Holding

A judgment’s recorded factual statements are conclusive; the concession that the Governor must act in his own discretion stands, and the Special Leave Petition is dismissed.

Summary

The State of Maharashtra filed a Special Leave Petition under Article 136 challenging a Bombay High Court order that the Governor should exercise his own discretion, not the advice of the Council of Ministers, when deciding whether to grant sanction under Section 6 of the Prevention of Corruption Act for the prosecution of former Chief Minister Abdul Rehman Antulay. The High Court had recorded a concession that the Governor must act independently, a concession later contested by the State. The Supreme Court held that the factual statements recorded in a judgment are conclusive and cannot be contradicted by parties or by evidence, and that a party must seek correction from the judges who made the record while the matter is fresh. Consequently, the Court could not entertain the State’s attempt to resile from the concession, affirmed that the Governor must act in his own discretion, and dismissed the Special Leave Petition. The decision underscores the principle that judicial records are final and not open to re‑examination except in rare circumstances.

Issues considered

Whether the Supreme Court can question the factual concession recorded by the High Court that the Governor should act in his own discretion under Article 163(2).
Whether the Governor must exercise his discretion, independent of the Council of Ministers, when granting sanction under Section 6 of the Prevention of Corruption Act for prosecuting a Chief Minister.
Whether the State of Maharashtra can rescind the concession made in the High Court judgment and raise a fresh contention before the Supreme Court.

Legislation cited

Code of Criminal Procedure, 1973s. 407, s. 482
Constitution of Indias. 136, s. 163(2), s. 163(3), s. 228
Indian Penal Code, 1860s. 161, s. 185
Prevention of Corruption Acts. 6

Subjects

Special Leave PetitionGovernor's discretionPrevention of Corruption ActJudicial recordArticle 163Article 136ConcessionChief Minister prosecutionEvidence

Judgment

A
.STATE OF MAHARASIITRA

v.

B RAMDAS SHRINIVAS NAYAK & ANR.

July 28, 1982

(0. CHJN1'iAPPA REDDY AND A.P. SEN, JJ.]
•
Evidenc~Conclusivt proof of statement1
c recorded in the judgment-Any
concession made before the court and as recorded in the judgment cannot be res1/ed
later, except in rare end appropriate cases-Stage at which the circumstances of .~\..:
the record to be rectified, explained-Constitution of India, Article 136-lnterfe-
rence by the_Supreme Court, impermi11ible.

Sanction for the prosecution of the Chief Minister under Sectio"n 6 of the · "' 0
Prtvention ofC<?rruption Act-Whether the Governor should act in hisdi1cretion
D or with the aid and advice of the Council of Ministers-Constitution of India, 1950,
Article 163.

Dismissing the Special Leave Petition, the Court,

HELD : 1:1. Supreme Court is bound to accept the statement of the
E judges recorded in their judgment and, therefore, it cannot launch into an inquiry
as to what transpired in the High Court. It is simply not done. Public policy
..
bars such an action and judicial decorum restrains it. [12 CJ

1:2. Supreme Court cannot allow the Statement of the judges to be
contradicted by statements at the Bar or by ~ffidavit and other evidence, Matters
of juaicial record are unquestionable and not open to doubt. Judges-cannot be
F dragged into the arena. If 'the Judges say in. their judgments that something was
done, said or admitted before them, that.has to be the last word on ihe subject.
Judges record is conclusive. [12 C-E]

J :~. If a party thinks that the happenings in court have been wrongly
recorded in a judgment, it is incum~ent upon the party, while the matter is still
G fresh in the minds of the judges, to call the attention of the very Judges who have
made the record to the fact that the statement made vfitb· regard to his conduct
was a statement that had been made in erior.. That is the only way. to have the
record corrected. If no such step is taken, the nlatter must necessaril>'.' end there.
Of cotlrse, a party may rcsilc and an Appellate Court may_ permit him; in rare
and appropriate cases to rcsilc from a concession on the ground that the conces-
H sion was made on a wrong appreciation of the law and had led to gross injustice,
but he ~ay not calJ in quf:stion the very fact of making the ~oncession as recorded
in the judgment. (12 F-H, 13 A] ;· ·
MAiiARASirtRA v. ilAMl>AS (Chinitappa fteddy, J.)

R•x v. M•llor 7 Cox C.C. 454, quoted with approval. A
Madhus'udan v. Chandrawati, A.J.R. 1917 P.C. 30; King Emperor v.
•' Bar•nd1a Ku,,;ar Ghose, 28 C.W.N. 170: Sarai Chandra v. Blbhabatl D•bl, 34 Cal.
L.J. 302: Samasundaram v. Subramanian, A.LR 1926 P.C. 136; approved.

2. In the facts and circumstances of the ·present case, it is clear that,
when there is to be a prosecudon of the Chief Minister, the Governor would, B
while determining whether sanction for sUcb prosecution should be granted or
not under sectiOn 6 of the Prevention of Corruption Act, as a matter of prop-
riety, necessarily act io bis own discretion and not on the advice of the Council
of Ministers. [14 F-G]
>
3. In the instant case, the cause of justice would in no way be advanced
' by permitting the state of Maharashtra to now resilc from the cOncession so c
ntade. On the other hand the .concession was rightly made before the High
i. Court to advance the cause of justice. [IS A)

CRIMINAL APPELLATE JURISDICTION : Petition for.Special Leave
• f Jo Appeal (CRL) No. 1523 of 1_982.
D
From the judgment and order dated the 12th April, 19d2 of
the Bombay High Court in Criminal Revision Application No. 1742
of 1981. ·

L.N. Sinha, Attorney General, Dr• Y.S. Chitale, and Miss A.
Subhashini for the petitioner. E
'Soll J. Sorabjee and Miss Rani Jethma/ani for Respondent
:No. 1.,
A.K. Sen and B.R. Honda for Respondent No. 2.
F
The Order of the Court was delivered by
•••
. CHINNAPPA RBDDf, J. Abdul Rehm~n Antulay was the Chief
Minister of the State of Maharashtra till January 12, 1982. While
he was yet holding the office of Chief Minister one Ramdas G
Shrinivas Nayak, an erstwhile Member of the Maharashtra Legisla-
tive Assembly, professing a keen interest in clean administration
\>, and so keeping a watchful eye on centres of power and sources of
corruption, filed a complaint against Shri Antulay, in the court of
tb'.e Metropolitan Magistrate, 28th Court, Esplanade, Bombay ,H
charging him with the commission of offences punishable under
ss. 161 and 185 of the Indian Penal· Code and 5 of the Prevention
i il _; ;:. >' . '·' 1.,
SUPREME COURT REPORt!I.
',. '.
r1!J83j j s.c.lt.
A of Corruption Act. The substance of the allegation was that ·
Sbri Antulay founded and controlled a number of trusts called by
various names freely; and· falsely . making it appear that the Prime
Minister and the Government of Maharashtra were either inferes-
ted or had sponsored the_ trusts, collected contributions and dona-
8 tions for the alleged benefit of the Trusts by misuse of his position
and power by dispensing favours and holding out threats, and,
thereby placed himself in a position where he could juggle and
manipulate a sum of over Rs. five crores. The learned Metro-
politan Magistrate refused to enteratain the complaint holding that •
it .was not maintainable without the requisite sanction of the
Government un.der s. 6 of the Prevention of Corruption Act. Against
·the order of the learned. Metropolitan Magistrate, R. s.· Nayak
presented a Criminal Revision Application to the High Court of
Maharashtra purporting to ·be under ss. 407 and 482 of the Code
of Criminal Procedure and Art.. 228 of the Constitution. The
• State of Maharashtra and Shri ·Antulay were imp leaded as Respon- • 0
n' dents. During the course of the pendency of the Criminal Revision
Application', Shri Antualy resigned his position as the Chief Minister
of the State of ·Maharashtra. By an elaborate order dated April 12,
1982, Gadgil and Kofwal, JJ upheld the view that sanction was
necessary and dismissed the Revision Application. While dismissing
the application, the learned Judges noticed that an applic1tion had
E 'been made to the Governor of Maharashtra for grant of the
requisite sanction" and .observed that the applicat_ion should not
be decided by the Law Minister or any. other Minister, but that ,
"it 'deserved to be decided by the Governor in his indivi_dual
discretion". The State of Maharashtra though not aggrieved by
the dismissal of _the Criminal Revision Application, seeks· special
F leave to appeal to this Court under Art. 136 of the Constitution
against the judgment of the High Court of Maharashtra. in so far
as the judgment may be said to have directed the Governor of
Maharashtra to exercise his individual · discretion in deciding the
question whether sanction· ~hould or should not be granted to
prosecute Shri Antulay. The learned Attorney General, who appeared
G for the State of Maharashtra, raised the contention that it was
not for the Court to decide whether in_ respect of a particular
matter, the Governor should act in his discretion or with the aid
and advice of the Council of Ministers and that under Art. 163(2),
·if any question arose whether any matter was or was not a matter·
H as respects which the Governor was by or under the Constitu-
tion required 10 act in bis discretion, the decision of the
i.iAl-iARASkTRA v. RAMDAS (thinnappa i?.eddy, J.) if
Governor in his discretion was final, and the validity of anything A
done by the -Governor was not liable to be called in question
on the ground · that he ought . not t<I have acted in his
discretion. 'He also invited our aitention to Art. 163 (3) which
provides Jhat the question whether any, and if so what, advice was
tendered by Ministers to the 'Governor shall not. be inquired.into
in any Court. ·The question posed by the learned Attorney General
is no doubt an important question, probably worthy of J;erious
consideration by this court under Art. l36 of the Constitution.
)
But, in the present case, we do not propose to grant special
· leave under Art. 136 of the Constitution, solely in ·order to
, consider this question firstly because the Criminal Revision
Application itself has been dismissed by the High Court and
secondly-and this is important-there was an express concession
made in· the High Court by . the Respondents that in the situation
presented by the facts of the present case, the Governor should
act in the exercise of his individual discretion.
D
Gadgil, J. referred to the concession in the following
words :- ·-
"However, I 111ay observe at this juncture itself that
at one stage it -was expressly submitted by the learned I
counsel on behalf of the respondent that in case if it is
. felt that bias is well apparently inherent. in the propos~d
action of the concerned Ministry, then in sllch a case situa-
,tion notwithstanding the other Ministers not being joined
in the arena of the prospective accused, it would be a
justified ground for the Governor on his own, indepedently F
and without any ~eference to any Ministry, to decide that
<iuestion.. " .

Kotwal, J. put it even more explicitly and said :

'':.. At one stage it was unequivocally submitted by the
G
learned counsel on behalf of the respondents in no uncertain
terms that even in. this case notwithstanding there being no
accusation against the Law Minister as such if the court :
feels that in the nature of things a bias in favour of the H
respondent and against a complainant would be manifestly
inherent,· apparent and. implied in the mind of _the Law
sti~ililMB roukt REPoRts ti ~83 J I s.e.R.
A Minister, then in that event, he would not .be entitle<! to
· consider complainant's application and on the equal footing
even the other Ministers may not be qualified to do so and.
the learned counsel further expressly submitted thatin such
. an event, it would only the Governor, who on his own,
independently, will be entitled to consider that ques-
B tion.''

When we drew the attention of the learned Attorney General to
the concession made before the High Court, Shri A.K. Sen, who '
appeared for the State of Maharashtra before the High Coµrt and
c led the arguments for the respondents there and who appeared for
Shri Antulay before us intervened and protested that he never made
any such concession and invited us to peruse the written submissions
made by him in the High Court. We are afraid that we cannot
launch into an inquiry as to what transpired in the High Court. •
It is simply not done. Public Policy bars us. Judicial decorum res-
D trains us. Matters of judicial record are unquestionable. 'fhey are
not open to doubt. Judges cannot be dragged into the arena.
"Judgments cannot be treated as mere counters in the game of litiga-
tion''.(') We are bound to accept the statement of the Judges record-
ed in their judgment, as to what transpired in court. We cannot
allow the statement of the judges to be contradicted by statements at
E the Bar or by affidavit and other evidence. If the jadges say in their
judgment that something was done, said or admitted before them,
that bas to be the last word on the subject. The principle is well-
settled that statements of fact as to what transpired at the hearing;
recorded in the judgment of the court, are conclusive of the facts so
stated and no one can contradict such statements by affidavit or
other evidence. If a party thinks that the happenings in court have
~en wrongly recorded in a judgment, it is incumbent upon the ··"f'6·
party, while the matter is still fresh in the minds of the judges, to
call attention of the very judges who have made tbe record to the
fact that the statement made with regard to his conduct was a state-
ment that had been made in error. (') That is the only way to have
G the record corrected. If no such step is taken, the matter must neces-
sarily end -there. Of course a party may resile and an Appellate

(I) Per Lord Atkinson in Soma•undara• v. Subramaniao, A.LR 1926 P.C.
H t36.
(2) (Per Lord Buckmaster in Madhusudao v. Chaoderwatl, A.1.R. 1917
P.C. 30.
MAHARASHTRA •• RAMDAS (Chinnappa Reildy, J.) 13

Court may permit him in rare and appropriate cases to resile from a A
concession on the groudd that the concession. was made on a wrong
appreciation of the law and had led to gross injustice; but, he may
not qi.II in question the very fact of making the concession as
.
recorded in the judgment.
In Rev. Mellor, 7 Cox. C.C. 454 Ma~in B was reported to have B
said : "we must consider the statement of the learned judge as abso-
.iute verity and we ought to take his statement precisely as a record
and act on it in the same manner as on a record of Court which of
itself implies an absolute verity".

In King Emperor v. Barendra Kumar G/.ose (1) : said, c
" ..... these proceedings emphasise the importance of
rigidly maintaining ·the rule that a statement by a learned
judge as to<what took place during the course of a trial
before him is final and decisive; it is not to be criticised or
circumvented; much less is it to be. exposed to animad ver-
1
D
sion". , ·

In Sarat Chandra v. Bibhabati Debi (2 ) Sir Asutosh Mooker-
jee explained what had to be done :

"It is plain that in cases of this character where a liti- E
gant feels aggrieved by the statement in °a judgment that an
,. admission has been made, the most convenient and satis-
factory cpurse to follow, wherever practicable, is to apply
to the Judge without delay and ask for rectification· or
review of the judgment".
F
So the judges, record is· conclosive. Neither lawyer nor litigant
may claim to contradict it, except before the judge himself, but
nowher~ else.

On the invitation of Mr. Sen, we have also perused the written
submissions made by him before the High Court. We have two G
comments to make : First, oral submissions do not always conform
to written submissions. In the course of argument, counsel, often,
. . wisely and fairly, make concessions which may not find a place in
the written submissions. Discussion draws out many a concession.
H
(I) 28 C.W.N, 170.
(2) 34 C.{.,./. 30i.
14 SU~REME COURT REPORTS · [1983] 1 s.c.R.

A Second, there are some significant sentences in the written submis-
·. sions which probabilise the concession. They are: ''If in the existing
case, the entire Council of Ministers becomes interested in the use of •
the statutcry power one way or the other, the doctrine of necessity
w!ll fill up the gap by en.abling the Governor by dispensing with the
advice of His Council of Ministers and take a decision of his own on
B a.
the merits of the case. Such discretion . of the Governor must be
implied as inherent in his constitutional powers ........ :The doctrine
' of necessity will supply the necessary power .to the Governor to act
without the advice of the Council of Ministers in such a case where
the entire Council of Ministers is biased. In fact, it will be contrary
'
to the Constitution and the principles of democratic Government
c which it enshrines if the Governor was obliged not to act and to
decline to perfor~ his statutory duties becaus.e his Ministers had
become involved personally. For the interest of democratic Govern-
ment and its functioning, the Governor must act in such a case on
his own. Otherwise, he will become an instrument for serving the
personal and selfish interest of his Ministers." We wish to say no
D more. As we said, we cannot and we will . not embark upon an
enquiry. We will go by the judges' record.

We may add, there is nothing before us to think" that any
such mistake o~curred, nor is there any ground taken in the peti-
tion for grant of specia) leave that the learned judges proceeded
.IE on a mistaken view that the learned counsel had made . a concession
that there might arise circumstances, under which the Governor in •
granting sanction to prosecute a Minister ·must act in his own
discretion and not on the advice of the Council of Ministers. The
statement in the judgment that such a concession was made is con-
clusive an·d, if we·may say so, the concession was rightly made. In
F the facts and circumstances of the present case, we have no doubt
in our mind that when there is to be a prosecution of the Chief
Minister, tlie Governor would, while tletermining whether sanction
for such prosecution should he grante.d or not under s. 6 of the
Prevention of Corruption Act, as a matter qf propriety, necessarily
act in his own discretion and not on the advice of the Council of
G Ministers.

'
The question then is whether we should permit the State of
Maharashtra to resile from the concession made before the High
H Court and raise before us the contention now advanced by the
jearne.d·Attorney General. We have not the slightest doubt that .
MAHARASHTRA v. RAMDAS (Chinnappa Reddy, J.) 15
•
tbe cause of justice would in no way be advanced by permitting A.
the State of Maharashtra to now resile from the concesssion and
• agitaie the question po·sed by: the learned 'Attorney General. On
the other hand we are satisfied that the concession was made to
advance the cause· of justice as it was rightly th~ught that in
deciding to sanction or not to sanction the prosecution of a
·Chief Minister, ihe Governor would act in the exercise of his discre- B
tion and nb.t \vith the .aid and advice of the Co~ncil of Ministers.·
The application for graii t of special leave is, therefore, dismissed.

S.R. Petition dismissed.
>

' -·

,. . ' ,,.