LAW FOR ALL : 2010

Friday, December 24, 2010

ETHICS OF JUDICIARY - TRANSPARENCY - OPENNESS

   1

   REPORTABLE
   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   I. A. NO. 2

   IN

   SPECIAL LEAVE PETITION (C) No. 31797 of 2010

Raja Khan .. Petitioner

   -versus-

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

   ORDER

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

our judgment dated 26.11.2010 in the aforesaid case.

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

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

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

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

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

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

Pramoda Charan Banerjee, Chief Justice Shah Mohammed Suleiman, Chief

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

can certainly be made to certain distressing orders passed during the

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

of which pertains to this very case.

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

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

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

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

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

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

who are not.
4

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

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

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

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

pass shocking orders and behave in a totally unacceptable manner.

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

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

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

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

spirit.

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

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

and we have not painted everyone with the same brush.

9. With these observations the Application stands disposed of.

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

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

PROFESSIONAL ETHICS OF ADVOCATES

   Reportable

   IN THE SUPREME COURT OF INDIA

   CRIMINAL APPELLATE JURISDICTION

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

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

   -versus-

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

   WITH

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

   JUDGMENT

Markandey Katju, J.

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

1. Leave granted.
2

2. Heard learned counsel for the parties.

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

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

Petition No.716 of 2007.

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

order and hence we are not repeating the same here.

5. The High Court had appointed a Commission of Enquiry

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

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

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

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

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

appreciate his assistance to us in this case.
3

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

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

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

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

informed that the appellant had already received a sum of

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

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

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

from today.

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

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

Coimbatore city against the appellant stands quashed.

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

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

Station, Coimbatore city against the police also stands quashed

under Article 142 of the Constitution of India.
4

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

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

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

11. Leave granted.

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

Coimbatore Bar Association.

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

observations made against the Coimbatore Bar Association in para 13

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

quashed. We order accordingly.

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

matter of great legal and constitutional importance which has caused us

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

Coimbatore passed a resolution that no member of the Coimbatore Bar

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

this case.

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

Associations or District Court Bar Associations have passed resolutions

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

criminal case. Sometimes there are clashes between policemen and

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

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

sometimes the Bar Association passes a resolution that they will not

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

brutal or heinous crime or involved in a rape case.

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

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

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

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

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

of the lawyer to defend him.
6

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

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

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

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

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

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

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

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

from office.

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

shining light even today :

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

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

20. Indian lawyers have followed this great tradition. The

revolutionaries in Bengal during British rule were defended by our

lawyers, the Indian communists were defended in the Meerut

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

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

were some of the alleged assassins of Mahatma Gandhi and Indira

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

Indian lawyer of repute has ever shirked responsibility on the ground

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

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

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

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

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

the country where bar associations are refusing to defend certain

accused persons.
8

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

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

assistance of counsel for his defence".

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

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

two white girls on a freight train passing through Tennessee and

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

community hostility to blacks was intense. The trial judge appointed

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

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

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

lawyer who undertook the task with reluctance. The defendants were

convicted. They challenged their convictions, arguing that they were

effectively denied aid of counsel because they did not have the

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

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

Sutherland explained :

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

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

24. In the same decision Justice Sutherland observed:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the US Supreme Court in his dissenting judgment praised Darrow and

said :
1

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

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

killing millions of people were yet defended by lawyers.

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

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

Atticus Finch courageously defended a black man who was falsely

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

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

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

ostracism by the predominant while community, Atticus Finch bravely

defended that black man (though he was ultimately convicted and

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

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

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

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

history :

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

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

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

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

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

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

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

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

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

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

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

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

against all norms of the Constitution, the Statute and professional

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

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

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

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

minded lawyers should ignore and defy such resolutions if they want

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

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

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

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

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

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

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

in their States/Union territories.
1

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

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

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

New Delhi;
6th December, 2010

JAWS OF MONEY LENDERS

   REPORTABLE

   IN THE SUPREME COURT OF INDIA
   CRIMINAL APPELLATE JURISDICTION

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

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

   Versus

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

   J U D G M E N T

GANGULY, J.

1. Leave granted.

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

   and especially those which are heard at length as

   appeals, have a message to convey. The message

   conveyed in this case is extremely shocking and it

   shocks the conscience of this Court about the manner

   1
in which the Constitutional functionaries behaved in

   the State of Maharashtra.

3. A writ petition was filed before Bombay High Court

   by Sarangdharsingh Shivdassingh Chavan - the first

   respondent in this appeal. He described himself as

   an agriculturist by profession. The allegation in

   the writ petition is of illegal money lending

   against the second respondent to the extent of

   charging 10% interest per month on the money lent.

4. In view of such exorbitant interest being charged

   and the illegalities which are alleged be committed

   in the recovery of such loan, certain complaints

   were filed against the second respondent and in the

   writ petition it is stated that as many as 34

   complaints were registered against the second

   respondent till 28.6.2006.

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

   300 farmers have committed suicide in Vidarbha

   region of Maharashtra as victims of such illegal

   money lending business and the torture perpetrated

   in the recovery of such money. A complaint has been

   2
made that the farmers do not get the benefit of

   various packages announced by the Government and the

   State machinery is ruthless against the farmers. The

   cause of action for filing the writ petition is the

   order of Collector in the District of Buldhana

   (hereinafter "Collector") directing not to register

   any crime against Mr. Gokulchand Sananda, the second

   respondent herein, without obtaining clearance from

   the District Anti Money Lending Committee and also

   without obtaining legal opinion of the District

   Government Pleader. It appears that the said order

   was passed by the Collector in view of the

   instructions given to him by the then Chief Minister

   of Maharashtra. It has been alleged in the petition

   that there are several complaints and the number of

   such complaints is about 50 against Sananda and his

   family members who are carrying on money lending

   business and the cases cannot be registered against

   them in view of the instructions given by the then

   Chief Minister.

6. In order to understand the seriousness of the

   situation, it will be appropriate in the fitness of

   things, to set out the order dated 5.6.2006 of the

   3
Collector, Buldhana to the District Superintendent

   of Police, Buldhana:

   "To
   District Superintendent of Police
   Buldhana

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

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

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

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

7. It may be noticed that prior to the aforesaid

   discussion which the Collector had at the residence

   of the Chief Minister on 1.6.2006 in which meeting

   4
Mr. Dilipkumar Sananda, local MLA was present,

something happened in the Police Station, Khamgaon

City, District Buldhana on 31.5.2006. The said

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

Chief Minister telephoned twice to enquire about

"the information regarding the offence" registered

against Sananda and the Section under which the case

has been registered. The second phone call as

recorded in Station Diary shows that Mr. Padwal

directed that no action should be taken as

instructed by the Chief Minster and no offence

should be registered. The text of the station diary

dated 31.5.2006 is set out:

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

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

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

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

   Sd/-
   Police Inspector
   Khamgaon City Police Station

8. On the writ petition being filed challenging the

   aforesaid two communications, namely, the

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

   vide the Station diary entry which is set out above

   and the order of Collector on the direction of the

   Chief Minister, the High Court in the impugned

   judgment allowed the writ petition. The High Court,

   inter alia, held that the directions of the Chief

   Minister in the telephonic message was proved by the

   communication of the Collector dated 5.6.2006 and

   the High Court held that such telephonic

   communication was made at the behest of Gokulchand

   Sananda, the second respondent herein. The High

   Court after examining the provisions of the Bombay

   6
Money Lenders Act and also the materials on record

   held that the letter dated 5.6.2006 and the

   telephonic message recorded in the Station diary

   entry exhibit gross abuse of power by the concerned

   authority and struck down both the communications.

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

   complaint filed by the writ petitioner - the first

   respondent herein, a chargesheet was filed for

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

   with Section 34 of Indian Penal Code and Section 32B

   of the Bombay Money Lenders Act, 1946. The criminal

   case is pending. The High Court also observed that

   they are not aware how many instances of illegal

   money lending do exist. The High Court expressed a

   hope that power of the Executive will not be abused

   in the manner in which it has been done in this

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

   and allowed the writ petition awarding costs of

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

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

   judgment of the High Court and challenged the same

   before this Court by filing a special leave petition

   out of which the present appeal arises.

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

   before the High Court, it appears that the

   Collector has admitted that in Vidarbha region in

   Buldhana District the farmers committed suicide for

   various reasons and especially for the loan burden

   coupled with the fact that there was irregular rain

   fall.

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

   affidavit that on the complaint of Sananda before

   the Chief Minister about cases being registered

   against him and his family members without

   investigation, the Chief Minister called the

   Collector at Mumbai and gave the instructions quoted

   above and thereupon the Collector conveyed the

   message of the Chief Minister to the Superintendent

   of Police, Buldhana. However, the Collector took a

   stand that by doing so he has not committed any

   illegality.

13. In the affidavit of the Superintendent of Police,

   Buldhana before the High Court, he admits that there

   are five cases already registered against the family

   8
members of Sananda under the Bombay Money Lenders

Act and he has given details of those cases in his

affidavit. He also submitted that on 31.5.2006 an

offence came to be registered at police station,

Khamgaon (T) on the complaint made by Shri Rajesh

Shankar Kawadkar under Sections 341, 366, 392 read

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

of the Bombay Money Lenders Act. He also admits to

have received instructions from the Collector by the

Collector's order dated 5.6.2006 about the

Collector's meeting with the then Chief Minister of

the Maharashtra and also about the manner in which

the police has to deal with the complaints against

Dilip Kumar Sananda and his family members. He

further averred in his affidavit that by letter

dated 9.6.2006 the Superintendent of Police conveyed

that as per Section 154 of Criminal Procedure Code

cognizable complaints are to be registered without

undue delay. However, on receipt of the said letter

the Collector sent his letter dated 14.6.2006

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

the State Government can direct a senior police

officer to take cognizance of the offence also.

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

   an order dated 11th February 2010 directed the

   learned counsel for the appellant to file an

   affidavit on the following points:

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

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

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

15. Pursuant thereto an additional affidavit was filed

   by one Ambadas, Assistant Police Inspector, posted

   to P.S. Khamgaon Gramin, District Buldhana,

   Maharashtra to the effect that 34 complaints were

   received in different police stations in Buldhana

   District against the members of Sananda family. In

   the affidavit it was also stated that in seven

   complaints chargesheets have been filed and the same

   are pending before different Courts below. In

   respect of other complaints the complainants have

   10
either settled their disputes or have withdrawn

   their complaints. It was also stated that not a

   single person including any member of the

   complainant's family has committed suicide in view

   of dispute over money lending by Sananda family.

   This averment was, however, not necessary in terms

   of the order dated 11.2.10.

16. The learned counsel appearing for the first

   respondent raised a contention that the so called

   District Anti-money Lending Committee is not

   statutory. This Court has looked into the resolution

   dated 19th October 2005 which purports to constitute

   the said committee and this Court finds that the

   said committee has not been constituted in exercise

   of any statutory power and the said committee

   consists of the following persons:

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

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

   the learned counsel for the first respondent is

   11
correct and so far as the said committee is

   concerned it is not a statutory body.

18. Since, the learned counsel for the first respondent

   was arguing on the propriety of directions given by

   the then Chief Minister of Maharashtra and also on

   the propriety of Chief Minister's Personal Secretary

   making telephone calls to the police station and

   giving instructions as to how complaints should be

   registered against the family of the second

   respondent, this Court thought that the then Chief

   Minister of Maharashtra, who was initially not a

   party to this proceeding, should be impleaded and be

   given a chance to make his representation before the

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

   March 2010, gave notice to the then Chief Minister

   of State of Maharashtra, presently Union Minister,

   Department of Heavy Industries, Government of India

   and directed service of the entire paper book of

   Special Leave Petition on him in order to enable him

   to file an affidavit in the context of the letter

   dated 5th June 2006 sent by the Collector to the

   District Superintendent of the Police, Buldhana.

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

   by Shri Vilasrao Deshmukh, the then Chief Minister

   of Maharashtra. In paragraph 5 of the said affidavit

   the content of the letter of the Collector dated

   5.6.06 was not denied. Nor was it denied that on

   31.5.06, his Private Secretary made two telephone

   calls to the concerned Police Station enquiring

   about cases registered against Sananda. However, in

   the said affidavit Mr. Deshmukh stated that he never

   interfered with any pending investigation against

   the family of Sananda and he further stated that

   investigation was conducted and the chargesheet was

   filed.

20. Considering the entire matter in its proper

   perspective, this Court is of the view that the way

   interference was caused first from the office of the

   Chief Minister by his Private Secretary by two

   telephone calls on 31.5.2006 and the manner in which

   District Collector was summoned by the Chief

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

   giving instructions to specially treat any

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

   13
Sananda and his family has no precedent either in

   law or in public administration.

21. The legal position is well settled that on

   information being lodged with the police and if the

   said information discloses the commission of a

   cognizable offence, the police shall record the same

   in accordance with the provisions contained under

   Section 154 of the Criminal Procedure Code. Police

   Officer's power to investigate in case of a

   cognizable offence without order of the Magistrate

   is statutorily recognised under Section 156 of Code.

   Thus the police officer in charge of a police

   station, on the basis of information received or

   otherwise, can start investigation if he has reasons

   to suspect the commission of any cognizable offence.

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

   Section 157 of the Code which leaves discretion with

   the police officer-in-charge of police station to

   consider if the information is not of a serious

   nature, he may depute a subordinate officer to

   investigate and if it appears to the officer-in-

   14
charge that there does not exist sufficient ground,

   he shall not investigate.

23. This legal framework is a very vital component of

   the Rule of Law in order to ensure prompt

   investigation in cognizable cases and to maintain

   law and order.

24. Law does not accord any special treatment to any

   person in respect of any complaint having been filed

   against him when it discloses the commission of any

   cognizable offence. In the context of this clear

   legal position which, as noted above, is a vital

   component of a Rule of Law, the direction of the

   then Chief Minister to give a special treatment to

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

   registering of complaint filed against them is

   totally unwarranted in law. Mr. Vilasrao Deshmukh as

   the Chief Minister of State of Maharashtra is

   expected to know that the farmers of the State

   specially those in the Vidarbha region are going

   through a great deal of suffering and hardship in

   the hands of money lenders.

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

   Shri Dilip Kumar Sananda, a Member of Legislative

   Assembly, are engaged in money lending business and

   various complaints have been lodged against the

   members of such family.

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

   that 34 cases were filed against that family in

   respect of allegation of money lending.

27. From the communication of the Collector containing

   the instructions of the then Chief Minister, Mr.

   Vilasrao Deshmukh, it is clear that the Chief

   Minister was aware of various complaints being filed

   against the said family. Even then he passed an

   order for a special treatment in favour of the said

   family which is unknown to law. This was obviously

   done to protect the Sananda family from the normal

   legal process and a special procedure was directed

   to be adopted in respect of criminal complaint filed

   against them. In other words, the Chief Minister

   wanted to give the members of the said family a

   special protection which is not available to other

   similarly placed persons. It is clear from the

   16
Collector's order dated 5.6.2006 where the Chief

   Minister's instructions were quoted that the Chief

   Minister was acting solely on political

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

   normal process of law.

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

   maintain the Rule of Law and the Constitutional

   norms of equal protection.

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

   the National Crime Records Bureau (NCRB), it is

   clear that close to two lakh farmers committed

   suicide in India between 1997 and 2008. This is the

   largest sustained wave of suicides ever recorded in

   human history. Two thirds of the two lakh suicides

   took place in five states and those five states are

   Maharashtra, Andhra Pradesh, Karnataka, Madhya

   Pradesh and Chhattisgarh. Even though Maharashtra is

   one of the richest state in the country and in its

   capital Mumbai twenty five thousand of India's one

   lakh dollar millionaires reside, the Vidarbha region

   of Maharashtra, in which is situated Buldhana, is

   today the worst place in the whole country for

   17
farmers. Professor K. Nagraj of the Madras Institute

   of Development Studies who carried on a research in

   this area has categorized that Maharashtra could be

   called the graveyard of farmers.

30. The position is so pathetic in Vidarbha region that

   families are holding funerals and weddings at the

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

   show of solidarity poor villagers are accumulating

   their money and labour to conduct marriages and

   funerals of their poor neighbours. (See the report

   in Hindu dated 22nd May 2006).

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

   of the State and as holding a position of great

   responsibility as a high constitutional functionary,

   Mr. Vilasrao Deshmukh certainly acted beyond all

   legal norms by giving the impugned directions to the

   Collector to protect members of a particular family

   who are dealing in money lending business from the

   normal process of law. This amounts to bestowing

   special favour to some chosen few at the cost of the

   vast number of poor people who as farmers have taken

   loans and who have come to the authorities of law

   18
and order to register their complaints against

   torture and atrocities by the money lenders. The

   instructions of the Chief Minister will certainly

   impede their access to legal redress and bring about

   a failure of the due process.

32. The aforesaid action of the Chief Minister is

   completely contrary to and inconsistent with the

   constitutional promise of equality and also the

   preambular resolve of social and economic justice.

   As a Chief Minister of the State Mr. Deshmukh has

   taken a solemn of oath of allegiance to the

   Constitution but the directions which he gave are

   wholly unconstitutional and seek to subvert the

   constitutional norms of equality and social justice.

33. The argument that some of the cases in which

   complaints were filed against the family of Sananda,

   were investigated and chargesheets were filed, is a

   poor consolation and does not justify the issuing of

   the wholly unauthorised and unconstitutional

   instructions to the Collector. It is not known to us

   in how many cases investigation has been totally

   scuttled in view of the impugned directions. Records

   disclosed in this case show that out of 74 cases

   19
only in seven cases chargesheets were filed and the

   rest of the cases were either compromised or

   withdrawn. How can poor farmers sustain their

   complaint in the face of such directions and how can

   the subordinate police officers carry on

   investigation ignoring such instructions of the

   Chief Minister? Therefore, the instructions of the

   Chief Minister have completely subverted the Rule of

   Law.

34. Dr. Singhvi, learned senior counsel appearing for

   Mr. Vilasrao Deshmukh relied on a decision of this

   Court in the case of Lalita Kumari v. Government of

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

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

   not lay down any law. The Bench merely noted that

   there is a divergence of views between different

   Benches of this court on the issue whether upon

   receipt of information disclosing a cognizable

   offence, it is imperative for the police officer to

   register a case or discretion still lies with him to

   make some kind of a preliminary enquiry before

   registering the same. The Bench having noted the

   20
divergence of views on the aforesaid question

   referred the matter to a larger Bench.

36. We fail to appreciate the relevance of the aforesaid

   decision to the disputes involved in the present

   case.

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

   by any Chief Minister or any executive authority to

   give a special treatment to any group of persons in

   the matter of registration of criminal cases against

   them. Therefore, the opinion in Lalita Kumari

   (supra) does not in any way justify the instruction

   given by Mr. Vilasrao Deshmukh.

38. This Court is extremely anguished to see that such

   an instruction could come from the Chief Minister of

   a State which is governed under a Constitution which

   resolves to constitute India into a socialist,

   secular, democratic republic. Chief Minister's

   instructions are so incongruous and anachronistic,

   being in defiance of all logic and reason, that our

   conscience is deeply disturbed. We condemn the same

   in no uncertain terms.

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

   that the instruction of the Chief Minister to the

   Collector dated 5.6.06 has no warrant in law and is

   unconstitutional and is quashed. We dismiss this

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

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

   Maharashtra State Legal Services Authority. This

   fund shall be earmarked by the Authority to help the

   cases of poor farmers. Such costs should be paid

   within a period of six weeks from date.

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

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

New Delhi
December 14, 2010

   22
IN THE SUPREME COURT OF INDIA

   CRIMINAL APPELLATE JURISDICTION

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

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

   Versus

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

   JUDGMENT

G.S. Singhvi, J.

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

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

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

crucial issue of ministerial interference in the functioning of the authorities

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

2. The Constituent Assembly which comprised of eminent people drawn

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

constitutions of several countries and prepared the document, which was

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

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

thus:

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

   JUSTICE, social, economic and political;

   LIBERTY of thought, expression belief, faith and worship;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

spheres of individual and collective activity so that the nation constantly

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

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

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

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

about real equality amongst the people belonging to different segments of

the Society.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the means.

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

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

officers subordinate to him in accordance with the Constitution [Article

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

members of the political class who are entrusted with greater responsibilities

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

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

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

of law.

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

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

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

Government of Andhra Pradesh under Chapter IVA of the Motor Vehicles

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

District of Andhra Pradesh were challenged by filing writ petitions under

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

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

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

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

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

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

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

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

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

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

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

originally framed by the Corporation on the recommendations of

Anantharamakrishnan Committee, but was modified at the asking of the

Chief Minister so that his opponents may be prejudicially affected and

proceeded to observe:

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

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

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

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

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

   (emphasis supplied)
32

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the appellant addressed another communication to the Chief Minister for

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

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

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

resigned on 13.8.1983. Thereafter, the Registrar reconstituted the first

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

Industries. This Court prefaced consideration of the question of interference

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

Bye-law 29 by making the following observations:

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

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

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

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

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

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

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

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

unfettered discretion of the executive authority to nominate the candidate for

admission to medical course under the reciprocal arrangement and observed

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

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

power by the Chief Minister.

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

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

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

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

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

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

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

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

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

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

to adduce additional evidence and dismissed the appeal with an observation

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

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

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

and observed:
36

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

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

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

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

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

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

present case. Therefore, they are quoted below:
37

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

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

the Court of Appeal considered the question whether the Commissioner of

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

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

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

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

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

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

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

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

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

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

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

The Court of Appeal noted that the policy decision contained in

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

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

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

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

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

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

Denning M.R. made the following observations:

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

   (emphasis supplied)

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

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

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

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

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

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

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

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

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

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

Conservative Party was no such "public purpose".

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

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

Maciver:

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

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

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

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

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

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

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

Shri Dilip Kumar Sananda, a member of the Legislative Assembly

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

Principal Secretary of the Chief Minister made enquiries from the police

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

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

Shri Dilip Kumar Sananda that false complaints were being lodged against

his family members, issued instructions that complaint against the concerned

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

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

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

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

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

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

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

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

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

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

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

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

constituted by the Government of Maharashtra vide resolution No.

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

farmers against unscrupulous money lenders and not for protecting the

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

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

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

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

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

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

amounted to an unwanted interference with the functioning of the authorities

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

controlling transactions of money lending and protecting unsuspecting

borrowers against oppression and harassment at the hands of unscrupulous

money lenders.

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

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ETHICS OF JUDICIARY - TRANSPARENCY - OPENNESS

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