LAW FOR ALL

Sunday, April 27, 2014

Bail - Jail - Bail granted by High court in appeal stage - challenged by state - on the ground that 52 cases are pending - out it nearly out of them in 20 cases offences were registered against him before going to jail and during his stay in jail. 32 cases were registered after being released by this Court on conditional bail in August, 2001.- Apex court cancel bail orders and directed the High court to dispose the appeal with in one year = STATE OF MAHARASHTRA & ANR. … APPELLANTS VERSUS PAPPU @ SURESH BUDHARMAL KALANI … RESPONDENT = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41459

Bail - Jail - Bail granted by High court in appeal stage - challenged by state - on the ground that 52 cases are pending - out it nearly out of them in 20 cases offences were registered against him before going to jail and during his stay in jail. 32 cases were registered after being released by this Court on conditional bail in August, 2001.- Apex court cancel bail orders and directed the High court to dispose the appeal with in one year =
Aggrieved by the conviction and sentence passed by the trial Court,
the respondent-accused preferred Criminal Appeal No. 1309 of 2013 before
the High Court. Considering his Criminal Application No. 1788 of 2013, the
High Court enlarged him on bail by the order dated 7th March, 2014 which is
impugned herein. Against the said order, the State preferred this appeal.=

Normally, this Court does not exercise its jurisdiction under Article
136 of the Constitution in interfering in the discretionary order passed by
the High Court granting bail, particularly when the criminal appeal is
pending before it, but in our view, the reason given by the High Court in
the present case, that the father and wife of the deceased have turned
hostile, cannot be a ground to grant bail. Apart from these witnesses who
turned hostile, there was other material and witnesses available, which the
High Court ought to have considered while granting bail. The High Court
should not have ignored the fact that admittedly, the accused is involved
in as many as 52 cases and out of them in 20 cases offences were registered
against him before going to jail and during his stay in jail. 32 cases were
registered after being released by this Court on conditional bail in
August, 2001.
15. It is not in dispute that in spite of being acquitted in some of the
cases, still there are 15 cases in which trial is pending against the
respondent, out of which two cases are under Sections 302 read with 120B,
IPC. In the present case also, initially along with charges under Sections
302/120B, IPC offences punishable under TADA were also charged against the
respondent but later on the TADA charges were withdrawn. Though we are not
inclined to go into the matter in detail at present to interfere in the
order passed by the High Court, taking into consideration the peculiar
facts and circumstances of the case, we are inclined to interfere and
cancel the bail granted by the High Court.
16. At the same time, we have considered some merit in the argument of
the learned counsel for the respondent-accused. It is not in dispute that
the respondent-accused was arrested on 29-01-1993 after registering Crime
No. 89 of 1990 on 28-04-1990. He was released on bail on 07-08-2001.
Thereafter, again after judgment in the Sessions Case No. 218 of 1999 on 29-
11-2013, he was again taken into custody. After filing the Criminal Appeal
before the Bombay High Court on 30-07-2013, by the impugned order, the High
Court granted bail to the respondent. There is no doubt that the respondent
is in jail for almost 9 years. In consideration of the arguments of the
learned counsel for the respondent that it will take a number of years for
the High Court to hear the appeal, we thought it fit to request the High
Court to dispose of the appeal as expeditiously as possible, preferably
within a period of one year from today on its own merits without being
influenced by any of the views expressed by us in this order.
17. Accordingly, we allow the appeal and set aside the impugned judgment.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41459

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2014
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) No. 2375 of 2014

STATE OF MAHARASHTRA & ANR. … APPELLANTS

VERSUS

PAPPU @ SURESH BUDHARMAL KALANI … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

Leave granted.
2. This appeal is filed by the State of Maharashtra against the order
passed by the High Court of Judicature at Bombay on 7th March, 2014 in
Criminal Application No. 1788 of 2013 in Criminal Appeal No. 1309 of 2013
whereby the High Court granted bail to the sole respondent.
3. The respondent was accused in Crime No. 89 of 1990 of the Vitthalwada
Police Station, Thane registered under Section 120(B) read with Section
302, IPC on the allegation of hatching criminal conspiracy in the killing
of the deceased Inder Bhatija. After completion of investigation, charge
sheet was filed against the respondent-accused and the trial Court by order
dated 29th November, 2013 convicted and sentenced him to undergo life
imprisonment and to pay fine of Rs.5,000/-, in default, to suffer rigorous
imprisonment for six months.
4. Aggrieved by the conviction and sentence passed by the trial Court,
the respondent-accused preferred Criminal Appeal No. 1309 of 2013 before
the High Court. Considering his Criminal Application No. 1788 of 2013, the
High Court enlarged him on bail by the order dated 7th March, 2014 which is
impugned herein. Against the said order, the State preferred this appeal.
5. When the matter came up before us on 12-03-2014, we issued notice and
directed that if the respondent-accused not being released pursuant to the
impugned order of the High Court till date, there shall be stay of the said
order.
6. Mr. Shankar Chillarge, learned counsel appearing for the State of
Maharashtra contended that the accused is involved in as many as 52 cases,
out of which in 20 cases offences were registered against him before going
to jail and while he was in jail. 32 cases were registered after being
released by this Court on conditional bail in August, 2001. He has given a
list of 52 cases where the respondent is accused. It is also contended that
in the present case, when the investigation was going on, it was found by
the police that the respondent was the mastermind behind the murder of the
deceased. The High Court, while granting bail to the accused, has not
considered any of the facts and circumstances and history of the
respondent. Simply relying upon the evidence of some of the witnesses, the
High Court granted bail without applying its mind. He also contended that
the grant of bail to the accused would adversely affect the trial and
investigation in other criminal cases pending against him and there is also
likelihood of tampering with the evidence. The respondent being a political
leader, there is every chance for influencing the pending criminal cases in
which very serious offences were charged against him and prayed for
cancellation of bail.
7. A Criminal Miscellaneous Petition No. 8543 of 2014 has been filed in
the present appeal by one Kamal Bathija who claims to be the brother of the
deceased Inder Bhatija, seeking leave of this Court to implead himself as
an appellant. Mr. Gopal Subramanium, learned senior counsel
appearing for the impleading party, supported the case of the State
Government and sought for cancellation of bail. He contended that the High
Court has not fully appreciated the facts and evidence before granting bail
to the accused. The High Court ignored the main fact that the respondent-
accused was the mastermind in hatching the criminal conspiracy for the
murder of the deceased by engaging habitual and professional killers. Above
all, during the pendency of trial in the present case, the respondent had
committed several other criminal offences and hence bail granted by the
High Court shall be cancelled.
8. On the other hand, Mr. Uday U. Lalit, learned senior counsel
appearing for the respondent-accused, while drawing our attention to a list
of cases in which the respondent was acquitted, contended that the
respondent has already spent 9 long years in jail during the pendency of
trial, and not even one witness supported the case of the prosecution, more
particularly, the crucial witnesses i.e. wife (PW 20) and father (PW 12) of
the deceased themselves have turned hostile and another crucial witness
i.e. PW 9—Driver has also turned hostile. Hence, taking into account these
facts, the High Court has rightly exercised its discretion in granting
bail. When the bail was granted after taking into consideration all the
facts and circumstances, material witnesses and particularly when there is
no prima facie evidence against the accused, the bail granted by the High
Court cannot be questioned.
9. Learned senior counsel further submitted that since the respondent is
a political leader, he was falsely implicated in the case so as to prevent
him in participating in active political life. Even in the list of cases
furnished by the appellant, out of total number of 52 cases against the
accused, 35 cases were ended in acquittal, 10 cases are purely politically
motivated, in around 13 cases the trial was pending, and in some cases the
State has falsely shown the name of respondent as accused and at present no
serious case is pending against the respondent where he was charged as
accused. Hence, there is no reason for this Court to interfere with the
order passed by the High Court.
10. It is also brought to our notice that the appeal is pending before
the High Court and as per the present roaster of the Bombay High Court, the
turn of the appeal filed by the respondent will come up for hearing after
fifteen years.
11. We have heard learned counsel for the parties and taking into
consideration the fact that the deceased was none other than the younger
brother of the applicant in Crl.M.P. No. 8543 of 2014 who prayed for
impleadment, we allow the application.
12. We have also considered the principles laid down by this Court while
cancelling bail, in Puran etc. etc. Vs. Rambilas & Anr. etc. etc. (2001) 6
SCC 338, Dr. Narendra K. Amin Vs. State of Gujarat & Anr. (2008) 13 SCC
584, Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu & Anr. (2012) 9 SCC 446
and Central Bureau of Investigation Vs. V. Vijay Sai Reddy (2013) 7 SCC
452.
13. The issue before us is whether it is necessary for this Court to
interfere with the order passed by the High Court granting bail to the
accused-respondent.
14. Normally, this Court does not exercise its jurisdiction under Article
136 of the Constitution in interfering in the discretionary order passed by
the High Court granting bail, particularly when the criminal appeal is
pending before it, but in our view, the reason given by the High Court in
the present case, that the father and wife of the deceased have turned
hostile, cannot be a ground to grant bail. Apart from these witnesses who
turned hostile, there was other material and witnesses available, which the
High Court ought to have considered while granting bail. The High Court
should not have ignored the fact that admittedly, the accused is involved
in as many as 52 cases and out of them in 20 cases offences were registered
against him before going to jail and during his stay in jail. 32 cases were
registered after being released by this Court on conditional bail in
August, 2001.
15. It is not in dispute that in spite of being acquitted in some of the
cases, still there are 15 cases in which trial is pending against the
respondent, out of which two cases are under Sections 302 read with 120B,
IPC. In the present case also, initially along with charges under Sections
302/120B, IPC offences punishable under TADA were also charged against the
respondent but later on the TADA charges were withdrawn. Though we are not
inclined to go into the matter in detail at present to interfere in the
order passed by the High Court, taking into consideration the peculiar
facts and circumstances of the case, we are inclined to interfere and
cancel the bail granted by the High Court.
16. At the same time, we have considered some merit in the argument of
the learned counsel for the respondent-accused. It is not in dispute that
the respondent-accused was arrested on 29-01-1993 after registering Crime
No. 89 of 1990 on 28-04-1990. He was released on bail on 07-08-2001.
Thereafter, again after judgment in the Sessions Case No. 218 of 1999 on 29-
11-2013, he was again taken into custody. After filing the Criminal Appeal
before the Bombay High Court on 30-07-2013, by the impugned order, the High
Court granted bail to the respondent. There is no doubt that the respondent
is in jail for almost 9 years. In consideration of the arguments of the
learned counsel for the respondent that it will take a number of years for
the High Court to hear the appeal, we thought it fit to request the High
Court to dispose of the appeal as expeditiously as possible, preferably
within a period of one year from today on its own merits without being
influenced by any of the views expressed by us in this order.
17. Accordingly, we allow the appeal and set aside the impugned judgment.
…………………………………CJI.
(P. SATHASIVAM)

……………………………………J.
(RANJAN GOGOI)

……………………………………J.
(N.V. RAMANA)
NEW DELHI,
APRIL 24, 2014

-----------------------
9

Art.32 of Constitution - direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the arrest of the accused and for their prosecution after investigation of the case by the Central Bureau of Investigation as the police failed to do - in reply it was found that case was registered and accused were arrested - Apex court closed the case = NISHU ... PETITIONER(S) VERSUS COMMISSIONER OF POLICE, DELHI & ORS. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

Art.32 of Constitution - direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation as the police failed to do - in reply it was found that case was registered and accused were arrested - Apex court closed the case =

This writ application under Article 32 of the Constitution seeks
directions from the Court for registration of first information report
under Sections 376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the
arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation. Appropriate action against
the officers of the Delhi and Haryana police by way of departmental
proceedings for their refusal/failure to register the FIR under the
aforesaid sections of the Indian Penal Code as well as the provisions of
The Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.=
initially FIR No. 319/2013 dated 26.10.2013 was registered at police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of the
Indian Penal Code on the written complaint of the father of the petitioner.
On the basis of the investigations carried out by the police, the
petitioner was recovered from village Sirol, Sector-18, Gurgaon and
produced before the Duty Magistrate (Judicial Magistrate First Class)
Rohtak on 9.11.2013. Her statement, which was to the effect that ‘she had
herself left the house’, was recorded by the learned Magistrate on
9.11.2013. The respondents 2 and 3 have further stated that subsequently
the petitioner desired to make a further statement which was refused by the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013.
As the petitioner persisted with the said request another statement made
by her was recorded under Section 164 Cr.P.C. by the learned Magistrate on
30.11.2013 wherein she had implicated the accused persons in the commission
of rape during the period of her alleged confinement. In view of the said
statement of the petitioner, Section 376-D of the Indian Penal Code and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013 which was
already registered. According to the Superintendent of Police, Rohtak all
the nine accused persons have been arrested and are in custody.=
Shri Rakesh K. Khanna, learned Additional Solicitor General appearing
for the first respondent has submitted that no order or direction to the
first respondent would be justified in view of the fact that the case has
been registered by the Haryana Police and has been investigated by the
authorities of the State of Haryana. Shri Ankit Swarup, learned counsel
for the respondents 2 and 3 has submitted that on completion of
investigation chargesheet has been filed against all the nine accused who
are in custody and are presently lodged in Rohtak Jail. It is also
submitted that charges have been framed by the Trial Court against the
accused inter alia under Section 376-D IPC and Section 4/6 of the POCSO
Act; in fact, according to the learned counsel, the trial has also
commenced in the meantime.

8. In view of what has been stated by the Superintendent of Police,
Rohtak in the counter affidavit filed on 8.1.2014 and as chargesheet has
been filed against all the nine accused and the trial has commenced in the
meantime it will be wholly inappropriate to exercise our jurisdiction under
Article 32 of the Constitution. The allegations and apprehensions
expressed in the writ petition are not borne out by the subsequent facts,
as stated on behalf of the respondents 2 and 3, which are not disputed. In
view of the above, we will have no occasion to pass any order save and
except that the trial against the accused persons, which has already
commenced, be concluded by the Trial Court with utmost expedition. We make
it clear that we have not expressed any opinion on the merits of the case
of the respective parties. Beyond the above, no further direction will be
called for or justified.

9. The writ petition consequently stands disposed of in the above terms.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 211 OF 2013

NISHU ... PETITIONER(S)

VERSUS

COMMISSIONER OF POLICE,
DELHI & ORS. ... RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1. This writ application under Article 32 of the Constitution seeks
directions from the Court for registration of first information report
under Sections 376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the
arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation. Appropriate action against
the officers of the Delhi and Haryana police by way of departmental
proceedings for their refusal/failure to register the FIR under the
aforesaid sections of the Indian Penal Code as well as the provisions of
The Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.

2. The facts, in short, are as follows.

The petitioner, who is represented by her father, claims to be a
minor (17-1/2 years) and a resident of village Sundana, Tehsil Kalanaur,
District Rohtak. According to the petitioner, she was kidnapped on
25.10.2013 by a group of nine persons who had kept her confined upto
8.11.2013. It is alleged that during the aforesaid period, the accused
persons, in different combinations, had repeatedly raped her and that one
of the accused, named, Pradeep is a constable in Haryana Police. The
petitioner claims that after her recovery from village Sirol, Sector 18,
Gurgaon, Haryana on 8.11.2013 she was produced before the Judicial
Magistrate First Class, Rohtak for recording her statement. As she was
under threat and intimidation she did not level any allegation of rape
against the accused. The petitioner alleges that despite her medical
examination by the doctor on 10.11.2013, a copy of the report of medical
examination was not furnished to her; neither was any FIR under Section 376-
D of the Indian Penal Code or the provisions of the POCSO Act registered
against the accused persons who have been named in para 18 of the writ
petition. It may be noted at this stage that the aforesaid writ petition
was filed on 29.11.2013 seeking the reliefs earlier noted alongwith
direction for payment of compensation to the petitioner and her family.

3. The respondent No. 1 i.e. Commissioner of Police, Delhi has filed an
affidavit stating that inquiries have revealed that initially a FIR
(319/2013) under Sections 363/366A dated 26.10.2013 was registered in
Police Station Kalanaur, District Rohtak, Haryana on the written complaint
of the father of the petitioner. It is further stated that on the basis of
the statement made by the victim before the learned Judicial Magistrate
First Class, alleging commission of rape by the accused named by her, a
case has been registered and the accused persons have been arrested. As
the matter is under investigation by the Haryana Police, the first
respondent has contended that no order/direction is warranted insofar as
the said respondent is concerned.

4. Respondents 2 and 3 have filed an affidavit on 8.1.2014 through the
Superintendent of Police, Rohtak. In the said affidavit it is stated that
initially FIR No. 319/2013 dated 26.10.2013 was registered at police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of the
Indian Penal Code on the written complaint of the father of the petitioner.
On the basis of the investigations carried out by the police, the
petitioner was recovered from village Sirol, Sector-18, Gurgaon and
produced before the Duty Magistrate (Judicial Magistrate First Class)
Rohtak on 9.11.2013. Her statement, which was to the effect that ‘she had
herself left the house’, was recorded by the learned Magistrate on
9.11.2013. The respondents 2 and 3 have further stated that subsequently
the petitioner desired to make a further statement which was refused by the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013.
As the petitioner persisted with the said request another statement made
by her was recorded under Section 164 Cr.P.C. by the learned Magistrate on
30.11.2013 wherein she had implicated the accused persons in the commission
of rape during the period of her alleged confinement. In view of the said
statement of the petitioner, Section 376-D of the Indian Penal Code and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013 which was
already registered. According to the Superintendent of Police, Rohtak all
the nine accused persons have been arrested and are in custody.

5. We have heard Mr. R.K. Kapoor, learned counsel for the petitioner,
Mr. Rakesh K. Khanna, learned Additional Solicitor General for the
respondent No. 1 and Mr. Ankit Swarup, learned counsel for respondents 2
and 3.

6. Learned counsel for the petitioner has vehemently urged that the
petitioner, after being recovered from village Sirol, Sector-18, Gurgaon,
Haryana on 8.11.2013, was unlawfully detained in the police station till
her statement was recorded by the learned Judicial Magistrate First Class
on 9.11.2013. It is further submitted that offences under the POCSO Act
have been committed against the petitioner in addition to the offence under
Section 376-D of the Indian Penal Code. Despite the seriousness of the
matter the investigation, it is alleged, has not been conducted impartially
which would justify appropriate intervention of the Court.

7. Shri Rakesh K. Khanna, learned Additional Solicitor General appearing
for the first respondent has submitted that no order or direction to the
first respondent would be justified in view of the fact that the case has
been registered by the Haryana Police and has been investigated by the
authorities of the State of Haryana. Shri Ankit Swarup, learned counsel
for the respondents 2 and 3 has submitted that on completion of
investigation chargesheet has been filed against all the nine accused who
are in custody and are presently lodged in Rohtak Jail. It is also
submitted that charges have been framed by the Trial Court against the
accused inter alia under Section 376-D IPC and Section 4/6 of the POCSO
Act; in fact, according to the learned counsel, the trial has also
commenced in the meantime.

8. In view of what has been stated by the Superintendent of Police,
Rohtak in the counter affidavit filed on 8.1.2014 and as chargesheet has
been filed against all the nine accused and the trial has commenced in the
meantime it will be wholly inappropriate to exercise our jurisdiction under
Article 32 of the Constitution. The allegations and apprehensions
expressed in the writ petition are not borne out by the subsequent facts,
as stated on behalf of the respondents 2 and 3, which are not disputed. In
view of the above, we will have no occasion to pass any order save and
except that the trial against the accused persons, which has already
commenced, be concluded by the Trial Court with utmost expedition. We make
it clear that we have not expressed any opinion on the merits of the case
of the respective parties. Beyond the above, no further direction will be
called for or justified.

9. The writ petition consequently stands disposed of in the above terms.

...…………………………CJI.
[P. SATHASIVAM]

.........………………………J.
[RANJAN GOGOI]

…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
-----------------------
7

Quashing of CRIMINAL CASE - STING OPERATION - The expression ‘sting operation’ seems to have emerged from the title of a popular movie called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act. - High court dismissed the petition for quash - Apex court confirmed the same = RAJAT PRASAD ... APPELLANT (S) VERSUS C.B.I. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41457

   Quashing of CRIMINAL CASE - STING OPERATION - The expression ‘sting operation’ seems to have emerged from the title of a popular movie called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by
two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself
involves a culpable act. - High court dismissed the petition for quash - Apex court confirmed the same =

the appellants, Rajat Prasad and Arvind Vijay Mohan who are
the sixth and fourth accused respectively in CC Case No. 28 of 2005
(hereinafter referred to as A-6 and A-4) in the Court of the learned
Special Judge, CBI, Delhi had assailed the order dated 24/25.04.2007 passed
by the learned Trial Court framing charges against them under Section 120-B
of the IPC read with Section 12 of the Prevention of Corruption Act, 1988
(hereinafter for short ‘the Act’) before the High Court. The High Court by
its order dated 30.05.2008 refused to interfere with the said order of the
learned Trial Judge. Hence, the present appeals by special leave.=
On 16th of November, 2003 in the Delhi Edition of the Indian Express
a news item under the caption “Caught on Tape : Union Minister Taking Cash
saying money is no less than God” had appeared showing visuals of one Dalip
Singh Ju Dev, (deceased first accused) (A-1), the then Union Minister of
State for Environment and Forest, receiving illegal gratification from one
Rahul alias Bhupinder Singh Patel (third accused) (A-3) in the presence of
the Additional Private Secretary to the Minister one Natwar Rateria (second
accused) (A-2). Immediately on publication of the abovesaid news item a
preliminary enquiry was registered by the ACU-II of the Central Bureau of
Investigation, New Delhi and on conclusion of the said preliminary enquiry
FIR dated 19.12.2013 was filed alleging commission of offences under
Section 12 of the PC Act, 1988 read with Section 120-B IPC by the present
appellants (A-4 and A-6). =
in the chargesheet filed it is
mentioned that investigations had revealed that the entire operation was
carried out to disgrace the first appellant prior to the elections to the
Chhatisgarh State Assembly and that the motive behind the operation was to
derive political mileage in favour of the father of A-5 who was the then
Chief Minister of State of Chhatisgarh.  It is contended that if the above
was the aim of the sting operation, surely, no offence under Section 12 of
the Act or 120-B IPC is even remotely made out against the accused-
appellants.=

In view of the above discussion the order dated 30.05.2008 of the
High Court refusing to interfere with the charges framed against the
accused-appellants is fully justified. Accordingly, we dismiss the present
appeals and affirm the order dated 30.05.2008 passed by the High Court.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41457

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 747 OF 2010

RAJAT PRASAD ... APPELLANT (S)

VERSUS

C.B.I. ... RESPONDENT (S)

WITH

CRIMINAL APPEAL NO. 748 OF 2010

J U D G M E N T

RANJAN GOGOI, J.

1. The refusal of the Delhi High Court to exercise its inherent
jurisdiction under Section 482 Cr.P.C. to quash the criminal charges framed
against the accused-appellants has been challenged in the present appeals.
Specifically, the appellants, Rajat Prasad and Arvind Vijay Mohan who are
the sixth and fourth accused respectively in CC Case No. 28 of 2005
(hereinafter referred to as A-6 and A-4) in the Court of the learned
Special Judge, CBI, Delhi had assailed the order dated 24/25.04.2007 passed
by the learned Trial Court framing charges against them under Section 120-B
of the IPC read with Section 12 of the Prevention of Corruption Act, 1988
(hereinafter for short ‘the Act’) before the High Court. The High Court by
its order dated 30.05.2008 refused to interfere with the said order of the
learned Trial Judge. Hence, the present appeals by special leave.

2. The relevant facts which will require enumeration can be summed up as
follows.

On 16th of November, 2003 in the Delhi Edition of the Indian Express
a news item under the caption “Caught on Tape : Union Minister Taking Cash
saying money is no less than God” had appeared showing visuals of one Dalip
Singh Ju Dev, (deceased first accused) (A-1), the then Union Minister of
State for Environment and Forest, receiving illegal gratification from one
Rahul alias Bhupinder Singh Patel (third accused) (A-3) in the presence of
the Additional Private Secretary to the Minister one Natwar Rateria (second
accused) (A-2). Immediately on publication of the abovesaid news item a
preliminary enquiry was registered by the ACU-II of the Central Bureau of
Investigation, New Delhi and on conclusion of the said preliminary enquiry
FIR dated 19.12.2013 was filed alleging commission of offences under
Section 12 of the PC Act, 1988 read with Section 120-B IPC by the present
appellants (A-4 and A-6).

3. The aforesaid FIR was challenged in a proceeding before the Delhi
High Court registered and numbered as Crl. Misc. Case No. 59/2004. It
appears that there was no interim restraint on the investigation pursuant
to the FIR filed. While the investigation was in progress, Crl. Misc. Case
No. 59/2004 came to be dismissed by the Delhi High Court by order dated
10.11.2004. As against the said order dated 10.11.2004, SLP (Crl.) No.
6336 of 2004 was instituted by the 4th Accused as well as other accused
before this Court. However, as on completion of investigation chargesheet
had been filed on 5.12.2005, the aforesaid SLP was closed by order dated
23.11.2007 as having become infructuous.

4. From the chargesheet dated 05.12.2005 filed by the CBI before the
competent court, the gravamen of the allegations against the accused-
appellants appear to be that one Amit Jogi (accused No.5) (A-5) son of Ajit
Jogi, who was then the Chief Minister of the State of Chhatisgarh, had
hatched a conspiracy alongwith A-3 to A-6 to execute a sting operation
showing receipt of bribe by the Union Minister of State for Environment and
Forest (A-1) so as to discredit him on the eve of the elections to the
State Assembly of Chhatisgarh and thereby bring political advantage to Shri
Ajit Jogi who was a rival of the Union Minister. According to the
prosecution, as per the conspiracy hatched, A-5 alongwith other co-
conspirators had initially brought in one Manish Rachhoya (PW-23), a close
friend of A-5, as a representative of a Calcutta based mining company which
had pending work in the Ministry of Environment and Forest as one of the
conspirators. A-5 had requested one Shekhar Singh (PW-22) to introduce the
aforesaid Manish Rachhoya to A-1, which was agreed to. The said meeting
was to be held in Hotel Taj Palace, New Delhi and to effectuate the said
purpose A-6 had booked suite No. 151 in Hotel Taj Palace, New Delhi
in the fictitious name of Manish Sarogi. According to the prosecution,
Manish was introduced to Shekhar Singh. However, subsequently Manish
developed cold feet and decided to disassociate himself from the plan
hatched by A-5. However, on instructions of A-5, Manish had informed A-1
that as the deal had certain technical parameters, in future, his partner
Rahul (A-3) would be discussing the matter with A-1.

5. The further case of the prosecution, as alleged in the chargesheet,
is that at this stage Rahul alias Bhupinder Singh Patel (A-3) was roped
into the conspiracy. He stayed in suite No. 151 in Hotel Taj Palace, New
Delhi for a number of days and had meetings both with A-1 and A-2 on
several occasions in the said hotel and had successfully be-friended them.
According to the prosecution, on 5.11.2003, Rahul (A-3) had checked into
Room No. 822 in Hotel Taj Mahal, Man Singh Road, New Delhi which was booked
under the fictitious name of Raman Jadoja. It appears that on the same day
i.e. 5.11.2003, A-3 requested A-1 and A-2 to visit him in the said hotel
room. According to the prosecution, A-4 had arranged for installation of
hidden video recording equipment in the sitting room of the said suite in
Taj Mahal Hotel, Man Singh Road, New Delhi through one Manoj Hora, a dealer
in the electronic products. In the late evening of 5.11.2003 A-1 and A-2
reached the abovesaid hotel and went to Room No. 822. They were
entertained. Wide ranging discussions between A-3 and other two accused (A-
1 and A-2) were held in different matters including matters relating to
certain mining projects in the States of Orissa and Chattisgarh which were
pending in the Ministry. According to the prosecution, both A-1 and A-2
had assured A-3 that necessary assistance in getting the pending proposals
cleared will be offered. Thereafter, currency notes amounting to Rs. 9
lakhs were handed over by A-3 to A-1 who accepted the same and carried
the same out of the hotel in a laundry bag offered by A-3. The video
recording of the entire incident along with audio recording of the
conversations exchanged was secretly done and the same was subsequently
released to the media. The video and audio cassette recording of the event
was sent for analysis and report thereof was received from the FSL,
Hyderabad. It is on these facts that the prosecution had alleged
commission of the offence under Section 7 of the Act against A-1 and
offences under Section 120-B IPC read with Section 7 of the Act against A-
2. Insofar as the other accused including the present accused-appellants
are concerned, according to the prosecution, they had committed offences
punishable under Section 12 of the Act read with Section 120-B of the IPC.
As already noticed, pursuant to the aforesaid chargesheet filed, the
learned Trial Court had framed charges against the accused-appellants under
Section 120-B IPC read with Section 12 of the PC Act.

6. We have heard Shri Uday U. Lalit and Shri P.S. Narsimha, learned
senior counsels for the appellant in Criminal Appeal No. 747/2010 and
748/2010 respectively and Shri P.P. Malhotra, learned Addl. Solicitor
General for the respondent.

7. Learned counsels for the appellants have placed before us the
relevant part of the chargesheet mentioning the claim raised by A-3, during
investigation, that the act of payment of illegal gratification to A-1 and
the secret video recording of the same was prompted by a journalistic
desire to expose corruption in public life. It is contended that the
present case raises an issue of great public importance, namely, the
legality of a sting operation prompted by overwhelming public interest.
According to learned counsel, the said operation had been carried out to
reveal the murky deeds in seats of governmental power. If an intention to
commit any such criminal act is to be attributed to a citizen/journalist
who had undertaken a sting operation, public interest would be severely
jeopardized. It is also argued that in the chargesheet filed it is
mentioned that investigations had revealed that the entire operation was
carried out to disgrace the first appellant prior to the elections to the
Chhatisgarh State Assembly and that the motive behind the operation was to
derive political mileage in favour of the father of A-5 who was the then
Chief Minister of State of Chhatisgarh. It is contended that if the above
was the aim of the sting operation, surely, no offence under Section 12 of
the Act or 120-B IPC is even remotely made out against the accused-
appellants.

8. Learned counsels have elaborately laid before the Court the
ingredients of the offence of criminal conspiracy defined in Section 120-A
of the IPC to contend that there must be (1) commonality of object to be
accomplished; (2) a plan or scheme embodying means to accomplish; and (3)
an agreement or understanding between two or more persons whereby they
become committed to cooperate for accomplishment of the object by the means
embodied in the agreement. It is pointed out that going by the result of
the investigation mentioned in the chargesheet, as elicited earlier, namely
that the operation was aimed to disgrace A-1 and to derive political
mileage in favour of the father of A-5, the conspiracy, if any, is to
defame A-1 and not to commit any of the offences alleged in the
chargesheet. It is also argued that a reading of the chargesheet goes to
show that the conspiracy alleged against A-3 to A-6 is one against A-1 and
A-2 whereas the charge framed is for the offence of conspiracy to abet A-1
and A-2. The inherent contradiction behind the alleged intent of the
accused to trap and expose A-1 and A-2 and the charge of abetment to
facilitate the commission of the offence by A-1 is highlighted. According
to the appellants, the intention on their part as alleged by the
prosecution was not to aid, assist or facilitate A-1 and A-2 in committing
the offence but to expose A-1 and A-2 yet, the charge of abetment has been
levelled. It is also argued that there was no criminal intent behind the
giving of bribe and the absence of mens rea to commit the offences alleged
is ex-facie apparent. Learned counsels for the accused-appellants have, by
referring to the specific allegations mentioned in the chargesheet,
submitted that even if the said allegations are accepted to be correct no
criminal offence is made out against either of the accused-appellants. In
this regard it is pointed out by Shri Narasimha that except for the
allegation of arranging the video equipment which was installed in the
hotel room there is no other material against Accused A-4. The said fact,
by itself, is not enough to even prima facie attract the offence of
criminal conspiracy. Insofar as A-6 is concerned, Shri Lalit, learned
senior counsel has urged that the role attributed to the said accused is
only in respect of booking of the room in Hotel Taj Palace where Manish
Rachhoya (PW-23) had stayed. However, as the aforesaid Manish Rachhoya had
withdrawn from the plan and, thereafter, no specific role in the alleged
conspiracy is attributed to A-6, the prosecution insofar as A-6 is
concerned is wholly unsustainable.

9. In reply, Shri P.P. Malhotra, learned Addl. Solicitor General has
submitted that the sting operation involved the giving of bribe to A-1 who
was a Union Minister at the relevant point of time and in return certain
favours were sought. While the motive behind the act of videographing the
incident may have been to derive political mileage by discrediting A-1, the
giving of bribe amounts to abetment within the meaning of Section 107 of
the IPC. The said criminal act would not stand obliterated by what is
claimed to be the pious desire of the accused to expose corruption in
public life. Learned Addl. Solicitor General has further submitted that
the evidence in the case is yet to be recorded. Whether the exchange of
money for favours in mining projects in Orissa and Chhatisgarh was a
pretence or otherwise i.e. real and what were the true intentions behind
the operation carried out are matters which will be clear only after
evidence in the case is recorded. The aforesaid stage must be allowed to
be reached and completed, the learned Addl. Solicitor General has urged.
It is also urged that the power to quash a criminal charge ought to be
exercised within well defined parameters none of which exists in the
present case.

10. The expression ‘sting operation’ seems to have emerged from the title
of a popular movie called “The Sting” which was screened sometime in the
year 1973. The movie was based on a somewhat complicated plot hatched by
two persons to trick a third person into committing a crime. Being
essentially a deceptive operation, though designed to nab a criminal, a
sting operation raises certain moral and ethical questions. The victim,
who is otherwise innocent, is lured into committing a crime on the
assurance of absolute secrecy and confidentiality of the circumstances
raising the potential question as to how such a victim can be held
responsible for the crime which he would not have committed but for the
enticement. Another issue that arises from such an operation is the fact
that the means deployed to establish the commission of the crime itself
involves a culpable act.

11. Unlike the U.S. and certain other countries where a sting operation
is recognized as a legal method of law enforcement, though in a limited
manner as will be noticed hereinafter, the same is not the position in
India which makes the issues arising in the present case somewhat unique.
A sting operation carried out in public interest has had the approval of
this Court in R.K. Anand vs. Registrar, Delhi High Court[1] though it will
be difficult to understand the ratio in the said case as an approval of
such a method as an acceptable principle of law enforcement valid in all
cases. Even in countries like the United States of America where sting
operations are used by law enforcement agencies to apprehend suspected
offenders involved in different offences like drug trafficking, political
and judicial corruption, prostitution, property theft, traffic violations
etc., the criminal jurisprudence differentiates between “the trap for the
unwary innocent and the trap for the unwary criminal” (per Chief Justice
Warren in Sherman vs. United States[2]) approving situations where
government agents “merely afford opportunities or facilities for the
commission of the offense” and censuring situations where the crime is the
“product of the creative activity” of law-enforcement officials (Sorrell
vs. United States[3]). In the latter type of cases the defence of
entrapment is recognized as a valid defence in the USA. If properly
founded such a defence could defeat the prosecution.

12. A somewhat similar jurisprudence recognizing the defence of
entrapment in sting operations has developed in Canada where the defence
available under specified conditions, if established, may result in “stay”
of judicial proceedings against the accused the effect of which in the said
jurisdiction is a termination of the prosecution. [R vs. Regan[4] (para
2)].

In R vs. Mack[5], it has been explained by the Canadian Supreme Court
that entrapment occurs when (a) the authorities provide a person with an
opportunity to commit an offence without acting on a reasonable suspicion
that this person is already engaged in criminal activity or pursuant to a
bona fide inquiry, and, (b) although having such a reasonable suspicion or
acting in the course of a bona fide inquiry, they go beyond providing an
opportunity and induce the commission of an offence. The following factors
determine whether the police have done more than provide an opportunity to
commit a crime.

(1) The type of crime being investigated and the availability of
other techniques for the police detection of its commission.

(2) whether an average person, with both strengths and weaknesses,
in the position of the accused would be induced into the commission of
a crime;

(3) the persistence and number of attempts made by the police before
the accused agreed to committing the offence;

(4) the type of inducement used by the police including: deceit,
fraud, trickery or reward;

(5) the timing of the police conduct, in particular whether the
police have instigated the offence or became involved in ongoing
criminal activity;

(6) whether the police conduct involves an exploitation of human
characteristics such as the emotions of compassion, sympathy and
friendship;

(7) whether the police appear to have exploited a particular
vulnerability of a person such as a mental handicap or a substance
addiction;

(8) the proportionality between the police involvement, as compared
to the accused, including an assessment of the degree of harm caused
or risked by the police, as compared to the accused, and the
commission of any illegal acts by the police themselves;

(9) the existence of any threats, implied or express, made to the
accused by the police or their agents;

(10) whether the police conduct is directed at undermining other
constitutional values.

13. In United Kingdom the defence of entrapment is not a substantive
defence as observed in R vs. Sang[6] by the House of Lords:-

“The conduct of the police where it has involved the use of an agent
provocateur may well be a matter to be taken into consideration in
mitigation of sentence; but under the English system of criminal
justice, it does not give rise to any discretion on the part of the
judge himself to acquit the accused or to direct the jury to do so,
notwithstanding that he is guilty of the offence.”

However, a shift in judicial reaction appears to be emerging which is
clearly discernable in R v. Loosely[7] wherein the House of Lords found
that:-

“A prosecution founded on entrapment would be an abuse of the court’s
process. The court will not permit the prosecutorial arm of the state
to behave in this way.”
(para16)

“Entrapment is not a matter going only to the blameworthiness or
culpability of the defendant and, hence, to sentence as distinct from
conviction. Entrapment goes to the propriety of there being a
prosecution at all for the relevant offence, having regard to the
state’s involvement in the circumstance in which it was committed.”
(para 17)

14. Thus, sting operations conducted by the law enforcement agencies
themselves in the above jurisdictions have not been recognized as absolute
principles of crime detection and proof of criminal acts. Such operations
by the enforcement agencies are yet to be experimented and tested in India
and legal acceptance thereof by our legal system is yet to be answered.
Nonetheless, the question that arises in the present case is what would be
the position of such operations if conducted not by a State agency but by a
private individual and the liability, not of the principal offender honey
trapped into committing the crime, but that of the sting operator who had
stained his own hands while entrapping what he considers to be the main
crime and the main offender. Should such an individual i.e. the sting
operator be held to be criminally liable for commission of the offence that
is inherent and inseparable from the process by which commission of another
offence is sought to be established? Should the commission of the first
offence be understood to be obliterated and extinguished in the face of
claims of larger public interest that the sting operator seeks to make,
namely, to expose the main offender of a serious crime injurious to public
interest? Can the commission of the initial offence by the sting operator
be understood to be without any criminal intent and only to facilitate the
commission of the other offence by the “main culprit” and its exposure
before the public? These are some of the ancillary questions that arise
for our answer in the present appeals and that too at the threshold of the
prosecution i.e. before the commencement of the trial

15. The answer to the above, in our considered view would depend, as in
any criminal case, on the facts and circumstances thereof. A crime does
not stand obliterated or extinguished merely because its commission is
claimed to be in public interest. Any such principle would be abhorrent to
our criminal jurisprudence. At the same time the criminal intent behind
the commission of the act which is alleged to have occasioned the crime
will have to be established before the liability of the person charged with
the commission of crime can be adjudged. The doctrine of mens rea, though
a salient feature of the Indian criminal justice system, finds expression
in different statutory provisions requiring proof of either intention or
knowledge on the part of the accused. Such proof is to be gathered from
the surrounding facts established by the evidence and materials before the
Court and not by a process of probe of the mental state of the accused
which the law does not contemplate. The offence of abetment defined by
Section 107 of the IPC or the offence of criminal conspiracy under Section
120A of IPC would, thus, require criminal intent on the part of the
offender like any other offence. Both the offences would require existence
of a culpable mental state which is a matter of proof from the surrounding
facts established by the materials on record. Therefore, whether the
commission of offence under Section 12 of the PC Act read with Section 120B
IPC had been occasioned by the acts attributed to the accused appellants or
not, ideally, is a matter that can be determined only after the evidence in
the case is recorded. What the accused appellants assert is that in view
of the fact that the sting operation was a journalistic exercise, no
criminal intent can be imputed to the participants therein. Whether the
operation was really such an exercise and the giving of bribe to A-1 was a
mere sham or pretence or whether the giving of the bribe was with
expectation of favours in connection with mining projects, are questions
that can only be answered by the evidence of the parties which is yet to
come. Such facts cannot be a matter of an assumption. Why in the present
case there was a long gap (nearly 12 days) between the operation and the
circulation thereof to the public is another relevant facet of the case
that would require examination. The inherent possibilities of abuse of the
operation as videographed, namely, retention and use thereof to ensure
delivery of the favours assured by the receiver of the bribe has to be
excluded before liability can be attributed or excluded. This can happen
only after the evidence of witnesses is recorded. Also, merely because in
the charge-sheet it is stated that the accused had undertaken the operation
to gain political mileage cannot undermine the importance of proof of the
aforesaid facts to draw permissible conclusions on basis thereof as regards
the criminal intent of the accused in the present case.

16. An issue has been raised on behalf of the appellants that any finding
with regard to the culpability of the accused, even prima-facie, would
be detrimental to the public interest inasmuch as any such opinion of
the Court would act as an inhibition for enterprising and conscious
journalists and citizens from carrying out sting operations to expose
corruption and other illegal acts in high places. The matter can be
viewed differently. A journalist or any other citizen who has no
connection, even remotely, with the favour that is allegedly sought in
exchange for the bribe offered, cannot be imputed with the necessary
intent to commit the offence of abetment under Section 12 or that of
conspiracy under Section 120B IPC. Non applicability of the aforesaid
provisions of law in such situations, therefore, may be ex-facie
apparent. The cause of journalism and its role and responsibility in
spreading information and awareness will stand subserved. It is only in
cases where the question reasonably arises whether the sting operator
had a stake in the favours that were allegedly sought in return for the
bribe that the issue will require determination in the course of a full-
fledged trial. The above is certainly not exhaustive of the situations
where such further questions may arise requiring a deeper probe. As
such situations are myriad, if not infinite, any attempt at illustration
must be avoided.

17. The contention of the appellants that the materials/allegations
against the accused appellants in the charge-sheet filed do not make out
any criminal offence against them will not require a detailed probe and our
conclusion thereon at the present stage of the proceeding. Suffice it will
be to negative the said contention by holding that prima facie materials
are available for a fuller probe into the precise role of A-4 and A-6 in
the alleged conspiracy.

18. In view of the above discussion the order dated 30.05.2008 of the
High Court refusing to interfere with the charges framed against the
accused-appellants is fully justified. Accordingly, we dismiss the present
appeals and affirm the order dated 30.05.2008 passed by the High Court.

...…………………………CJI.
[P. SATHASIVAM]

.........………………………J.
[RANJAN GOGOI]

…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
-----------------------
[1] (2009) 8 SCC 106
[2] [356 US 359 (1958)]
[3] [287 US 435 (1932)]
[4] [2002] 1 SCR 297
[5] ([1988] 2 SCR 903)
[6] [1980] AC 402
[7] ([2001] UKHL 53)

-----------------------
21

Chapter III of Part VI of the Constitution deals with the State Legislature. Article 168 relates to constitution of Legislatures in States and Art.212, 252- New Government passed amendment bill extending the term of office from 6 to 8 years under Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 (for short “the Amendment Act”) - Challenged on the ground that it was made for the purpose JUSTICE N.K. MEHROTRA WHO TERM WAS COMPLETED ON 15-3-2012 AND HIS CONTINUATION WAS ALSO CHALLENGED - Apex court held that Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is unacceptable. In the light of the above discussion, we hold that Respondent No. 2 is duly holding the office of Lokayukta, U.P. under a valid law enacted by the competent legislature, viz., the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 as amended by the Uttar Pradesh Lokayukta and Up- Lokayuktas (Amendment) Act, 2012. However, we direct the State to take all endeavors for selecting the new incumbent for the office of Lokayukta and Up-Lokayuktas as per the provisions of the Act preferably within a period of six months from today.= Mohd. Saeed Siddiqui .... Petitioner (s) Versus State of U.P. and Another .... Respondent(s) =2014 ( April.Part ) judis.nic.in/supremecourt/filename=41456

Chapter III of Part VI of the Constitution deals with the State Legislature. Article 168 relates to constitution of Legislatures in States and Art.212, 252- New Government passed amendment bill extending the term of office from 6 to 8 years under Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 (for short “the Amendment Act”) - Challenged on the ground that it was made for the purpose JUSTICE N.K. MEHROTRA WHO TERM WAS COMPLETED ON 15-3-2012 AND HIS CONTINUATION WAS ALSO CHALLENGED - Apex court held that Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is unacceptable. In the light of the above discussion, we hold that Respondent No. 2 is duly holding the office of Lokayukta, U.P. under a valid law enacted by the competent legislature, viz., the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 as amended by the Uttar Pradesh Lokayukta and Up- Lokayuktas (Amendment) Act, 2012. However, we direct the State to take all endeavors for selecting the new incumbent for the office of Lokayukta and Up-Lokayuktas as per the provisions of the Act preferably within a period of six months from today.=

writ of quo warranto
against Mr. Justice N.K. Mehrotra (retd.), Lokayukta for the State of Uttar
Pradesh, Respondent No. 2 herein, for continuing as Lokayukta after
15.03.2012. The petitioner is also challenging the constitutional validity
of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 (for
short “the Amendment Act”) to the extent being ultra vires to the
provisions of the Constitution of India.=

b) Section 5(1) of the Act provides that the term for which Lokayukta
shall hold office is six years from the date on which he enters upon his
office. Further, Section 5(3) provides that on ceasing to hold office, the
Lokayukta or Up-Lokayukta shall be ineligible for further appointment,
whether as a Lokayukta or Up-Lokayukta or in any other capacity under the
Government of Uttar Pradesh. Respondent No. 2 completed his term of six
years on 15.03.2012.

(c) On 15.03.2012, the new government formed after the Uttar Pradesh
State Assembly elections. On the same day, an Ordinance for amending the
Act was passed by the Cabinet and sent to the Governor of Uttar Pradesh for
assent. However, the same did not receive the assent of the Governor.

(d) On 18.03.2012, another Ordinance on the same subject matter was sent
for the assent of the Governor and after receiving the assent of the
Governor, the same was published which came into effect from 22.03.2012.
Under the said Ordinance, Section 5(1) of the Act was amended and the term
of the Lokayukta was extended to eight years with effect from 15.03.2012.

(e) Subsequently, Respondent No. 1 – State of Uttar Pradesh enacted the
Amendment Act which received the assent of the Governor on 06.07.2012. By
the said Amendment Act, the term of the U.P. Lokayukta and Up-Lokayukta was
extended from six years to eight years or till the successor enters upon
his office. The said Amendment Act also seeks to limit the ineligibility of
the Lokayuktas’ or Up-Lokayuktas’ for further appointment under the
Government of Uttar Pradesh only on ceasing to hold office as such, and for
making the said provisions applicable to the sitting Lokayukta or Up-
Lokayukta, as the case may be, on the date of commencement of the said
ordinance, i.e., 15.03.2012.=
Conclusion
Chapter III of Part VI of the Constitution deals with the State
Legislature. Article 168 relates to constitution of Legislatures in
States. The said Article makes it clear that the State Legislature
consists of the Governor, the Legislative Assembly and the Legislative
Council. After the Governor’s assent to a Bill, the consequent Act is the
Act of the State Legislature without any distinction between its Houses, as
projected by the petitioner. We have also gone through the original
records placed by the State and we are satisfied that there is no infirmity
in passing of the Bill and the enactment of the Amendment Act, as claimed
by the petitioner.

40) Though it is claimed that the Amendment Act could not have been
enacted by passing the Bill as a Money Bill because the Act was not enacted
by passing the Bill as a Money Bill, as rightly pointed out, there is no
such rule that if the Bill in a case of an original Act was not a Money
Bill, no subsequent Bill for amendment of the original Act can be a Money
Bill. It is brought to our notice that the Act has been amended earlier by
the U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 1988 and the same was
enacted by passing the Money Bill. By the said Amendment Act of 1988,
Section 5(1) of the Act was amended to provide that the term of the
Lokayukta and Up-Lokayukta shall be six years instead of five years.

41) With regard to giving effect to the Amendment Act retrospectively, as
rightly pointed out by the State, a deeming clause/legal fiction must be
given full effect and shall be carried to its logical conclusion. As
observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687, the effect
of a legal fiction is that a position which otherwise would not obtain is
deemed to obtain under those circumstances.
The materials placed clearly
show that the Amendment Act has been enacted by a competent legislature
with legislative intent to provide a term of eight years to Lokayukta and
Up-Lokayukta, whether present or future, to ensure effective implementation
of the Act. We are also satisfied that the aforesaid extension of the term
of Lokayukta and Up-Lokayukta from six years to eight years is a matter of
legislative policy and it cannot be narrowed down by saying that the same
was enacted only for the benefit of Respondent No. 2.

42) As discussed above, the decision of the Speaker of the Legislative
Assembly that the Bill in question was a Money Bill is final and the said
decision cannot be disputed nor can the procedure of the State Legislature
be questioned by virtue of Article 212. Further, as noted earlier, Article
252 also shows that under the Constitution the matters of procedure do not
render invalid an Act to which assent has been given to by the President or
the Governor, as the case may be. Inasmuch as the Bill in question was a
Money Bill, the contrary contention by the petitioner against the passing
of the said Bill by the Legislative Assembly alone is unacceptable.

43) In the light of the above discussion, we hold that Respondent No. 2
is duly holding the office of Lokayukta, U.P. under a valid law enacted by
the competent legislature, viz., the Uttar Pradesh Lokayukta and Up-
Lokayuktas Act, 1975 as amended by the Uttar Pradesh Lokayukta and Up-
Lokayuktas (Amendment) Act, 2012. However, we direct the State to take
all endeavors for selecting the new incumbent for the office of Lokayukta
and Up-Lokayuktas as per the provisions of the Act preferably within a
period of six months from today.

44) Under these circumstances, all the writ petitions filed under Article
32 of the Constitution of India before this Court are dismissed. The
appeal filed by the State of U.P. and the T.C.(C) No. 74 of 2013 are
disposed of on the above terms.
Inasmuch as we have not gone into the
merit of the decisions taken by Respondent No. 2 – Lokayukta, the matters
questioning those decisions which are pending in the High Court of
Judicature at Allahabad/Lucknow Bench are to be disposed of on merits in
the light of the above conclusion upholding the Amendment Act of 2012.
Accordingly, the transfer petitions are disposed of.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41456

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

1 WRIT PETITION (CIVIL) NO. 410 OF 2012

Mohd. Saeed Siddiqui .... Petitioner (s)

Versus

State of U.P. and Another .... Respondent(s)

2

3 WITH

4

5 WRIT PETITION (CIVIL) NO. 289 OF 2013

6 WRIT PETITION (CIVIL) NO. 228 OF 2012

7 CIVIL APPEAL NO. 4853 OF 2014

8 [@SLP (C) NO. 27319 OF 2012]

9 T.C.(C) NO. 74 OF 2013

10 T.P. (C) NOS. 1228 & 1230 OF 2012

11 T.P. (C) NOS. 1248 & 1250 OF 2012

12 T.P. (C) NO. 1425 OF 2012

13 T.P. (C) NOS. 1412-1413 OF 2012

J U D G M E N T

P.Sathasivam, CJI.

Writ Petition (C) No. 410 of 2012

1) The above writ petition, under Article 32 of the Constitution of
India, has been filed by the petitioner seeking a writ of quo warranto
against Mr. Justice N.K. Mehrotra (retd.), Lokayukta for the State of Uttar
Pradesh, Respondent No. 2 herein, for continuing as Lokayukta after
15.03.2012. The petitioner is also challenging the constitutional validity
of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 (for
short “the Amendment Act”) to the extent being ultra vires to the
provisions of the Constitution of India.

2) Brief facts:

(a) Mr. Justice N.K. Mehrotra (retd.), Respondent No. 2 herein, was
appointed as Lokayukta for the State of Uttar Pradesh on 16.03.2006 under
the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 (for short “the
Act”).

(b) Section 5(1) of the Act provides that the term for which Lokayukta
shall hold office is six years from the date on which he enters upon his
office. Further, Section 5(3) provides that on ceasing to hold office, the
Lokayukta or Up-Lokayukta shall be ineligible for further appointment,
whether as a Lokayukta or Up-Lokayukta or in any other capacity under the
Government of Uttar Pradesh. Respondent No. 2 completed his term of six
years on 15.03.2012.

(c) On 15.03.2012, the new government formed after the Uttar Pradesh
State Assembly elections. On the same day, an Ordinance for amending the
Act was passed by the Cabinet and sent to the Governor of Uttar Pradesh for
assent. However, the same did not receive the assent of the Governor.

(d) On 18.03.2012, another Ordinance on the same subject matter was sent
for the assent of the Governor and after receiving the assent of the
Governor, the same was published which came into effect from 22.03.2012.
Under the said Ordinance, Section 5(1) of the Act was amended and the term
of the Lokayukta was extended to eight years with effect from 15.03.2012.

(e) Subsequently, Respondent No. 1 – State of Uttar Pradesh enacted the
Amendment Act which received the assent of the Governor on 06.07.2012. By
the said Amendment Act, the term of the U.P. Lokayukta and Up-Lokayukta was
extended from six years to eight years or till the successor enters upon
his office. The said Amendment Act also seeks to limit the ineligibility of
the Lokayuktas’ or Up-Lokayuktas’ for further appointment under the
Government of Uttar Pradesh only on ceasing to hold office as such, and for
making the said provisions applicable to the sitting Lokayukta or Up-
Lokayukta, as the case may be, on the date of commencement of the said
ordinance, i.e., 15.03.2012.

(f) Challenging the said Amendment Act, the petitioner is before us by
way of writ petition under Article 32 of the Constitution of India.

3) Similar prayers have been made by the petitioners in Writ Petitions
(C) Nos. 228 of 2012 and 289 of 2013. Similar petitions were also filed in
the High Court of Judicature at Allahabad. In view of the similarity of
the issues involved in these petitions, transfer petitions, viz., T.P. (C)
Nos. 1228 & 1230 of 2012, T.P. (C) Nos. 1248 & 1250 of 2012, T.P. (C) No.
1425 of 2012 and T.P. (C) Nos. 1412-1413 of 2012 have been filed before
this Court. However, T.P.(C) No. 1229 of 2012 was directed to be
transferred to this Court by an order dated 01.02.2013 and, accordingly,
the same is numbered as T.C.(C) No. 74 of 2013.

Civil Appeal @ SLP (C) No.27319 of 2012

4) Leave granted in Special Leave Petition.

5) This appeal is directed against the order dated 27.08.2012 passed by
the Division Bench of the High Court of Judicature at Allahabad in Civil
Misc. Writ Petition No. 24905 of 2012 whereby the High Court, while
allowing the amendment application to the writ petition and holding the
writ petition to be maintainable, directed to list the petition on
27.09.2012 for hearing on merits.

6) By way of the said amendment application, the writ petitioner sought
to add two grounds in the writ petition, viz., the Amendment Act is
violative of the provisions of the Constitution of India and the same was
wrongly introduced as a Money Bill in clear disregard to the provisions of
Article 199 of the Constitution of India. Accordingly, it was prayed to
issue a writ, order or direction in the nature of mandamus declaring the
Amendment Act as ultra vires the provisions of the Constitution of India.

7) Being aggrieved of the judgment and order dated 27.08.2012, the State
of U.P. has filed the afore-said appeal by way of special leave.

8) By an order dated 24.09.2012, this Court stayed the further
proceedings in CMWP No. 24905 of 2012.

9) Heard Mr. K.K. Venugopal, learned senior counsel for the petitioners
in W.P.(C) Nos. 228 and 410 of 2012, Mr. Ashok H. Desai, Dr. Abhishek Manu
Singhvi, learned senior counsel for the State of Uttar Pradesh and Dr.
Rajeev Dhawan, learned senior counsel for Mr. Justice N.K. Mehrotra
(retd.), Respondent No. 2 herein in W.P.(C) Nos. 228 and 410 of 2012.

Contentions:

10) Mr. K.K. Venugopal, learned senior counsel for the petitioner,
submitted that, by way of the Amendment Act, the State of U.P. has, in
substance and effect, reappointed Justice N.K. Mehrotra (retd.), Respondent
No. 2 herein, as Lokayukta of the State of U.P. notwithstanding the fact
that his six years’ term had already expired on 15.03.2012. There is a
statutory bar against the reappointment of the Lokayukta in terms of
Section 5(3) of the Act.

11) Mr. Venugopal further submitted that by passing the Amendment Act,
the State Government handpicked a person who they believe would ensure that
the Chief Minister, his Ministers and political supporters would be
protected, despite the acts of corruption in which they may indulge in. The
reappointment of Justice Mehrotra (retd.), who had demitted the office and
was prohibited from holding any post, bypassed the safeguards contained in
Section 3 of the Act, which stands unamended.

12) It was further submitted that the Amendment Act was not even passed
by the State Legislature in accordance with the provisions of the
Constitution of India and is, thus, a mere scrap of paper in the eyes of
law. The Bill in question was presented as a Money Bill when, on the face
of it, it could never be called as a Money Bill as defined in Articles
199(1) and 199(2) of the Constitution of India. Since the procedure for an
Ordinary Bill was not followed and the assent of the Governor was obtained
to an inchoate and incomplete Bill which had not even gone through the
mandatory requirements under the Constitution of India, the entire action
was unconstitutional and violative of Article 200 of the Constitution of
India.

13) Mr. Ashok H. Desai, learned senior counsel for the State of U.P.,
submitted that the writ petition itself is not maintainable in law or on
facts. In the absence of any violation of fundamental rights of the
petitioner himself, the present writ petition under Article 32 is not
maintainable. Moreover, the present writ petition has not been filed with
clean hands. Mr. Desai pointed out that the petitioner has merely stated,
in a passing manner, that he is a practicing Advocate, which is not a fair
and candid statement. The petitioner has filed the writ petition as a
proxy of Shri Naseemuddin Siddiqui, ex-Cabinet Minister, U.P. (presently
the Leader of Bahujan Samaj Party/Leader of Opposition in the U.P.
Legislative Council), against whom, along with others, Respondent No. 2 has
recommended action on grave charges of corruption. The petitioner herein,
Mohd. Saeed Siddiqui, was the agent/representative (pairokar) of the son of
Shri Naseemuddin Siddiqui in the complaint against Shri Naseemuddin
Siddiqui before Respondent No. 2 and he has filed the present writ
petition, as also his earlier writ petition, as a proxy of Shri Naseemuddin
Siddiqui.

14) It was further submitted that the petitioner, for oblique motives, is
questioning the valid legislative and executive actions. The writ
petition, which has been filed under the guise of redressing a public
grievance, is lacking in bona fides and is an outcome of malice and ill-
will, which the petitioner nurses against Respondent No. 2 for making the
reports specifically those against Shri Naseemuddin Siddiqui. In the
present writ petition as also in his earlier writ petition, the petitioner
has made yet another collateral attack by questioning the title of
Respondent No. 2 to the office of Lokayukta in order to stall the
action/enquiry in respect of the grave charges of corruption that has been
ordered pursuant to the reports of Respondent No. 2.

15) Besides, learned senior counsel for the State submitted that the
petitioner has made a collateral attack by seeking a writ of quo warranto
to enquire by what authority Respondent No. 2 is holding the office of the
Lokayukta, Uttar Pradesh and at the same time, he has challenged the
validity of that very law under which the Respondent No. 2 is holding the
said office, which is impermissible under the settled law. It is the stand
of the State that in a writ of quo warranto, while enquiring by what
authority a person holds a public office, it is impermissible to make a
collateral attack on the validity of law or statutory provision under which
that office is being held. Thus, the scope of a writ of quo warranto is a
limited one, by virtue of which it may be enquired by what authority a
person holds a public office, but the validity of that authority cannot be
questioned. In this light, it is submitted that the writ petition is not
maintainable for making such a collateral attack.

16) Mr. Desai also submitted that the Bill in question was manifestly
a Money Bill in view of Article 199(1) of the Constitution of India.
Furthermore, the claim of the petitioner is barred by the constitutional
provisions, such as Articles 199(3) and 212 of the Constitution. The claim
of the petitioner that the Bill was passed only by the Legislative Assembly
and not by both the Houses, is misconceived. The petitioner has overlooked
that since the Bill in question was a Money Bill, therefore, the contention
that it was passed by the Legislative Assembly alone is per se
misconceived. Finally, Mr. Desai submitted that Respondent No. 2 is duly
holding the office of the Lokayukta under a valid law enacted by the
competent legislature, viz., the Amendment Act.

17) Dr. Abhishek Manu Singhvi reiterated the submission made by Mr. Desai
and also pointed out the relevant provisions.

18) Dr. Rajeev Dhawan, learned senior counsel for Justice N.K. Mehrotra
(retd.), Respondent No. 2 herein, reiterated the contentions raised by Mr.
Desai. In addition to the same, it is submitted that the real purpose of
filing the writ petition and other connected matters is to stall action on
the reports of Respondent No. 2 in respect of grave charges of corruption
against several ex-Ministers, Government of U.P., one of whom is Shri
Naseemuddin Siddiqui, ex-Cabinet Minister, U.P.

19) Dr. Dhawan further submitted that the petitioner is a proxy of Shri
Naseemuddin Siddiqui. Further, both Shri Naseemuddin Siddiqui and his wife
were members of the U.P. Legislature when the Amendment Act was enacted.
Accordingly, any challenge to the said Amendment Act by Shri Naseemuddin
Siddiqui or his wife would not be maintainable as they, as sitting members
of the State Legislature, cannot assail and disown an action of the same
State Legislature.

20) Dr. Dhawan submitted that Respondent No. 2 was appointed as the
Lokayukta, U.P. on 16.03.2006 and he is continuing as such after 15.03.2012
under a valid law, viz., the Amendment Act, which has been duly enacted by
the competent legislature. It was urged that the contentions of the
petitioner regarding Money Bill is baseless and pointed out that the
earlier two amendments to the Act in the year 1981 and 1988 were also by
way of Money Bills, which is concealed by the petitioner. Further, it was
submitted that the finality of the Speaker’s decision and the legislative
process cannot be challenged in a Court of law.

21) We have carefully considered the rival contentions and perused all
the relevant materials.

Discussion:

22) Among all the contentions/issues raised, the main challenge relates
to the validity of U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 2012.
In order to consider the claim of both the parties, it is useful to refer
the relevant provisions. The State of U.P. has brought an Act called the
U.P. Lokayukta and Up-Lokayuktas Act, 1975 (U.P. Act 42 of 1975). The said
Act was enacted in order to make provision for appointment and functions of
certain authorities for the investigation on grievances and elections
against Ministers, legislators and other public servants in certain cases.
The Act came into force on 12.07.1977.

23) Section 2(e) defines ‘Lokayukta’ which reads as under:

“Lokayukta” means a person appointed as the Lokayukta and “Up-
Lokayukta” means a person appointed as an Up-Lokayukta, under Section
3”.

24) Section 3 relates to appointment of Lokayukta and Up-Lokayuktas which
reads as under:
“3. Appointment of Lokayukta and Up-Lokayuktas -
(1) For the purpose of conducting investigations in accordance with
the provisions of this Act, the Governor shall, by warrant under his
hand and seal, appoint a person to be known as the Lokayukta and one
or more persons to be known as the Up-Lokayukta or Up-Lokayuktas:
Provided that-
(a) the Lokayukta shall be appointed after consultation with the Chief
Justice of the High Court of Judicature at Allahabad and the Leader of
the Opposition in the Legislative Assembly and if there be no such
Leader a person elected in this behalf by the members of the
opposition in that House in such manner as the Speaker may direct;
(b) the Up-Lokayukta or Up-Lokayuktas shall be appointed after
consultation with the Lokayukta:
Provided further that where the Speaker of the Legislative Assembly is
satisfied that circumstances exist on account of which it is not
practicable to consult the Leader of the Opposition in accordance with
clause (a) of the preceding proviso, he may intimate the Governor the
name of any other member of the Opposition in the Legislative Assembly
who may be consulted under that clause instead of the Leader of the
Opposition.
(2) Every person appointed as the Lokayukta or an Up-Lokayukta shall
before entering upon his office, make and subscribe before the
Governor or some person appointed in that behalf by him, an oath or
affirmation in the form set out for the purpose in the First Schedule.

(3) The Up-Lokayuktas shall be subject to the administrative control
of the Lokayukta and in particular for the purpose of convenient
disposal of investigations under this Act, the Lokayukta any issue
such general or special direction as he may consider necessary to the
Up-Lokayukta:
Provided that nothing in this sub-section shall be construed to
authorize the Lokayukta to question any finding conclusion or
recommendation of an Up-Lokayukta.”

25) Section 5 speaks about terms of office and other conditions of
service of Lokayukta and Up-Lokayukta which reads as under:

“5. Terms of office and other conditions of service of Lokayukta and
Up-Lokayukta.-
(1) Every person appointed as the Lokayukta or Up-Lokayukta shall hold
office for a term of six years from the date of which he enters upon
his office:
Provided that,
(a) the Lokayukta or an Up-Lokayukta may, by writing under his hand
addressed to the Governor, resign his office ;

(b) the Lokayukta or an Up-Lokayukta may be removed from office in the
manner specified in section 6.
xxx xxx xxx
(3) On ceasing to hold office, the Lokayukta or an Up-Lokayukta shall
be ineligible for further employment (Whether as the Lokayukta or an
Up-Lokayukta) or in any other capacity under the Government of Uttar
Pradesh or for any employment under or office in any such local
authority corporation. Government, company or society as is referred
to in sub-clause *(v) of clause *(1) of section 2.
(4) There shall be paid to the Lokayukta and Up-Lokayuktas such
salaries as are specified in the Second Schedule.”

26) Section 20A speaks about salary and allowances which reads as under:
"20A. Expenditure to be charged on Consolidated Fund.- It is hereby
declared that the salary, allowances and pension payable to or in
Expenditure to be respect of the Lokayukta or the Up-Lokayuktas, the
charged on expenditure relating to their staff and office and other
consolidated expenditure in respect of the implementation of this Act
shall be expenditure charged on the Consolidated Fund of the State of
Uttar Pradesh."

27) It is highlighted by the State that under the said Act, Justice N.K.
Mehrotra (retd.) was appointed as a Lokayukta vide notification dated
09.03.2006. It is also highlighted that since the term of Justice Mehrotra
(retd.) was expired on 15.03.2012 after the completion of the period of six
years under the provisions of sub-section (1) of Section 5 of the said Act
and no decision had been taken for the appointment of another person as the
Lokayukta and also taking note of the fact that since the decision to
appoint another person would take time, it has been decided to amend the
said Act to provide for increasing the term of Lokayukta and Up-Lokayukta
from six years to eight years or till his successor enters upon his office.
Initially, the State Government promulgated an Ordinance, namely, U.P.
Lokayukta and Up-Lokayuktas (Amendment) Ordinance 2012 (U.P. Ordinance No.
1 of 2012). The same was replaced by the Act, namely, U.P. Lokayukta and
Up-Lokayuktas (Amendment) Act, 2012 (U.P. Act 4 of 2012). As per the said
ordinance and Act, the amendment relating to Section 2 shall be deemed to
have come into force on 15.03.2012 and the remaining provisions shall come
into force at once. It is also relevant to refer the amendments brought in
by this Amendment Act, which are as under:

“Amendment of Section 5 of U.P. Act No. 42 of 1975

2. In Section 5 of the Uttar Pradesh Lokayukta and Up-Lokayuktas
Act, 1975 hereinafter referred to as the Principal Act.-

(a) for sub-section (1) the following sub-section shall be substituted
and be deemed to have been substituted on March 15, 2012 namely:-

“(1) Every person appointed as the Lokayukta or Up-Lokayukta shall
hold office for a term of eight years from the date on which he enters
upon his office:

Provided that the Lokayukta or an Up-Lokayukta shall, notwithstanding
the expiration of his term continue to hold office until his successor
enters upon his office.

Provided further that,-

(a) the Lokayukta or an Up-Lokayukta may, by writing under his hand
addressed to the Governor, resign his office:

(b) the Lokayukta or an Up-Lokayukta may be removed from office in the
manner specified in Section 6.”

(b) for sub-section (3) the following sub-section shall be
substituted and be deemed to have been substituted on March 15, 2012
namely:-

“(3) On ceasing to hold office, the Lokayukta or an Up-Lokayukta shall
be ineligible for further employment under the Government of Uttar
Pradesh”

(c) After sub-section (5) the following sub-section shall be inserted,
namely:-

“(6) The amendment made by the Uttar Pradesh Lokayukta and Up-
Lokayuktas (Amendment) Act, 2012 shall be applicable to the sitting
Lokayukta or Up-Lokayuktas as the case may be, on the date of
commencement of the said Act.”

Amendment of Section 13

“(5-b) After the investigation of any allegation under this Act, if
the Lokayukta or the Up-Lokayukta is satisfied that such investigation
has resulted in injustice or caused defamation to the concerned public
servants, he may on their application, award compensation recording
reasons therefore not exceeding the maximum amount of the cost, out of
the cost as imposed on the complainant under sub-section (5-a) to such
public servant, who has suffered any loss by reason of injustice or
defamation, and such compensation shall be charged on the Consolidated
Fund of the State.”

Amendment of Section 20-A

“For section 20-A of the principal Act, the following section shall be
substituted, namely:-

“20-A. It is hereby declared that the salary, allowances and the
pensions payable to or in respect of the Lokayukta or the Up-
Lokayuktas, the expenditure relating to their staff and office and the
amount of compensation awarded to the Public Servant under sub-section
(5-b) of section 13 by reason of injustice or defamation and other
expenditure, in respect of implementation of the provisions of this
Act, shall be an expenditure charged on the Consolidated Fund of the
State.”

28) We have already noted the object of bringing the ordinance and the
Act for amendment of certain provisions. In order to further understand
the intention of the Government for bringing such amendment, it is useful
to refer the statement of “objects and reasons”, which is as under:

“Statement of objects and reasons:-

The Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 (U.P. Act no.
42 of 1`975) has been enacted to make provision for the appointment
and functions of certain authorities for the investigation grievances
and allegations against minister, Legislators and other public
servants in certain cases. Under the said Act Shri Narendra Kishor
Mehrotra was appointed as Lokayukta vide notification no. 40 Lo.Aa/39-
4-2006-15(5) 2006, dated March 9, 2006 from the date he resumes
office. Shri Mehrotra resumed his office after taking oath on March
16, 2006. The term of Shri Mehrotra as such was expired on March 15,
2012 after the completion of the period of six years under the then
provisions of sub-section (1) of Section 5 of the said Act and no
decision had been taken for the appointment of another person as the
Lokayukta. Since the decision to appoint another person would take
time, it has been decided to amend the said Act to provide for
increasing the term of Lokayukta and Up-Lokayuktas from six years to
eight years or till his successor enters upon his office, to limit the
ineligibility of the Lokayukta or Up-Lokayuktas for further
appointment under the Government of Uttar Pradesh only on ceasing to
hold office as such and for making the said provisions applicable to
the sitting Lokayukta or UP-Lokayuktas as the case may be, on March
15, 2012.

Since the State Legislature was not in session and immediate
Legislative action was necessary, the Uttar Pradehs Lokayukta or Up-
Lokayuktas (Amendment) Ordinance, 2012 (U.P. Ordinance No. 1 of 2012)
was promulgated by the Governor on March 22, 2012.”

29) Though elaborate arguments have been made by Mr. K.K. Venugopal as
well as Mr. Desai about the merits of the various recommendations/orders
passed by Respondent No. 2 - Lokayukta in respect of former Ministers and
persons connected with the government in these matters, we are primarily
concerned about the validity of the Amendment Act and continuance of
Respondent No. 2 as Lokayukta even after expiry of his term.

30) The main apprehension of the petitioner is that the Bill that led to
the enactment of the Amendment Act was passed as a Money Bill in violation
of Articles 197 and 198 of the Constitution of India which should have been
passed by both the Houses, viz., U.P. Legislative Assembly and U.P.
Legislative Council and was wrongly passed only by the U.P. Legislative
Assembly. During the course of hearing, Mr. Desai, learned senior counsel
appearing for the State of U.P., placed the original records pertaining to
the proceedings of the Legislative Assembly, decision of the Speaker as
well as the Governor, which we are going to discuss in the later part of
our judgment.

31) Article 199 of the Constitution defines “Money Bills”, which reads as
under:
“199 - Definition of "Money Bills"

(1) For the purposes of this Chapter, a Bill shall be deemed to be a
Money Bill if it contains only provisions dealing with all or any of
the following matters, namely:--

(a) the imposition, abolition, remission, alteration or regulation of
any tax;

(b) the regulation of the borrowing of money or the giving of any
guarantee by the State, or the amendment of the law with respect to
any financial obligations undertaken or to be undertaken by the State;

(c) the custody of the Consolidated Fund or the Contingency Fund of
the State, the payment of moneys into or the withdrawal of moneys from
any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund of the
State;

(e) the declaring of any expenditure to be expenditure charged on the
Consolidated Fund of the State, or the increasing of the amount of any
such expenditure;

(f) the receipt of money on account of the Consolidated Fund of the
State or the public account of the State or the custody or issue of
such money; or

(g) any matter incidental to any of the matters specified in sub-
clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason only that
it provides for the imposition of fines or other pecuniary penalties,
or for the demand or payment of fees for licences or fees for services
rendered, or by reason that it provides for the imposition, abolition,
remission, alteration or regulation of any tax by any local authority
or body for local purposes.

(3) If any question arises whether a Bill introduced in the
Legislature of a State which has a Legislative Council is a Money Bill
or not, the decision of the Speaker of the Legislative Assembly of
such State thereon shall be final.

(4) There shall be endorsed on every Money Bill when it is transmitted
to the Legislative Council under article 198, and when it is presented
to the Governor for assent under article 200, the certificate of the
Speaker of the Legislative Assembly signed by him that it is a Money
Bill.”

32) It is also useful to refer Article 212 which reads as under:

“212 - Courts not to inquire into proceedings of the Legislature

(1) The validity of any proceedings in the Legislature of a State
shall not be called in question on the ground of any alleged
irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers
are vested by or under this Constitution for regulating procedure or
the conduct of business, or for maintaining order, in the Legislature
shall be subject to the jurisdiction of any court in respect of the
exercise by him of those powers.”

33) The above provisions make it clear that the finality of the decision
of the Speaker and the proceedings of the State Legislature being important
privilege of the State Legislature, viz., freedom of speech, debate and
proceedings are not to be inquired by the Courts. The “proceeding of the
Legislature” includes everything said or done in either House in the
transaction of the Parliamentary Business, which in the present case is
enactment of the Amendment Act. Further, Article 212 precludes the Courts
from interfering with the presentation of a Bill for assent to the Governor
on the ground of non-compliance with the procedure for passing Bills, or
from otherwise questioning the Bills passed by the House. To put it clear,
proceedings inside the Legislature cannot be called into question on the
ground that they have not been carried on in accordance with the Rules of
Business. This is also evident from Article 194 which speaks about the
powers, privileges of the House of Legislatures and of the members and
committees thereof.

34) We have already quoted Article 199. In terms of Article 199(3), the
decision of the Speaker of the Legislative Assembly that the Bill in
question was a Money Bill is final and the said decision cannot be disputed
nor can the procedure of State Legislature be questioned by virtue of
Article 212. We are conscious of the fact that in the decision of this
Court in Raja Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC
184, it has been held that the proceedings which may be tainted on account
of substantive or gross irregularity or unconstitutionality are not
protected from judicial scrutiny.

35) Even if it is established that there was some infirmity in the
procedure in the enactment of the Amendment Act, in terms of Article 255 of
the Constitution the matters of procedures do not render invalid an Act to
which assent has been given to by the President or the Governor, as the
case may be.

36) In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186
and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963
SC 589, the Constitution Benches of this Court held that (i) the validity
of an Act cannot be challenged on the ground that it offends Articles 197
to 199 and the procedure laid down in Article 202; (ii) Article 212
prohibits the validity of any proceedings in a Legislature of a State from
being called in question on the ground of any alleged irregularity of
procedure; and (iii) Article 255 lays down that the requirements as to
recommendation and previous sanction are to be regarded as a matter of
procedure only. It is further held that the validity of the proceedings
inside the Legislature of a State cannot be called in question on the
allegation that the procedure laid down by the law has not been strictly
followed and that no Court can go into those questions which are within the
special jurisdiction of the Legislature itself, which has the power to
conduct its own business.

37) Besides, the question whether a Bill is a Money Bill or not can be
raised only in the State Legislative Assembly by a member thereof when the
Bill is pending in the State Legislature and before it becomes an Act. It
is brought to our notice that in the instant case no such question was ever
raised by anyone.

38) Mr. K.K. Venugopal, learned senior counsel for the petitioner has
also raised another contention that the Bill was passed only by the
Legislative Assembly and not by both the Houses. In other words, according
to him, it was not passed by the Legislative Council and, therefore, the
Amendment Act is bad.

39) Chapter III of Part VI of the Constitution deals with the State
Legislature. Article 168 relates to constitution of Legislatures in
States. The said Article makes it clear that the State Legislature
consists of the Governor, the Legislative Assembly and the Legislative
Council. After the Governor’s assent to a Bill, the consequent Act is the
Act of the State Legislature without any distinction between its Houses, as
projected by the petitioner. We have also gone through the original
records placed by the State and we are satisfied that there is no infirmity
in passing of the Bill and the enactment of the Amendment Act, as claimed
by the petitioner.

40) Though it is claimed that the Amendment Act could not have been
enacted by passing the Bill as a Money Bill because the Act was not enacted
by passing the Bill as a Money Bill, as rightly pointed out, there is no
such rule that if the Bill in a case of an original Act was not a Money
Bill, no subsequent Bill for amendment of the original Act can be a Money
Bill. It is brought to our notice that the Act has been amended earlier by
the U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 1988 and the same was
enacted by passing the Money Bill. By the said Amendment Act of 1988,
Section 5(1) of the Act was amended to provide that the term of the
Lokayukta and Up-Lokayukta shall be six years instead of five years.

41) With regard to giving effect to the Amendment Act retrospectively, as
rightly pointed out by the State, a deeming clause/legal fiction must be
given full effect and shall be carried to its logical conclusion. As
observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687, the effect
of a legal fiction is that a position which otherwise would not obtain is
deemed to obtain under those circumstances. The materials placed clearly
show that the Amendment Act has been enacted by a competent legislature
with legislative intent to provide a term of eight years to Lokayukta and
Up-Lokayukta, whether present or future, to ensure effective implementation
of the Act. We are also satisfied that the aforesaid extension of the term
of Lokayukta and Up-Lokayukta from six years to eight years is a matter of
legislative policy and it cannot be narrowed down by saying that the same
was enacted only for the benefit of Respondent No. 2.

42) As discussed above, the decision of the Speaker of the Legislative
Assembly that the Bill in question was a Money Bill is final and the said
decision cannot be disputed nor can the procedure of the State Legislature
be questioned by virtue of Article 212. Further, as noted earlier, Article
252 also shows that under the Constitution the matters of procedure do not
render invalid an Act to which assent has been given to by the President or
the Governor, as the case may be. Inasmuch as the Bill in question was a
Money Bill, the contrary contention by the petitioner against the passing
of the said Bill by the Legislative Assembly alone is unacceptable.

43) In the light of the above discussion, we hold that Respondent No. 2
is duly holding the office of Lokayukta, U.P. under a valid law enacted by
the competent legislature, viz., the Uttar Pradesh Lokayukta and Up-
Lokayuktas Act, 1975 as amended by the Uttar Pradesh Lokayukta and Up-
Lokayuktas (Amendment) Act, 2012. However, we direct the State to take
all endeavors for selecting the new incumbent for the office of Lokayukta
and Up-Lokayuktas as per the provisions of the Act preferably within a
period of six months from today.

44) Under these circumstances, all the writ petitions filed under Article
32 of the Constitution of India before this Court are dismissed. The
appeal filed by the State of U.P. and the T.C.(C) No. 74 of 2013 are
disposed of on the above terms. Inasmuch as we have not gone into the
merit of the decisions taken by Respondent No. 2 – Lokayukta, the matters
questioning those decisions which are pending in the High Court of
Judicature at Allahabad/Lucknow Bench are to be disposed of on merits in
the light of the above conclusion upholding the Amendment Act of 2012.
Accordingly, the transfer petitions are disposed of.

.…….…………………………CJI.

(P. SATHASIVAM)

………….…………………………J.

(RANJAN GOGOI)

………….…………………………J.

(N.V. RAMANA)

NEW DELHI;
APRIL 24, 2014.
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Sunday, April 27, 2014