28 July 1982
Supreme Court


Case number: Special Leave Petition (Criminal) 1523 of 1982








CITATION:  1982 AIR 1249            1983 SCR  (1)   8  1982 SCC  (2) 463        1982 SCALE  (1)554  CITATOR INFO :  RF         1984 SC 684  (5)  RF         1988 SC1531  (143)  R          1989 SC 129  (9)  RF         1991 SC1420  (62)

ACT:      Evidence -  Conclusive proof  of statements recorded in the judgment  - Any  concession made before the court and as recorded in  the judgment cannot be resiled later, except in rare end appropriate case - Stage at which the circumstances of the  record to  be rectified, explained - Constitution of India, Article  136 -  Interference by  the  Supreme  Court, impermissible.

HEADNOTE:      Sanction for  the prosecution  of  the  Chief  Minister under Section  6 of  the  Prevention  of  Corruption  Act  - Whether the  Governor should  act in  his discretion or with the aid  and advice of the Council of Ministers-Constitution of India, 1950, Article 163.      Dismissing the Special Leave Petition, the Court, ^      HELD:  1:1.  Supreme  Court  is  bound  to  accept  the statement of  the judges  recorded in  their  judgment  and, therefore, it  cannot launch  into an  inquiry  as  to  what transpired in  the High Court. It is simply not done. Public policy bars  such an  action and  judicial decorum restrains it. [12 C]      1:2. Supreme  Court cannot  allow the  statement of the judges to  be contradicted  by statements  at the  Bar or by affidavit and other evidence. Matters of judicial record are unquestionable and  not open  to  doubt.  Judges  cannot  be dragged into the arena. If the judges say in their judgments that something  was done, said or admitted before them, that has to  be the  last word  on the  subject. Judges record is conclusive. [12 C-E]      1:3. If  a party  thinks that  the happenings  in court have been  wrongly recorded  in a  judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the  judges, to call the attention of the very Judges who have made  the record  to the  fact that  the statement made with regard  to his  conduct was  a statement  that had been



made in  error. That  is the  only way  to have  the  record corrected. If  no  such  step  is  taken,  the  matter  must necessarily end  there. Of course, a party may resile and an Appellate Court  may permit  him, in  rare  and  appropriate cases to  resile from  a concession  on the  ground that the concession was  made on  a wrong appreciation of the law and had led  to gross injustice, but he may not call in question the very  fact of  making the  concession as recorded in the judgment. [12 F-H, 13 A] 9      Rex v. Mellor 7 Cox C.C. 454, quoted with approval.      Madhusudan v.  Chandrawati, A.l.R.  1917 P.C.  30; King Emperor v.  Barendra  Kumar  Ghose,  28  C.W.N.  170:  Sarat Chandra v. Bibhabati Debi, 34 Cal. L.J. 302. Samasundaram v. Subramanian. A.I.R 1926 P.C. 136: approved.      2. In  the facts and circumstances of the present case, it is  clear that,  when there is to be a prosecution of the Chief  Minister,   tho  Governor  would,  while  determining whether sanction  for such  prosecution should be granted or not under  section 6 of the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers. [14 F-G]      3. In  the instant  case, the cause of justice would in no way be advanced by permitting the state of Maharashtra to now resile  from the  concession so  made. On the other hand the concession  was rightly  made before  the High  Court to advance the cause of justice. [15 A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Petition  for Special Leave to Appeal (CRL) No. 1523 of 1982.      From the  judgment and order dated the 12th April, 1982 of the  Bombay High  Court in  Criminal Revision Application No. 1742 of 1981.      L.N. Sinha,  Attorney General,  Dr. Y.S.  Chitale,  and Miss A. Subhashini for the petitioner.      Soli  J.   Sorabjee  and   Miss  Rani   Jethmalani  for Respondent No. 1.      A.K. Sen and B.R. Handa for Respondent No. 2.      The order of the Court was delivered by      CHINNAPA REDDY,  J. Abdul  Rehman Antulay was the Chief Minister of  the State of Maharashtra till January 12, 1982. While he  was yet  holding the  office of Chief Minister one Ramdas  Shrinivas   Nayak,  an   erstwhile  Member   of  the Maharashtra Legislative Assembly, professing a keen interest in clean  administration and  so keeping  a watchful  eye on centres  of   power  and  sources  of  corruption,  filed  a complaint  against   Shri  Antulay,  in  the  court  of  the Metropolitan  Magistrate,   28th  Court,  Esplanade,  Bombay charging him  with the  commission  of  offences  punishable under ss.  161 and 185 of the Indian Penal Code and S of the Prevention 10 of Corruption  Act. The substance of the allegation was that Shri Antulay  founded and  controlled  a  number  of  trusts called by various names freely, and falsely making it appear that the  Prime Minister  and the  Government of Maharashtra were  either   interested  or   had  sponsored  the  trusts, collected  contributions   and  donations  for  the  alleged benefit of the Trusts by misuse of his position and power by dispensing favours  and holding  out threats,  and,  thereby placed himself  in a  position where  he  could  juggle  and manipulate a  sum of  over  Rs.  five  crores.  The  learned



Metropolitan Magistrate  refused to enteratain the complaint holding that  it was  not maintainable without the requisite sanction of  the Government  under s. 6 of the Prevention of Corruption  Act.   Against  the   order   of   the   learned Metropolitan Magistrate,  R.S. Nayak  presented  a  Criminal Revision  Application  to  the  High  Court  of  Maharashtra purporting to  be under  ss. 407  and 482  of  the  Code  of Criminal Procedure  and Art.  228 of  the Constitution.  The State of  Maharashtra and  Shri Antulay  were  impleaded  as Respondents. During  the  course  of  the  pendency  of  the Criminal Revision  Application, Shri  Antualy  resigned  his position as  the Chief Minister of the State of Maharashtra. By an  elaborate order  dated April  12,  1982,  Gadgil  and Kotwal, JJ  upheld the  view that sanction was necessary and dismissed the  Revision Application.  While  dismissing  the application, the  learned Judges noticed that an application had been  made to  the Governor  of Maharashtra for grant of the requisite  sanction and  observed that  the  application should not  be decided  by the  Law Minister  or  any  other Minister, but  that  "it  deserved  to  be  decided  by  the Governor  in   his  individual  discretion".  The  State  of Maharashtra though  not aggrieved  by the  dismissal of  the Criminal Revision Application, seeks special leave to appeal to this Court under Art. 136 of the Constitution against the judgment of  the High  Court of Maharashtra in so far as the judgment may  be said  to  have  directed  the  Governor  of Maharashtra  to   exercise  his   individual  discretion  in deciding the  question whether sanction should or should not be granted  to prosecute  Shri Antulay. The learned Attorney General, who  appeared for  the State of Maharashtra, raised the contention  that it  was not  for the  Court  to  decide whether in  respect of  a particular  matter,  the  Governor should act  in his  discretion or with the aid and advice of the Council  of Ministers and that under Art. 163(2), if any question arose whether any matter was or was not a matter as respects which the Governor was by or under the Constitution required to act in his discretion, the decision of the 11 Governor in  his discretion  was final,  and the validity of anything done by the Governor was not liable to be called in question on  the ground  that he  ought not to have acted in his discretion.  He also  invited our  attention to Art. 163 (3) which  provides that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. The question posed by the learned Attorney  General is no doubt an important question, probably worthy of serious consideration by this court under Art. 136  of the  Constitution. But, in the present case, we do not  propose to grant special leave under Art. 136 of the Constitution, solely  in order  to  consider  this  question firstly because  the Criminal  Revision a Application itself has been  dismissed by  the High Court and secondly-and this is important-there  was an  express concession  made in  the High  Court   by  the  Respondents  that  in  the  situation presented by  the facts  of the  present case,  the Governor should act in the exercise of his individual discretion.      Gadgil, J.  referred to the concession in the following words :-           "However, I  may observe  at this  juncture itself      that at  one stage  it was  expressly submitted  by the      learned counsel  on behalf  of the  respondent that  in      case if  it  is  felt  that  bias  is  well  apparently      inherent  in  the  proposed  action  of  the  concerned      Ministry, then in such a case situation notwithstanding      the other  Ministers not  being joined  in the arena of



    the prospective accused, it would be a justified ground      for the  Governor on his own, independently and without      any reference to any Ministry. to decide that question.      Kotwal, J. put it even more explicitly and said:           "...At one stage it was unequivocally submitted by      the learned  counsel on behalf of the respondents in no      uncertain terms  that even in this case notwithstanding      there being  no accusation  against the Law Minister as      such if  the court feels that in the nature of things a      bias  in   favour  of  the  respondent  and  against  a      complainant would  be manifestly inherent, apparent and      implied in the mind of the Law 12      Minister, then  in that event, he would not be entitled      to consider  complainant’s application and on the equal      footing even  the other  Ministers may not be qualified      to do  so and  the learned  counsel  further  expressly      submitted that  in such  an event,  it would  only  the      Governor,  who  on  his  own,  independently,  will  be      entitled to consider that question."      When we  drew the  attention of  the  learned  Attorney General to  the concession  made before the High Court, Shri A.K. Sen,  who appeared  for the State of Maharashtra before the High  Court and  led the  arguments for  the respondents there and who appeared for Shri Antulay before us intervened and protested  that he  never made  any such  concession and invited us  to peruse the written submissions made by him in the High  Court. We are afraid that we cannot launch into an inquiry as  to what  transpired in  the High  Court.  It  is simply not  done. Public  Policy bars  us. Judicial  decorum restrains us. Matters of judicial record are unquestionable. They are  not open  to doubt.  Judges cannot be dragged into the arena.  "Judgments cannot be treated as mere counters in the game  of litigation".(1)  We are  bound  to  accept  the statement of  the Judges  recorded in  their judgment, as to what transpired  in court.  We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and  other evidence.  If the  judges say  in their judgment that  something was  done, said  or admitted before them, that  has to  be the  last word  on the  subject.  The principle is well settled that statements of fact as to what transpired at  the hearing,  recorded in the judgment of the court, are  conclusive of the facts so stated and no one can contradict such  statements by  affidavit or other evidence. If a  party thinks  that the  happenings in  court have been wrongly recorded  in a  judgment, it  is incumbent  upon the party, while  the matter  is still fresh in the minds of the judges, to  call attention  of the very judges who have made the record  to the  fact that the statement made with regard to his  conduct was a statement that had been made in error. (2) That is the only way to have the record corrected. If no such step  is taken,  the matter must necessarily end there. Of course a party may resile and an Appellate      (I)   Per Lord Atkinson in Somasundaran v. Subramanian,           A.I.R 1926 P.C. 136.      (2)  (Per Lord Buckmaster in Madhusudan v. Chanderwati,           A.I.R. 1917 P.C. 30. 13 Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a  wrong appreciation  of the  law and  had led  to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.      In Rev.  Mellor, 7 Cox. P.C. 454 Martin was reported to have said:  "we must  consider the  statement of the learned



judge as  absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record  of Court  which  of  itself  implies  an  absolute verity".      In Ring Emperor v. Barendra Kumar Ghose (1): said,           ".. these  proceedings emphasise the importance of      rigidly maintaining  the rule  that a  statement  by  a      learned judge  as to  what took place during the course      of a  trial before him is final and decisive; it is not      to be criticised or circumvented; much less is it to be      exposed to animad version".      In Sarat  Chandra v.  Bibhabati Debi  (2)  Sir  Asutosh Mookerjee explained what had to be done:           "It is plain that in cases of this character where      a litigant  feels  aggrieved  by  the  statement  in  a      judgment that  an admission  has been  made,  the  most      convenient and  satisfactory course to follow, wherever      practicable, is to apply to the Judge without delay and      ask for rectification or review of the judgment"      So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.      On the  invitation of Mr. Sen, we have also perused the written submissions  made by  him before  the High Court. We have two  comments to  make: First,  oral submissions do not always conform  to written  submissions. In  the  course  of argument,  counsel,   often,   wisely   and   fairly,   make concessions which  may not  find  a  place  in  the  written submissions. Discussion draws out many a concession.      (1) 28 C.W.N. 170.      (2) 34 C.L.J. 302. 14 Second, there  are some significant sentences in the written submissions which  probabilise the concession. They are: "If in the  existing  case,  the  entire  Council  of  Ministers becomes interested in the use of the statutory power one way or the other, the doctrine of necessity will fill up the gap by enabling  the Governor  by dispensing  with the advice of His Council  of Ministers  and take a decision of his own on the merits  of the  case. Such  a discretion of the Governor must be  implied as  inherent in his constitutional powers.. The doctrine of necessity will supply the necessary power to the Governor  to act  without the  advice of  the Council of Ministers in  such  a  case  where  the  entire  Council  of Ministers is  biased. In  fact, it  will be  contrary to the Constitution and  the principles  of  democratic  Government which it  enshrines if  the Governor  was obliged not to act and to  decline to  perform his statutory duties because his Ministers had  become involved  personally. For the interest of democratic  Government and  its functioning, the Governor must act  in such  a case  on his  own. Otherwise,  he  will become an  instrument for  serving the  personal and selfish interest of  his Ministers."  We wish  to say no more. As we said, we  cannot and  we will not embark upon an enquiry. We will go by the judges’ record.      We may  add, there  is nothing  before us to think that any such  mistake occurred, nor is there any ground taken in the petition  for grant  of special  leave that  the learned judges proceeded on a mistaken view that the learned counsel had made  a concession that there might arise circumstances, under which the Governor in granting sanction to prosecute a Minister must  act in  his own  discretion and  not  on  the advice of  the Council  of Ministers.  The statement  in the judgment that  such a concession was made is conclusive and, if we  may say  so, the  concession was rightly made. [n the



facts and  circumstances of  the present  case, we  have  no doubt in  our mind that when there is to be a prosecution of the Chief  Minister, the  Governor would,  while determining whether sanction  for such  prosecution should be granted or not under  s. 6  of the  Prevention of  Corruption Act, as a matter of  propriety, necessarily  act in his own discretion and not on the advice of the Council of Ministers.      The question then is whether we should permit the State of Maharashtra to resile from the concession made before the High Court  and raise  before us the contention now advanced by the  learned Attorney  General. We have not the slightest doubt that 15 the cause  of  justice  would  in  no  way  be  advanced  by permitting the  State of  Maharashtra to now resile from the concession and  agitate the  question posed  by the  learned Attorney General.  On the  other hand  we are satisfied that the concession  was made  to advance the cause of justice as it was  rightly thought  that in deciding to sanction or not to  sanction  the  prosecution  of  a  Chief  Minister,  the Governor would act in the exercise of his discretion and not with the  aid and  advice of  the Council  of Ministers. The application  for  grant  of  special  leave  is,  therefore, dismissed. S.R.                                     Petition dismissed. 16