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CASE NO.: Appeal (crl.)  602 of 2004

PETITIONER: Vijaykumar Baldev Mishra @ Sharma

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :          

1.      One Anna Shetty was facing trial for murder of one Duni Chand  Kalani.  Duni Chand Kalani is said to be the uncle of one Pappu  Kalani.  He was an accused in a murder case.  The said Anna Shetty  was murdered in Jail.  Anna Shetty was released from Jail on  15.10.1990.  He was murdered on the same day.  The appellant was  an accused therein with many others.  The said murder took place in  view of the long standing enmity between two gangs belonging to  Gopal Rajwani and Pappu Kalani.  A First Information Report was  lodged under Section 302/307 IPC as also under the Arms Act.   Appellant, however, along with others, were also charged under  Terrorist and Disruptive Activities (Prevention) Act (hereinafter  referred to as ’TADA’).   

2.      Indisputably, a Constitution Bench of this Court in Kartar Singh  vs. State of Punjab, [1994 (3) SCC 569], while upholding the validity  of TADA directed constitution of a Committee to review the cases  pending thereunder for the purpose of making recommendations to  the Government, so as to enable it to consider the matters where in  its opinion, the charges under TADA were required to be dropped and  the matters for the prosecution thereunder should continue.   

3.      Kartar Singh (supra) was explained by this Court in R.M. Tewari  v. State (NCT of Delhi) and Others [1996 (2) SCC 610] in the  following terms: "10. The observations in Kartar Singh 1 have  to be understood in the context in which they  were made. It was observed that a review of  the cases should be made by a High Power  Committee to ensure that there was no misuse  of the stringent provisions of the TADA Act and  any case in which resort to the TADA Act was  found to be unwarranted, the necessary  remedial measures should be taken. The  Review Committee is expected to perform its  functions in this manner. If the  recommendation of the Review Committee,  based on the material present, is, that resort  to provisions of the TADA Act is unwarranted  for any reason which permits withdrawal from  prosecution for those offences, a suitable  application made under Section 321 CrPC on  that ground has to be considered and decided  by the Designated Court giving due weight to

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the opinion formed by the public prosecutor on  the basis of the recommendation of the High  Power Committee. 11. It has also to be borne in mind that the  initial invocation of the stringent provisions of  the TADA Act is itself subject to sanction of the  Government and, therefore, the revised  opinion of the Government formed on the basis  of the recommendation of the High Power  Committee after scrutiny of each case should  not be lightly disregarded by the court except  for weighty reasons such as mala fides or  manifest arbitrariness. The worth of the  material to support the charge under the TADA  Act and the evidence which can be produced, is  likely to be known to the prosecuting agency  and, therefore, mere existence of prima facie  material to support the framing of the charge  should not by itself be treated as sufficient to  refuse the consent for withdrawal from  prosecution. It is in this manner an application  made to withdraw the charges of offences  under the TADA Act pursuant to review of a  case by the Review Committee has to be  considered and decided by the Designated  Courts."

4.      Bombay High Court also took the same view and issued similar  directions.

5.      Pursuant to or in furtherance of the recommendations of this  Court as also the Bombay High Court, a Review Committee was  constituted, headed by a retired Judge of the High Court of Bombay.   The Review Committee took up for consideration 27 cases including  the one pending against the appellant herein.  In its report, the  Review Committee opined :                  "The murder of Anna Shetty appears to  be out of personal enmity and not intended to  cause fear or terror in the minds of the people.   It is so stated in the chargesheet itself.

"To take revenge of the murder of his  uncle and to establish supremacy over  the rival gang, he made conspiracy to kill  Anna Shetty by providing money,  weapons, manpowers, vehicles and other  assistance.  He was the mastermind  behind the killing of Anna Shetty."         It also reveals that the genesis of two  murder cases i.e. TCS No.25/92 and TCS 8/93  are inter connected as observed by the  Supreme Court in its order dated 2nd March  2001 in Criminal Appeal No. 12981, 1299 of  1998 as under:         "According to the prosecution  there are two groups in Ulhasnagar,  one is headed by Gopal Rajwani and  other by Pappu Kalani.  The deceased  Maruti Jadhav and one Krishna Pillay  were eye witness to the murder of  Lalu in the year 1989 at hotel Sun &  Sand, Bombay.  The said Krishna was  murdered and thereafter Maruti  Jadhav remained the only eye

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witness."

       It is heard in the case of Niranjan Singh  Karan Singh Punjabi vs. Jitendera Bhimraj Bijj- AIR 1990 SC 1962 (1969).

               "A mere statement to the  effect that the show of such violence  would create terror or fear in the  minds of the people and none would  care to oppose them cannot constitute  an offence under Section 3 (1) of  TADA Act."                  It was observed :         "Although the murder of Anna Shetty  took place in 1990 and the case was  chargesheeted in 1993, the trial has not  commenced.  There are three accused persons  who are still in jail for more than seven years  and are yet to be tried.  In view of the  observation of the Hon’ble Supreme Court in  the various judgments cited above, the long  time that has elapsed, periods spent in jail and  the fact that the crime is committed due to  personal enmity, the Review Committee is of  the view to drop the proceedings under TADA  against all the accused and they may be  prosecuted for the charges under Section 302  IPC etc. in the regular Sessions Court.           6.      It was opined that no case for continuation of a case under  TADA had been made out against the appellant.  Pursuant to or in  furtherance of the said recommendations, the special public  prosecutor filed an application for withdrawal of the charges under  TADA inter alia as against the appellant stating :

     "The reasons for withdrawal are as under :         (A) The stringent provision of TADA need  not to be attracted in the instant case and the  Government after proper discussion on the  facts of the case and the evidence, reports and  letters available on the record has decided in  the enclosed list and the Government has  perused all records and considered the opinion  of the Review Committee formulated by the  State Government under orders of the  Supreme Court.  It would be just and proper  that this case need not be proceeded further.   The request is being made to withdraw from  prosecution as against the offences punishable  under the TADA Act, and the stringent and  hard provisions of TADA were not necessary to  deal with such situations.  In fact, from the  record it has also been seen that the provision  of the said TADA Act also could not be said to  be attracted as the said provision cannot be  invoked nor could the activities be said to be  disruptive activities as the said incident seems  to have taken place because of the personal  rivalry and as held by the Hon’ble Supreme  Court in the case of State vs. Nalini and others  reported in 1999 (5) SCC 253, it could not be  said that the provisions of Section of TADA are  applicable.  It is worthwhile to note that after

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having seen the record that concession cannot  form the basis for framing charges.  (B) The State Government having considered  all this and the Special Public Prosecutor  having applied his mind to this aspect, seeks to  withdraw from the prosecution in respect of  offences under TADA Act as against the  accused in the instant case."

7.      The Designated Court TADA dismissed the said application by  an order dated 15.5.1993 inter alia opining :

       "The case No.8/93 pertains to the  murder of Anna Shetty and constable \026 Surve.   He has also referred to the murder of one  Ghanasham Bhjatia and Inder Bhatija on  27.7.1990 and 28.4.90 respectively, who were  also accused in case of murder of Dunichand  Kalani.  In the order dated 10.11.98 in  connected TADA Sessions Case No.25/92 and  9/93  below Exh. 27, 31, 32 etc. my learned  predecessor made reference to the  confessional statements of accused recorded  under the provisions of TADA Act.  Leaving  aside the infirmities and/or evidentiary value of  these statements which will be assessed during  trial the fact remains that all this evidence  collected after strenuous investigation will have  to be ignored.  In both these cases allegations  are that conspiracy was hatched to eliminate  Anna Shetty.  Maruti Jadhav and in pursuance  of this plan was executed on different dates.   Thus confessional statements recorded under  Section 15 of the TADA Act are very relevant  and important piece of evidence to unfold  conspiracy and to unfold act of main  perpetrator of crime.  Keeping in view this  aspect of the matter, if applications for  dropping of the charges under the provisions of  TADA Act are considered, it would be difficult  to conclude that the withdrawal from the  prosecution or dropping of the charges under  the provisions of TADA Act would hardly serve  any public interest or would advance course of  justice.  This is apart from the fact that in both  these matters there are orders of Hon’ble  Supreme Court wherein applicability of TADA  has been upheld and trials have been  expedited.  It is therefore expected  of the  State to render assistance to the Court to  dispose of the matters expeditiously."

8.      The State of Maharashtra being aggrieved by the said order  filed a writ petition before the Bombay High Court which was marked  as Criminal Writ Petition 562 of 2003.  A Division Bench of the said  Court by a judgment and order dated 4.7.2003 while declining to  entertain the same opined that as an appeal against the order of the  learned Designated Court TADA is maintainable under Section 19 of  the Act,  the petitioner should take recourse thereto stating:         "In our opinion therefore the objection  raised by Mr. Nitin Pradhan that the writ  petition is not maintainable in view of the fact  that alternate and efficacious remedy by way  of appeal is available to the prosecution is well  founded.

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       In all humility, in our opinion, a remedy  of appeal under Section 19 of the TADA Act is  far more efficacious and better for all  concerned than seeking exercise of writ  jurisdiction of this court under Article 226 of  the Constitution.         Yet another important aspect to be noted  is that this very interveners in this case i.e.  representatives of the victim are also the  interveners of the appeal in the Supreme Court  which was decided by the order dated 2nd   March 2001.  It is pertinent to note that they  do not in our opinion, rightly raise any  objection about maintainability of the appeal in  Supreme Court on the ground that the order  challenged is an interlocutory order."

9.      Appellant has, thus, preferred this appeal under Section 19 of  the TADA (P) Act, 1987 from the said judgment of the Designated  Court TADA dated 10.3.2003. 10.     Mr. R.F. Nariman, the learned senior counsel appearing on  behalf of the appellant submits that keeping in view the  recommendations of the Review Committee, the learned Designated  Court TADA committed a manifest error in refusing to allow the public  prosecutor to withdraw the case solely on the ground that certain  confessions having been made thereunder, the same would not be  available if the appellant is not proceeded against under TADA Act.   The Review Committee, as noticed hereinbefore, was constituted in  view of the directions issued by this Court in Kartar Singh (Supra)  and a decision of the Bombay High Court in Criminal Writ Petition No.  289 of 2002. The Review Committee reviewed only those cases  where the trial had not started.  They formulated their own guidelines  for scrutiny of the matter.  It noticed the decision of this Court in  State vs. Nalini reported in (1999) 5 SCC 253 wherein it was held :

"A reading of the first sub-section shows that  the person who does any act by using any of  the substances enumerated in the sub-section  in any such manner as are specified in the sub- section, cannot be said to commit a terrorist  act unless the act is done "with intent" to do  any of the four things: (1) to overawe the  Government as by law established; or (2) to  strike terror in people or any section of the  people; or (3) to alienate any section of the  people; or (4) to adversely affect the harmony  amongst different sections of the people"

11.     Mr. R.K. Adsure, learned counsel appearing on behalf of the  State supported the contention of Mr. Nariman.   

12.    Section 321 of the Criminal Procedure Code, 1973 provides for  withdrawal from prosecution at the instance of the public prosecutor  or Assistant public prosecutor.  Indisputably therefor the consent of  the Court is necessary.  Application of mind on the part of the Court,  therefore, is necessary in regard to the grounds for withdrawal from  the prosecution in respect of any one or more of the offences for  which the appellant is tried.  The provisions of TADA could be  attracted only in the event of one or the other of the four ’things’  specified in Nalini (supra) is found applicable and not otherwise.  The  Review Committee made recommendations upon consideration of all  relevant facts.  It came to its opinion upon considering the materials  on record.  Its recommendations were based also upon the legality of  the charges under TADA in the fact situation obtaining in each case.

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It came to the conclusion that in committing the purported offence,  the appellant inter alia had no intention to strike terror in people or  any section of the people and in fact the murder has been committed  only in view of group rivalry and because the parties intended to take  revenge, the provisions of the TADA should not have been invoked.   

13.     The Public Prosecutor in terms of the statutory scheme laid  down under the Code of Criminal Procedure plays an important role.   He is supposed to be an independent person.  While filing such an  application, the public prosecutor also is required to apply his own  mind and the effect thereof on the society in the event such  permission is granted.   

14.     In Sheonandan Paswal v. State of Bihar [(1987) 1 SCC 288],  Khalid, J, opined : "73. Section 321 gives the Public Prosecutor  the power for withdrawal of any case at any  stage before judgment is pronounced. This  presupposes the fact that the entire evidence  may have been adduced in the case, before  the application is made. When an application  under Section 321 CrPC is made, it is not  necessary for the court to assess the evidence  to discover whether the case would end in  conviction or acquittal. To contend that the  court when it exercises its limited power of  giving consent under Section 321 has to assess  the evidence and find out whether the case  would end in acquittal or conviction, would be  to rewrite Section 321 CrPC and would be to  concede to the court a power which the  scheme of Section 321 does not contemplate.  The acquittal or discharge order under Section  321 are not the same as the normal final  orders in criminal cases. The conclusion will  not be backed by a detailed discussion of the  evidence in the case of acquittal or absence of  prima facie case or groundlessness in the case  of discharge. All that the court has to see is  whether 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. The  court after considering these facets of the  case, will have to see whether the application  suffers from such improprieties or illegalities as  to cause manifest injustice if consent is given.  In this case, on a reading of the application for  withdrawal, the order of consent and the other  attendant circumstances, I have no hesitation  to hold that the application for withdrawal and  the order giving consent were proper and  strictly within the confines of Section 321  CrPC."

15.     In regard to the Courts’ function in the matter of grant of  consent, while opining that the grant should not be a matter of  course, this Court held that even a detailed reasoned order is not  necessary to be passed therefor.  The Court took into consideration  the jurisdiction of the Court under Section 321 of the Criminal  Procedure Code vis-‘-vis other provisions laid down therein opining :      "85. The scope of Section 321 can be tested  from another angle and that is with reference  to Section 320 which deals with "compounding  of offences". Both these sections occur in

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Chapter 24 under the heading "General  Provisions as to Enquiries and Trials". Section  320(1) pertains to compounding of offences, in  the table, which are not of a serious nature  while Section 320(2) pertains to offences of a  slightly serious in nature but not constituting  grave crimes. The offences in the table under  Section 320(1) may be compounded by the  persons mentioned in the third column of the  table without the permission of the court and  those given in the Table II, under Section  320(2) can be compounded only with the  permission of the court. Under sub-section 4( a  ), when a person who would otherwise be  competent to compound an offence under  Section 320, is under the age of 18 years or is  an idiot or a lunatic, any person competent to  contract on his behalf may, with the  permission of the court, compound such  offence. Sub-section 4( b ) provides that when  a person who would otherwise be competent to  compound an offence under this section is  dead, the legal representative, as defined in  the Code of Civil Procedure, of such person  may, with the consent of the court, compound  such offence.   86. These two sub-sections use the expression  "with the permission of the court" and "with  the consent of the court" which are more or  less ejusdem generis. On a fair reading of the  abovementioned sub-sections it can be safely  presumed that the sections confer only a  supervisory power on the court in the matter  of compounding of offences in the manner  indicated therein, with this safeguard that the  accused does not by unfair or deceitful means,  secure a composition of the offence. Viewed  thus I do not thin k that a plea can be  successfully put forward that granting  permission or giving consent under sub-section  (4)( a ) or (4)( b ) for compounding of an  offence, the court is enjoined to make a  serious detailed evaluation of the evidence or  assessment of the case to be satisfied that the  case would result in acquittal or conviction. It  is necessary to bear in mind that an application  for compounding of an offence can be made at  any stage. Since Section 321 finds a place in  this chapter immediately after Section 320,  one will be justified in saying that it should  take its colour from the immediately preceding  section and in holding that this section, which  is a kindred to Section 320, contemplates  consent by the court only in a supervisory  manner and not essentially in an adjudicatory  manner, the grant of consent not depending  upon a detailed assessment of the weight or  volume of evidence to see the degree of  success at the end of the trial. All that is  necessary for the court to see is to ensure that  the application for withdrawal has been  properly made, after independent  consideration, by the Public Prosecutor and in  furtherance of public interest.

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       It was furthermore held:     "90. Section 321 CrPC is virtually a step by  way of composition of the offence by the State.  The State is the master of the litigation in  criminal cases. It is useful to remember that by  the exercise of functions under Section 321,  the accountability of the concerned person or  persons does not disappear. A private  complaint can still be filed if a party is  aggrieved by the withdrawal of the prosecution  but running the possible risk of a suit of  malicious prosecution if the complaint is bereft  of any basis."

       (See also S.K.Shukla and Others vs. State of U.P. and Others  [2006(1) SCC 314],    Rahul Agarwal vs. Rakesh Jain and Anr. [2005  (2) SCC 377] and   K.Anbazhagan vs. Superintendent of Police and  Others [2004(3) SCC 767])

16.     Noticing that no guidelines have been provided for in the  matter of grant or withdrawal of the consent by the Court, the  Constitution Bench referred to the ratio of its earlier decision in State  of Bihar vs. Ram Naresh Pandey [1957 (1) SCR 279] wherein it was  held:  "His discretion in such matters has necessarily  to be exercised with reference to such material  as is by then available and it is not a prima  facie judicial determination of any specific  issue. The Magistrate’s functions in these  matters are not only supplementary, at a  higher level, to those of the executive but are  intended to prevent abuse. Section 494  requiring the consent of the court for  withdrawal by the Public Prosecutor is more in  line with this scheme, than with the provisions  of the Code relating to inquiries and trials by  court. It cannot be taken to place on the court  the responsibility for a prima facie  determination of a triable issue. For instance  the discharge that results therefrom need not  always conform to the standard of ’no prima  facie case’ under Sections 209(1) and 253(1)  or of ’groundlessness’ under Sections 209(2)  and 253(2). This is not to say that a consent is  to be lightly given on the application of the  Public Prosecutor, without a careful and proper  scrutiny of the grounds on which the  application for consent is made."

17.     While refusing to grant permission, the Designated Court, in  our opinion, was not correct in expressing its opinion in the merit of  the matter and the effect of confessions made in terms of the  provisions of TADA. It was, however, also not necessary to consider  as to whether, the action of the public prosecutor as also the State  was bonafide or not.  Moreover, bonafide on the part of the public  prosecutor itself cannot automatically lead to grant of consent.    There are other circumstances also which are required to be taken  into consideration.

18.     For the reasons aforementioned, the appeal is allowed.  The  application filed by the State for withdrawal of the charges under  TADA against the appellant shall stand allowed.  The learned  Designated Judge may now proceed with the matter in accordance  with law.