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Friday, December 24, 2010

ETHICS OF JUDICIARY - TRANSPARENCY - OPENNESS

                                                                            1




                                  REPORTABLE
                 IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


                                 I. A. NO. 2


                                     IN


            SPECIAL LEAVE PETITION (C) No. 31797 of 2010


Raja Khan                                       ..           Petitioner


      -versus-


U.P. Sunni Central Waqf Board & Anr.           ..         Respondents




                                ORDER




1.    This is an application praying for expunging certain remarks made in


our judgment dated 26.11.2010 in the aforesaid case.






2.    The Allahabad High Court has had a glorious history having produced


great lawyers who were leaders in the Independence struggle. It is the


largest High Court in India, and often gives leadership to all the High Courts


in the country. There have been many great Judges who have adorned the


bench of the High Court upholding the rich traditions of the Court and


maintaining the highest level of integrity e.g. Justice Mahmood, Justice
                                                                              2




Pramoda Charan Banerjee, Chief Justice Shah Mohammed Suleiman, Chief


Justice Kamla Kant Verma, Justice Vashisht Bhargava, Chief Justice O.H.


Mootham, Chief Justice Nasirulla Beg, Justice S.N. Dwivedi, Justice Satish


Chandra, Justice Yashoda Nandan, Justice H.N. Seth, Justice N.D. Ojha,


Justice C.S.P. Singh, Justice A. N. Verma, etc. Hence what happens in the


Allahabad High Court is of great importance to the entire judiciary in the


country, as it will have great impact on all the High Courts in the country.




3.    There are presently many excellent Judges of the Allahabad High


Court. These upright Judges are keeping the flag of the High Court flying


high by their integrity and hard work. It is therefore totally false to say that


all Judges of the Allahabad High Court are corrupt, or to construe our order


dated 26.11.2010 in that manner. It is nowhere mentioned in the said order


that all Judges of the High Court are corrupt. What is mentioned in the order


is that there are complaints against "certain Judges", not all Judges. It has


been mentioned in the order that many lawyers who are relatives of Judges


are scrupulously taking care that no one should lift a finger on that account.


It is clarified that many Judges in the High Court are doing the same.




4.    One of us (M. Katju, J.) has close attachment to the Allahabad High


Court as his family has been associated with the High Court for over a
                                                                          3




century. It is, therefore, inconceivable that he would like to damage the


High Court in any way. However, what has caused great pain and anguish


to us, are certain unfortunate happenings for some time in the Allahabad


High Court. It is not necessary to mention all of them here, but reference


can certainly be made to certain distressing orders passed during the


Summer Vacations by certain Judges of the High Court this year (2010), one


of which pertains to this very case.




5.    In para 9 of the Application filed before us it is stated that sweeping


observations have been made against the High court. This is not correct. In


fact, in the order dated 26.11.2010 it has been stated -




                      "We do not mean to say that all lawyers who have
               close relations as Judges of the High Court are misusing
               that relationship. Some are scrupulously taking care that
               no one should lift a finger on this account. However,
               others are shamelessly taking advantage of this
               relationship"




How is the above a sweeping observation? A distinction is clearly made in


the above between those who are taking care of their reputation and those


who are not.
                                                                                           4




6.        It is alleged in paragraph 9 of the application that the observations we


have made in our order "seriously damage the reputation of the institution"


and sully its image. In this connection we wish to say that the reputation of


an institution is damaged and its image sullied when some of its members


pass shocking orders and behave in a totally unacceptable manner.




7.        We can quite appreciate the anguish of some of the learned Judges of


the Allahabad High Court, but we cannot overlook the fact that there are


times when introspection is required, and not mere reaction. We earnestly


request the Hon'ble Judges of the High Court to consider our order in that


spirit.




8.        We again reiterate that there are many excellent Judges in the


Allahabad High Court who are working hard and doing their duty honestly,


and we have not painted everyone with the same brush.




9.        With these observations the Application stands disposed of.




                                          .............................................J.
                                          [MARKANDEY KATJU]




NEW DELHI;                                .............................................J.
DECEMBER 10, 2010                         [GYAN SUDHA MISRA]

PROFESSIONAL ETHICS OF ADVOCATES

                                                   Reportable

          IN THE SUPREME COURT OF INDIA

        CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 2310              of 2010
          (arising out of S.L.P.(Crl.) No.6820 of 2008)

A.S. Mohammed Rafi                   ..              Appellant(s)

           -versus-

State of Tamil Nadu                  ..             Respondent(s)
Rep. by Home Dept. & Ors.


                             WITH

        CIVIL APPEAL NOS. 10304-10308            of 2010
       (arising out of S.L.P.(C) Nos.26659-26663 of 2008)


                        JUDGMENT

Markandey Katju, J.


CRIMINAL APPEAL NO. 2310               of 2010
(arising out of S.L.P.(Crl.) No.6820 of 2008)


1.   Leave granted.
                                                              2


2.   Heard learned counsel for the parties.

3.   This appeal has been file against the impugned judgment and

order of the High Court of Madras dated 29.4.2008 passed in Writ

Petition No.716 of 2007.



4.   The facts have been set out in the impugned judgment and

order and hence we are not repeating the same here.



5.   The High Court had appointed a Commission of Enquiry

headed by Hon'ble Mr. Justice K.P. Sivasubramaniam, a retired

Judge of the High Court of Madras which is on record.



6.   During the course of the proceedings today, we had requested

Mr. Altaf Ahmad, learned senior counsel, to assist us as Amicus

Curiae in this case and we are grateful to Mr. Altaf Ahmad and we

appreciate his assistance to us in this case.
                                                               3


7.   As suggested by Mr. Altaf Ahmad, without going into the

merits of the controversy, we direct that a sum of Rs.1,50,000/-

(Rs. One Lakh and Fifty Thousand only) be given to the appellant

by the State of Tamil Nadu as compensation.        We have been

informed that the appellant had already received a sum of

Rs.50,000/- (Rs. Fifty Thousand only) and hence the remaining

sum of Rs.1,00,000/- (Rs. One Lakh only) shall be paid by the

State of Tamil Nadu to the appellant within a period of two months

from today.



8.   FIR No.2105 of 2006 dated 15.12.2006 on the file of B-4

Police Station (Law and Order), Race Course Police Station,

Coimbatore city against the appellant stands quashed.



9.   To put quietus to the matter FIR No.2106 of 2006 on the file

of B-4 Police Station (Law and Order), Race Course Police

Station, Coimbatore city against the police also stands quashed

under Article 142 of the Constitution of India.
                                                                    4




10.   The impugned judgment and order of the High Court is

substituted by our order. The appeal is disposed off accordingly.



CIVIL APPEAL NOS. 10304-10308            of 2010
(arising out of S.L.P.(C) Nos.26659-26663 of 2008)


11.   Leave granted.



12.   Mr. P.H. Parekh, learned senior counsel, appears for the

Coimbatore Bar Association.



13.   We agree with the submission of Mr. P.H. Parekh that the

observations made against the Coimbatore Bar Association in para 13

of the impugned judgment and order of the High Court should be

quashed. We order accordingly.



14.   Before parting with this case, we would like to comment upon a

matter of great legal and constitutional importance which has caused us

deep distress in this case.   It appears that the Bar Association of
                                                                      5


Coimbatore passed a resolution that no member of the Coimbatore Bar

will defend the accused policemen in the criminal case against them in

this case.


15.   Several Bar Association all over India, whether High Court Bar

Associations or District Court Bar Associations have passed resolutions

that they will not defend a particular person or persons in a particular

criminal case.   Sometimes there are clashes between policemen and

lawyers, and the Bar Association passes a resolution that no one will

defend the policemen in the criminal case in court.           Similarly,

sometimes the Bar Association passes a resolution that they will not

defend a person who is alleged to be a terrorist or a person accused of a

brutal or heinous crime or involved in a rape case.


16.   In our opinion, such resolutions are wholly illegal, against all

traditions of the bar, and against professional ethics.   Every person,

however, wicked, depraved, vile, degenerate, perverted, loathsome,

execrable, vicious or repulsive he may be regarded by society has a

right to be defended in a court of law and correspondingly it is the duty

of the lawyer to defend him.
                                                                            6



17.   We may give some historical examples in this connection.



18.   When the great revolutionary writer Thomas Paine was jailed and

tried for treason in England in 1792 for writing his famous pamphlet

`The Rights of Man' in defence of the French Revolution the great

advocate Thomas Erskine (1750-1823) was briefed to defend him.

Erskine was at that time the Attorney General for the Prince of Wales

and he was warned that if he accepts the brief, he would be dismissed

from office. Undeterred, Erskine accepted the brief and was dismissed

from office.


19.   However, his immortal words in this connection stand out as a

shining light even today :


                       "From the moment that any advocate can be
               permitted to say that he will or will not stand between the
               Crown and the subject arraigned in court where he daily
               sits to practice, from that moment the liberties of England
               are at an end. If the advocate refuses to defend from
               what he may think of the charge or of the defence, he
               assumes the character of the Judge; nay he assumes it
               before the hour of the judgment; and in proportion to his
               rank and reputation puts the heavy influence of perhaps a
               mistaken opinion into the scale against the accused in
               whose favour the benevolent principles of English law
                                                                   7


           make all assumptions, and which commands the very
           Judge to be his Counsel"

20.   Indian lawyers have followed this great tradition. The

revolutionaries in Bengal during British rule were defended by our

lawyers, the Indian communists were defended in the Meerut

conspiracy case, Razakars of Hyderabad were defended by our lawyers,

Sheikh Abdulah and his co-accused were defended by them, and so

were some of the alleged assassins of Mahatma Gandhi and Indira

Gandhi.   In recent times, Dr. Binayak Sen has been defended. No

Indian lawyer of repute has ever shirked responsibility on the ground

that it will make him unpopular or that it is personally dangerous for

him to do so. It was in this great tradition that the eminent Bombay

High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.

trials in the Red Fort at Delhi (November 1945 - May 1946).



21.   However, disturbing news is coming now from several parts of

the country where bar associations are refusing to defend certain

accused persons.
                                                                      8


22.   The Sixth Amendment to the US Constitution states "In all

criminal prosecutions the accused shall enjoy the right .......to have the

assistance of counsel for his defence".

23.   In Powell vs. Alabama 287 US 45 1932 the facts were that nine

illiterate young black men, aged 13 to 21, were charged with the rape of

two white girls on a freight train passing through Tennessee and

Alabama.     Their trial was held in Scottsboro, Alabama, where

community hostility to blacks was intense. The trial judge appointed

all members of the local bar to serve as defense counsel. When the trial

began, no attorney from the local bar appeared to represent the

defendants. The judge, on the morning of the trial, appointed a local

lawyer who undertook the task with reluctance. The defendants were

convicted. They challenged their convictions, arguing that they were

effectively denied aid of counsel because they did not have the

opportunity to consult with their lawyer and prepare a defense. The

U.S. Supreme Court agreed. Writing for the court, Mr. Justice George

Sutherland explained :


                  "It is hardly necessary to say that the right to
            counsel being conceded, a defendant should be afforded a
                                                                         9


           fair opportunity to secure counsel of his own choice. Not
           only was that not done here, but such designation of
           counsel as was attempted was either so indefinite or so
           close upon the trial as to amount to a denial of effective
           and substantial aid....."


24.   In the same decision Justice Sutherland observed:


                  "What, then, does a hearing include? Historically
           and in practice, in our own country at least, it has always
           included the right to the aid of counsel when desired and
           provided by the party asserting the right. The right to be
           heard would be, in many cases, of little avail if it did not
           comprehend the right to be heard by counsel. Even the
           intelligent and educated layman has small and sometimes
           no skill in the science of law. If charged with crime, he
           is incapable, generally, of determining for himself
           whether the indictment is good or bad. He is unfamiliar
           with the rules of evidence. Left without the aid of
           counsel he may be put on trial without a proper charge,
           and convicted upon incompetent evidence, or evidence
           irrelevant to the issue or otherwise inadmissible. He
           lacks both the skill and knowledge adequately to prepare
           his defense, even though he have a perfect one. He
           requires the guiding hand of counsel at every step in the
           proceedings against him. Without it, though he be not
           guilty, he faces the danger of conviction because he does
           not know how to establish his innocence. If that be true
           of men of intelligence, how much more true is it of the
           ignorant and illiterate, or those of feeble intellect. If in
           any case, civil or criminal, a state or federal court were
           arbitrarily to refuse to hear a party by counsel, employed
           by and appearing for him, it reasonably may not be
           doubted that such a refusal would be a denial of a
           hearing, and, therefore, of due process in the
           constitutional sense".
                                                                    1




25.      In this connection we may also refer to the legendry American

lawyer Clarence Darrow (1857-1930) who was strongly of the view

that every accused, no matter how wicked, loathsome, vile or repulsive

he may be regarded by society has the right to be defended in court.

Most lawyers in America refused to accept the briefs of such apparently

wicked and loathsome persons, e.g. brutal killers, terrorists, etc. but

Clarence Darrow would accept their briefs and defend them, because he

was firmly of the view that every persons has the right to be defended

in court, and correspondingly it was the duty of the lawyer to defend.

His defences in various trials of such vicious, repulsive and loathsome

persons became historical, and made him known in America as the

`Attorney for the Damned', (because he took up the cases of persons

who were regarded so vile, depraved and despicable by society that

they had already been condemned by public opinion) and he became a

legend in America (see his biography `Attorney for the Damned').


26.      In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of

the US Supreme Court in his dissenting judgment praised Darrow and

said :
                                                                        1


                  "Men like Lord Erskine, James Otis, Clarence
            Darrow, and a multitude of others have dared to speak in
            defense of causes and clients without regard to personal
            danger to themselves. The legal profession will lose
            much of its nobility and its glory if it is not constantly
            replenished with lawyers like these. To force the Bar to
            become a group of thoroughly orthodox, time-serving,
            government-fearing individuals is to humiliate and
            degrade it."


27.   At the Nuremberg trials, the Nazi war criminals responsible for

killing millions of people were yet defended by lawyers.



28.   We may also refer to the fictional American lawyer Atticus Finch

in Harper Lee's famous novel `To Kill a Mocking Bird'. In this novel

Atticus Finch courageously defended a black man who was falsely

charged in the State of Alabama for raping a white woman, which was

a capital offence in that State. Despite the threats of violence to him

and his family by the racist white population in town, and despite social

ostracism by the predominant while community, Atticus Finch bravely

defended that black man (though he was ultimately convicted and

hanged because the jury was racist and biased), since he believed that

everyone has a right to be defended. This novel inspired many young

Americans to take up law as a profession in America.
                                                                       1




29.   The following words of Atticus Finch will ring throughout in

history :

                   "Courage is not a man with a gun in his hand.
            It is knowing you are licked before you begin, but
            you begin anyway and you see it through no matter
            what. You rarely win, but sometimes you do."


30.   In our own country, Article 22(1) of the Constitution states :

                   "No person who is arrested shall be detained in
            custody without being informed, as soon as may be, of
            the grounds for which arrest nor shall he be denied the
            right to consult, and to be defended by, a legal
            practitioner of his choice".


31.   Chapter II of the Rules framed by the Bar Council of India states

about `Standards of Professional Conduct and Etiquette', as follows :

                   "An advocate is bound to accept any brief in the
            Courts or Tribunals or before any other authorities in or
            before which he proposes to practice at a fee consistent
            with his standing at the Bar and the nature of the case.
            Special circumstances may justify his refusal to accept a
            particular brief".



32.   Professional ethics requires that a lawyer cannot refuse a brief,

provided a client is willing to pay his fee, and the lawyer is not

otherwise engaged.     Hence, the action of any Bar Association in
                                                                       1


passing such a resolution that none of its members will appear for a

particular accused, whether on the ground that he is a policeman or on

the ground that he is a suspected terrorist, rapist, mass murderer, etc. is

against all norms of the Constitution, the Statute and professional

ethics.   It is against the great traditions of the Bar which has always

stood up for defending persons accused for a crime. Such a resolution

is, in fact, a disgrace to the legal community. We declare that all such

resolutions of Bar Associations in India are null and void and the right

minded lawyers should ignore and defy such resolutions if they want

democracy and rule of law to be upheld in this country. It is the duty of

a lawyer to defend no matter what the consequences, and a lawyer who

refuses to do so is not following the message of the Gita.


33.   The Registry of this Court will circulate copies of this

judgment/order to all High Court Bar Associations and State Bar

Councils in India. The High Court Bar Associations are requested to

circulate the judgment/order to all the District Court Bar Associations

in their States/Union territories.
                                                                         1


34.   With these observations, these appeals are disposed of. No costs.




                                   ..................................J.
                                   (Markandey Katju)



                                   .................................J.
                                   (Gyan Sudha Misra)

New Delhi;
6th December, 2010

JAWS OF MONEY LENDERS

                                                    REPORTABLE


               IN THE SUPREME COURT OF INDIA
              CRIMINAL APPELLATE JURISDICTION




             CRIMINAL APPEAL NO._____ OF 2010
       (Arising out of SLP (Crl.) No.2614 of 2009)






State of Maharashtra & Ors.                    ..Appellant(s)






                           Versus






Sarangdharsingh Shivdassingh Chavan & Anr...Respondent(s)








                       J U D G M E N T




GANGULY, J.






1.   Leave granted.






2.   The facts of each case, which come up to this Court


     and especially those which are heard at length as


     appeals,   have   a   message   to   convey.   The   message


     conveyed in this case is extremely shocking and it


     shocks the conscience of this Court about the manner






                               1
    in which the Constitutional functionaries behaved in


     the State of Maharashtra.






3.   A writ petition was filed before Bombay High Court


     by Sarangdharsingh Shivdassingh Chavan - the first


     respondent in this appeal. He described himself as


     an agriculturist by profession. The allegation in


     the    writ   petition     is     of   illegal     money      lending


     against   the     second      respondent   to    the       extent   of


     charging 10% interest per month on the money lent.






4.   In view of such exorbitant interest being charged


     and the illegalities which are alleged be committed


     in the recovery of such loan, certain complaints


     were filed against the second respondent and in the


     writ   petition     it   is     stated   that    as    many    as   34


     complaints       were    registered      against       the     second


     respondent till 28.6.2006.






5.   It was also averred in the writ petition that nearly


     300    farmers    have     committed     suicide      in     Vidarbha


     region of Maharashtra as victims of such illegal


     money lending business and the torture perpetrated


     in the recovery of such money. A complaint has been




                                   2
    made that the farmers do not get the benefit of


     various packages announced by the Government and the


     State machinery is ruthless against the farmers. The


     cause of action for filing the writ petition is the


     order    of   Collector       in   the    District    of    Buldhana


     (hereinafter "Collector") directing not to register


     any crime against Mr. Gokulchand Sananda, the second


     respondent herein, without obtaining              clearance from


     the District Anti Money Lending Committee and also


     without obtaining legal opinion of                   the District


     Government Pleader. It appears that the said order


     was     passed     by   the    Collector     in      view   of   the


     instructions given to him by the then Chief Minister


     of Maharashtra. It has been alleged in the petition


     that there are several complaints and the number of


     such complaints is about 50 against Sananda and his


     family members who are carrying on money lending


     business and the cases cannot be registered against


     them in view of the instructions given by the then


     Chief Minister.






6.   In    order   to    understand      the    seriousness      of   the


     situation, it will be appropriate in the fitness of


     things, to set out the order dated 5.6.2006 of the




                                   3
    Collector, Buldhana to the District Superintendent


     of Police, Buldhana:






     "To
     District Superintendent of Police
     Buldhana


     Sub: Regarding   complaints   against illegal
          money lending against MLA Dilipkumar
          Sananda and his family members.


     Ref: instructions   given  by   Hon'ble  Chief
          Minister in meeting dated 1.6.2006.


          On the above mentioned subject, detailed
     discussion took place at the residence of
     Hon'ble Chief Minister on 1.6.2006. In the
     said    meeting,    MLA    Dilipkumar    Sananda
     complained that deliberately by raising false
     allegations,   against   his   family   members,
     complaints regarding illegal money lending are
     being    filed    and    without    scrutinizing
     truthfulness of the said complaints, offences
     are being registered. In respect of said
     grievance, Hon'ble Chief Minister has taken
     serious note and given order that `if any such
     complaint is received then before registration
     of offence against MLA Dilipkumar Sananda and
     his family members, said matter/complaint be
     placed for decision before District Anti-Money
     Lending Committee and said Committee should
     obtain legal opinion of District Government
     Pleader and then only take decision on the
     same   and   take   appropriate   legal   action
     accordingly'.


          You  are   informed   that   as per   the
     instructions   of   Hon'ble   Chief  Minister,
     matters against Sananda family be handled as
     per the provisions of Money Lending Prevention
     Act."






7.   It   may   be   noticed   that   prior   to   the   aforesaid


     discussion which the Collector had at the residence


     of the Chief Minister on 1.6.2006 in which meeting


                               4
Mr.     Dilipkumar        Sananda,        local     MLA     was      present,


 something happened in the Police Station, Khamgaon


 City,     District        Buldhana        on     31.5.2006.       The       said


 station diary shows that Mr. Padwal, P.S. to the


 Chief    Minister        telephoned        twice    to     enquire       about


 "the information regarding the offence" registered


 against Sananda and the Section under which the case


 has     been    registered.         The        second     phone      call     as


 recorded       in    Station    Diary      shows        that    Mr.     Padwal


 directed       that       no   action          should      be     taken       as


 instructed          by   the   Chief      Minster       and     no    offence


 should be registered. The text of the station diary


 dated 31.5.2006 is set out:






"Station Diary
Police Station            Khamgaon      City,       District       Buldhana,
dated 31.5.2006




Station Time          Summary   Particulars of Entry
Diary                 of    the
Entry                 Entry
No.


26         13.15 Phone               At this time, Mr. Padwal, PS
           hrs. from     PS          to Hon'ble Chief Minister,
                 to    Hon.          MS dialed and enquired about
                 CM                  the   information  regarding
                                     offence registered against
                                     Sananda; we informed that
                                     offence is registered at
                                     12.15 hrs.






                                 5
    27        13.25 Phone             At this time, Mr. Padwal
               hrs. from     PS        enquired about facts of the
                     to    Hon.        offence registered, sections
                     CM                applied; then we informed
                                       them about sections applied
                                       to    the   said   registered
                                       offence, then he told that
                                       henceforth    no  action   be
                                       taken    as   instructed   by
                                       Hon'ble CM and further said
                                       that again no other offences
                                       be registered.


                                                               Sd/-
                                                   Police Inspector
                                       Khamgaon City Police Station








8.    On the writ petition being filed challenging the


      aforesaid      two        communications,         namely,        the


      communication made by the P.S. to the Chief Minister


      vide the Station diary entry which is set out above


      and the order of Collector on the direction of the


      Chief   Minister,     the    High    Court   in     the   impugned


      judgment allowed the writ petition. The High Court,


      inter alia, held that the directions of the Chief


      Minister in the telephonic message was proved by the


      communication of the Collector dated 5.6.2006 and


      the     High      Court     held     that    such      telephonic


      communication was made at the behest of Gokulchand


      Sananda,    the    second    respondent      herein.      The   High


      Court after examining the provisions of the Bombay




                                   6
     Money Lenders Act and also the materials on record


      held    that     the    letter        dated    5.6.2006       and     the


      telephonic     message      recorded      in   the    Station       diary


      entry exhibit gross abuse of power by the concerned


      authority and struck down both the communications.




9.    The    High    Court,      however,      recorded      that    on     the


      complaint filed by the writ petitioner - the first


      respondent       herein,    a       chargesheet      was   filed      for


      offences under Sections 341, 342, 363, 392, 504 read


      with Section 34 of Indian Penal Code and Section 32B


      of the Bombay Money Lenders Act, 1946. The criminal


      case is pending. The High Court also observed that


      they are not aware how many instances of illegal


      money lending do exist. The High Court expressed a


      hope that power of the Executive will not be abused


      in the manner in which it has been done in this


      case. The High Court, quashed the Collector's order


      and    allowed    the   writ        petition   awarding       costs    of


      Rs.25,000/- to be paid by the State Government.






10.   However, the State of Maharashtra did not accept the


      judgment of the High Court and challenged the same


      before this Court by filing a special leave petition


      out of which the present appeal arises.


                                      7
11.   From the affidavit which was filed by the Collector


      before     the    High       Court,      it     appears    that     the


      Collector has admitted that in Vidarbha region in


      Buldhana District the farmers committed suicide for


      various reasons and especially for the loan burden


      coupled with the fact that there was irregular rain


      fall.






12.   The   Collector      admitted      in    paragraph       (3)   of   the


      affidavit that on the complaint of Sananda before


      the   Chief      Minister    about      cases    being    registered


      against     him     and      his     family      members       without


      investigation,       the      Chief      Minister        called     the


      Collector at Mumbai and gave the instructions quoted


      above     and    thereupon    the       Collector    conveyed       the


      message of the Chief Minister to the Superintendent


      of Police, Buldhana.          However, the Collector took a


      stand that by doing so he has not committed any


      illegality.






13.   In the affidavit of the Superintendent of Police,


      Buldhana before the High Court, he admits that there


      are five cases already registered against the family




                                    8
members of Sananda under the Bombay Money Lenders


Act and he has given details of those cases in his


affidavit. He also submitted that on 31.5.2006 an


offence came to be registered at police station,


Khamgaon (T) on the complaint made by Shri Rajesh


Shankar Kawadkar under Sections 341, 366, 392 read


with Section 34 IPC and under Section 32(b) and 33


of the Bombay Money Lenders Act.             He also admits to


have received instructions from the Collector by the


Collector's     order      dated      5.6.2006        about      the


Collector's meeting with the then Chief Minister of


the Maharashtra and also about the manner in which


the police has to deal with the complaints against


Dilip Kumar Sananda and his family members.                       He


further   averred    in    his    affidavit   that     by     letter


dated 9.6.2006 the Superintendent of Police conveyed


that as per Section 154 of Criminal Procedure Code


cognizable complaints are to be registered without


undue delay.    However, on receipt of the said letter


the   Collector     sent    his    letter     dated     14.6.2006


stating therein that under Section 36 of the Cr.P.C.


the   State   Government     can    direct    a   senior      police


officer to take cognizance of the offence also.








                            9
14.   In the course of hearing of this case, this Court by


      an    order    dated     11th   February        2010    directed        the


      learned       counsel    for     the        appellant     to     file   an


      affidavit on the following points:




      "1.     The number of    cases involving
      complaints against respondent No.2 and/or
      his family members.


      2. The number of cases in which FIR have
      been registered against respondent No.2
      and/or his family members.


      3. The   number    of  cases    in   which
      instructions    like  the    one contained
      in letter dated 05.06.2006 of District
      Collector, Buldhana were or have been
      given by Hon'ble the Chief Minister     or
      any other functionary or authority of the
      State Government."






15.   Pursuant thereto an additional affidavit was filed


      by one Ambadas, Assistant Police Inspector, posted


      to    P.S.      Khamgaon        Gramin,        District         Buldhana,


      Maharashtra to the effect that 34 complaints were


      received in different police stations in Buldhana


      District against the members of Sananda family. In


      the   affidavit     it    was        also    stated    that     in   seven


      complaints chargesheets have been filed and the same


      are    pending     before       different        Courts        below.    In


      respect of other complaints the complainants have




                                      10
     either      settled    their     disputes      or    have    withdrawn


      their complaints. It was also stated that not a


      single      person      including        any       member     of     the


      complainant's family has committed suicide in view


      of dispute over money lending by Sananda family.


      This averment was, however, not necessary in terms


      of the order dated 11.2.10.






16.   The    learned        counsel        appearing      for     the    first


      respondent raised a contention that the so called


      District      Anti-money         Lending       Committee      is     not


      statutory. This Court has looked into the resolution


      dated 19th October 2005 which purports to constitute


      the said committee and this Court finds that the


      said committee has not been constituted in exercise


      of    any    statutory     power       and   the     said    committee


      consists of the following persons:




            "1. District      Collector of the concerned
                District      -    President
            2.  District      Superintendent of Police -
                Member
            3.  District      Registrar, Cooperative
                Society       - Member Secretary."






17.   This Court, therefore, finds that the contention of


      the    learned   counsel        for    the   first    respondent     is




                                      11
     correct   and    so   far    as   the   said    committee   is


      concerned it is not a statutory body.






18.   Since, the learned counsel for the first respondent


      was arguing on the propriety of directions given by


      the then Chief Minister of Maharashtra and also on


      the propriety of Chief Minister's Personal Secretary


      making telephone calls to the police station and


      giving instructions as to how complaints should be


      registered      against     the   family   of    the   second


      respondent, this Court thought that the then Chief


      Minister of Maharashtra, who was initially not a


      party to this proceeding, should be impleaded and be


      given a chance to make his representation before the


      Court. Therefore, this Court by an order dated 31st


      March 2010, gave notice to the then Chief Minister


      of State of Maharashtra, presently Union Minister,


      Department of Heavy Industries, Government of India


      and directed service of the entire paper book of


      Special Leave Petition on him in order to enable him


      to file an affidavit in the context of the letter


      dated 5th June 2006 sent by the Collector to the


      District Superintendent of the Police, Buldhana.








                                  12
19.   Pursuant to the said notice an affidavit was filed


      by Shri Vilasrao Deshmukh, the then Chief Minister


      of Maharashtra. In paragraph 5 of the said affidavit


      the content of the letter of the Collector dated


      5.6.06 was not denied. Nor was it denied that on


      31.5.06, his Private Secretary made two telephone


      calls    to    the   concerned           Police    Station    enquiring


      about cases registered against Sananda. However, in


      the said affidavit Mr. Deshmukh stated that he never


      interfered with any pending investigation against


      the family of Sananda and he further stated that


      investigation was conducted and the chargesheet was


      filed.






20.   Considering       the        entire       matter    in     its     proper


      perspective, this Court is of the view that the way


      interference was caused first from the office of the


      Chief    Minister       by    his     Private      Secretary       by   two


      telephone calls on 31.5.2006 and the manner in which


      District       Collector       was       summoned     by     the    Chief


      Minister on the very next day i.e. 1.6.2006 for


      giving        instructions          to     specially       treat        any


      complaints      filed    against          M.L.A.    Mr.    Dilip    Kumar








                                      13
     Sananda and his family has no precedent either in


      law or in public administration.






21.   The    legal      position     is       well       settled     that      on


      information being lodged with the police and if the


      said   information        discloses          the   commission       of    a


      cognizable offence, the police shall record the same


      in accordance with the provisions contained under


      Section 154 of the Criminal Procedure Code. Police


      Officer's        power   to    investigate          in     case     of    a


      cognizable offence without order of the Magistrate


      is statutorily recognised under Section 156 of Code.


      Thus   the     police     officer       in    charge      of   a   police


      station, on the basis of information received or


      otherwise, can start investigation if he has reasons


      to suspect the commission of any cognizable offence.






22.   This   is    subject     to   the   provisos        (a)    and     (b)   to


      Section 157 of the Code which leaves discretion with


      the police officer-in-charge of police station to


      consider if the information is not of a serious


      nature,     he    may    depute     a   subordinate          officer     to


      investigate and if it appears to the officer-in-








                                    14
     charge that there does not exist sufficient ground,


      he shall not investigate.






23.   This legal framework is a very vital component of


      the   Rule        of    Law     in    order         to   ensure      prompt


      investigation in cognizable cases and to maintain


      law and order.






24.   Law does not accord any special treatment to any


      person in respect of any complaint having been filed


      against him when it discloses the commission of any


      cognizable offence. In the context of this clear


      legal position which, as noted above, is a vital


      component of a Rule of Law, the direction of the


      then Chief Minister to give a special treatment to


      Shri Dilip Kumar Sananda, M.L.A and his family about


      registering        of   complaint           filed    against      them   is


      totally unwarranted in law. Mr. Vilasrao Deshmukh as


      the   Chief       Minister      of     State        of   Maharashtra     is


      expected     to    know       that    the    farmers      of   the   State


      specially those in the Vidarbha region are going


      through a great deal of suffering and hardship in


      the hands of money lenders.








                                       15
25.   It is not in dispute that members of the family of


      Shri Dilip Kumar Sananda, a Member of Legislative


      Assembly, are engaged in money lending business and


      various    complaints   have    been     lodged      against   the


      members of such family.






26.   From the affidavit filed by Shri Ambadas it is clear


      that 34 cases were filed against that family in


      respect of allegation of money lending.






27.   From the communication of the Collector containing


      the instructions of the then Chief Minister, Mr.


      Vilasrao    Deshmukh,   it     is   clear     that    the   Chief


      Minister was aware of various complaints being filed


      against the said family. Even then he passed an


      order for a special treatment in favour of the said


      family which is unknown to law. This was obviously


      done to protect the Sananda family from the normal


      legal process and a special procedure was directed


      to be adopted in respect of criminal complaint filed


      against them. In other words, the Chief Minister


      wanted to give the members of the said family a


      special protection which is not available to other


      similarly    placed   persons.      It   is   clear    from    the




                               16
     Collector's     order     dated      5.6.2006      where     the   Chief


      Minister's instructions were quoted that the Chief


      Minister       was       acting          solely       on     political


      consideration to screen the family of M.L.A from the


      normal process of law.






28.   As Judges of this Court, it is our paramount duty to


      maintain   the    Rule    of     Law     and    the   Constitutional


      norms of equal protection.






29.   We cannot shut our eyes to the stark realities. From


      the   National    Crime    Records         Bureau     (NCRB),      it   is


      clear   that     close    to     two     lakh     farmers    committed


      suicide in India between 1997 and 2008. This is the


      largest sustained wave of suicides ever recorded in


      human history. Two thirds of the two lakh suicides


      took place in five states and those five states are


      Maharashtra,      Andhra       Pradesh,         Karnataka,         Madhya


      Pradesh and Chhattisgarh. Even though Maharashtra is


      one of the richest state in the country and in its


      capital Mumbai twenty five thousand of India's one


      lakh dollar millionaires reside, the Vidarbha region


      of Maharashtra, in which is situated Buldhana, is


      today   the    worst     place      in   the    whole      country      for




                                     17
     farmers. Professor K. Nagraj of the Madras Institute


      of Development Studies who carried on a research in


      this area has categorized that Maharashtra could be


      called the graveyard of farmers.






30.   The position is so pathetic in Vidarbha region that


      families are holding funerals and weddings at the


      same time and some time on the same day. In a moving


      show of solidarity poor villagers are accumulating


      their   money    and   labour     to   conduct   marriages    and


      funerals of their poor neighbours. (See the report


      in Hindu dated 22nd May 2006).






31.   This being the ground reality, as the Chief Minister


      of the State and as holding a position of great


      responsibility as a high constitutional functionary,


      Mr.   Vilasrao   Deshmukh        certainly   acted   beyond   all


      legal norms by giving the impugned directions to the


      Collector to protect members of a particular family


      who are dealing in money lending business from the


      normal process of law. This amounts to bestowing


      special favour to some chosen few at the cost of the


      vast number of poor people who as farmers have taken


      loans and who have come to the authorities of law




                                  18
     and     order     to    register         their        complaints       against


      torture and atrocities by the money lenders. The


      instructions of the Chief Minister will certainly


      impede their access to legal redress and bring about


      a failure of the due process.






32.   The     aforesaid       action      of      the     Chief     Minister      is


      completely       contrary      to     and       inconsistent       with    the


      constitutional         promise        of    equality        and    also    the


      preambular resolve of social and economic justice.


      As a Chief Minister of the State Mr. Deshmukh has


      taken     a     solemn    of     oath        of    allegiance       to     the


      Constitution but the directions which he gave are


      wholly    unconstitutional             and      seek     to   subvert      the


      constitutional norms of equality and social justice.




33.   The     argument       that    some        of     the   cases     in     which


      complaints were filed against the family of Sananda,


      were investigated and chargesheets were filed, is a


      poor consolation and does not justify the issuing of


      the      wholly        unauthorised             and      unconstitutional


      instructions to the Collector. It is not known to us


      in how many cases investigation has been totally


      scuttled in view of the impugned directions. Records


      disclosed in this case show that out of 74 cases


                                       19
     only in seven cases chargesheets were filed and the


      rest   of     the      cases       were     either     compromised      or


      withdrawn.       How    can        poor     farmers    sustain        their


      complaint in the face of such directions and how can


      the    subordinate             police        officers       carry        on


      investigation        ignoring        such     instructions       of    the


      Chief Minister? Therefore, the instructions of the


      Chief Minister have completely subverted the Rule of


      Law.






34.   Dr. Singhvi, learned senior counsel appearing for


      Mr. Vilasrao Deshmukh relied on a decision of this


      Court in the case of Lalita Kumari v. Government of


      Uttar Pradesh & Ors. reported in 2008 (14) SCC 337.






35.   In Lalita Kumari (supra), a Bench of this Court did


      not lay down any law. The Bench merely noted that


      there is a divergence of views between different


      Benches of this court on the issue whether upon


      receipt     of      information           disclosing    a   cognizable


      offence, it is imperative for the police officer to


      register a case or discretion still lies with him to


      make   some      kind    of    a     preliminary       enquiry    before


      registering the same. The Bench having noted the




                                      20
     divergence        of   views    on     the    aforesaid       question


      referred the matter to a larger Bench.






36.   We fail to appreciate the relevance of the aforesaid


      decision to the disputes involved in the present


      case.






37.   In Lalita Kumari (supra), there was no instruction


      by any Chief Minister or any executive authority to


      give a special treatment to any group of persons in


      the matter of registration of criminal cases against


      them.   Therefore,       the        opinion   in     Lalita     Kumari


      (supra) does not in any way justify the instruction


      given by Mr. Vilasrao Deshmukh.






38.   This Court is extremely anguished to see that such


      an instruction could come from the Chief Minister of


      a State which is governed under a Constitution which


      resolves     to    constitute        India    into    a   socialist,


      secular,     democratic        republic.       Chief      Minister's


      instructions are so incongruous and anachronistic,


      being in defiance of all logic and reason, that our


      conscience is deeply disturbed. We condemn the same


      in no uncertain terms.




                                     21
39.   We affirm the order of the High Court and direct


      that the instruction of the Chief Minister to the


      Collector dated 5.6.06 has no warrant in law and is


      unconstitutional    and   is    quashed.    We   dismiss   this


      appeal   with   costs   of     Rs.10,00,000/-    (Rupees   Ten


      Lakhs) to be paid by the appellant in favour of the


      Maharashtra     State   Legal    Services   Authority.     This


      fund shall be earmarked by the Authority to help the


      cases of poor farmers.          Such costs should be paid


      within a period of six weeks from date.








                                .....................J.
                                (G.S. SINGHVI)






                                .....................J.
                                (ASOK KUMAR GANGULY)




New Delhi
December 14, 2010








                                22
                  IN THE SUPREME COURT OF INDIA


                CRIMINAL APPELLATE JURISDICTION


               CRIMINAL APPEAL NO.                   OF 2010
                (Arising out of SLP (Crl.) No. 2614 of 2009)






State of Maharashtra and others                            ........Appellants


                                  Versus


Sarabgdharsingh Shivdassing Chavan                          .......Respondents
and another








                              JUDGMENT


G.S. Singhvi, J.




1.    I have gone through the judgment prepared by my esteemed brother


Justice Asok Kumar Ganguly. I agree with him that the appeal deserves to


be dismissed with costs but would like to separately record my views on the


crucial issue of ministerial interference in the functioning of the authorities


entrusted with the task of enforcing the laws enacted by the legislature.
                                                                        24




2.      The Constituent Assembly which comprised of eminent people drawn


from different walks of life debated for more than two years, examined the


constitutions of several countries and prepared the document, which was


adopted as "the Constitution of India". The Preamble to the Constitution, as


it stands after the Constitution (Forty-second Amendment) Act, 1976, reads


thus:




        "We, the people of India, having solemnly resolved to
        constitute India into a Sovereign Socialist Secular Democratic
        Republic and to secure to all its citizens:


        JUSTICE, social, economic and political;


        LIBERTY of thought, expression belief, faith and worship;


        EQUALITY of status and of opportunity and to promote among
        them all


        FRATERNITY assuring the dignity of the individual and the
        unity and integrity of the Nation."






3.      Though each of XXII Parts of the Constitution has its own


significance, the common man is by and large concerned with Parts III, IV


and IV-A, the last having been added by the Forty-second Amendment Act,


1976. Part-III of the Constitution enumerates various fundamental rights


guaranteed to the citizens and even non-citizens. The provisions of Part-IV


contain directive principles of State policy which are fundamental for the
                                                                              25




governance of the country. The State has been obligated to enact laws for


improving the lot of the weaker sections of the society and the rural


population so that the goals of social justice and equality can be achieved.








4.    By incorporating Part IVA in the Constitution, the Parliament has


emphasized what is obvious, that is, every citizen must do his duty towards


the nation as well as the fellow citizens because unless every one does his


duty, it is not possible to achieve the goals of equality and justice enshrined


in the Preamble. Article 51A enjoins upon every citizen to abide by the


Constitution and respect its ideals and institutions, the National Flag and the


National Anthem; to cherish and follow the noble ideals which inspired our


national struggle for freedom; to uphold and protect the sovereignty, unity


and integrity of India; to promote harmony and the spirit of common


brotherhood amongst all the people irrespective of religion, language, region


etc. and to renounce practices derogatory to the dignity of women; to value


and preserve the rich heritage of our composite culture; to protect and


improve the natural environment including forests, lakes, rivers and wild


life, and to have compassion for living creatures; to develop the scientific


temper, humanism and the spirit of inquiry and reform; to safeguard public


property and to abjure violence; and to strive towards excellence in all
                                                                         26




spheres of individual and collective activity so that the nation constantly


rises to higher levels of endeavour and achievement. What has been


incorporated in the form of Part IV-A was implicit in the Preamble, Part III


and Part-IV of the Constitution because fundamental rights of the citizens


can become meaningful only if the State and citizens do their duty to bring


about real equality amongst the people belonging to different segments of


the Society.








5.    Part IV-A of the Constitution was enacted with a fond hope that every


citizen will honestly play his role in building of a homogeneous society in


which every Indian will be able to live with dignity without having to bother


about the basics like food, clothing, shelter, education, medical aid and the


nation will constantly march forward and will take its place of pride in the


comity of nations. However, what has happened in last few decades has


given rise to serious apprehensions whether we will be able to achieve the


objectives which were in the mind of the makers of the Constitution. The


gap between 'haves' and 'haves not' of the society which existed even in pre-


independent India has widened to such an extent that it may take many


decades before even a token equality is restored. A small fraction of the


population has evolved a new value system which is totally incompatible
                                                                           27




with the values and ideals cherished by the Indian society for centuries


together. They believe in achieving their goals without regard to purity of


the means.




6.    Under the Constitution, the executive power of the State vests in the


Governor and is required to be exercised by him either directly or through


officers subordinate to him in accordance with the Constitution [Article


154(1)]. Article 163 mandates that there shall be Council of Ministers with


the Chief Minister as the head to aid and advise the Governor in the exercise


of his functions, except in so far as he is by or under the Constitution


required to exercise his functions or any of them in his discretion. Article


164 lays down that the Chief Minister shall be appointed by the Governor


and the other Ministers shall be appointed by the Governor on the advice of


the Chief Minister, and the Minister shall hold office during the pleasure of


the Governor. Article 164(3) lays down that the Governor shall before a


Minister enters upon his office, administer to him the oath of office and


secrecy according to the form set out in the Third Schedule, in terms of


which, the Minister is required to take oath that he shall discharge his duties


in accordance with the Constitution and the law without fear or favour,


affection or ill will. However, the cases involving pervasive misuse of


public office for private gains, which have come to light in last few decades
                                                                          28




tend to shake the peoples' confidence and one is constrained to think that


India has freed itself from British colonialism only to come in the grip of a


new class, which tries to rule on the same colonial principles.         Some


members of the political class who are entrusted with greater responsibilities


and who take oath to do their duties in accordance with the Constitution and


the law without fear or favour, affection or ill will, have by their acts and


omissions demonstrated that they have no respect for system based on rule


of law.




7.    The judgment of the Constitution Bench in C.S. Rowjee v. State of


Andhra Pradesh (1964) 6 SCR 330 is an illustration of the misuse of public


office by the Chief Minister for political gain. The schemes framed by the


Government of Andhra Pradesh under Chapter IVA of the Motor Vehicles


Act, 1939 for nationalization of motor transport in certain areas of Kurnool


District of Andhra Pradesh were challenged by filing writ petitions under


Article 226 of the Constitution. The High Court repelled the challenge to


the validity of the schemes and also negatived the argument that the same


were vitiated due to mala fides of the then Chief Minister of the State. This


Court allowed the appeals and quashed the scheme and declared that the


schemes are invalid and cannot be enforced. While examining the issue of


mala fide exercise of power, the Constitution Bench stuck a note of caution
                                                                           29




by observing that allegations of malafides and of improper motives on the


part of those in power are frequently made and some times without any


foundation and, therefore, it is the duty of the Court to scrutinize those


allegations with care so as to avoid being in any manner influenced by them


if they are not well founded. The Court then noted that the scheme was


originally framed by the Corporation on the recommendations of


Anantharamakrishnan Committee, but was modified at the asking of the


Chief Minister so that his opponents may be prejudicially affected and


proceeded to observe:




      "The first matter which stands out prominently in this
      connection is the element of time and the sequence of dates. We
      have already pointed out that the Corporation had as late as
      March 1962 considered the entire subject and had accepted the
      recommendation of the Anantharamakrishnan Committee as to
      the order in which the transport in the several districts should be
      nationalised and had set these out in their Administration
      Report for the three year period 1958 to 1961. It must,
      therefore, be taken that every factor which the
      Anantharamakrishnan Committee had considered relevant and
      material for determining the order of the districts had been
      independently investigated, examined and concurred in, before
      those recommendations were approved. It means that up to
      March-April 1962 a consideration of all the relevant factors had
      led the Corporation to a conclusion identical with that of the
      Anantharamakrishnan Committee. The next thing that happened
      was a conference of the Corporation and its officials with the
      Chief Minister on April 19, 1962. The proceedings of the
      conference are not on the record nor is there any evidence as to
      whether any record was made of what happened at the
      conference. But we have the statement of the Chief Minister
                                                                    30




made on the floor of the State Assembly in which he gave an
account of what transpired between him and the Corporation
and its officials. We have already extracted the relevant
portions of that speech from which the following points
emerge: (1) that the Chief Minister claimed a right to lay down
rules of policy for the guidance of the Corporation and in fact,
the learned Advocate-General submitted to us that under the
Road Transport Corporation Act, 1950, the Government had a
right to give directions as to policy to the Corporation; (2) that
the policy direction that he gave related to and included the
order in which the districts should be taken up for
nationalisation; and (3) that applying the criteria that the
districts to be nationalised should be contiguous to those in
which nationalised services already existed, Kurnool answered
this test better than Chittoor and he applying the tests he laid
down therefore suggested that instead of Chittoor, Kurnool
should be taken up next. One matter that emerges from this is
that it was as a result of policy decision taken by the Chief
Minister and the direction given to the Corporation that
Kurnool was taken up for nationalisation next after Guntur. It is
also to be noticed that if the direction by the Chief Minister,
was a policy decision, the Corporation was under the law bound
to give effect to (vide Section 34 of the Road Transport
Corporation Act, 1950). We are not here concerned with the
question whether a policy decision contemplated by Section 34
of the Road Transport Act could relate to a matter which under
Section 68-C of the Act is left to the unfettered discretion and
judgment of the Corporation, where that is the State
undertaking, or again whether or not the policy decision has to
be by a formal Government Order in writing for what is
relevant is whether the materials placed before the Court
establish that the Corporation gave effect to it as a direction
which they were expected to and did obey. If the Chief Minister
was impelled by motives of personal ill-will against the Road
Transport Operators in the western part of Kurnool and he gave
the direction to the Corporation to change the order of the
districts as originally planned by them and instead take up
Kurnool first in order to prejudicially affect his political
opponents, and the Corporation carried out his directions it does
not need much argument to show that the resultant scheme
                                                                    31




framed by the Corporation would also be vitiated by mala fides
notwithstanding the interposition of the semi-autonomous
Corporation.


...... If in these circumstances the appellants allege that
whatever views the Corporation entertained they were
compelled to or gave effect to the wishes of the Chief Minister,
it could not be said that the same is an unreasonable inference
from facts. It is also somewhat remarkable that within a little
over two weeks from this conference by its resolution of May 4,
1962, the Corporation dropped Nellore altogether, a district
which was contiguous to Guntur and proceeded to take up the
nationalisation of the routes of the western part of the Kurnool
district and were able to find reasons for taking the step. It is
also worthy of note that in the resolution of 4th May, 1962, of
the Corporation only one reason was given for preferring
Kurnool to Nellore, namely, the existence of a depot at Kurnool
because the other reason given, namely, that Kurnool was
contiguous to an area of nationalised transport equally applied
to Nellore and, in fact, this was one of the criteria on the basis
of which the Anantharamakrishnan Committee itself decided
the order of priority among the districts. ......


...... What the Court is concerned with and what is relevant to
the enquiry in the appeals is not whether theoretically or on a
consideration of the arguments for and against, now advanced
the choice of Kurnool as the next district selected for
nationalisation of transport was wise or improper, but a totally
different question whether this choice of Kurnool was made by
the Corporation as required by Section 68-C or, whether this
choice vas in fact and in substance, made by the Chief Minister,
and implemented by him by utilising the machinery of the
Corporation as alleged by the appellants. On the evidence
placed in the case we are satisfied that it was as a result of the
conference of April 19, 1962, and in order to give effect to the
wishes of the Chief Minister expressed there, that the schemes
now impugned were formulated by the Corporation."


                                             (emphasis supplied)
                                                                         32








      In Chandrika Jha v. State of Bihar (1984) 2 SCC 41, this Court


examined the question whether the Chief Minister of the State could direct


extension of the term of the committee of management of Vaishali District


Central Cooperative Bank, Hazipur (for short, `the Bank'). The Bank was


created for the new district, which came into existence with the bifurcation


of the existing district. In exercise of the power conferred upon him by


Bye-law 29, the Registrar, Cooperative Societies, Bihar nominated a


committee of management of 17 members including the appellant to be the


first Board of Directors for a period of six months i.e., up to December 31,


1981 or till further orders, whichever was earlier.      The committee of


management was specifically directed to get the elections of the Board of


Directors held in accordance with the law within six months. The appellant,


who was a political person directly approached the then Chief Minister of


the State and got the term of the first Board of Directors extended from time


to time resulting in postponement of the election of the new board. On


29.10.1981, the then Chief Minister made an endorsement to the Minister


(Cooperation) with a direction that the Registrar should extend the period of


the committee of management for the time being. The Registrar complied


with the directive of the Chief Minister, but ordained the committee of
                                                                            33




management to call the general meeting and get the Board of Directors


elected within the extended term. In April 1982, the appellant again got the


term extended through the intervention of the Chief Minister. On 13.4.1983,


the appellant addressed another communication to the Chief Minister for


extension of the term of the nominated Board of Directors for one year. The


Chief Minister obliged him by extending the term for six months and


endorsed the same to the Minister (Cooperation). The then Chief Minister


resigned on 13.8.1983.     Thereafter, the Registrar reconstituted the first


Board of Directors in terms of the direction given by the Minister for


Industries. This Court prefaced consideration of the question of interference


by the Chief Minister with the statutory functions of the Registrar under


Bye-law 29 by making the following observations:




      "The case illustrates an unfortunate trend which has become too
      common these days in the governance of the country."






The Court then referred to the relevant statutory provisions and observed:




      "We fail to appreciate the propriety of the Chief Minister
      passing orders for extending the term of the first board of
      directors. Under the Cabinet system of Government the Chief
      Minister occupies a position of pre-eminence and he virtually
      carries on the governance of the State. The Chief Minister may
      call for any information which is available to the Minister-in-
      charge of any department and may issue necessary directions
                                                                       34




     for carrying on the general administration of the State
     Government. Presumably, the Chief Minister dealt with the
     question as if it were an executive function of the State
     Government and thereby clearly exceeded his powers in
     usurping the statutory functions of the Registrar under Bye-Law
     29 in extending the term of the first board of directors from
     time to time. The executive power of the State vested in the
     Governor under Article 154(1) connotes the residual or
     governmental functions that remain after the legislative and
     judicial functions are taken away. The executive power includes
     acts necessary for the carrying on or supervision of the general
     administration of the State including both a decision as to
     action and the carrying out of the decision. Some of the
     functions exercised under "executive powers" may include
     powers such as the supervisory jurisdiction of the State
     Government under Section 65-A of the Act. The Executive
     cannot, however, go against the provisions of the Constitution
     or of any law.


     Neither the Chief Minister nor the Minister for Co-operation or
     Industries had the power to arrogate to himself the statutory
     functions of the Registrar under Bye-Law 29. The act of the
     then Chief Minister in extending the term of the committee of
     management from time to time was not within his power. Such
     action was violative of the provisions of the Rules and the bye-
     laws framed thereunder. The Act as amended from time to time
     was enacted for the purpose of making the co-operative
     societies broad-based and democratizing the institution rather
     than to allow them to be monopolized by a few persons. The
     action of the Chief Minister meant the very negation of the
     beneficial measures contemplated by the Act.




     In Surendra Kumar v. State of Bihar (1984) 4 SCC 609, this Court


referred to an earlier decision in Suman Gupta v. State of J. & K. AIR


1983 SC 1235, wherein the Court had observed that there is nothing like
                                                                          35




unfettered discretion of the executive authority to nominate the candidate for


admission to medical course under the reciprocal arrangement and observed


that recommendations made at the instance of the Chief Minister de hors the


merit of the candidates who had applied for admission was blatant abuse of


power by the Chief Minister.




      In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1


SCC 227, the question considered by this Court was whether the marks


awarded to the daughter of the appellant, who was at the relevant time the


Chief Minister of the State of Maharashtra had been changed at his instance


or to please him. The respondent had challenged the result of the appellant's


daughter of MD examination by alleging that his daughter was shown favour


by increasing her marks. The learned Single Judge, after examining the


record produced before him, came to the conclusion that tampering of the


grade-sheets was done by Dr. Rawal at the behest of respondent Nos.3 and


4. The Division Bench of the High Court rejected the prayer for permission


to adduce additional evidence and dismissed the appeal with an observation


that the conclusion arrived at against the appellant should be treated as


merely in the nature of an adverse comment and not a finding of fact. This


Court extensively considered the matter, referred to some of the precedents


and observed:
                                                                            36




      "There is no question in this case of giving any clean chit to the
      appellant in the first appeal before us. It leaves a great deal of
      suspicion that tampering was done to please Shri Patil or at his
      behest. It is true that there is no direct evidence. It is also true
      that there is no evidence to link him up with tampering.
      Tampering is established. The relationship is established. The
      reluctance to face a public enquiry is also apparent. Apparently
      Shri Patil, though holding a public office does not believe that
      "Caesar's wife must be above suspicion". The erstwhile Chief
      Minister in respect of his conduct did not wish or invite an
      enquiry to be conducted by a body nominated by the Chief
      Justice of the High Court. The facts disclose a sorry state of
      affairs. Attempt was made to pass the daughter of the erstwhile
      Chief Minister, who had failed thrice before, by tampering the
      record. The person who did it was an employee of the
      Corporation. It speaks of a sorry state of affairs and though
      there is no distinction between comment and a finding and there
      is no legal basis for such a comment, we substitute the
      observations made by the aforesaid observations as herein.




      This Court cannot be oblivious that there has been a steady
      decline of public standards or public morals and public morale.
      It is necessary to cleanse public life in this country along with
      or even before cleaning the physical atmosphere. The pollution
      in our values and standards in (sic is) an equally grave menace
      as the pollution of the environment. Where such situations cry
      out the courts should not and cannot remain mute and dumb."
                                                    (emphasis supplied)




      In Secretary, J.D.A. v. Daulat Mal Jain (1997) 1 SCC 35, this Court


had the occasion to examine allotment of lands to the respondents by the


Minister and the committee headed by the Minister. Some of the


observations made in that decision are quite relevant in the context of the


present case. Therefore, they are quoted below:
                                                                     37




"... The Minister holds public office though he gets
constitutional status and performs functions under constitution,
law executive policy. The acts done and duties performed are
public acts or duties as holding of the public office. Therefore,
he owes certain accountability for the acts done or duties
performed. In a democratic society governed by rule of law,
power is conferred on the holder of the public office or the
concerned authority by the Constitution by virtue of
appointment. The holder of the office, therefore, gets
opportunity to abuse or misuse of the office. The politician who
holds public office must perform public duties with the sense of
purpose, and a sense of direction, under rules or sense of
priorities. The purpose must be genuine in a free democratic
society governed by the rule of law to further socio-economic
democracy. ............... If the Minister, in fact, is responsible
for all the detailed working of his Department, then clearly
ministerial responsibility must cover a wider spectrum than
mere moral responsibility; for no minister can possibly get
acquainted with; all the detailed decisions involved in the
working of his Department.... The so-called public policy
cannot be a camouflage for abuse of the power and trust
entrusted with a public authority or public servant for the
performance of public duties. Misuse implies doing of
something improper. The essence of impropriety is replacement
of a public motive for a private one. When satisfaction sought
in the performance of duties is for mutual personal gain, the
misuse is usually termed as corruption. The holder of a public
office is said to have misused his position when in pursuit of a
private satisfaction, as distinguished from public interest, he has
done something which he ought not to have done. The most
elementary qualification demanded of a Minister is honesty and
incorruptibility. He should not only possess these qualifications
but should also appear to possess the same."
                                              (emphasis supplied)
                                                                           38




      In R v. Metropolitan Police Commissioner (1968) 1 All. E.R. 763,


the Court of Appeal considered the question whether the Commissioner of


Police could give instruction to the cadre not to take action against clubs for


violating gaming laws and held that he was not entitled to do so. The facts


of the case show that Albert Raymond Blackburn applied for a mandamus to


the Commissioner of Police of Metropolis requiring him to assist him in the


prosecution of gaming clubs, which contravened the provisions of Betting,


Gaming and Lotteries Act, 1963 and in particular to assist him in respect of


the complaint lodged on March 21, 1967 in relation to Golden Nugget Club,


Piccadilly and to reverse or procure the reversal of a policy decision taken


by him or his superiors that the time of the police officers would not be


spent on enforcing the provisions of the Betting, Gaming and Lotteries Act,


1963. The Divisional Court of Queen's Bench dismissed the application.


The Court of Appeal noted that the policy decision contained in


communication dated April 22, 1966 was a confidential instruction issued to


the senior officers of the metropolitan police whereby they were directed not


to proceed against the clubs for breach of gaming laws unless there was


complaint of cheating or they become haunts of criminals. As a result of the


said instruction, the big gaming clubs in the metropolis were allowed to
                                                                           39




carry on their activities without any police interference. In his opinion, Lord


Denning M.R. made the following observations:


      "I hold it to be the duty of the Commissioner of Police, as it is
      of every chief constable, to enforce the law of the land. He
      must take steps so to post his men that crimes may be detected;
      and that honest citizens may go about their affairs in peace. He
      must decide whether or no suspected persons are to be
      prosecuted; and, if need be, bring the prosecution or see that it
      is brought; but in all these things he is not the servant of
      anyone, save of the law itself. No minister of the Crown can
      tell him that he must, or must not, keep observation on this
      place or that; or that he must, or must not, prosecute this man or
      that one. Nor can any police authority tell him so. The
      responsibility for law enforcement lies on him. He is
      answerable to the law and to the law alone."


                                                   (emphasis supplied)




      In Magill v. Porter (2002) 2 AC 357, the House of Lords upheld the


decision of the District Auditor who had opined that certain Ministers of


Westministers City Council had used their powers to increase the number of


owners/occupiers in marginal wards for the purpose of encouraging them to


vote for the Conservative Party in future elections. The House of Lords


held that although the powers under which the Council could dispose of the


land was very broad, and although, elected politicians were entitled to act in


a manner which would earn the gratitude and support of their electorate, they


could act only to pursue a "public purpose for which the power was
                                                                         40




conferred", but the purpose of securing electoral advantage for the


Conservative Party was no such "public purpose".






8.    At this stage, I may also refer to the following portion of the preface


to 1964 paper back edition of the book titled "The Modern State" by


Maciver:


      "The state has no finality, but human nature is as stable as
      human needs, and what human beings need from government -
      if we think not of the few, but of men generally, men as social
      beings - is the same under all conditions. These are liberties
      secured by restraints, justice under law, order that provides
      opportunity, the economy of the good life. The modes of
      satisfying these needs change with the changing conditions. To
      satisfy any need whatever, even the most spiritual, a modicum
      of power is necessary, for power is simply the effective control
      of means. From the beginning of human history government
      has been recognized as the overall holder and regulator of
      power, maintaining order by limiting all other expressions of
      power and thereby turning permitted powers into rights. In that
      concept lay the rudiments of the principles of government. In
      every age men have sought to clarify the application of these
      principles to the changing times. In every age the abuse of
      power by governments has led to disasters and uprisings,
      oppressions and vainglorious wars, and sometimes to
      experiments in the control of power, seeking to make it
      responsible, or more responsible, subject in some manner to the
      will of the people, of the majority or those who represented
      them."






9.    The facts of this case, as noticed in the judgment prepared by brother


Justice Ganguly, show that with a view to frustrate the complaint made by
                                                                          41




respondent No.1 who alleged that respondent No.2 - Gokulchand Sananda,


his family members and some other money lenders were harassing him and


other farmers and also to stall the action likely to be initiated by the


concerned police authorities under the Bombay Money Lenders Act, 1946.


Shri Dilip Kumar Sananda, a member of the Legislative Assembly


approached the Chief Minister for a special treatment. In the first place, the


Principal Secretary of the Chief Minister made enquiries from the police


station about the cases registered against Sananda. Thereafter, the Chief


Minister, without verifying the truthfulness or otherwise of the assertion of


Shri Dilip Kumar Sananda that false complaints were being lodged against


his family members, issued instructions that complaint against the concerned


M.L.A. and his family members should be first placed before the District


Anti-Money Lending Committee, which should obtain legal opinion of the


District Government Pleader and then only take decision on the same and


take appropriate legal action. The camouflage of sophistry used by Shri


Vilas Rao Deshmukh in the instructions given by him and the affidavit filed


before this Court is clearly misleading. The message to the authorities was


loud and clear i.e. they were not to take the complaints against Sananda


family seriously and not to proceed against them. The District Magistrate,


the District Superintendent of Police and officers subordinate to them were
                                                                              42




bound to comply with the same in their letter and spirit.          They could


disregard those instructions at their own peril and none of them was


expected to do so. The District Anti-Money Lending Committee was


constituted by the Government of Maharashtra vide resolution No.


MLA.1204/CR/280/C/7/S dated 19th October, 2009 for protecting the


farmers against unscrupulous money lenders and not for protecting the


wrong doers, but in total disregard of the scheme of the Act, the Chief


Minister gave instructions which had the effect of frustrating the object of


the legislation enacted for protection of the farmers. The instructions given


by the Chief Minister to District Collector, Buldhana were ex facie ultra


vires the provisions of the Act which do not envisage any role of the Chief


Minister in cases involving violation of the provisions of the Act and


amounted to an unwanted interference with the functioning of the authorities


entrusted with the task of enforcing the Act enacted for regulating,


controlling transactions of money lending and protecting unsuspecting


borrowers against oppression and harassment at the hands of unscrupulous


money lenders.




                                                   ............................J.
                                                   (G.S. Singhvi)
New Delhi,
December 14, 2010