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PETITIONER: MOHD. MUMTAZ

       Vs.

RESPONDENT: NANDINI SATPATHY AND ORS.

DATE OF JUDGMENT20/12/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) BHAGWATI, P.N. (CJ) KHALID, V. (J) OZA, G.L. (J) NATRAJAN, S. (J)

CITATION:  1987 SCR  (1) 680        1987 SCC  (1) 279  JT 1987 (1)    28

ACT:     Criminal  Procedure  Code,  1973:  ss.321  &  329--Nolle prosequi-Withdrawal from prosecution--Right of public prose- cutor--Charge  framed  against  accused--Withdrawal  whether legal.

HEADNOTE:     Section  321  Criminal Procedure Code, 1973  empowers  a Public  Prosecutor incharge of a case to withdraw  with  the consent  of the court from the prosecution of any person  in respect  of any one or more of the offences for which he  is tried, at any time before the judgment is pronounced.     Respondent No.1 Ex-Chief Minister of Orissa, was alleged to  have misappropriated a huge sum, said to have been  col- lected  by District Congress Committees from various  compa- nies  for  publication of their  advertisements  in  party’s souvenirs  before  the 1971 General Elections.  A  case  was registered  by  the Vigilance Department against her  and  a charge-sheet submitted. The Addl. Chief Judicial  Magistrate framed charges under ss.406,467,471 and 120 of the IPC.     After  the 1980 General Election, the  State  Government took  a policy decision to withdraw cases against  political leaders  who  were subjected to victimisation.  The  Special Public  Prosecutor  on being satisfied that  the  charge  of criminal breach of trust would fail against respondent  No.1 filed a petition under s.321 Cr.P.C. and sought the  permis- sion  of the court in public interest for withdrawal of  the case, when the case was posted for consideration of charge.     After  making an objective assessment of the  merits  of the  application and being satisfied that the withdrawal  of the  prosecution would in no way affect any public  interest or  improve any public confidence the Addl.  Chief  Judicial Magistrate granted consent to withdraw from the prosecution. The  appellant’s revision petition having been dismissed  by the High Court he appealed by special leave to this Court. Dismissing the appeal the Court, 692 HELD: Per Oza, J. (Bhagwati C.J.I. and Oza, J.)     I. Once a charge has been framed against the accused  on

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the  basis that there was ground for presuming that  he  had committed the offence charged against him, the Public Prose- cutor  cannot  make an application for withdrawal  from  the prosecution  and the Magistrate cannot give his  consent  to such withdrawal on the ground that there was insufficient or no evidence to sustain the prosecution. [698H-699B]     2. The charge of criminal breach of trust framed against respondent No. 1, however, was totally groundless. There was nothing on record to indicate that the entrustment of  funds to  her was for the specific purpose of being utilised  only for  the  purpose of publication of  advertisements  in  the souvenirs.  It was not the case of the prosecution that  any of these amounts were handed over by any of the companies to her. The entrustment of these amounts, if at all, was to the souvenir  committee of the All India Congress Committee  and respondent  No. 1 could not be charged for utilising any  of these  amounts for the purpose other than that for which  it was  entrusted  to her. The charge against  her,  therefore, could not he sustained. [699E-G]     Instead  of permitting the prosecution to  he  withdrawn under  s.321 the charge framed against respondent No.  1  is quashed under s.239 of the Code of Criminal Procedure, 1973. [699H-700A] Per Venkataramiah, J.     I.I.  Consent  can he given under s.321 of the  Code  of Criminal Procedure, 1973 for withdrawal from the prosecution of a case at any time before the judgment is pronounced. The framing  of the charge cannot be an impediment to give  con- sent to such withdrawal.     1.2.  In  the instant case, the  Public  Prosecutor  had applied his mind to the case before applying for  withdrawal and  the  Chief Judicial Magistrate had  not  committed  any error  in giving his consent to such withdrawal.  The  order was, therefore, fully justified."     2. The decision in State of Bihar v. Ram Naresh  Pandey, [1957]  SCR 279, interpreting s.494 of the Code of  Criminal Procedure,  1898  and  the decision in R.K.  Jain  v.  State through  Special Police Establishment & Ors., [1980]  3  SCR 982,  interpreting s.321 of the Code of Criminal  Procedure, 1973 do not call for any reconsideration.[694C-E] 693 Per Khalid, J.     I.  Order of withdrawal passed by the  Additional  Chief Judicial Magistrate is upheld. [695D]     2.  Consent  can  be given under s.321 of  the  Code  of Criminal Procedure for withdrawal from the prosecution of  a case, not only when the charge is not framed but even  after the  charge is framed and at any time before  the  judgment. [694H-695A]     3. Section 239 of the Code of Criminal Procedure 1973 is not attracted to the facts of the case for the propriety  of the charge framed was not at issue. [695B, C]     Sheo  Nandan Paswan v. State of Bihar,  Criminal  Appeal No. 241 of 1983 decided on 20th December 1986, applied.     State of Bihar v. Ram Naresh Pandey, [1957] SCR 279  and R.K. Jain v. State, [1980] 3 SCR 982, referred to. Per Natarajan, J.     1.  The consent given by the Additional  Chief  Judicial Magistrate  to the Special Public Prosecutor for  withdrawal of  the prosecution suffers from no error of law, patent  or latent. [701G]     2.  There  is no material in the case to show  that  the Special  Public  Prosecutor was influenced by  any  improper motives  for  filing the application for withdrawal  of  the prosecution  or  that he had acted against his will  at  the

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behest of anyone else. The Additional Chief Judicial  Magis- trate  had bestowed judicial consideration over  the  matter and had thereafter passed a reasoned order. Not only he  but also  the High Court had found after a careful  scrutiny  of relevant factors and circumstances, that the application for withdrawal  of  the prosecution made by the  Special  Public Prosecutor  fully satisfied the tests laid down by  the  Su- preme Court inasmuch as the Public Prosecutor had not  exer- cised  his  executive function improperly and also  had  not attempted to interfere with the normal course of justice for illegitimate reasons or purposes. [700D-E, 701.E-F]     State of Bihar v. Ram Naresh Pandey, [1957] SCR 279  and R.K. Jain v. State, [1980] 3 SCR 982, referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No.49 of 1983. 694     From  the Judgment and Order dated May 14, 1981  of  the Orissa High Court in Crl. R. No. 21 of 1981. V.J. Francis for the Appellant.     Anil B. Divan, D.P. Singh, G.S. Chatterjee, R.K.  Mehta, Salaman  Khurshid, L.R. Singh and Vinoo Bhagat for  the  Re- spondents. The Judgment of the Court was delivered by     VENKATARAMIAH,  J:  I agree that this appeal has  to  be dismissed.  I am of the view that the decision in The  State of  Bihar v. Ram Naresh Pandey, [1957] SCR 279  interpreting section 494 of the Code of Criminal Procedure, 1898 and  the decision  in R.K. Jain etc. v. State through Special  Police Establishment  and  Others, [1980] 3. SCR  982  interpreting section  321 of the Code of Criminal Procedure, 1973 do  not call  for any reconsideration. I am in full  agreement  with the views expressed in these decisions. I am satisfied  that the  Public  Prosecutor  had applied his mind  to  the  case before applying for withdrawal and the Chief Judicial Magis- trate  has not committed any error in giving his consent  to such  withdrawal.  Such  consent can be given  at  any  time before the judgment is pronounced. The framing of the charge cannot  be an impediment to give consent to such  withdrawal as it is evident from section 321(b) of the Code of Criminal Procedure, 1973. The appeal is, therefore, dismissed.     KHALID,  J: I have just received (at 3.45 p.m. on   19th December,  1986)  a draft Judgment by Oza. J. in  the  above case. I agree with the conclusion that the appeal has to  be dismissed,  but not, with respect, with the  reasoning  con- tained  in the Judgment. Since the case is listed for  Judg- ment  on 20th December, 1986, I do not have time to write  a detailed Judgment. The  question to be decided in this appeal is the  scope  of Section  321  of Criminal Procedure Code. Oza,  J.  has  set aside  the permission granted by the Court to  withdraw  the prosecution under Section 32 1, Criminal Procedure Code, but allowed  the appeal quashing the charge framed  against  re- spondent  No.  1 under Section 239 of the Code  of  Criminal Procedure. I regret to state that I cannot re-concile myself with  this approach. A cursory. glance at Section 32 1  will satisfy anyone that consent can be given for withdrawal from the prosecution of a case, 695 not  only when the charge is not flamed, but even after  the charge is framed and at any time before the Judgment.

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   This  appeal along with Criminal Appeal No. 48  of  1983 were  directed to be posted before a Constitution  Bench  to consider the scope of Section 32 1, Criminal Procedure Code. That  being  so, I do not think it proper  to  abandon  that pursuit and take refuge under Section 239 of Criminal Proce- dure Code.     In a separate Judgment to be pronounced by me in  Crimi- nal  Appeal  No. 241 of 1983, I have outlined the  scope  of Section 321 of Criminal Procedure Code. What is to be decid- ed  in this case is whether the order passed by  the  MagiS- trate under Section 32 1, Criminal Procedure Code, is proper or not. We are not called upon to consider the propriety  of the  charge  framed and then examine the  evidence  and  see whether  the  accused  should be discharged  or  the  charge framed should be upheld.     I  adopt the reasons given by me in Criminal Appeal  No. 241  of 1983, relying upon the decision reported  in  [1957] SCR 279 (State of Bihar v. Ram Naresh Pandey) and in  [1980] 3  SCR  982  (R.K. Jain v. State) and uphold  the  order  of withdrawal  passed by the Additional Chief  Judicial  Magis- trate,  Bhubaneswar, and upheld by the High Court  in  revi- sion, and dismiss the appeal.     OZA, J: [For himself and on behalf of Bhagwati CJ.]  The present  appeal  by special leave is  directed  against  the judgment of the High Court of Orissa dated 14th May 1981  in Criminal  Revision  No. 21 of 1981 arising out of  an  order dated 20th September, 1980 passed by Additional Chief  Judi- cial  Magistrate, Bhubaneswar allowing an application  filed by  the  Special  Public Prosecutor wherein  he  prayed  for withdrawal from the prosecution of the Vigilance Case No. 33 of  1977 against Respondent No. 1 By the impugned  judgment, the  High  Court dismissed Criminal Revision  filed  by  the appellant-petitioner  and  confirmed  the  order  passed  by Additional Chief Judicial Magistrate.     The   Vigilance  Department  submitted  a   charge-sheet against  respondent No. 1 on the allegation that  All  India Congress Party some time before the General Election of  the Parliament  in  the year 1971 set out a programme  to  raise funds  for  publication of Souvenir on behalf  of  the  said party  by  each of the District  Congress  Committees  under different  provincial Congress Committees to educate  people about the policy and programme of the Congress Party and the achievements in 696 the  context  of  1971 Elections. It was  alleged  that  the Souvenir Committee was formed and huge amount was  collected from different companies at Delhi and Bombay for publication of  advertisements in the Souvenirs. It is  further  alleged that Smt. Nandini Satpathy respondent No. 1  misappropriated a sum of Rs. 1,02,200 out of this amount collected from  the companies  and did not take steps for asking the  Companies’ advertisements  for  publication  in the  Souvenirs.  It  is alleged that forgery was committed and Shri Ramanath  Panda, respondent No. 2 was also alleged to have participated  with respondent  No.  1  in  misappropriation  of  the  aforesaid amount.  On the information of Shri  Shyamsunder  Mohapatra, Ex-Member of Parliament, a case was registered by the  Vigi- lance Department and ultimately a charge-sheet was submitted against respondent Nos. 1 and 2. Shri B.M. Patnaik the  then Advocate General of Orissa was appointed as a Special Public Prosecutor  to conduct the case. By order dated 27.9.  1979, the  Additional  Chief Judicial  Magistrate  framed  charges under  Sections 406, 467, 471 and 120 of the I.P.C.  against respondent No. 1 and under Section 406 read with Section 34- of the I.P.C. against respondent No. 2.

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   After  the  General Elections of  May/June,  1980,  Shri Patnaik  resigned  from the office.Of Advocate  General  and also informed the State Government that he was not  inclined to continue as Special Public Prosecutor in the case against Smt.  Nandini  Satpathy. In fact, though the case  had  been fixed  on a number of dates between July and November,  1980 Shri Patnaik did ’not appear in the case on any one of these dates.     Thereafter  respondent No. 4 who had been  appointed  as Special Public Prosecutor to conduct the cases of the  Vigi- lance Department under Section 24(6) of the Code of Criminal Procedure was instructed by the Government in the  Vigilance Department  to  take charge of this case. On  5.11.80,  Shri P.K.  Mohanty, Advocate sent a letter to the  then  Advocate General  Shri  Gobind Das requesting him for  withdrawal  of this .case and by letter dated 6.11. 1980 the learned  Advo- cate  General Shri Gobind Das forwarded this letter of  Shri P.K.  Mohanty, Advocate to the Chief Secretary who  endorsed the  letter to Inspector General (Vigilance) asking him  for his  comments. I.G. of Police (Vigilance) suggested that  it would  be proper to obtain the views of the Law  Department, and  after receipt of the comments of I.G. of Police  (Vigi- lance)  the Chief Secretary referred the matter to  the  Law Department  for  advice  and the  Legal  Remembrancer  after considering  the legal position regarding the withdrawal  of the prosecution observed as under: 697 "As it sometimes happens, Political leaders are subjected to victimisation. Resort is had to law courts to harass politi- cal  rivals.  In view of the law laid down  by  the  Supreme Court  Government  may take a policy decision to  curb  such political victimisation through law Courts and direct  with- drawal irrespective of the question whether or not there  is sufficient evidence in support of the prosecution.          The  instant  case is one instituted  against  Smt. Nandini Satpathy, Ex-Chief Minister of Orissa.’ It is possi- ble  for Government to take notice of the intense  political rivalry  between Smt. Nandini Satpathy, on the one hand  and the erstwhile leaders of Janta Party on the other hand  that motive  behind institution of such cases was political  vic- timisation  rather than vindication of the  law.  Government may suggest withdrawal of such cases to the concerned Public Prosecutor."     On the receipt of this opinion from the law  Department, the  file  was endorsed by the Chief Secretary  to  the  Law Minister and the Law Minister endorsed the file to the Chief Minister. After considering the matter from all angles,  the Chief  Minister  passed an order dated 13.11.1980  that  the case  be  withdrawn. By letter dated  15.11.1980,  the  I.G. (Vigilance)  communicated the decision of the Government  to withdraw  the prosecution to the Special  Public  Prosecutor Shri  Dibakar  Bhuyan and requested him  to  take  necessary action  in  the matter. After respondent No. 4  was  put  in charge  of  the  case, he examined the case  diary  and  the connected  papers and on being satisfied that the charge  of criminal  breach  of trust would fail against  Smt.  Nandini Satpathy, he filed an application under Section 32 1 of  the Code of Criminal Procedure for withdrawal from the  prosecu- tion on, having found that the charged amounts in this  case are  contributions  to Souvenir Committee of the  All  India Congress  Committee  and  that none of the  members  of  the Central  Souvenir Committee has complained of any  dishonest use or fraud or injury or wrongful loss to the Committee  or AICC  for  such non-utilisation of the funds  and  that  the offences  charged would ultimately depend upon the proof  of

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dishonest  intention or fraud or wrongfUl loss to the’  Cen- tral  Souvenir Committee or to the AICC. On 16.12. 1980  the Special Public Prosecutor made an application for additional ground to be added in the application for withdrawal and the additional ground alleged was that in public interest and in the  changed circumstances, the State Government desired  to withdraw from the prosecution. 698     After  consideration of the case, the  Additional  Chief Judicial  Magistrate  by  order dated  20th  December,  1980 recorded his consent and permitted the Special Public Prose- cutor to withdraw from the prosecution. Thereafter one Mohd. Mumtaz,  the present appellant who was not a party to  these proceedings  filed a revision petition in the High Court  of Orissa  challenging the order of the Additional Chief  Judi- cial Magistrate permitting withdrawal of the case. But by an order  dated 14.5.81 the High Court dismissed  the  revision petition. Hence this appeal by special leave.     The  F.I.R. in this case was lodged by  one  Shyamsunder Mohapatra against respondents Nos. 1 and 2 alleging that  in January  and February 1971 certain companies had  issued  49 cheques in the  names of Presidents of the District Congress Committees  of Orissa totalling Rs.1,08,200  for  advertise- ments to be published in Souvenirs to be brought out in each district  by  the respective  District  Congress  Committee. These  cheques  were deposited in the account  of  Chairman, Souvenir  Committee in Canara Bank, Bhubaneswar. It  is  al- leged  that respondent No. 1 misappropriated the  amount  by drawing.  in favour of self-bearer 9 cheques aggregating  to Rs.95,000 and two bearer cheques aggregating to Rs.32,854 in the  name of respondent No. 2. It was alleged  that  neither advertisements  were published nor the amounts  returned  to the companies. It is significant to note that Shri Shyamsun- der  Mohapatra was neither an office-bearer of the  U.P.C.C. nor  of the A.I.C.C. Admittedly he was neither a  member  of the  Central Souvenir Committee to which the money  was  en- trusted  for transmission to the State or the District  Con- gress Committee nor was he in any manner connected with  any of the companies which paid the money for publication of the advertisements.  Shri Shyamsunder Mohapatra lodged the  com- plaint  when respondent No. 1 was not the Chief Minister  of the State. He had been suspended from the Congress Party for his  anti-party  activities when respondent No.  1  was  the President of the U.P.C.C. and the Chief Minister of  Orissa. It  is  significant that these monies were paid  by  various companies  in the name of All India Souvenir  Committee  and there is no material to indicate how the All India  Souvenir Committee transferred these cheques to the respective  State Congress  Committees  or the District  Congress  Committees. There  is  no complaint also from any one of  the  companies that  the  monies  paid by them were not  utilised  for  the purpose  for  which they were given or were utilised  for  a different purpose without their consent. Now  it is difficult to appreciate how the  learned  Special Public 699 Prosecutor could make an application for withdrawal from the prosecution  and the learned Chief Judicial Magistrate  gave his  consent to such withdrawal on the ground that there  is no  evidence  to sustain the prosecution when a  charge  was already framed against respondent No. 1 on the basis that in the  opinion  of the learned Chief Judicial  Magistrate  who framed  the charge there was ground for presuming  that  re- spondent  No. 1 had committed the offences  charged  against her.  There  can therefore be no doubt that  the  withdrawal

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from  the prosecution could not be permitted on  the  ground that  there was insufficient’ or no evidence to sustain  the prosecution.  But since entire record is before us  and  the matter  has been argued at great length on :he basis of  the material on record we propose to consider whether the charge was rightly framed and if we take the view that on the basis of the material on record no charge could be framed we  must quash the charge against respondent No. 1.     It  is  clear from the material on record  that  various companies  all over India gave monies by way of  cheques  to the Souvenir Committee of the All India Congress  Committee. We  will  assume  for the purpose. of  argument  that  these amounts  were  given  by the companies for  the  purpose  of publication  of  advertisements in the souvenir  which  were entitled to be brought out by each District Congress Commit- tee, but there is no material on record at all to show  that when  these amounts were distributed by the All  India  Con- gress  Committee to the respective provincial Congress  Com- mittees  and by the provincial Congress Committees in  their turn  to  the respective District Congress  Committees,  the entrustment  of  these  amounts by the  All  India  Congress Committee  was expressed to be for the specific  purpose  of publication  of advertisements in the souvenirs. When  there is nothing to indicate that the entrustment of these amounts to  respondent No. 1 was for the specific purpose  of  being utilised  only for the purpose of publication of  advertise- ments  in  the  souvenirs, it is difficult to  see  how  any charge of criminal breach of trust can be sustained  against respondent No. 1. It is not the case of the prosecution that any of these amounts were handedover by any of the companies to respondent No. 1. The entrustment of these amounts, if at all, was to the Souvenir Committee of the All India Congress Committee and respondent No. 1 could not therefore  possibly be charged for utilising any of these amounts for a  purpose other  than that for which it was entrusted to her.  We  are therefore  of  the view that the charge framed  against  re- spondent No. 1 was totally groundless and we would therefore quash it. We accordingly dismiss the appeal but instead of  permitting the 700 prosecution  to be withdrawn under Section 321 we quash  the charge framed against respondent No. 1 under Section 239  of the Code of Criminal Procedure, 1973.     NATARAJAN,  J: This is a case where the  Special  Public Prosecutor  (Vig.) C.D. Cuttack had filed a  petition  under Section  321 Cr.P.C. and sought the permission of the  Court for withdrawal of the case against the first respondent when the  case  was  posted for consideration  of  charge.  Under Section 321 Cr.P.C. a Public Prosecutor or Assistant  Public Prosecutor  incharge of a case may, with the consent of  the court, at any time before the judgment is pronounced,  with- draw from the prosecution of any person either generally  or in  respect of any one or more of the offences for which  he is tried.     In  this case the Special Public Prosecutor had set  out in  paras 5 and 6 of his application the relevant  materials which had prevailed upon him to seek withdrawal of  prosecu- tion of the case, after obtaining the consent of the  Court, to  subserve  the interests of justice better. There  is  no material in the case to show that the Special Public  Prose- cutor was influenced by any improper motives for filing  the application for withdrawal of the prosecution or that he had acted against his will at the behest of any one else.     The  learned  Additional Chief Judicial  Magistrate  has

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bestowed  judicial  consideration over the  matter  and  has thereafter passed a reasoned order. While giving his consent for the withdrawal of the prosecution the learned Magistrate has borne in mind the principles laid down by this Court  in R.K. Jain v. State, [1980] 3 SCR 982 which has followed  the earlier  decision  of this Court in State of  Bihar  v.  Ram Naresh Pandey, [1957] SCR 279. Before passing the order, the learned Magistrate has been fully alive to the responsibili- ty  of the Court before it grants consent to an  application made  under Section 321 Cr.P.C. The portion extracted  below from  the  order of the learned  Additional  Chief  Judicial Magistrate fully reveals this position :--               "While mentioning the facts in the petition, I               have  already indicated the reasons for  which               the prosecutor does not want to prosecute. Now               the  Court  has to  consider  whether  consent               should  be given or not. The discretion as  to               whether consent should be given to withdraw is               with  the  court but it  should  be  exercised               judiciously  and on correct legal  principles.               It  is not to be given as a matter  of  course               nor  the court shall surrender its  own  inde-               pendence of judgment."               701 After  making  an objective assessment of the merit  of  the application,  the learned Additional Chief  Judicial  Magis- trate held that the withdrawal of the prosecution "would  in no  way  affect any public interest or  improve  any  public confidence" and concluded as follows:-               "Considering  all these circumstances  if  the               public prosecutor most judiciously thought  it               proper  to withdraw from the case in my  opin-               ion, the court should be not a stumbling block               by disallowing its consent. I feel it just and               proper to allow the petition".     The  order  of  the learned  Additional  Chief  Judicial Magistrate  was  affirmed,  after a careful  scrutiny  by  a learned  Judge of the Orissa High Court in Crl. Rev. No.  21 of 1981 filed in the High Court. The learned Judge  observed that  the  ratio  laid down in R.K. Jain  v.  State  (supra) "would  not  justify entertaining this  application  when  a public prosecutor in his application had indicated that  the evidence  already collected did not support the  prosecution and there was no prospect of a conviction and the  appropri- ate authority had taken the view that the prosecution in the broad ends of justice need not continue".     It may be thus seen that not only the learned Magistrate but also the High Court has found, after a careful  scrutiny of relevant factors and circumstances, that the  application for withdrawal of the prosecution made by the Special Public Prosecutor fully satisfied the tests laid down by this Court in State of Bihar v. Ram Naresh Pandey (supra) reiterated in R.K.  Jain v. State (supra) for its being allowed viz.  that the executive function of the public prosecutor in  applying for  withdrawal of the prosecution has not  been  improperly exercised  and that it is not an attempt to  interfere  with the  normal  course of justice for illegitimate  reasons  or purposes.     The  appellant  has failed to establish in  this  appeal that  the  consent  given by the  learned  Additional  Chief Judicial  Magistrate  to the Special Public  Prosecutor  for withdrawal of the prosecution suffers from any error of law, patent  or latent. Consequently, the appeal fails  and  has, therefore, to be dismissed. P.S.S.                                                Appeal

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dismissed. 702