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PETITIONER: SHRI ABDUL KARIM

       Vs.

RESPONDENT: THE STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT:       07/11/2000

BENCH: Y.K. Sabharwal, J.

JUDGMENT:

Y.K.SABHARWAL,J.

L...I...T.......T.......T.......T.......T.......T.......T..J     I  have gone through the elaborate and learned  judgment prepared   by   my  brother   Justice  S.P.   Bharucha.    I respectfully  agree that the orders granting consent on  the special  Public  Prosecutor’s Applications do not  meet  the requirements  of  Section  321  of   the  Code  of  Criminal Procedure  (for short, ‘Cr.P.C.’) and the orders are bad  in law.   The  questions  raised  in these  matters  have  wide ranging  repercussions  regarding the scope of  Section  321 Cr.P.C.  and what is required to be considered by the Public Prosecutor  before consent of court is sought under  Section 321  to  withdraw  from the prosecution of  any  person.   I record these additional reasons for concurring with decision arrived at by Justice Bharucha and Justice Mohapatra.

   The facts in detail have been set out in the judgment of Justice Bharucha and it is unnecessary to repeat them except to briefly notice the broad admitted and/or well established facts  for  appreciating the points involved.  They  are  as under :

   (A)  Veerappan is a dreaded criminal and despite various attempts over a number of years could not be apprehended.@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   (B)  Veerappan  and  his associates are  alleged  to  be responsible  for  killing of a large number of people  (over 100) including Police personnel, Forest personnel and others besides  being  responsible for causing injuries to a  large number  of people and loss of property to the tune of crores of rupees.

   (C)  Veerappan and his gang members hatched a conspiracy to  kill  Superintendent  of Police, Mysore  District,  Shri Harikrishna  and  Sub-Inspector of Police of MM  Hills  Shri Shakeel Ahmed and other Police personnel who had been to nab Veerappan  with a view to terrorise the Police force and  to put  fear  of  death into the minds of  Policemen  who  were performing  duty in attempting to arrest the wanted persons. Various  charges  relating  to murder,  ambush,  attempt  to overawe  the Government of Karnataka, killing of  elephants, smuggling  of Sandal wood etc.  from the forest,  possession of  arms  and  ammunition,  opening of fire  on  task  force personnel,  have been framed against accused who are said to

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be  the  associates of Veerappan.  Cases filed against  them are  under  the  provisions  of  Terrorist  and   Disruptive Activities  Act  (TADA)  and other penal  provisions,  i.e., Indian Penal Code, Arms Act and Explosive Substances Act.

   (D) from their source information police authorities had learnt that Veerappan intended to kidnap Rajkumar during his visit  to his farmhouse in Gajanoor.  More than a year back, Director  General  of Police of the State of  Karnataka  had informed  the  Inspector General of Police of the  State  of Tamil  Nadu  requesting for adequate  security  arrangements being  made  for Rajkumar whenever he visited the said  farm house.

   (E)  Rajkumar is a very popular film actor of Karnataka. In  case  any  harm  is caused to  Rajkumar,  there  may  be backlash  on Tamils in Karnataka and it may lead to problems between  the two linguistic communities in the States.   The people may indulge in acts of violence.

   (F) On 30th July, 2000, Veerappan abducted Rajkumar from his  farm  house  along  with three others.   As  of  today, Rajkumar and one Nag esh are still in Veerappan’s custody.

   (G)  No Police protection or security was provided  when Rajkumar visited the farm house.

   (H) Soon after the abduction of Rajkumar and others, the two  State  Governments  decided to accept  the  demands  of Veerappan  to release those in respect of whom TADA  charges and  detention  orders under the National Security Act  have been  withdrawn.  The decision was taken in the meeting held on 4/5th August, 2000 between the Chief Ministers of the two States.

   (I)  Applications  under  Section 321  Cr.P.C.   seeking consent  of  court  to withdraw TADA charges were  filed  to@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ facilitate  ultimately  the release of accused persons  from@@ JJJJJJJJJJ judicial  custody  so  as to meet Veerappan’s  demand.   The arrangement  was  that once TADA charges are withdrawn,  the accused  in judicial custody will move bail applications  in cases of offences under IPC and other penal enactments.  The Public Prosecutor will concede and will not oppose the grant of  bail.  The court will grant the bail and, thus,  accused will  come out from judicial custody and, thus, this  demand of Veerappan would be met.

   Keeping  in view the aforesaid facts, let me now  revert to   application  filed  under   Section  321  Cr.P.C.   The@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ application  filed under Section 321 has been reproduced  in extenso   in   the  judgment  of  Justice   Bharucha.    The application  makes  no  reference  whatsoever  to  any  such arrangement  as  mentioned  at (I) above.  The  main  ground stated  in  the application is that in order to restore  the peace  and normalcy in the border area and among the  people living  in  the border area and to maintain peace among  the public at general and inhabitants of the particular village, the  Prosecutor has decided to withdraw from the prosecution the  accused  charged  of   the  offences  punishable  under Sections  3,  4 and 5 of the TADA.  Abdul Karim,  father  of Shakeel  Ahmed, opposed the application on various  grounds, inter  alia,  stating in the objection petition that if  the

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cases  against  the hardcore criminals are withdrawn  or  if they  are  released on bail that may expose the families  of the victims to terror unleashed by the TADA detenus, who may unleash  terror  and  jeopardize   public  order  and  cause detriment  to the general public interest.  In reply to  the said  objections, instead of admitting that TADA charges are being withdrawn to facilitate grant of bail, the stand taken by  the Public Prosecutor, inter alia, is that Veerappan and his  associates  will not be let out freely as they will  be facing  prosecution  for other offences and, therefore,  the submission   that  the  State   Government  has  yielded  to blackmail tactics of outlaw Veerappan is not correct.

   The Public Prosecutor has to be straight, forthright and honest and has to admit the arrangement and inform the court that  the  real arrangement is to ultimately facilitate  the release  of  these  accused  from judicial  custody  by  not opposing  the bail applications after the withdrawal of TADA charges.   The arrangement as set out above has neither been disputed  nor  is it capable of being disputed.  It is  well established that real purpose for withdrawal of TADA charges was to facilitate the grant of bail to the accused.  In such circumstances,  why the camouflage?  Why it is not so stated in  the application filed under Section 321?  In fact, it is a  deceit.   These are the questions for which there  is  no plausible  answer.  No court of law can be a party to such a camouflage  and deceit in judicial proceedings.  The  answer to these basic questions cannot be that the judge knew about it   from  the  very  nature  of  the  case.   Under   these circumstances,  it  cannot be said that the application  was made  in  good  faith.   The   satisfaction  for  moving  an application  under  Section  321 Cr.P.C.  has to be  of  the Public  Prosecutor  which in the nature of the case in  hand has  to be based on the material provided by the State.  The nature  of  the  power to be exercised by  the  Court  while deciding  application under Section 321 is delineated by the decision  of  this Court in Sheonandan Paswan v.   State  of Bihar  & Ors.  [(1987) 1 SCC 288].  This decision holds that grant  of consent by the court is not a matter of course and when  such an application is filed by the Public  Prosecutor after taking into consideration the material before him, the court  exercises its judicial discretion by considering such material  and on such consideration either gives consent  or declines  consent.  It also lays down that the court has  to see  that  the  application is made in good  faith,  in  the interest  of public policy and justice and not to thwart  or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.   True,  the power of the court under Section 321  is supervisory  but  that does not mean that  while  exercising that  power,  the consent has to be granted on mere  asking. The court has to examine that all relevant aspects have been taken  into consideration by the Public Prosecutor and/or by the  Government  in  exercise  of  its  executive  function. Besides  the  eight questions noticed in the main  judgment, the  question  and aspect of association of  Veerappan  with those   having  secessionist  aspirations   were  also   not considered.   Further though it may have been considered  as to  what  happened  on  1st August,  immediately  after  the abduction  of Rajkumar, but what does not seem to have  been considered  is that those were spontaneous outburst and  the authorities  may  have been taken unaware but what would  be the  ground  realities when the law enforcing agencies  have sufficient  time to prepare for any apprehended contingency. The  application and order under Section 321 is a result  of

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panic  reaction  by  overzealous   persons  without   proper understanding  of  the  problem  and  consideration  of  the relevant  material,  though they may not have  any  personal motive.   It does not appear that anybody considered that if democratically elected governments give an impression to the citizens  of this country of being lawbreakers, would it not breed  contempt  for law;  would it not invite  citizens  to become  a law onto themselves.  It may lead to anarchy.  The Governments  have to consider and balance the choice between maintenance  of  law  and order and anarchy.   It  does  not appear  that  anyone considered this aspect.  It yielded  to the  pressure  tactics  of  those   who  according  to   the Government  are  out  to terrorise the Police force  and  to overawe  the  elected Governments.  It does not appear  that anyone  considered  that with their action people  may  lose faith  in  the  democratic  process, when  they  see  public authority  flouted  and the helplessness of the  Government. The  aspect  of paralysing and discrediting  the  democratic authority  had  to be taken into consideration.  It  is  the executive  function to decide in public interest to withdraw from  prosecution  as  claimed.   But it  is  also  for  the Government to maintain its existence.  The self-preservation is  the  most pervasive aspect of sovereignty.  To  preserve its  independence  and  territories is the highest  duty  of every  nation  and  to attain these ends  nearly  all  other considerations are to be subordinated.  Of course, it is for the  State  to  consi      der  these  aspects  and  take  a conscious  decision.  In the present case, without  withdraw consideration of these aspects the decision was taken to the TADA  charges.   It is evident from material now  placed  on record  before  this  Court  that Veerappan  was  acting  in consultation  with  secessionist organisations/groups  which had  the object of liberation of Tamil from India.  There is no  serious challenge to this aspect.  None of the aforesaid aspects  were  considered  by the Government or  the  Public Prosecutors  before  having recourse to Section 321  Cr.P.C. With  these additional reasons, I am in complete  respectful agreement  with  the  conclusion and opinion  of  my  senior colleague Hon’ble Mr.Justice S.P.  Bharucha.