Hon'ble Judges/Coram:
A.N. Sen and O. Chinnappa Reddy

ORDER

O. Chinnappa Reddy, J.

1. Abdul Rehman 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 Shrinivas Nayak, an erstwhile Member of the Maharashtra Legislative Assembly, professing a keen interest in clean administration and so keeping a watchful eye on centers of power and sources of corruption, filed a complaint against Shri Antulay, in the court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay charging him with the commission of offences punishable under Section 161 and 185 of the Indian Penal Code and 5 of the Prevention of Corruption Act. The substance of the allegation was that Shri 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 interested or had sponsored the trusts, collected contributions and donations 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 Metropolitan Magistrate refused to entertain the complaint holding that it was not maintainable without the requisite sanction of the Government under Section 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 Sub-section. 407 and 482 of the CrPC and Article 228 of the Constitution. The State of Maharashtra and Shri Antulay were impleaded as Respondents. 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 Kotwal, JJ upheld the view that sanction was necessary and dismissed the Revision Application. While dismissing the application, the learned Judges noticed that an application had been made to the Governor of Maharashtra for grant of the requisite sanction and observed that the application should not be decided by the Law Minister or any other Minister, but that "it deserved to be decided by the Governor in his individual discretion". The State of Maharashtra though not aggrieved by the dismissal of the Criminal Revision Application, seeks special leave to appeal to this Court under Article 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 should or should not be granted to prosecute Shri Antulay. The learned Attorney General, who appeared 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 Article 163(2), if any