State v. Tarachand — 1962 DIGILAW 208 (RAJ)

Chhangani, J.—This revision petition by the State has been directed against the order dated 3.11.61 of the Special Judge, Balotra, whereby he discharged the accused Tarachand of offences under sec. 161, Indian Penal Code, and sec. 5(2) of the Prevention of Corruption Act, holding that the sanction for his prosecution was bad in law and the Court could not take cognizance of the case on the basis of defective sanction. , 2. The case originally came up before Bhargava, J. who on account of the importance of the point involved in the case, referred the matter to a larger Bench. 3. The facts of the case lie in a very short compass. The respondent Tara Chand was a member of Rajasthan Administrative Service and was at the material time posted as Sub-Divisional Magistrate, Barmer. During his tenure as such, between "November, 1959 and March, 1960", he is alleged to have accepted illegal gratifications from parties in cases that were pending before him, on the Pretext of showing undue favour to them. On a demand of bribe by him from one Hazi Ali Mohammad, who was accused in a passport case pending before the respondent, Hazi Ali Mohammad filed a complaint on 30.3.1960 at 8.15 P.M. before the Deputy Superintendent Police, Anti Corruption Department, Jodhpur. A trap was accor-dingly laid during the course of which the accused accepted as bribe an amount of Rs. 500/- in marked currency notes which were recovered from his possession. Investigation was then commenced and during the course of it, a further sum of Rs. 11,450/- was recovered which, it is alleged, was lying concealed in his house. It was also noticed that the respondent had bank balance of Rs. 5p34.68 nP. ana that he used to deposit a major portion of his salary every month in bank. On these materials, the prosecution obtained sanction for his prosecution and eventually put up a challan against him in the Court of Special Judge, Balotra under sec. 161, I.P.C. and sec. 5(2) of the Prevention of Corruption Act. 4. The plea of the accused was of a general denial. 5. The Special Judge proceeded to try the case and examined 28 witnesses for the prosecution upto 18.8.1961. 161, I.P.C. and sec. 5(2) of the Prevention of Corruption Act. 4. The plea of the accused was of a general denial. 5. The Special Judge proceeded to try the case and examined 28 witnesses for the prosecution upto 18.8.1961. On the last mentioned date, when the case was fixed for the examination of Umraomal, Section Officer, Appointments A-III Department, Government of Rajasthan, Jaipur, the Special Public Prosecutor (Anti Corruption Department) put up an application stating that the sanction was laconic in the absence of specific approval of the Governor of the State and prayed tor some time to rectify the mistake by puting on record a proper and valid sanction. The prosecution, however, did not adhere to this position and later on the Deputy Government Advocate filed another application on 30.9.61 completely repudiating the stand taken in the Special Public Prosecutors application dated 18.8.61. It was stated in this application that the prior application by the Special Public Prosecutor was put in under some misconception of legal points. It was further stated that the Governor had not reserved unto him the right of sanctioning prosecution and, therefore, it was futile to send the papers to the Governor and that the sanction was properly awarded by the Government. It was also claimed that the executive order issued by the Government in the name of the Governor was not justiciable and a complete immunity from challenge of any kind was claimed. This was followed by an application dated 28.10.61 on behalf of the accused raising the , question of the validity of the sanction. Reliance was placed on Rule 31 of the Government of Rajasthan Rules of Business and it was contended that as the accused was not removable from his office except under the orders of the Governor, the sanction accorded in his case without the papers having been placed before the Governor was not valid in law. 6. The Special Judge, after considering the provisions of law, recorded the following conclusions:– 1. That a member of the Rajasthan Administrative Service to which service the accused belonged, is removable by the Governor of the State and not by the Chief Minister. 2. That there is no provision at all in the Business Rules to show that the Governor had divested himself of his executive power in the matter of sanctioning prosecution and delegated it to the Chief Minister. 7. 2. That there is no provision at all in the Business Rules to show that the Governor had divested himself of his executive power in the matter of sanctioning prosecution and delegated it to the Chief Minister. 7. On the basis of these conclusions, he held that according to sec. 6 of the Prevention of Corruption Act, the Governor of the State alone could sanction the prosecution of the accused. In this view of the matter, he held that the sanction given in the case was invalid and that the court took cognizance of the case wrongly and that the entire proceedings were void as having been taken without jurisdiction. Consequently he discharged the accused. 8. It may be mentioned at the outset that the factual question whether the facts and circumstances on which the accused-respondent is sought to be prosecuted were placed before the Chief Minister and whether he applied his mind to them and felt satisfied as to the need of the sanction, was not agitated before and determined by the Special Judge who held the sanction invalid on a consideration of the legal aspect of the matter only and in this revision this Court is also required to examine and determine the legal controversy. The learned Government Advocate who appeared in support of the revision, raised several contentions to challenge the correctness of the order of the Special Judge and we will deal with them in the order in which they were addressed. 9. The first contention of Mr. Kan Singh, learned Government Advocate, raises the question of the non-justiciablity of the Government order sanctioning the prosecution of the respondent and its immunity from challenge in a court of law. It is urged that the order of sanction having been issued in strict compliance with the provisions of Article 166 of the Indian Constitution, the Special Judge has committed a serious error in permitting the accused to challenge the order on the ground that under the Rules of Business the Chief Minister was not competent to sanction the prosecution without first putting the proposal before the Government. The argument in this connection was elaborated thus. The argument in this connection was elaborated thus. The validity of an order expressed and authenticated in accordance with clauses (i) and (ii) of Article 166 of the Constitution of India cannot be called into question on the ground that it is not an order made or executed by the Governor. The further question, which authority or limb of the Government is competent to exercise executive power in the name of the Governor in a particular case and whether the power was exercised by such a competent authority, is integrally connected with the question relating to the authorship of the order by the Governor and is in fact a part of that question and should be covered by the immunity from challenge provided by Article 166 of the Constitution of India. The learned Government Advocate emphasised the language of Articles 154 and 166 of the Constitution and placed reliance on a number of cases including a few Privy Council and Supreme Court cases. It may be observed in passing that the learned Advocate for the accused also sought support from some of these very Privy Council and Supreme Court cases relied upon on behalf of the State. 10. For a proper appraisement of the question of law raised, it will be proper and convenient to reproduce Articles 154 and 166 of the Constitution of India: — "154(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Nothing in this article shall— (a) be deemed to transfer to the Governnor any functions conferred by any existing law on any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority|subordinate to the Governor." "166—(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." Art. 154 deals with the mode of exercise of the executive power of the State Government. It vests the executive power in the Governor. It further empowers the Governor to exercise powers directly, that is, personally or through officers subordinate to him. Reference may be made at this stage to cluuse(3) of Art. 166 under which the Governor is required to make rules for the convenient transaction of the business of the Government of the State and for its allocation among Ministers. It is quite clear from these provisions that the executive power can be exercised by the various functionaries of the State Government under only a delegated authority and that delegation has to be provided for by the Rules of Business to be framed under Art. 166. The sub-rules (1) and (2) of Art. 166 merely provide for the mode of expression and authentication of the Government orders and in this context sub-rule (2) further provides a bar against judicial inquiry in the following terms— 11. The validity of an instrument so authenticated cannot be called into question on the ground that it is not an order or instrument executed by the Governor. Thus, the bar has been related to the mode of expression and authentication and in this context it will be proper to infer that it is intended for cases where a functionary of the State Government having authority delegated to him by the Governor according to Business Rules to exercise executive power of the State or under some other law exercises the power in the name of the Governor and issues orders expressed and authenticated in the manner provided by Art. 166 of the Constitution. In such cases, no objection can be taken to the order on the ground that the power has not been exercised personally by the Governor. In such cases, no objection can be taken to the order on the ground that the power has not been exercised personally by the Governor. It should also be borne in mind that the provisions relating to the mode of exercise of executive power are of vital nature and contemplate a proper delegation by rules to be framed by the Governor and consequently are not a fit subject of immunity from judicial inquiry and the bar cannot be extended to include them also and it cannot be accepted that the courts have no authority to examine whether a functionary acting in the name of the Governor has the authority to do so and whether he has complied with the necessary requirements of law governing the exercise of the executive power. The fact that sub-rule (3) of Art. 166 requires Business Rules to be framed for the allocation of the business of the Government among Ministers implies the need of a proper and valid delegation and the authors of the Constitution could not have intended to screen from judicial inquiry any exercise of executive power in disregard of such rules. 12. An examination of the principal cases relied upon at the Bar bear out the above conclusion and do not support the Government Advocate in the argument placed so high. 13. The first and the most important case in this connection is Emperor Vs. Sibnath Banerji(l). It arose under the provisions of the Government of India Act (1935) and interpreted sec. 59(2) of the Government of India Act which is in similar terms to the provisions of Art. 166, providing for bar against judicial inquiry. In that case it was maintained by the Crown before the Privy Council that some orders (made for the detention of certain persons) being on their face regular and in conformity with the language of the rules, it was not open to the Court to investigate their validity any further and reliance was placed on sec. 59(2) of the Government of India Act/1935. Their Lordships of the Privy Council overruled the plea of the Crown and observed "that the contention of the Crown goes too far as the sub-section only relates to one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. 59(2) of the Government of India Act/1935. Their Lordships of the Privy Council overruled the plea of the Crown and observed "that the contention of the Crown goes too far as the sub-section only relates to one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. Their Lordships further recorded agreement with the following statement of law by the Chief Justice of the Federal Court:– "It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid-making of that order. In the normal case the existence of such a recital in a duly authen ticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate." We have no hesitation in observing that the decision of the Privy Council lends support to the conclusion reached by us and cannot support the contention of the Government Advocate. 14. In Dattatraya Moreshwar Vs. The State of Bombay (2) the Supreme Court primarily considered the question as to the effect of an omission to strictly comply with the provisions of Article 166 and held that, "the provisions are of a directory nature and that non-compliance with the provisions of Article 166 does not vitiate the order itself." It was also stated that "if the requirements of the Article are not complied, the resulting immunity cannot be claimed." The nature and the extent of the immunity did not directly come for examination and determination. There are, however, observations in that case which, in our opinion, appear to negative the contention of the Government Advocate. Das, J. at page 186 observed, "That such a decision has been in fact taken by the appropriate Government is amply proved on the record." Mukherjee, J. at page 187 observed, "The affidavit filed in this case by V. T. Dahejia shows that Mr. Das, J. at page 186 observed, "That such a decision has been in fact taken by the appropriate Government is amply proved on the record." Mukherjee, J. at page 187 observed, "The affidavit filed in this case by V. T. Dahejia shows that Mr. Kharkar was then the Assistant Secretary to the Home Department and was authorised under the rules framed under Article 166(3) of the Constitution by the Governor of Bombay to sign orders and instruments for the Government of Bombay." In the face of the fact that the court did apply its mind to the question whether the particular functionary acting in the name of the Governor was authorised by the Rules of Business to act for the Governor and the trend indicated by these observations the tall claim of the Government Advocate for absolute immunity from challenge cannot be sustained. State of Bombay vs. Purushottam Jog Naik (3) is similar to Dattatraya Vs. State of Bombay (2) and need not be discussed at length. P. Joseph John Vs. State of Travancore-Cochin(4) also does not advance the case of the State any further. In that case the appellant P.Joseph John was dismissed from service of the Travancore Cochin Government and he challenged his dismissal in the High Court under Article 226 of the Constitution and having failed, approached the Supreme Court in appeal. During the appeal, an exception was taken to the validity of two documents, namely (i) show cause notice and (ii) the order appointing the Enquiry Commissioner. As regards the first document, the Supreme Court held, "that the notice was issued on behalf of the Government and was signed by the Chief Secretary of the United State of Travancore-Cochin who had, under the Rules of Business framed by the Rajpramukh, (now Governor) the charge of the portfolio of "service and appointments" at the Secretariat level in this State." As regards the other document, it was observed "that the notification ordering an inquiry was issued after the Council of Ministers had passed a resolution to that effect. It must be presumed that in the normal course of business that resolution was communicated to the Rajpramukh." The Supreme Court held that the order substantially complied with the requirements of law. It will be sufficient to observe that the decision of the Supreme Court based on the above findings cannot support the Government Advocate. It must be presumed that in the normal course of business that resolution was communicated to the Rajpramukh." The Supreme Court held that the order substantially complied with the requirements of law. It will be sufficient to observe that the decision of the Supreme Court based on the above findings cannot support the Government Advocate. The learned Government Advocate emphasised certain observations in this judgment, which we propose to deal with at a later stage while dealing with another line of argument addressed by the Government Advocate. These are the principal cases and we consider it unnecessary to refer to other cases which do not advance the position any further. 15. He may also point out that in The State Vs. Banshi Lal Luhadia (5), to which one of us was also a party, this court dealing with a similar claim of immunity, laid down the law in the following terms:— "All that Art. 166 (or its earlier counter part Sec. 54 of the Government of India Act, 1935) properly means and connotes is that where an executive action of the Government of a State is expressed to be taken in the name of the Governor, and, where in order (or other instrument) so expressed to be made is duly authenticated according to the rules of business made by the Governor, then such an order of instrument is incapable of being challenged in a court of law on the ground that it had not been made or executed by the Governor of the State. In other words, where the two conditions laid down in Art. 166 are satisfied, then an irrebuttable presumption arises that the order purporting to have been made by the Governor was made by him and the same cannot be questioned. But the immunity is available so far as that particular ground goes and no further"............"We pause here for a moment to point out that the learned counsel for the State was, therefore, entirely in the wrong when he tenaciously persisted in his plea before the trial court as well as before this Court that Art. 166 completely forbade an inquiry into the. question of validity of the sanction in the circumstances of the present case." Thus, as a result of the above examination of the relevant provisions of the Constitution and the decided cases, we must hold that the order of sanction is justiciable and does not enjoy immunity from challenge except only on one ground indicated earlier and that it is open to an accused to object, (i) that the authority sanctioning prosecution was not competent under law or business rules to sanction the prosecution and (ii) that the authority sanctioning prosecution did not apply its mind to the facts and the circumstances on which the prosecution is based. It will be also pertinent to point out that in view of the cases of the Privy Council and the Supreme Court., it is settled law that where the law prescribes sanctions as a condition precedent to a prosecution, the court must not only be satisfied that the required sanction has been accorded but that the sanctioning authority has accorded it after applying its mind to the facts constituting the offence. It will be indeed anomalous and ridiculous and highly prejudicial to the rights of the accused that he should be denied the benefits of these salutary rules and should be denied to contest that the authority who sanctioned the prosecution was not competent to exercise the executive power of the State and that his satisfaction cannot be sufficient or that the authority did not apply its mind to the facts and the circumstances before issuing sanction. In my opinion the claim of non-justiciablity being inconsistent with the well recognised rights of the accused, must of necessity be rejected. 16. The learned Government Advocate next contended that the order sanctioning the respondents prosecution having been authorised by the Chief Minister of the State, who is the head of the Council of Ministers, cannot be objected on the ground that it was not an order of the Government. He adopted the following line of reasoning in this connection. He pointed out that India has adopted a system of parliamentary democracy, both at the Centre and in the States. In the democratic set-up the sovereignty vests in the people and the Government is constituted by the Council of Ministers who are the representatives of the people. The Governor is merely a nominal head. He pointed out that India has adopted a system of parliamentary democracy, both at the Centre and in the States. In the democratic set-up the sovereignty vests in the people and the Government is constituted by the Council of Ministers who are the representatives of the people. The Governor is merely a nominal head. Reliance was placed in this connection upon the following observations in P. Joseph John Vs. State of Travancore Cochin (4). "It is an elementary principle of democratic Government prevailing in England and adopted in our Constitution that the Rajpramukh or the Governor as head of the State is in such matters merely a constitutional head and he is bound to accept the advice of his Ministers. In this situation it cannot be held that the order of the Government appointing the Enquiry Commissioner was ultra vires and without jurisdiction." It was strongly contended by him that the order authorised by the Chief Minister must accordingly be taken as the order of the Government. We may atonce say or rather concede, that political theorists on Constitution Law and Practices may on a Consideration of the constitutional provision in conjunction with established conventions, practices and usages operating in the field of administration can assert with Some justification that the Governor is only the titular head of the executive and that the Council of Ministers headed by the Chief Minister is the real head and that the phrase "aid and advice" appearing in Article 163 is a masterly understatement of the position enjoyed by the Council of Ministers. At the same time, there may be others who may strike a dissenting note emphasising some of the specific powers conferred on the Governor by the Constitution; his position as a representative of the Central Government and his role as a friend, philosopher and guide to the Council of Ministers. It is not, however, for the courts of law to enter into these political controversies and we must make it clear that considerations like these should not stand in the way of the examination of the matter on proper and strict legal lines. 17. On such an examination, the first thing which strikes is that the Constitution vests all executive powers in the Governor. He is indeed the centre from whom flows the exercise of all executive powers. 17. On such an examination, the first thing which strikes is that the Constitution vests all executive powers in the Governor. He is indeed the centre from whom flows the exercise of all executive powers. The various functionaries in the State derive their authority from the Governor in accordance with rules of business to be framed by him. The Business Rules of the State Governments do provide that certain matters must be placed before the Governor before the issue of final orders. Rule 31 of Government of Rajasthan, Rules of Business, may be cited as an instance. It is true that in accordance with the requirements of a parliamentary democratic government and the various established conventions the delegation usually takes the form of a delegation of the totality of powers except certain special matters and, therefore, in practice the exercise of Governments power is carried on by the Chief Minister and other Ministers who virtually constitute the State Government. This may be so but legally the Chief Minister and other Ministers can exercise executive power of the Government as officers subordinate to him in view of the provisions of Article 154 of the Constitution of India. The Privy Council in Emperor Vs. Sibnath Banerji (1) referring to the legal position of the Ministers made the following pertinent observations: — "Their Lordships are unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of Sec. 49(1), and so far as the decision in I.L.R. (1939) 2 Cal. 411, decides that a Minister is not such an officer their Lordships are unable to agree with it. While a Minister may have duties to the Legislature, the provisions of Sec. 51 as to the appointment, payment and dismissal of Ministers, and sec. 59(3) and (4) of the Act of 1935, and the Business Rules made by virtue of sec. 59, place beyond doubt that the Home Minister is an officer subordinate to the Governor." The legal position under the present Constitution remains almost the same. In view of what has been said earlier, we find it difficult to accept the extreme stand that an order passed by the Chief Minister should be treated as an order of the Government irrespective of the fact whether the power to exercise specific executive power, has been delegated to him or not. In view of what has been said earlier, we find it difficult to accept the extreme stand that an order passed by the Chief Minister should be treated as an order of the Government irrespective of the fact whether the power to exercise specific executive power, has been delegated to him or not. 18. We now come to the observations of the Supreme Court in P. Joseph John Vs. State of Travancore-Cochin(4) strongly relied upon by the Government Advocate. I have shown earlier that in that case the validity of two documents was questioned. With regard to the show-cause notice, it was held that it was issued in accordance with the business rules. As regards the other i.e. the council resolution appointing an Enquiry Commissioner, the Supreme Court presumed that it must have been communicated to the Rajpramukh, thus treating that as also having been authorised by the Rajpramukh. Having recorded these conclusions, the Supreme Court recorded the above observations. Naturally these observations have to be appreciated in the back-ground of the factual findings. They very appropriately emphasise the importance of the Council of Ministers in the conduct of the business of the State Government but they go only so far and the learned Government Advocate certainly reads something more in them when he puts forwards a claim on the basis of these observations that the order of the Chief Minister and other Ministers should be treated as order of the "Government" irrespective of and even in disregard of the rules of business. We are not prepared to accept the argument of the Government Advocate presented in this manner. 19. Lastly, it was contended by the Government Advocate that a proper reading and construction of the rules of business must lead to the conclusion that the Chief Minister is competent to finally dispose of a matter relating to the sanction of prosecution of a member of the Rajasthan Administrative Service to which category the accused belongs. His argument is that the business rules disclose a scheme of a delegation of the totality of powers to the Ministers individually or collectively with sepcified exceptions only and that a proper approach to determine the delegated authority of the Ministers is not to raise a question whether the specific power has been delegated or not but to raise a question whether a specific matter has been excluded or not. The Special Judge, according to him, committed a serious error in adopting an approach of inquiring whether the power to sanction prosecution has been specifically delegated to the Chief Minister or not. 20. An examination of the various rules of business and a consideration of the scheme underlying them clearly bear out the above contention of the learned Government Advocate. Rule 2(f) defines "Minister-in-charge" as the Minister appointed by the Rajpramukh (now Governor) to be incharge of the department of the Government to which the case belongs. The explanation further adds, "A case shall be deemed to belong to the department to which under the schedule to these rules the subject matter thereof pertains or is mainly related. The enumeration of various departments is complete and exhaustive and the cases must belong to one department or the other. In order that there may be no difficulty in practice, Rule 27 has been framed to resolve doubts in this connection. It says that "If a question arises as to the department to which a case properly belongs, the matter shall be referred for the decision of the Chief Secretary, who will, if necessary, obtain the orders of the Chief Minister." The entire Government work, therefore, must be carried on in the various departments placed incharge of the Ministers. Under R.4 the business of the Government is to be transacted in the Secretariat Departments which are in-charge of the Ministers. R.7 embodies the provision of collective responsibility and provides that the Council of Ministers shall be collectively responsible lor all advice tendered to the Rajpramukh and also for all executive orders issued in the name of the Rajpramukh in accordance with these rules, irrespective of the fact whether the advice was tendered or the order was authorised by an individual Minister only. Rule 9 prescribes that without prejudice to the provisions of Rule 7, the Minister-in-charge of a department shall be primarily responsible for the disposal of the business pertaining to that department. Rule 21 states, "Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the department. Rule 21 states, "Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister." Finally, Rule 31 enumerates 11 classes of matter which are required to be submitted to the Rajpramukh and the Chief Minister before the issue of orders ; the relevant clause for our purposes being clause (vii) reading as follows :— "Proposals for dismissing, removing or compulsory retiring of any officer where the appointing authority is the Government." Thus it will be seen that a case is initiated in a department under the Minister and he is primarily responsible for the disposal of the cases in the departments under his control. The rules in accordance with sound democratic practice provide for the delegation of the totality of the executive power to the Ministers with certain specified exceptions enumerated in Rule 31 only. It follows as a corollary that a Minister is competent to discharge all executive power of the Government within the department except to the extent reserved under Rule 41. It further follows that Rule 31 should be interpreted fairly and if not narrowly, not to permit an enlargement of the scope of exceptions mentioned in that rule. Rule 31 clause (vii) does not specifically include proposals relating to sanction of prosecution of the members of the Rajasthan Administrative Service. 21. On a consideration of the language of clause (vii) in the light of the principle stated above, there can be hardly any escape from the conclusion that the Minister, who in the present case is the Chief Minister, is competent to finally dispose of all matters relating to the sanction of the prosecution. The Special Judge, in our opinion, approached the matter from a wrong angle in coming to the conclusion that the power to sanction prosecution does not stand delegated to the Chief Minister. 22. It will also be proper at this stage to refer to "standing order" No. D.96/ 60/F.I3(5) Apptts.(C)/54, dated Jaipur, the 8th January, 1960, made by the Chief Minister under Rules 21 and 22 of the Rules of Business. 22. It will also be proper at this stage to refer to "standing order" No. D.96/ 60/F.I3(5) Apptts.(C)/54, dated Jaipur, the 8th January, 1960, made by the Chief Minister under Rules 21 and 22 of the Rules of Business. Serial No. 11 of that order provides that the cases relating to sanction of prosecution are to be disposed of by the Chief Secretary, Minister of Law and Chief Minister. The Chief Minister should naturally be treated as the final disposing authority. The Special Judge has expressed the view that the standing order has no bearing in the present case. In this connection he referred to the opening words of Rule 21, namely, "Except as otherwise provided by any other rule" and observed that the rule only applied to cases in which there is no specific rule. Eventually, he recorded his conclusion in the following words:– "So far as the removal of the Officer of the Rajasthan Administrative Service is concerned, there is the specific Rule 31 and as such this rule 21 or rule 22, which deals with the same matter as Rule 21, has no bearing at all in this case." It is true that Rule 31 does require that the proposals for removal of a member of the Rajasthan Administrative Service should be put up to the Governor before the issue of final orders. It also follows that no standing order can be issued under Rule 21 so as to contravene the requirements of Rule 31. 23. We are, however, unable to agree that Rule 31 (vii) should be taken to include a proposal for the sanction within its scope as appears to have been done by the Special Judge. On the basis of principles relating to interpretation indicated earlier, we do not find any justification that a proposal for sanction is included in clause (vii) of sec. 31 and that it must be put up before the Governor before issue of final orders. There being thus no inconsistency in the standing order and the specific provision of Rule 31, the Special Judge was hardly justified in brushing aside the standing order. 24. Apart from this, the standing order lends some strength to my conclusion that clause (vii) of Rule 31 does not include within its scope cases relating to sanetion for prosecution. There being thus no inconsistency in the standing order and the specific provision of Rule 31, the Special Judge was hardly justified in brushing aside the standing order. 24. Apart from this, the standing order lends some strength to my conclusion that clause (vii) of Rule 31 does not include within its scope cases relating to sanetion for prosecution. The learned Government Advocate has placed on record a letter of the Secretary to the Governor of Rajasthan, Jaipur, vide his application dated September 22, 1962. This letter reads as follows :— "A file is maintained in the Secretariat of the Governor Rajasthan regarding the Standing Orders that are issued by the Government from time to time under Rule 21 of the Rules of Business. Standing orders when received in the Governors Secretariat are submitted for perusal to the Governor. Standing Order No. D.94/60. F.13(5) Appts(c)/54, dated the 8th January, 1960 which was issued by the Chief Minister was seen by the Governor, Rajasthan." This letter clearly proves that the standing order relied upon by the prosecution was communicated to the Governor and that being so, it should be deemed to have his approval. Thus, the competence of the Chief Minister to exercise the executive power of Government in cases relating to sanction of prosecution has the approval of the Governor and should be deemed to have been delegated and this necessarily implies that the power cannot be treated to have been reserved by the Governor and on giving proper weight to this consideration Rule 31 clause (vii) cannot be construed so as to include cases relating to sanction of prosecution. Even if clause (vii) of Rule 31 be treated a little ambiguous capable of being interpreted differently, the rule of harmonious construction requires that in the presence of a standing order issued by the Chief Minister within the knowledge and the presumed approval of the Governor., this clause must be interpreted so as not to invalidate the standing order and thus not to include cases relating to sanction of prosecution. 25. Mr. Jain, however, invokes the aid of sec. 6 of the Prevention of Corruption Act (Act No. 11 of 1947) and contends that the power to remove from service and power to sanction prosecution must go together and that reading clause (vii) of Rule 31 of the Rules of Business with sec. 25. Mr. Jain, however, invokes the aid of sec. 6 of the Prevention of Corruption Act (Act No. 11 of 1947) and contends that the power to remove from service and power to sanction prosecution must go together and that reading clause (vii) of Rule 31 of the Rules of Business with sec. 6 of the Prevention of Corruption Act, it must be held that the power to sanction prosecution of members of the Rajasthan Administrative Service is included within the scope of clause (ii) of Rule 31. His argument may briefly be summarised as follows. Sec. 6(i)(c) which applies to cases of persons other than those who are removable either by the Central Government or the State Government, clearly states that the sanction must be of the authority competent to remove the person sought to be prosecuted from his office. According to Mr. Jain this clearly indicates the underlying idea behind the section that the authority sanctioning prosecution should be identical with the authority competent to order removal and that this underlying idea should be kept in view in interpreting sub-sec. 1(b) of sec. 6 which deals with cases of Government servants not removable from office save with the sanction of the State Government. The expression "State Government" used in connection with the removal of the Government servant and the expression "State Government" occurring in connection with the sanctioning of prosecution must bear the same connotation, and that it will be necessary and proper to adopt the same machinery and procedure in disposal of cases relating to the sanction of prosecution which is required for cases of removal of Government servants. 26. We have given our very careful and anxious consideration to the argument of Mr. Jain and have not felt persuaded to accept it. We now proceed to state the reasons for our conclusion. Sec. 6 divides Government servants into three categories— 1. Removable by the Central Government. 2. Removable by the State Government. 3. Removable by other authorities in the State or Central Government. It is only with regard to the third category that a provision has been made that the authority sanctioning prosecution will be that which is competent to remove. Evidently in view of the great hierarchy of officers of the various grades in the State and Central Government there is good reason for introducing this safe-guard. It is only with regard to the third category that a provision has been made that the authority sanctioning prosecution will be that which is competent to remove. Evidently in view of the great hierarchy of officers of the various grades in the State and Central Government there is good reason for introducing this safe-guard. The State Government is, however, an impersonal body acting through various authorities exercising powers delegated by the Governor and although the Government business may be validly transacted by different officers, it will be hardly permissible to suggest that they all constitute different authorities for the purposes of sec. 6(i)(a)(b). The Government is always the same though different functionaries exercise Governments executive powers in different matters. Article 166(3) of the Constitution and the Business Rules framed thereunder deal with the manner of the exercise of the executive power of the Government. It is indeed difficult to see how sec. 6, which is mainly concerned with the specification of authorities competent to sanction prosecution should be permitted to affect and limit the exercise of executive power of Government by the various authorities through a proper process of delegation. Secondly, we may point out that the term "State Government" used earlier in clause (b) of sec. 6 has been used as descriptive of the person sought to be prosecuted. There is no scope for a conclusion that it has been used to emphasise the mode in which the power of removal is to be exercised by the State Government and to associate that mode in connection with the sanction for the prosecution. If the legislature had that idea in mind it could have expressed that in a proper and suitable language. It appears quite clear that an acceptance of the stand taken by the defence will mean that the sec. 6 should be permitted to control article 154 of the Constitution which empowers the Governor to exercise the executive power of the Government through the subordinates (though under proper delegation) and to feter his discretion. Further, Article 166 providing an immunity to the Government orders from challenge on the ground that the order has not been actually made by the Governor will be nugatory. Such a stand cannot be accepted. In this view of the matter, we cannot accept the argument of Mr. Jain. 27. Further, Article 166 providing an immunity to the Government orders from challenge on the ground that the order has not been actually made by the Governor will be nugatory. Such a stand cannot be accepted. In this view of the matter, we cannot accept the argument of Mr. Jain. 27. The final conclusion then to be reached in the light of the foregoing discussion is that viewed thus the Chief Minister was competent to finally dispose of cases relating to sanction for the prosecution of the respondent-accused and it was not necessary that the papers should have been placed to the Governor before issue of the final orders that the Chief Minister constituted the Government in this matter and the sanction accorded by him in the name and the authority of the Governor is valid Government sanction and that being the real position, we cannot concur in the view taken by the Special Judge. 28. At this stage, we may take notice of a submission made by Mr. Jain as to the correctness of the various recitals in the order of sanction. It was pointed out that the sanction order contains various expressions of the following nature:-- "The Governor is satisfied..." "The papers were placed before the Governor..." "The Governor is pleased to direct..." These recitals, according to Mr. Jain, are incorrect on the basis of admissions made in the application and they invalidate the order of sanction. In answer to this submission, the learned Government Advocate relied upon two cases, namely, Emperor Vs. Sibnath Banerji(l) and State of Bombay Vs. Purushottam Jog Naik(3). In the former case, their Lordships observed— "The provisions of Chapters 2 of Part 3 of the Government of India Act of 1935 as to the Provincial Executive and its executive authority use the term "executive" in the broader sense as including both a decision as to action and the carrying out of such decision." and treated an order containing a recital "That the Governor is satisfied" when in fact the Governor was not personally satisfied as a proper and correct order. In the later case(3) the Supreme Court held that the order not expressed in the name of the Governor was not in strict compliance with Article 166 of the Constitution. In the later case(3) the Supreme Court held that the order not expressed in the name of the Governor was not in strict compliance with Article 166 of the Constitution. Bose, J. in this connection made the following observation :— "When a Secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor." In view of these observations of the highest Courts, no objection can be taken to the recitals made in the order of sanction. 29. Mr. Jain, however, invited our attention to the following observations made in the State Vs. Banshilal Luhadia (5) to which one of us was a party:– "Art. 166 does lay down that an executive order passed by the State has to be issued in the name of the Governor, that does not and cannot be taken to mean that if there is another competent authority under the Rules of Business made by the Governor whose satisfaction would be required or was obtained before a valid sanetion could be or was given, this article requires it to be mentioned or such a mention can be justified on the language of the article that the papers relevant to the sanction were placed before the Governor or that the Governor was satisfied of the case for sanction.........We have no doubt that the word Governor as used in the context was intended to be used for the Governor himself as contradistinguished from any other authority and what was intended to be conveyed thereby was that the papers had been placed before the Governor himself and that his own satisfaction had been obtained, a position which the prosecution has negatived by its own affidavit Ex. P-127." The short answer to Mr. Jains contention is that in State Vs. P-127." The short answer to Mr. Jains contention is that in State Vs. Banshi Lal Luhadia this Court considered at length the evidence including an affidavit by the Deputy Secretary to prove that the papers relating to sanction were placed before the Minister-in-charge of the Local Self Government and came to the conclusion that the prosecution failed to prove the burden of establishing the validity of the sanction which lay squarely on it and it was on this finding that the case was decided. It was only when the prosecution made submission in spite of its failure to prove a valid sanction that a valid sanction should be presumed by construing the expression "Governor" as really standing for and meaning the Minister-in-charge of the Local Self Government, who had actually granted the sanction to prosecute, that these observations were made. We are clearly of opinion that Mr. Jain cannot derive any substantial assistance from the observations made in Luhadias case(5). In our opinion, the sanction accorded in this case cannot be considered defective on account of the recitals referred to by Mr. Jain. 30. To conclude, we must hold that the Special Judge was not justified in treating the order of the Government sanctioning the prosecution of the respondent as defective on the ground of an omission to put up the papers before the Governor before the final issue of the orders by the Chief Minister and the order of discharge passed by him on this finding is erroneous and cannot be maintained. We would, therefore, accept the revision, set aside the order of the Sepecial Judge, Balotra and send the case for further proceedings in accordance with law.