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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-- Section 321 -- Withdraw- al from prosecution--Public Prosecutor--Right of--Conditions under which -withdrawal is permissible-- Competency of Court to permit withdrawal.

HEADNOTE:     Prosecution was launched against Respondent No. 1  under s.5(1)(d)  read with s.5(2) of the Prevention of  Corruption Act,  1947 for having assets disproportionate to  her  known sources of income.     The  Special  Public Prosecutor  filed  application  for withdrawal of the prosecution against Respondent No. 1.  The Additional  Special Judge allowed the application. The  High Court  dismissed  the revision petition  and  confirmed  the order permitting withdrawal of the case. Dismissing the Appeal to this Court, HELD: Per Venkataramiah, J.     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. [683D-E]     The  State of Bihar v. Ram Naresh Pandey, [1957]  S.C.R. 279  and  R.K.  Jain etc. v. State  through  Special  Police Establishment and others, [1980] 3 SCR 982, Relied upon. Per Khalid, J.     1.  What  is to be decided in this case is  whether  the order passed by the Magistrate under s.32I, Criminal  Proce- dure Code, is proper or not. The Court is not called upon to consider the propriety of the charge framed and then examine the  evidence  and see whether the accused  should  be  dis- charged or the charge framed should be upheld. [684D-E] 2. Consent can be given for withdrawal from the  prosecution of a 681 case, not only when the charge is not framed, but even after the  charge is framed and at any time before  the  judgment. [684B-C]       The  State of Bihar v. Ram Naresh Pandey,  [3957]  SCR

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279  and  R.K.  Jain etc. v. State  through  Special  Police Establishment and others, [1980] 3 SCR 982, Relied upon. Per Oza, J.       I.  Ordinarily  when the exercise of  considering  the material  on record for the purpose of  determining  whether there is sufficient material to sustain the prosecution  can be performed by the Court under s.239 of the Code of  Crimi- nal Procedure 1973, the Court should not allow the  prosecu- tion to be withdrawn under s.321. [688C-E]       2.  In the present case, there is no point in  setting aside  the withdrawal and sending the case hack to the  Spe- cial Judge because there is no material at all to show  that there  is  a prima facie case and the charges appear  to  be groundless.  Respondent No. 1 would, therefore, be  entitled to  be discharged under s.239. It is, therefore, not  neces- sary  or expedient to interfere with the order made  by  the Special Judge and confirmed by the High Court. [688E-F]       3.  When  the charge-sheet was filed, the  Income  Tax Department  re-opened  the assessment,  examined  the  whole matter afresh and passed final orders during the pendency of the  case in this Court explaining all the items  of  assets said to have been unaccounted and suppressed as also entries pertaining to the house construction and other assets, which show that there is nothing to indicate that Respondent No. 1 was  possessed  of  assets disproportionate  to  her  means. [688A-B] 4.  The application moved by the Special  Public  Prosecutor for withdrawal from the prosecution was, therefore,  clearly bona  fide and’ in furtherance of public justice and it  was clearly a false and vexatious criminal prosecution  launched against  respondent No. 1. The Special Judge also  on  these facts  took the view that no useful purpose would be  served by continuance of the prosecution and accordingly  permitted the  withdrawal which was upheld by the High Court in  revi- sion. [688B]        5.  The first allegation relates to payments made  to Dharitri and Navjat Printers. Dharitri is a newspaper  which receives  advertisements. There is nothing to show that  the payment received by Dharitri for advertisement had  anything to do with respondent No.1. [687.B-C] 682     6. The second allegation relates to valuation of  assets and  the construction of the house and the third relates  to the  monies  received by the U.P.C.C. which are  alleged  to have been paid by respondent No. 1. Lastly there are similar items of monies paid to the sons and found in the possession of  her  husband. It was on the basis of  these  allegations that  the Income Tax Department re-opened  the  assessments, conducted  detailed enquiries and ultimately passed a  final order  accepting  her returns as correct and  rejecting  the allegations  that she had suppressed any income from  undis- closed sources. [687C-E]     7.  The application for withdrawal was made by the  Spe- cial  Public  Prosecutor in 1980 when  respondent  No.1  had nothing to do with the party in power as she was in  opposi- tion  party  after  the elections held in 1980.  This  is  a strong circumstance which indicates that the application for withdrawal  was  made  in  furtherance  of  public  justice. [687E-G]     8.  In  the fight of the facts an record and  the  order passed by the Income Tax Officer explaining all the items of assets alleged to be unaccounted and suppressed, the charges against respondent No. 1 appear to he groundless. [688C] Per Natarajan, J.     1.  Section 321 makes it clear that an  application  for

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withdrawal  of a case can he made by a Public Prosecutor  or Assistant  Public  Prosecutor who is incharge  of  the  case concerned,  at any time before the judgment  is  pronounced. The application for withdrawal of prosecution may he made at any time ranging between the Court taking cognizance of  the case till such time the Court actually pronounces  judgment. Even  where reliable evidence has been adduced to prove  the charges,  the Public Prosecutor can seek the consent of  the Court  to  withdraw the prosecution. The section  does  not, therefore,  lay down that an application for  withdrawal  of the  prosecution should necessarily he made at the  earliest stages of the case or only if the evidence is of a weak  and infirm nature. [689E-G]     2. The Special Public Prosecutor had set out the reasons which justified filing of an application under s.321 of  the Code  for the withdrawal of the prosecution, and the  Magis- trate  has considered the matter judicially,  before  giving his consent. [689G-H]     The  State of Bihar v. Ram Naresh Pandey [1157] SCR  279 and  R.K. Jain etc. v. State through Special  Police  Estab- lishment and others, [1980] 3 SCR 982, relied upon. 683

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  48 of 1983.     From  the  Judgment  and Order dated  14.5.1981  of  the Orissa High Court in Crl. R. No. 22 of 1981. V.J. Francis for the Appellant.     F.S.  Nariman,  Anil B. Divan, L.R. Singh,  R.K.  Mehta, G.S. Chatterjee and Vinoo Bhagat for the Respondents. 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] S.C.R. 279  interpret- ing 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 992 interpret- ing  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. The appeal is, therefore, dismissed.     KHALID,  J. I have just received (at 7.40 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  32 1 of Criminal Procedure Code, and I  do  not agree with the following observation of Oza, J. since  there is  no question of setting aside of the order passed by  the learned Additional Special Judge, Bhubaneswar;               "   ......  But in the present case, there  is               no  point in setting aside the withdrawal  and               sending  the case back to the learned  Special               Judge  because  after considering  the  entire               material  on  record in detail we are  of  the

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             view that there is               684               no  material at all on the basis of  which  it               could be said that there is a prima facie case               against  respondent  No.  1  and  the  charges               against respondent No. 1 appear to be  ground-               less and respondent No. 1 would, therefore, in               any  event be entitled to be discharged  under               Section 239  ...  " A  cursory glance at Section 32 1 will satisfy  anyone  that consent  can given 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.     This  appeal along with Criminal Appeal Nx. 49  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 321, 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 decisions 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 Special Judge, Bhubanes- war,  and upheld by the High Court in revision, and  dismiss the appeal.     OZA, J. The present appeal by special leave is  directed against  the judgment and order of the High Court of  Orissa dated  14th  May 1981 in Criminal Revision No.  22  of  1981 arising  out  of an order dated 20th December, 1980  of  the Additional  Special Judge, Bhubaneswar allowing an  applica- tion  filed  by the Special Public  Prosecutor  praying  for withdrawal  from prosecution in Case No. 13 of 1979  against respondent No. 1. By the impugned judgment the Hon’ble  High Court dismissed the revision petition filed by the appellant and  confirmed  the order passed by the  learned  Additional Special  Judge  permitting  withdrawal of the  case  by  the Special Public Prosecutor. The Vigilance 685 Department  of  the State submitted a  charge-sheet  against respondent  No. 1 on the allegation that she had  no  assets prior to her election as a member of the Rajya Sabha in  the year  1962.  Subsequently she was re-elected  and  became  a Union  Deputy Minister from January 1966 to June 1970 and  a Union State Minister from June 1970 to June 1972. She became the  Chief  Minister of Orissa from 15.6.72 to  28.2.73  and again  from  6.3.74 to 26.12.76. Even  before  becoming  the Chief Minister of Orissa she had no assets save and except a thatched roof house at Pithapur, Cuttack and a bank  balance of Rs. 18,000. It was alleged that during her incumbency  as Chief  Minister, the bank balance increased as well  as  her other assets swelled-up and it was alleged that in 1977  her net assets were to the tune of Rs.7,54,735,85 p. which  were disproportionate to her known sources of income.     In 1977 the respondent No. 1 left the Congress Party and joined  the  Congress for Democracy.  In  the  parliamentary

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elections  in  1977, the Congress was  defeated  and  Janata Party came to power and also in the Assembly elections which followed,  the  Congress lost and the Janata Party  came  to power  in the State. It appears that although  the  Congress for Democracy which respondent No. 1 had joined, merged with the Janata Party, still many leaders of the Janata Party had a grudge against her as during her regime as Chief  Minister when  emergency  was clamped, a number of leaders  who  were prominent  in  the  Janata Party were put  behind  bars  and ultimately  for having assets disproportionate to her  known sources  of income, a prosecution was launched  against  her under Section 5(1)(d) read with Sec. 5(2) of the  Prevention of Corruption Act.     One  of  the  allegations  on the  basis  of  which  the charge-sheet was filed was that on 15.7.74, respondent No. 1 passed  an order in favour of M/s Ferro Alloys  Corporation. This  order was, passed by her in her official capacity  and it  is alleged that because of this order M/s  Ferro  Alloys made  a huge profit of about Rs.4 crores and on 3.10.75  and 7.10.75 cheques in the aggregate sum of Rs.48,000 were given by M/s Ferro Alloys Corporation to Dharitri a newspaper  for an advertisement which was’ published in the ’newspaper.  It was  therefore  alleged  that  respondent  No.  1   obtained Rs.48,000 from M/s Ferro Alloys Corporation.     The second allegation against respondent No. 1 was  that on 14.6.76 the Prime Minister requested respondent No. 1  to indicate  the  approximate value of her  recently  completed house at Bhubaneswar and no reply to this query is found  on the record of the Prime Minister. 686 The construction of the house started in September 1974  and ended  on  29th February, 1976. The investment in  the  con- struction  of  the house is said to be Rs.3,32,000  and  odd whereas  according  to  respondent No. 1 she  had  spent  an amount  of Rs.2,68,000 and the difference of  Rs.64,000  ac- cording to the allegation of the prosecution was the  amount acquired by respondent No. 1 by illegal and corrupt means as Chief  Minister.  It  was  alleged that  the  whole  sum  of Rs.3,27,614 is surreptitious and not disclosed in income-tax return  for the financial years 1974-75 and 1975-76.  It  is also alleged that Navjat Printers which is owned by Samajba- di Society received a sum of Rs.3,94,540 between 6.3.74  and 29.2.76 in respect of orders placed by U.P.C.C. The  allega- tion is that U.P.C.C. between 6.3.74 and 29.2.76, paid  only Rs.60,964 and as regards the balance of Rs.3,33,576 it  must have  been acquired by respondent No. 1 herself and paid  to Navjat Printers.     It  was  alleged that Shri Natchiketa Satpathy,  son  of respondent No. 1 purchased a flat at Kailash Apartments, New Delhi  and for this purpose respondent No. 1 paid  Rs.50,000 to  her son in three instalments. Similarly it  was  alleged that  on  15.3.75 respondent No. 1 paid Rs.  15,000  to  her other  son Tathagat Satpahty and managed to get  invested  a sum  of  Rs.33,000 in different names  fictitiously  in  M/s Rosambi Private Limited. An amount of Rs. 15,000 is said  to have been a payment by cheque.     It  was alleged that in the house of her  husband,  cash was  contained  in two bags which was to the  tune  of  Rs.5 1,766.  One  of the bags there had a visiting  card  of  the First  Secretary of the USSR Embassy. This cash was  discov- ered after respondent No. 1 ceased to be Chief Minister. The search  was made on 8th July 1977 when respondent No. 1  had already  ceased  to  be Chief Minister  nearly  nine  months before  that  date.  It was alleged that the  cash  must  be deemed to have been of the ownership of respondent No. 1 and

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that  it  must have been acquired by her during  the  period when she was the Chief Minister.     It  appears  that when charge-sheet  was  filed  against respondent  No.  1, the Income Tax  Department  also  issued notice  for re-opening of her assessments and  examined  the whole matter afresh and during the period that this case has been  pending  here, final orders have been  passed  by  the Income Tax Department which explain in detail all the  items of assets which according to the prosecution were dispropor- tionate  to the legitimate means of respondent No.  1.  This matter came up before us along with another case from  Bihar where we heard arguments at length on the question of  with- drawal from the prosecution 687 and  its legal implications, but so far as the present  case is concerned, in view of the facts as they emerge, we do not find it necessary to go into all these questions. The  alle- gations can be broadly classified into three heads:     The first head relates to payments made to Dharitri  and Navjat  Printers  or Samajbadi Society.  These  are  clearly distinct  institutions which could not be said to belong  to respondent  No.  1. It is not disputed that  Dharitri  is  a newspaper  which  receives advertisements  and  payment  for advertisement  made  to Dharitri could not possibly  be  co- related  to respondent No. 1 or regarded as receipt  of  re- spondent  No.1.  There is nothing at all to  show  that  the payment  received  by Dharitri for advertisement  (which  in fact  was  published in Dharitri) had anything  to  do  with respondent No. 1.     The  second head of allegations relates to valuation  of assets  and  the  construction of the house  and  the  third category  to the monies received by the U.P.C.C.  which  are alleged to have been paid by respondent No. 1. Lastly  there are  similar items of monies paid to the sons and  found  in the  possession of her husband. So far as these  allegations are  concerned,  it may be pointed out that it  was  on  the basis  of these allegations that the Income  Tax  Department re-opened the assessments after giving notice and  conducted detailed  enquiries  and  ultimately passed  a  final  order accepting  her returns as correct and rejecting the  allega- tions  that she had suppressed any income  from  undisclosed sources.     It  is also significant that the application  for  with- drawal  was  made by the Special Public Prosecutor  in  1980 when  respondent No. 1 had nothing to do with the  party  in power, as after the elections held in 1980, Congress-I  came back  to power in Orissa and J.B. Patnaik became  the  Chief Minister.  Respondent No. 1 contested the Assembly  election as  a  candidate of Congress (Urs) Party  and  was  elected, defeating  her Congress-I opponent Shri Profulla Bhanja  and she was a member of Congress (Urs) (Opposition) during  that period.  This  is to our mind a  strong  circumstance  which indicates  that the application for withdrawal was  made  in furtherance of public justice and distinguished the case  of respondent  No.  1 from that of Dr. Jagannath Misra  in  the Bihar  case which is being disposed of by  another  judgment today.     The  Income Tax Officer examined in detail each  one  of the  items of assets said to have been unaccounted and  sup- pressed and the order passed by the Income Tax Officer which has been placed on record 688 clearly explains all the items as also entries pertaining to the house construction and other assets and shows that there is nothing to indicate the respondent No. 1 was possessed of

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assets disproportionate to his means. The application  moved by  the  Special Public Prosecutor for withdrawal  from  the prosecution  was therefore clearly bonafide and in  further- ance of public justice and it was clearly a false and  vexa- tious  criminal prosecution which had been launched  against respondent No. 1 which was sought to be halted. The  learned Special  Judge  also on these facts took the  view  that  no useful purpose would be served by continuance of the  prose- cution and he accordingly permitted the withdrawal. The High Court too maintained the order of the learned Special Judge. We  agree that in the light of the facts on record  and  the order  passed by the Income Tax Officer which  explains  all the  items  of  assets alleged to be  unaccounted  and  sup- pressed,  the charges against respondent No. 1 appear to  be groundless. It is true that ordinarily when the exercise  of considering the material on record for the purpose of deter- mining  whether there is sufficient material to sustain  the prosecution can be performed by the Court under Section  239 of the Code of Criminal Procedure 1973 the Court should  not allow  the prosecution to be withdrawn under Section 321  as held  by us in the Judgment in Dr. Jagannath  Misra’s  case, which  has  been delivered today. But in  the  present  case there is no point in setting aside the withdrawal and  send- ing the case back to the learned Special Judge because after considering  the entire material on record in detail we  are of the view that there is no material at all on the basis of which  it  could be said that there is a  prima  facie  case against respondent No. 1 and the charges against  respondent No.  1  appear to be groundless and respondent No.  1  would therefore  in any event be entitled to be  discharged  under Section  239.  We  do not therefore think  it  necessary  or expedient  to interfere with the order made by  the  learned Special Judge and confirmed by the High Court. The appeal will therefore stand dismissed.     NATARAJAN,  J.  In  the  withdrawal  petition  filed  on 15.11.80 and the supplementary withdrawal petition filed  on 16.12.80 the Special Public Prosecutor (Vig.) C.D.,  Cuttack has  set  out the factors which have prevailed with  him  to seek  the consent on the Court to withdraw  the  prosecution launched  in V.C.R. Case No. 33 of 1977 against the  accused therein, viz. Smt. Nandini Satpathy & Anr.     The  Additional Chief Judicial Magistrate has  passed  a detailed  and  considered order on 20.12.80 wherein  he  has fully discussed the 689 matter and thereafter given consent to the withdrawal of the prosecution.  The  conclusion of the learned  Magistrate  is contained in para 12 which reads as follows:--               "Taking  the  facts and circumstances  of  the               case into consideration. I am of the view that               the  ends  of  public justice be  met  if  the               consent be given for withdrawal of the case."     The order of the learned Magistrate has been  critically assessed by a learned Judge of the Orissa High Court in Crl. Rev. No. 21 and 22 of 1981 filed before the High Court.  The learned  Judge upheld the order of the Magistrate  ’and  has summed up the High Court’s view as under:--               "The  observations  of the Supreme  Court  (in               R.K.  Jain  v. State--AIR 1980  Supreme  Court               1510--1980 Volume 3 SCR 982) 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 there was no  prospect               of a conviction and the appropriate  authority

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             in the broad ends of justice need not  contin-               ue."     Section  321  makes  it clear that  an  application  for withdrawal  of a case can be made by a Public Prosecutor  or Assistant  Public  Prosecutor who is incharge  of  the  case concerned, at any time before the judgment is pronounced. In other words, it means that the application for withdrawal of prosecution  may  be made at any time  ranging  between  the court  taking  congnizance of the case till  such  time  the court actually pronounced judgment. Consequently, it follows that even where reliable evidence has been adduced to  prove the  charges, the Public Prosecutor can seek the consent  of the Court to withdraw the prosecution. The Section does not, therefore,  lay down that an application for  withdrawal  of the  prosecution should necessarily be made at the  earliest stages of the case or only if the evidence is of a weak  and infirm nature.     In  his application a Special Public Prosecutor had  set out  the reasons which justified his filing  an  application under  Section 32 1 of the Code to seek the consent  of  the Court  for  the withdrawal of the prosecution.  The  learned Magistrate has considered the matter judicially in the light of the decision of this Court in R.K. Jain v. State,  [1980] 3  SCR 982 which has followed the earlier decision in  State of 690 Bihar v. Ram Naresh Pandey, [1957] SCR 279. The order of the learned  Magistrate  has been approved and affirmed  by  the High Court.     There  are no materials in the appeal to persuade me  to hold that the order passed by the Additional Chief  Judicial Magistrate or the High Court suffers from any error of  law, patent  or  latent. In that view the appeal has to  be  dis- missed. A.P.J.                                                Appeal dismissed. 691