Full Judgment Text
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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.