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CASE NO.: Writ Petition (civil)  13381 of 1984

PETITIONER: M.C. Mehta

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 10/10/2007

BENCH: S.B. Sinha,S.H. Kapadia & D.K. Jain

JUDGMENT: J U D G M E N T I.A. NO. 465 OF 2007 IN WRIT PETITION (CIVIL) NO. 13381 OF 1984

S.B. SINHA,  J :

1.      Whether this Bench should consider the correctness of an order passed  by the Governor of Uttar Pradesh refusing to grant sanction for prosecution  of Ms. Mayawati and Shri Naseemuddin Siddiqui is the prime question  involved in this application.   2.      A public interest litigation was entertained by this Court in a writ  application filed by the writ petitioner.  This Court with a view to ensure  proper maintenance of cultural heritage of India as also the ecology has been  passing orders in the writ petition from time to time.   

3.      A project known as \021Taj Heritage Corridor Project\022 was initiated by  the Government of  Uttar Pradesh.  One of the main purpose for which the  same was undertaken was to divert the River Yamuna and to reclaim 75  acres of land between Agra Fort and the Taj Mahal and use the reclaimed  land for constructing food plazas, shops and amusement activities.  The said  activities on the part of the Government of Uttar Pradesh was brought to the  notice of this Court.  An exception thereto was taken.  A detailed inquiry  was directed to be made by the Central Bureau of Investigation (CBI).  Upon  consideration of the report submitted before it by CBI,  this Court in its order  dated 18.09.2003 directed it to register a First Information Report and make  further investigation in accordance with law. CBI investigated into the  matter, including the roles played by Ms. Mayawati, the then Chief Minister,  and Mr. Naseemuddin Siddiqui, the then Minister for Environment,  Government of Uttar Pradesh.  Investigations were also carried out against  some officers.   

    CBI was later on asked to furnish a self-contained note as regards its  findings against the erring officers and holders of public posts.  A detailed  report was submitted by it.  A question arose as to what directions, if any,   should be issued by this Court having regard to the conflict in opinions  expressed by different authorities of CBI in regard to Ms. Mayawati and Mr.  Naseemuddin Siddiqui.              The said question was considered by this Court in its judgment and  order dated 27.11.2006 in M.C. Mehta (Taj Corridor Scam) v. Union of  India and Others [(2007) 1 SCC 110].   

4.      Indisputably, the said order of this Court has been complied with.  It  now appears that the learned Special Judge directed CBI to obtain sanction  of the Governor of Uttar Pradesh.  By reason of  an order dated 03.06.2007  the Governor of Uttar Pradesh has refused to accord the same.   

5.      Mr. Krishan Mahajan, learned Amicus Curiae,  who has been assisting

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this  Court  very ably in the matter, filed an application, inter alia, praying  for :         \023In the light of the facts and circumstances  mentioned above it is most humbly prayed that this  Hon\022ble court may kindly be pleased to issue an  appropriate writ, direction or order :

(i)     Concerning the legal validity of the CBI  seeking a sanction for the prosecution of  Uttar Pradesh Chief Minister Ms. Mayawati  and Minister Naseemuddin Siddiqui under  Section 197 Cr. P.C. by calling for the  records of the materials it placed before the  Governor for seeking such sanction.

(ii)    Directing the CBI to produce a copy of the  June 3, 2007 sanction order of His  Excellency the Governor of U.P. passed in  connection with the case pending before the  Special Judge/competent court based on FIR  RC 0062003A0018.

(iii)   Passing appropriate directions on the legal  validity or otherwise of the June 3, 2007  order of His Excellency the U.P. Governor  refusing under Section 197 (1) Cr. P.C.  sanction for the prosecution of Chief  Minister Ms. Mayawati and Minister  Naseemuddin Siddiqui in relation to FIR RC  0062003A0018 registered against them by  the CBI pursuant to the September 18, 2003  order ofthis Hon\022ble Court in I.A. 376 in  CWP 13381/1984 and the investigation on  which with the opinion of the CBI  Superintendent of Police was directed by  this Hon\022ble Court on Nov. 27, 2006 to be  placed before the concerned court/Special  Judge for deciding the matter in accordance  with law.

(iv)    Declaring that the sanction orders passed  under Section 197(1) Cr. P.C. are in the  public domain and hence cannot be  classified as secret.\024                           6.      Mr. Mahajan, in support of the said application, would submit that the  task of protection of cultural heritage having been undertaken by this Court  and keeping in view the provisions of Article 49 of the Constitution of India,  the Court should interfere in the matter and set aside the order of the  Governor of Uttar Pradesh refusing to accord sanction to prosecute Ms.  Mayawati and Mr. Naseemuddin Siddqui, keeping in view the political  scenario in the country, as CBI may not show any further interest in the  matter at all.   

       It was urged that in a case of this nature,  sanction in terms of Section  197 of the Code of Criminal Procedure is not imperative.           7.      No doubt it is an unique  case.  In exercise of its jurisdiction under  Article 32 of the Constitution of India and having regard to Article 49 and  clause (g) of Article 51A of the Constitution of India, this Court while  entertaining the public interest litigation at the instance of the writ petitioner  had been taking all steps which have been thought necessary and proper in  the matter.  The question which, however, has arisen for our consideration  is, should we undertake such an exercise.  No doubt, a First Information  Report has been lodged at the instance of this Court.  Yet again this Court

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thought it fit to issue requisite directions in its order dated 27.11.2006  directing the learned Special Judge to apply its mind on the materials  collected during investigation by CBI and pass appropriate orders thereupon.   This Court has been exercising its jurisdiction in public interest.  It has been  exercising its jurisdiction to issue a writ of continuous mandamus in the light  of the decision of this Court  in Vineet Narain and Others v. Union of India  [(1998) 1 SCC 226].

8.      We have no doubt in our mind that judiciary may step in where it  finds the actions on the part of the Legislature or the Executive are  illegal or  unconstitutional but the same by itself would not mean that public interest  litigation, in a case of this nature, should be converted into an adversarial  litigation.  The jurisdiction of the court to issue a writ of continuous  mandamus is only to see that proper investigation is carried out.  Once the  court satisfies itself that a proper investigation has been carried out, it would  not venture to take over the functions of the Magistrate or pass any order  which would interfere with its judicial functions.  Constitutional scheme of  this country envisages dispute resolution mechanism by an independent and  impartial tribunal.  No authority, save and except a superior court in the  hierarchy of judiciary, can issue any direction which otherwise take away  the discretionary jurisdiction of any court of law.  Once a final report has  been filed in terms of sub-section (1) of Section 173 of the Code of Criminal  Procedure, it is the Magistrate and Magistrate alone who can take   appropriate decision in the matter one way or the other.  If it errs while  passing a judicial order, the same may be a subject matter of appeal or  judicial review.  There may a possibility of the  prosecuting agencies not  approaching the higher forum against  an order passed  by the learned  Magistrate, but the same by itself would not confer a jurisdiction on this  Court to step in. We should not entertain the application of the learned  Amicus Curiae on such presupposition.  A judicial order passed by a  Magistrate may be right or wrong, but having regard to the hierarchy of the  courts, the matter which would fall for consideration before the higher court  should not be a subject matter of a decision of this bench. In an unlikely  event of the interested parties in not questioning such orders before the  higher forum, an independent public interest litigation may be filed.   Instances are not unknown where this Court has entertained public interest  litigation in cases involving similar question under Article 32 of the  Constitution of India.  [See Rajiv Ranjan Singh \021Lalan\022 VIII v. Union of  India [(2006) 6 SCC 613].  

9.      It will not be out of place to mention that in Vineet Narain (supra),  this Court categorically stated that unless a proper investigation is made  followed by a proper prosecution under the general law applicable to such  investigation, the rule of law will lose its significance.  This Court in its  order dated 27.11.2006 upon noticing Vineet Narain (supra) and Union of  India v. Prakash P. Hinduja and Another [(2003) 6 SCC 195] held : \02326. Analysis of the above judgments shows that there is  a clear-cut and well-demarcated sphere of activities in the  field of crime detection and crime punishment.  Investigation of an offence is the field reserved for the  executive through the Police Department, the  superintendence over which vests in the State  Government. The executive is charged with a duty to  keep vigilance over the law and order situation. It is  obliged to prevent crime. If an offence is committed  allegedly, it is the State\022s duty to investigate into the  offence and bring the offender to book. Once it  investigates through the Police Department and finds an  offence having been committed, it is its duty to collect  evidence for the purposes of proving the offence. Once  that is completed, the investigating officer submits report  to the court requesting the court to take cognizance of the  offence under Section 190 CrPC and his duty comes to  an end. Therefore, there are well-defined and well- demarcated functions in the field of crime detect ion and

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their subsequent adjudication by the court. Lastly, the  term \023investigation\024 under Section 173(2) of the  Criminal Procedure Code includes opinion of the officer  in charge of the police station as to whether there is  sufficient evidence or reasonable ground of suspicion to  justify the forwarding of the case to the court concerned  or not. This opinion is not legal evidence. At the stage of  Section 173(2) the question of interpretation of legal  evidence does not arise. In any event, that function is that  of the courts.\024  

10.     The parameters within which this Court should function in such  matters are, therefore, well-defined.   

11.     It is one thing to say that this Court will not refrain from exercising its  jurisdiction from issuing any direction for  protection of cultural heritage and  the ecology and environment; but then in discharge of the said duty, this  Court should not take upon itself the task of determining the guilt or  otherwise of an individual involved in the criminal proceeding.  It should not  embark upon an enquiry in regard to the allegations of criminal misconduct  so as to form an opinion one way or the other so as to prima facie determine  guilt of a person or otherwise.  Any direction which could be issued, in our  opinion, has already been issued by us on 27.11.2006, stating : \02334. We, accordingly, direct CBI to place the  evidence/material collected by the investigating team  along with the report of the SP as required under Section  173(2) CrPC before the court/Special Judge concerned  who will decide the matter in accordance with law. It is  necessary to add that, in this case, we were concerned  with ensuring proper and honest performance of duty by  CBI and our above observations and reasons are confined  only to that aspect of the case and they should not be  understood as our opinion on the merits of accusation  being investigated. We do not wish to express any  opinion on the recommendations of the SP. It is made  clear that none of the other opinions/recommendations  including that of the Attorney General for India, CVC  shall be forwarded to the court/Special Judge concerned.\024 12.     We do not think that we should go beyond the same.          13.     We may observe that while entertaining a public interest litigation in a  given case, this Court may exercise a jurisdiction to set aside the decision of  a constitutional authority, but we are not concerned with such a situation.    We, therefore, are of the view that we need not go further than what we have  already said in our order dated 27.11.2006 to go into the correctness or  otherwise of the order of the Governor.  If no sanction of the Governor was  required or if he has committed an error in passing the said order, the  appropriate court, in our opinion, would be entitled to deal therewith, but not  this Bench.   

14.     We, therefore, are of the opinion that this Bench should not entertain  the application filed by the learned Amicus Curiae.  The said application is  dismissed with the aforesaid observations.