
This petition under Article 226 of the Constitution of India, W.P. No.3346/2015 2 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 ¼/kkjk 154 n +izfdz;k lafgrk ds vUrxZr½ 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 +¼1½ fo/kku& Hkkjrh; n.M lafgrk& /kkjk& 417] 420] 467] 468] 471] 477¼d½] 120¼ch½ ¼2½ fo/kku& lwpuk izkS|ksfxdh vf/kfu;e&2005 /kkjk& 65]66 ¼3½ fo/kku& e-iz- ekU;rk izkIr ijh{kk vf/kfu;e&1937 /kkjk&3¼?k½&¼1½¼2½ lgifBr /kkjk&4 ¼4½ fo/kku& Hkz"Vkpkj fuokj.k vf/kfu;e&1988 /kkjk&7] 13¼1&Mh&III½] 13¼2½] 15 3-¼v½ lanfHkZr jkstukepka lkUgk dz.
............................................................................. ¼c½ ?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 ¼l½ 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 %& ¼v½ Fkkus ls fn'kk o nwjh iwoZ 4 fdeh + ¼c½ ?kVuk LFky dk irk ------- O;kie dk;kZy; Hkksiky chV ua +& fujad ¼l½ ?kVuk LFky vU; Fkkuk {ks=kf/kdkj gS rks Fkkuk & fujad ftyk & fujad 6- vfHk;ksxh@lwpukdrkZ % ¼v½ uke & Mh-,l- c?ksy ¼c½ firk@ifr@ikyd dk uke Lo-Jh vkj-,e-,l- c?ksy ¼l½ tUe fnukad@o"kZ 01-07-1957 ¼M½ jk"Vªh;rk & Hkkjrh; ¼r½ ikliksVZ ua +&& fujad tkjh fnukad & fujad tkjh W.P. No.3346/2015 3 gksus dk LFkku & fujad ¼d½ O;olk; & mi iqfyl v/kh{kd ¼[k½ irk& e-iz- ,l-Vh-
,Q- Hkksiky 7- Kkr@vKkr@lansgh@vkjksih dk iw.kZ fooj.k ¼vko';drkuqlkj i`Fkd i`"B dk iz;ksx djs½a
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 izkx s zkej] 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&Hkwius nz JhokLro] 14& lEcfU/kr vH;fFkZ;ksa ds firk ¼jk/kkLokeh lRlax O;kl ds lnL;½ 15& 212250 panzohj flag pkSgku] 16& 219493 nsosUnz eksgrqjs] 17& 232588 eksgu flag] 18& 234901 ftrsUnz oekZ] 19& 235939 lqjUs nz dqekj j?kqoa'kh] 20& 236565 ns'kjkt flag] 21& 236994 _"khds'k 'kekZ] 22& 241355 lrh'k dqekj ;kno] 23& 243042 HkwiUs nz 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 lqjUs nz 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 ¼vko';drkuqlkj W.P. No.3346/2015 4 i`Fkd i`"B dk iz;ksx djsa½ fujad 10- vig~r@lEc) lEifRr dk dqy ewY; & fujad 11- exZ@vdky e`R;q lwpuk dzekad ¼;fn gks½ fujad 12- izFke lwpuk fooj.k & ¼vko';drkuqlkj i`Fkd i`"B dk iz;ksx djsAa ½ eSa ,l0Vh0,Q0 e/;izn's 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/;izn's k ekU;rk izkIr ijh{kk vf/kfu;e 1937 dh /kkjk 3¼?k½ 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 3¼?k½ & 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 ¼e0iz0½ 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 lsd.s M gkMZfMLd ijh{k.k gsrq Mk;jsDVzsV vkWQ QkWjsfUld lkbZal] xka/kh uxj ¼xqtjkr½ 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 lac/a 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 ¼lh&6½ esa ouj{kd HkrhZ ijh{kk 2013 ls lacfa /kr feyh lafnX/k QkbZy dk] lgk;d izksxzkej lh-ds- feJk ds vkWfQl ds dEI;wVj ls tIr gkMZfMLd ¼lhds,e&1½ ,oa O;kie ls izkIr ouj{kd ijh{kk] 2013 ds ijh{kk ifj.kke dh eSiQkbZy ls feyku djus ij 87 vH;fFkZ;ks]a 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 nsoUs nz eksgrqjs] 3& 232588 eksgu flag] 4& 234901 ftrsUnz oekZ] 5& 235939 lqjUs nz dqekj j?kqoa'kh] 6& 236565 ns'kjkt flag] 7& 236994 _f"kds'k 'kekZ] 8& 241355 lrh'k dqekj ;kno] 9& 243042 HkwiUs nz 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& W.P. No.3346/2015 5 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 HkwiUs nz 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 lqjUs nz 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 lac/a k esa Fkkuk ,lVh,Q ds vijk/k dzekad 18@14 /kkjk 420] 467] 468] 471] 477¼d½] 120ch Hkkjrh; n.M lafgrk] e/;izn's k ekU;rk izkIr ijh{kk vf/kfu;e dh /kkjk 3?k&¼1½¼2½ lgifBr /kkjk&4 ,oa Hkz"Vkpkj fuokj.k vf/kfu;e dh /kkjk 13¼1&Mh½] 13¼2½ esa iqfyl vfHkj{kk essa 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-] lsVa j 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 ßHkjrÞ 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] ßlDlsukÞ 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] ßrjaxÞ ls vk'k; rjax 'kekZ IykusV MªhEt+ Vwj ,.M Vªos Yl ds ekfyd ls gS] ftlds }kjk 10 vH;fFkZ;ksa ds uke nsuk] ßvt; esgrkÞ ls vk'k; MkW- vt; 'kadj esgrk Hkksiky ds;j gkWLihVy okys W.P. No.3346/2015 6 ls gS] ftlds ifjfpr egky{eh dEI;wVj ,oa VzsoYl ,tsUlh okys HkwiUs nz 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 lac/a k esa dksbZ jkf'k ugha feyuk] tcfd Hkjr feJk ds vH;fFkZ;ksa ls lacfa /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@izo's k i= dh Nk;kizfr ls mYysf[kr e/;LFkksa ds uke ¼gkbZ½@lq/khj ¼yks½ ls vk'k; vkd`fr xkMZu fuoklh [kuu dkjksckjh lq/khj 'kekZ ls] ßxouZjÞ ls vk'k; e-iz- ds orZeku jkT;iky Jh jkeujs'k ;kno ls] ßfefuLVjÞ ls vk'k; rRdkyhu rduhdh ,oa mPp f'k{kk ea=h y{ehdakr 'kekZ ls] ßfefuLVj okbZQÞ ls vk'k; ea=h iRuh ls] ftlesa ,d vH;FkhZ ds izo's k i= dh Nk;kizfr esa ßea=k.khÞ 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/khj¼gkbZ½ ,oa lq/khj¼yks½ 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 lac/a k esa iadt f=osnh us iwNrkN djus ij lq/khj ¼gkbZ½ ,oa lq/khj ¼yks½ 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 ßxoZujÞ ls lacfa /kr 05 vH;fFkZ;ksas ds ckjs es]a e/;izn's k ds jkT;iky jkeujs'k ;kno }kjk uke nsuk] blh izdkj] ßfefuLVj okbZQÞ okys 01 vH;FkhZ dk uke ea=hth Jhy{ehdkar 'kekZ th ds ;gka ls feyuk ,oa mDr vH;FkhZ ds izo's k&i= dh Nk;kizfr esa ßea=k.khÞ fy[kk gksuk ,oa fdlh ea=h dh iRuh ls lacaf/kr vH;FkhZ gksuk crk;kA ßfefuLVjÞ 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 lac/a 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 feuhLVªkWax :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 feuhLVªkWax :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 NsMN + kM+ dj] vad c<+kdj] mudh vks-,e-vkj- lhV esa NsMN + kM+ dj c<+k;s x;s vadksa ds vuqlkj xksys Hkjdj] mUgsa mRrh.kZ djds ik= vH;fFkZ;ksa dks lnks"k gkfu Hkh igqqapkbZ gSA lkFk gh mDr 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 lacfa /kr O;kie vf/kdkfj;ksa@deZpkfj;ks]a 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] 477¼d½] 120&ch] Hkkjrh; naM lafgrk ,oa 3?k¼1½¼2½ lgifBr /kkjk 4 e/;izn's 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&13¼1&Mh&III½ 13¼2½] 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] 477¼d½ 120&ch] Hkkjrh; naM lafgrk ,oa 3?k¼1½¼2½ lgifBr /kkjk 4 e/;izn's 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] 13¼1&Mh&III½ 13¼2½] 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 ßcÞ ds varxZr dk;Zokgh dh xbZA vfHk;ksxh@lwpukdrkZ dks iz-lw- i= i<+okdj@i<+dj lquk;k x;k] ftUgksua s lgh&lgh vfHkfyf[kr gksuk Lohdkj fd;k]+ bldh ,d izfr lwpukdrkZ dks fu%'kqYd iznk; dh xbZA lgh@& gLrk{kj izHkkjh vf/kdkjh uke %& Mh-,l- c?ksy in %& mi iqfyl v/kh{kd vfHk;ksxh@lwpukdrkZ ds gLrk{kj@fu'kkuh vaxwBk ¼u- ;fn gS½- ,l-Vh-,Q- ¼e-iz-½ Hkksiky izfr] ekuuh; U;k;ky; uoe vij ^l= U;k;k/kh'k^ Hkksiky dh vksj lwpukFkZA ""
3. The prosecution case against the petitioner is founded on the information divulged, inter-alia, by Nitin Mohindra and Pankaj Trivedi - that the petitioner had recommended names of five candidates to facilitate their selection on the post of Forest Guards by resorting to unfair means in the examination conducted by M.P. Professional Examination Board (hereinafter referred to as „VYAPAM examination‟) and thus the petitioner committed alleged offence 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 others 1. 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 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 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 petitioner‟s 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 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 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 Kumari's 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 ½ 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 Kumari's case.
5. During the oral arguments Shri Ram Jethmalani, learned Senior counsel appearing for the petitioner submitted that the 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 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 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 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 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 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 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 ½ 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 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 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 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 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 W.P. No.3346/2015 24 Black‟s 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 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 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 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 W.P. No.3346/2015 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 W.P. No.3346/2015 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 W.P. No.3346/2015 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? W.P. No.3346/2015 31
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 Kumari's 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 W.P. No.3346/2015 32 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 W.P. No.3346/2015 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 W.P. No.3346/2015 34 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 W.P. No.3346/2015 35 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 Workmen‟s 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.W.P. No.3346/2015 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 Magistrate‟s 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 W.P. No.3346/2015 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 W.P. No.3346/2015 38 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. W.P. No.3346/2015 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 W.P. No.3346/2015 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 W.P. No.3346/2015 41 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. W.P. No.3346/2015 42 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 W.P. No.3346/2015 43 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" W.P. No.3346/2015 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 Kumari's 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 W.P. No.3346/2015 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 W.P. No.3346/2015 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 person‟s 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 W.P. No.3346/2015 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 W.P. No.3346/2015 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 W.P. No.3346/2015 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 President‟s 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 W.P. No.3346/2015 50 ".... In view of the special nature of the President‟s 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 President‟s 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 Kumari's 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 W.P. No.3346/2015 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 King‟s Bench Division in In re The Vexatious Actions, 1896 (supra). In that decision, the W.P. No.3346/2015 52 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 W.P. No.3346/2015 53 361 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 for the same reason. For, the issue before the Court was in the context of the provision in Section 11 (2) of Jabalpur University Act, 1956. The Court was called upon to examine whether the committee consitituted under that provision is merely advisory and it is not open to the Chancellor to ignore its recommendation. This is noticed from the final decision in the same case reported in AIR 1962 MP 180. In W.P. No.3346/2015 54 the decision relied upon, (AIR 1962 MP 73), the Court articulated the main argument for determination while considering the preliminary objection in the context of the argument of the scope and extent of immunity extended to the acts done by Governor in his public capacity other than that as Governor. The Court tested that argument in the context of Clause (1) and Clause (4) of Article 361. The observations made in the context of those clauses will be of no avail as those clauses posit entirely distinct situation, unlike the absolute protection granted in respect of institution of criminal proceedings whatsoever in any Court under Article 361 (2) and from arrest or imprisonment under Article 361 (3) during the term of office as Governor. Indeed, while dealing with the decision in the case of H.E.H. Nizam (supra), in paragraph 9 of the judgment for deciding the preliminary objection, reported in AIR 1962 MP 73, the Division Bench of this Court has observed that the view taken in that decision in the Nizam‟s case (Hyderabad High Court - supra), is not correct. That observation must be understood as having distinguished the judgment of the Division Bench in Nizam's case (supra) which had dealt with the sweep of Article 361 (2) and Article 361 (3) of the W.P. No.3346/2015 55 Constitution - as not applicable to Article 361 (1) or (4). In the context of the provisions in the University Act, the Court held that when an act confers power on the Governor not qua Governor but in a different capacity held by him by virtue of his office as Governor, the powers and duties so conferred are not the powers and duties of the office of the Governor. Suffice it to observe that this decision will not come in our way in answering the matter in issue in the present case in the context of absolute protection guaranteed in Article 361 (2) of the Constitution.
55. Having held that even registration of FIR against the Head of a State during his term of office is prohibited, the petition should succeed on that count alone. We may also dispel the misreading of the order passed by the Division Bench of this Court in W.P.No.6385/2014 dated 20.02.2015. That order, in no way, directs STF to register the FIR against the petitioner. It merely records that the SIT is free to issue directions to STF to proceed against the high officials in accordance with law. Thus understood, it is open to the petitioner to challenge the action of STF of having registered FIR against him on legal grounds as may be available in law.
56. We would now revert to the other argument advanced for W.P. No.3346/2015 56 quashing of the impugned FIR qua the petitioner - being infirm on different counts and also because of non-disclosure of any material fact constituting commission of cognizable offence by the petitioner and having been recorded on the basis of information given by co-accused which is inadmissible in law. For that, we may usefully refer to the broad contours to be borne in mind for quashing the FIR in exercise of extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 of the Code. In para 108 and 109 in the celebrated decision of the Supreme Court in the case of State of Haryana and others (supra) observed thus :-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 225 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First information Report and the other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of W.P. No.3346/2015 57 the code except under an order a Magistrate within the purview of Section 155 (2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and the that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
(emphasis supplied)
57. As the present case is for quashing of FIR on the ground that it does not mention relevant facts to constitute commission of alleged offence by the petitioner, we must immediately revert to the question as to what should be the contents of the FIR. The Supreme Court in the case of Superintendent of Police, CBI W.P. No.3346/2015 58 and others Vs. Tapan Kumar Singh24 in paragraph 20 observed thus :-
"It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the 24 (2003) 6 SCC 175 W.P. No.3346/2015 59 question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can".
(emphasis supplied)
58. Similarly in the subsequent decision of Supreme Court in the case of Pandurang Chandrakant Mhatre and others Vs. State of Maharastra25, in paragraph 34 the Court reproduced the exposition in the case of T.T.Antony Vs. State of Kerala, which reads thus :-
"In T.T. Antony, it has been held by this Court that there can be no second FIR. While dealing with Section 154 and other relevant provisions, this Court said: (SCC pp. 195-97, paras 18-20).
"18. An information given under sub-section (1) of Section 154 Cr.P.C is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 Cr.P.C, as the case may be, and forwarding of a police report under Section 173 Cr.P.C...........
20...............
On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr.P.C."
(emphasis in original) 25 (2009) 10 SCC 773 W.P. No.3346/2015 60 and in paragraph 38 observed thus :-
"It is fairly well settled that First Information Report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilized for contradicting or discrediting the testimony of other witnesses. In other words, the First Information Report cannot be used with regard to the testimony of other witnesses who depose in respect of incident. It is equally well settled that the earliest information in regard to commission of a cognizable offence is to be treated as First Information Report. It sets the criminal law in motion and the investigation commences on that basis. Although First Information Report is not expected to be encyclopedia of events but an information to the police to be `first information report' under Section 154(1), must contain some essential and relevant details of the incident. A cryptic information about commission of a cognizable offence irrespective of the nature and details of such information may not be treated as First Information Report".
59. In the present case, the FIR has been registered on the information given by D.S.Baghel, Deputy Superintendent of Police, the informant. Further, the impugned FIR contains facts which have been gathered during the investigation of other crimes of similar type, by the informant. The specific role played by the petitioner (named as accused No.10) has not been stated, except the general information received from co-accused that the petitioner had recommended names of five candidates. As is well settled, the other information regarding the complicity of a person can always be gathered during the investigation. However, we do not wish to dilate any further on the other issues W.P. No.3346/2015 61 or record our final view thereon.
60. Inasmuch as, for the view we have taken, while dealing with the primary question of extent of immunity and privilege extended to the Head of a State, during his term of office, which answers the jurisdictional fact, we proceed to quash the impugned FIR qua the petitioner on that count alone, with liberty to the police to proceed in accordance with law, after the petitioner ceases to be the Governor. For, the immunity and privilege is only during the term of office. At the same time the immunity and privilege extended to the Governor will not impair or whittle down the powers of the police to investigate the criminal case registered against other accused who cannot claim such privilege and in the process, record statement of the petitioner, if required. We say so because the immunity in Article 361 (2) or 361 (3) does not extend to recording of statement of the Head of a State by the police in connection with investigation of a crime, if it is so essential. The police, however, must take all salutary precautions and observe circumspection while recording statement of the petitioner in the course of investigation, so that the majesty of the office of the Governor of the State is not undermined in any manner.
W.P. No.3346/201562
61. The petitioner through counsel has assured that he would extend complete cooperation in such investigation, but the police must eschew from resorting to coercive action of any kind against the petitioner, such as ordering his appearance in the police station or "compulsory" subjecting him to any interrogation. In our opinion, during the investigation, if any verification of facts are required to be done from the petitioner, the Head of the investigating team (ADGP) must accompany the Investigating Officer, so as to ensure that due care and diligence is observed to uphold the majesty of the office of the Governor and it is not undermined in any manner.
62. As a result, we allow this petition and direct effacement of the name of petitioner as accused No.10 from the impugned First Information Report (Annexure P-1) with liberty to the police to proceed in the matter against the remaining accused named in the FIR or any other person found to be involved in the commission of the alleged offence in accordance with law and with further liberty to proceed against the petitioner if necessary, after he ceases to be the Governor of the State.
63. Petition disposed of accordingly.
(A.M. Khanwilkar) (Rohit Arya)
Chief Justice Judge
AM.