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PETITIONER: BALWANT SINGH & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT04/10/1977

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SINGH, JASWANT DESAI, D.A.

CITATION:  1977 AIR 2265            1978 SCR  (1) 635  1977 SCC  (4) 448  CITATOR INFO :  R          1980 SC 423  (7)  RF         1980 SC1510  (12)  R          1983 SC 194  (6,9,55,80)  R          1987 SC 877  (24,25,29,31,76)

ACT: "Nolle prosequi"-Withdrawal from the prosecution u/s. 321 of the  Criminal Procedure Code ( Act 11 of 1974),  1973  (1898 Code,  sec.  494), scope of Duties of the court,  the  State and the Public Prosecutor, explained.

HEADNOTE: The  public prosecutor, in charge of a criminal  case  where charges  had  already  been  framed  and  pending  before  a Magistrate  in  the  State of Bihar,  was  directed  by  the magistrate to withdraw the case at the instance of the State Criminal Intelligence Department on the ground that a second investigation  made  by the Police in the  said  matter  was truer  than the first which proved to be false.  The  Public Prosecutor  acted  on the direction and withdrew  the  case. Unable   to  get  the  relief  from  the  High  Court,   the petitioners  moved this Court for grant of special leave  to appeal.  Refusing the leave, the Court, HELD : (1) The sole consideration for the Public  Prosecutor when.  he  decides to withdraw from the prosecution  is  the larger factor of the administration of justice-not political favours   nor  party  pressures  nor  like  concerns.    The interests  public justice being the paramount  consideration they  may transcend and overflow the legal justice  of  the particular litigation. [605AB] (2)Justice  ordinarily demands that every case must  reach its  destination, not interrupted en route.  If some  policy consideration  bearing  on  the  administration  of  justice justifies  withdrawal, the court may accord permission;  not if no public policy bearing on the administration of justice is  involved.  The court has to be vigilant when a case  has been  pending  before  it  and  not  succumb  to   executive suggestion  made in the form of application  for  withdrawal with a    bunch of papers tacked on. [606-B-C] (3)The   statutory   responsibility  for   deciding   upon withdrawal squarely rests on thePublic Prosecutor’ It  is

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non-negotiable and cannot be bartered away in favourof those who may be above him on the administration side.   The Criminal  Procedure  Code is the only master of  the  Public Prosecutor  and  he has to guide himself with  reference  to Criminal Procedure Code only.  So guided, the  consideration which  must weigh with him is whether the broader  cause  of public   justice  will  be  advanced  or  retarded  by   the withdrawal or continuance of the prosecution. [605E-F] (4)It may be open to a District Magistrate to bring to the notice  :’of the public prosecutor materials and suggest  to him to consider whether the prosecution should be  withdrawn or  not.  He cannot command where he can only  commend.   In the instant ’case (a) ordering the public prosecutor to move for  withdrawal was not proper for a District Magistrate  to do.  It is not proper to have the Public Prosecutor  ordered about; (b) The Public Prosecutor obeyed and not acted in the instant  case and, therefore, the  statutory  responsibility vested in him was notproperly    exercised;   (c)    the surrender of discretion by the     Public Prosecutor and the Magistrate are unfortunate" and (d) the State should not stultify the court by first stating that there is a true case to be tried and then     make  a  volts  face  to   the effect that there is a second investigation the case has been      discovered to be false.[605 G-H, 606 A,C,D]

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : Special  Level  Petition (Crl.) No. 863 of 1977. From  the  Judgment and Order dated 28-3-1977 of  the  Patna High Court in Crl.  Misc.  No. 824 of 1977. S.   K. Sinha for the Petitioners. 605 The Order of the Court was delivered by KRISHNA  IYER,  J. We are not inclined to  grant  leave  for reasons which we, may indicate briefly so that similar error may not be committed later. The  sole  consideration for the Public Prosecutor  when  he decides to withdraw from a prosecution is the, larger factor of  the administration of justice-not political favours  nor party pressures nor like concerns.  Of course, the interests of public justice being the paramount consideration they may transcend  and overflow the legal justice of the  particular litigation.   For  instance, communal feuds which  may  have been amicably settled should not re-erupt on account of  one or  two prosecutions pending.  Labour disputes which,  might have  given  rise  to criminal cases,  when  settled,  might probably  be another instance where the interests of  public justice  in  the  broader connotation  may  perhaps  warrant withdrawal  from the prosecution.  Other instances also  may be  given where public justice may be served  by  withdrawal even  apart  from the merits of the case.   In  the  present case,  the  situation  is totally  different.   Here  is  an ordinary  criminal  case  where  the  first  informant  gave information to the police,    investigation   followed   and charge sheet was filed.Thereafter, the     learned magistrate who tried the case framed charges.Somehow -- by    a  suspiciou sly mysterious process --  the  State CriminalIntelligence Department went into the veracity  of the  prosecution story by a second investigation.   At  that time   the  criminal  case  was  already  pending  and   the Magistrate was seized of the case.  There was no reason  for the  police to start off on a second  investigatory  course. Morever,  the  District  Magistrate, on a  report  from  the

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Superintendent  of Police examined the matter and  satisfied himself  that  the second investigation was truer  than  the first  and  therefore came to the conclusion that  the  case which  the police brought before the Court was a  false  one and  directed  the Public Prosecuter to  withdraw  from  the case.   The  statutory  responsibility  for  deciding   upon withdrawal  squarely vests on the public prosecutor.  It  is non-negotiable  and  cannot be bartered away  in  favour  of those who may be above him on the administrative side.   The Criminal  Procedure  Code is the only matter of  the  public prosecutor  and he has to guide himself with  reference  to, Criminal Procedure Code only.  So guided, the  consideration which  must weigh with him is, whether the broader cause  of public   justice  will  be  advanced  or  retarded  by   the withdrawal  or continuance of the prosecution.  As  we  have already  explained,  public  justice may  be  a  much  wider conception than the justice in a particular case.  Here, the Public  Prosecutor is ordered to move for withdrawal.   This is  not proper for a District Magistrate to-do.  Indeed,  it is  not proper to have the public prosecutor ordered  about. it   is  entirely  within  the  discretion  of  the   public prosecutor.   It may be open to the District  Magistrate  to bring  to the notice of the Public Prosecutor materials  and suggest to him to consider whether the prosecution should he withdrawn or not.  He cannot command where he can only  com- mand.   In this case, the facts clearly bring out  that  the Public  Prosecutor obeyed and not acted, and  therefore  the statutory  responsibility  vested in him  was  not  properly exercised.  If he comes to 606 the  conclusion, on the materials passed on to him that  the case  deserves  to be withdrawn, he may initiate  action  in that behalf.  Likewise, the Court’s order in this case is  a puzzle to us.  The order says that records have been perused by  the  court;  the District Magistrate  has  directed  the Public Prosecutor; the Public Prosecutor has duly obeyed and the   District  Magistrate  has  also  mentioned  that   the Superintendent  of Police has reported to him  "to  withdraw the case’.  The independent judgment brought to bear on  the desirability  or otherwise of according permission  is  nil. What is curious is that the Public Prosecutor says that  the Court encores that public policy is     not involved in this case, for the administration of justice.That  must   be reason  why  the  law  must  run  its  course.  For  justice ordinarily     demands  that  every  case  must  reach   its destination, notinterrupted    en route. If some  policy consideration bearing on theadministration   of    justice justifies withdrawal, the court may accordpermission  not if no public policy bearing on the administration of justice is  involved.  We think that surrender of discretion by  the Public Prosecutor and the Magistrate, are unfortunate.   The court has to be vigilant when a case has been pending before it and not succumb to executive, suggestion made in the for& of application for withdrawal with a bunch of papers  tacked on.   Moreover, the State should not stultify ,the court  by first  stating  that there is a true case to be  tried  and then  make  a  Volte face to the effect  that  on  a  second investigation the case has been discovered to be false.   In these circumstances, we refuse leave. S.R. Leave refused. 607