Sheikh Mohd. Shafi vs Union of India

Muzaffar Hussain Attar, J.—Corruption in the human history, has been, and is, possessed of devils power which corrodes the human values.

Corruption has only dark shades. Its effect on the society is lethal. It has denuded the huge population of the country from even basic source of

sustenance. In order to defeat the hydra-headed monster of corruption, a strong moral will is needed. Our country has parliamentary democracy,

and in our Constitutional Scheme it is ""we the people"" who are fountainhead of the power. Some persons are catapulted to important positions. In

terms of our Constitutional philosophy, all such persons hold their positions as trustees for the benefit of people of the Country. Such people are,

thus, accountable for all their actions.

This PIL has served the interests of the society at large. The competent authority in pursuance to the orders passed from time to time woke up

from deep slumber and considered the matters for grant of sanction for prosecution of offenders. These files, otherwise, where gathering dust on

the office shelves.

The respondent State/competent authority has not only issued sanctions for prosecution of accused persons, but has also filed report u/s 173

Cr.P.C. before the court of competent jurisdiction in some cases.

Learned counsel for the petitioners has been and is vigorously pursuing a noble cause in this Public Interest Litigation. We place on record our

appreciations for the learned counsel.

It is during the proceedings of this PIL, learned counsel for the petitioners brought to the notice of the Court, case arising out of FIR No.

37/1987 registered with Police Station Vigilance Organization, Jammu. The case was registered on the allegation that certain appointments were

made without advertising the posts prior to 1987. Learned counsel for the petitioners as also Mr. Gagan Basotra, learned Sr. Additional Advocate

General brought to the notice of the Court, facts of the case and orders passed from time to time by the authorities.

Initially the case was ordered to be withdrawn in respect of two accused, who were not named in the FIR. Subsequently His Excellency the

then Governor in the year 1990, refused to grant sanction for prosecution of the then Law Minister, during whose tenure, appointments were

allegedly illegally made. The Vigilance Organization filed closure report before the Court of Special Judge, Anticorruption, Jammu on 30th

October, 2010 and the learned Special Judge, Anticorruption, Jammu vide its order dated 6th November, 2010 accepted the closure report.

At the first instance, learned counsel for the petitioners submitted that this Court may review all the orders of authorities, and take a view one

way or the other. However, the learned counsel in his fairness referred to the Judgment of the Hon'ble Supreme Court in case titled M.C. Mehta

Vs. Union of India (UOI) and Others, . Paragraphs 5, 6 and 9 of the said Judgment are taken note of;

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 3.6.2007 the Governor of Uttar Pradesh has refused to accord the same.

Mr. Krishan Mahajan, learned amicus curiae, who has been assisting this Court very ably in the matter, filed an application, inter-alia, praying

for;

in the light of the facts and circumstances mentioned above it is most humbly prayed that this Hon'ble Court may kindly be pleased to issue an

appropriate writ, direction or order;

(i) Concerning the legal validity of CBI seeking a sanction for the prosecution of Uttar Pradesh Chief Minister Ms. Mayawati and Minister

Naseemuddin Siddiqui u/s 197 Cr.P.C. by calling for the records of the materials it placed before the Governor for seeking such sanction.

(ii) Directing 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 u/s

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 CBI pursuant to the September 18, 2003 order of this Hon'ble Court in I.A. 376 in C.W.P. No.

13381 of 1984 and the investigation on which with the opinion of the CBI Superintendent of Police was directed by this Hon'ble Court on

November 27, 2006 to be placed before the court/Special Judge concerned for deciding the matter in accordance with law.

(iv) Declaring that the sanction orders passed u/s 197(1) Cr.P.C. are in the public domain and hence cannot be classified as secret.

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 the 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 his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent

and impartial tribunal. No. authority, save and accept a superior court in hierarchy of judiciary, can issue any direction which otherwise takes 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 Code of Criminal

Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or other. If he errs while passing a

judicial order, the same may be a subject matter of appeal or judicial review. There may be 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 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,

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.

The learned amicus curiae, Mr. Krishan Mahajan, in M.C. Mehta's case had filed application praying therein for issuance of certain directions,

which prayers are taken note of at paragraph 6 of the said judgment. Prayer (iii) was for passing of appropriate directions on the legal validity or

otherwise of the order of His Excellency the then Governor who had refused to grant sanction u/s 197(1) Cr.P.C. for the prosecution of then Chief

Minister and one more Minister. 'At paragraph 9 of the judgment, the Hon'ble Supreme Court observed that 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 his judicial

functions. The Court, however, observed that a judicial order passed by the Magistrate may be right or wrong, but having regard to the hierarchy

of the Court, the matter which would fall for consideration before the higher Court, should not be subject matter of a decision of the Court. The

Hon'ble Supreme Court also observed that in an unlikely event of the interested parties not questioning such orders before the higher forum, an

independent Public Interest Litigation may be filed.'

In this case at no point of time the investigation conducted in the case FIR No. 37/1987 was called in question. It is during the pendency of this

PIL when the Court was considering as to why sanction for prosecution was not being issued in some cases that FIR. No. 37/1987 registered with

Vigilance Organization, Jammu also surfaced.

Since nothing is said in respect of the investigation of the case by the learned counsel for the petitioner, the Court would, accordingly, refrain to

enter into this aspect of the matter. The learned counsel, however, is aggrieved of the action and the manner in which sanction for prosecution has

been refused.

The closure report was filed before the court of competent jurisdiction, which report has been accepted by the said court. Learned counsel, in

view of the mandate contained at paragraph-9 of M.C. Mehta's case, fairly conceded that the issue in respect of FIR No. 37/1987 cannot be

carried further in this PIL.

In view of the aforementioned facts and circumstances and the mandate contained in M.C. Mehta's case, we decline to proceed further in this

Public Interest Litigation (PIL) in respect of F.I.R. No. 37/1987. The proceedings in this behalf are closed. The petitioners will have liberty to

work out their remedy in accordance with law.

C.M.A. No. 305/2013 stands, accordingly, disposed of.

Mr. Pangotra, learned ASGI sought and is granted four weeks time for reporting instructions in terms of Order dated 2nd April, 2013.

List this case for further proceedings in the week commencing from 3rd June, 2013.