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PETITIONER: RAJENDRA KUMAR JAIN ETC.

       Vs.

RESPONDENT: STATE THROUGH SPECIAL POLICE ESTABLISHMENT AND ORS. ETC.ETC.

DATE OF JUDGMENT02/05/1980

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KRISHNAIYER, V.R.

CITATION:  1980 AIR 1510            1980 SCR  (3) 982  1980 SCC  (3) 435  CITATOR INFO :  F          1983 SC 194  (6,10,14,19,55,TO,58,61)  R          1987 SC 863  (22,24,26,32,45,TO,47)  R          1987 SC 877  (26,28,31,44,47,48)

ACT:      Nolle Prosequi-Criminal Procedure Code, 1973 (Act II of 1974),  Section   321,  scope   of-Conditions  under   which withdrawal from  prosecution are  permissible-Competency  of the   Magistrate’s   Court   to   permit   withdrawal-Public Prosecutor in  charge  of  the  case,  meaning  of-Political offences explained.

HEADNOTE:      Section 321  of the  Code of  Criminal Procedure,  1973 which corresponds  to section  494 of the 1898 code provides for the withdrawal from prosecution by the Public Prosecutor or Assistant  Public Prosecutor  incharge of a case with the consent of  the Court  at any  time before  the judgment  is pronounced.  In   Criminal  Appeal   No.  287/79,  the  case instituted against George Mathew Fernandes & others on 24-9- 76 was  allowed to  be withdrawn  on March  26, 1977  on  an application under  section 321  of  the  Criminal  Procedure Code, 1973  made by  N. S. Mathur Special Public Prosecutor. The learned  Chief  Metropolitan  Magistrate  expressed  his opinion that "it was expedient to accord consent to withdraw from the prosecution". A revision petition under section 397 of the  Criminal Procedure  Code, 1973  challenging the said order granting permission to withdraw filed by the appellant an advocate  in the  High Court  failed. The High Court also held that the appellant had no locus standi.      Special Leave  Petition (Crl.) No. 3115/79 was filed by one  Manohar   Lal  directly   under  Article   136  of  the Constitution  against   the  order  of  the  Chief  Judicial Magistrate, Bhiwani,  permitting the  public  prosecutor  to withdraw from the prosecution in case No. 186-1 filed by the State against  Chaudhury Bansilal  Ex-Defence Minister,  his son Surinder  Singh, Ex.  M.L.A., R.  S. Verma,  Ex.  Deputy Commissioner, Bhiwani  and several  others officials and non officials for a host of offences.      In Crl.  Appeal No.  287/79, the  Contentions were: (a) The offence  for which  the accused persons were to be tried were  exclusively   triable  by  a  Court  of  Session,  and

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therefore, the  Committing Magistrate had no jurisdiction to give consent  to the  Public Prosecutor to withdraw from the prosecutions; (b)  The Public  Prosecutor had  abdicated his function and  had filed the application at the behest of the Central  Government  without  applying  his  mind;  (c)  The Magistrate was in error in giving consent on the ground that it was  expedient to  do so.  Expedience was  never for  the judiciary; (d)  S. N.  Mathur who  had filed the application for withdrawal  from the  prosecution  was  not  the  Public Prosecutor incharge  of the  case and  the  application  was therefore incompetent.      In  the  special  leave  (Crl.)  No.  3115/79,  it  was contended: (i)  the Public  Prosecutor filed the application at the  behest of  Sri Bhajan  Lal, the  Chief  Minister  of Haryana and  that he  never applied his mind to the facts of the case;  (ii) Sri Bhajan Lal ordered the withdrawal of the Public Prosecutor  from the prosecution because his ministry would not survive without the help of 983 Chaudhuri Bansi  Lal and  (iii) the withdrawal was not based on any public policy.      Dismissing the  appeal by special leave and the special leave petition, the Court ^      HELD: 1.  The contention  that under  the new  code  of Criminal Procedure, 1973, the Court of Committing Magistrate had no  judicial function to perform in relation to the case which he  was required  to commit to the Court of Session as was the  position under  section 494  of the 1898, and since the Court  of the  Committing Magistrate  under the new code was not invested with the power of acquitting or discharging the accused,  it was  not the  Court which  could grant  its consent to  withdraw from  the prosecution  is erroneous. In the first  place there  is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other  provision of  the Code  can exercise  the  power under s. 321 Criminal Procedure Code. The power conferred by s. 321  is itself  a special  power conferred  on the  Court before whom a prosecution is pending and the exercise of the power is  not made  dependent upon the power of the Court to acquit or  discharge the  accused under some other provision of the  Code. The  power to  discharge or acquit the accused under s. 321 is a special power founded on s. 321 itself, to be exercised  by the  Court independently  of its  power  of enquiry into  the offence  or try  the accused.  Again,  the expression ’judgment’  in the  context may  be understood to mean the  judgment which may be ultimately pronounced if the case were  to be  committed to  a Court  of Session.  In the second place  it  may  not  be  accurate  to  say  that  the Committing Magistrate  has no  judicial function  to perform under the  1973 Code  of Criminal  Procedure. S.  209 of the Criminal Procedure  Code  1973  obliges  the  Magistrate  to commit the  case to  the Court of Session when it appears to the Magistrate  that the  offence is  triable exclusively by the Court  of Session.  Therefore, the  Magistrate has to be satisfied that  an offence  is prima facie disclosed and the offence so  disclosed is triable exclusively by the Court of Session. If  no offence  is  disclosed  the  Magistrate  may refuse to  take cognizance  of the  case or  if the  offence disclosed is  one not  triable exclusively  by the  Court of Session he  may proceed  to deal  with it  under  the  other provisions of  the Code.  To that  extent the  Court of  the Committing Magistrate  does discharge  a judicial  function. [991 E-H, 992 A-E]      State of  Bihar v.  Ram Naresh  Pandey. [1957]  SCR 279

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followed.      A. Venkataramana  v. Mudem  Sanjeeva  Ragudu  and  Ors. (1976) Andhra Law Times Reports 317; over ruled.      2. The notification dated June 17, 1966 of the Ministry of Home  Affairs, Government of India, shows that the Senior Public Prosecutor,  Public Prosecutor  and Assistant  Public Prosecutor  of   the  Delhi   Special  Police  Establishment attached  to   the  Delhi   office  of  the  Special  Police Establishment were  appointed as Public Prosecutors under s. 492(1) of  the Criminal  Procedure Code  1898 to conduct the cases of  the Special Police Establishment before the Courts of Magistrates,  Special Judges, and Sessions Judges, in the Union Territory of Delhi. All notifications issued under the old  Code   are  deemed   to  have   been  made   under  the corresponding provisions  of the  new Code. Sri S. N. Mathur is a  Public  Prosecutor  attached  to  the  Special  Police Establishment  at  Delhi  and  has  been  functioning  right through as Public Prosecutor in the Union Territory of Delhi and it  was he  who was  in charge  of the  case practically throughout.      [992 G-H, 993 A-B] 984      3. In  this country the scheme of the administration of Criminal  Justice   places  the   prime  responsibility   of prosecuting serious  offences on  the executive authorities. The investigation,  including collection  of  the  requisite evidence, and the prosecution for the offence with reference to such evidence were the functions of the executive, and in that particular  segment the  power of  the  Magistrate  was limited and intended only to prevent abuse. [993 H, 994 A-B]      From  the  precedents  of  this  Court,  the  following propositions emerge:      (i) Under  the scheme  of the  Code prosecution  of  an offender  for   a   serious   offence   is   primarily   the responsibility of the Executive.      (ii)  The   withdrawal  from   the  prosecution  is  an executive function of the Public Prosecutor.      (iii) The  discretion to  withdraw from the prosecution is that  of the  Public Prosecutor and none else, and so, he cannot surrender that discretion to some one else.      (iv)  The   Government  may   suggest  to   the  Public Prosecutor that  he may  withdraw from  the prosecution  but none can compel him to do so.      (v)  The   Public  Prosecutor  may  withdraw  from  the prosecution not  merely on the ground of paucity of evidence but on  other relevant  grounds as  well in order to further broad ends  of public  justice, public  order and peace. The broad  ends   of  public   justice  will  certainly  include appropriate social,  economic and,  political purposes  Sans Tammany Hall enterprises.      (vi) The  Public Prosecutor  is an officer of the Court and responsible to the Court.      (vii) The  Court performs  a  supervisory  function  in granting its consent to the withdrawal.      (viii) The  Court’s duty  is not  to  reappreciate  the grounds  which   led  the   Public  Prosecutor   to  request withdrawal from  the prosecution but to consider whether the Public  Prosecutor   applied  his  mind  as  a  free  agent, uninfluenced by  irrelevant and  extraneous  considerations. The Court  has a  special duty  in this  regard as it is the ultimate repository of legislative confidence in granting or withholding its  consent to withdrawal from the prosecution. [996 B-G]      It shall be the duty of the Public Prosecutor to inform the Court  and it  shall be the duty of the Court to apprise

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itself of  the reasons which prompt the Public Prosecutor to withdraw   from   the   prosecution.   The   Court   has   a responsibility and a stake in the administration of criminal justice and  so has  the public Prosecutor, its ’Minister of Justice’. Both  have a duty to protect the administration of Criminal Justice  against possible  abuse or  misuse by  the Executive by  resort to  the provisions  of s.  361 Criminal Procedure Code.  The independence  of the judiciary requires that once the case has travelled to the Court, the Court and its officers  alone must  have control  over  the  case  and decide what is to be done in each case. [996 H, 997 A-B]      State of Bihar v. Ram Naresh Pandey, [1957] SCR 279; M. N. Sankaranarayanan  Nair v.  P. V.  Balakrishnan  and  Ors. [1972] 2 SCR 599; State of Orissa v. Chandrika Mahapatra and Ors., [1977]  1 SCR  335 at  340; Balwant  Singh and Ors. v. State of  Bihar, [1978]  1 SCR 604 @ 605; Subhash Chander v. The State  (Chandigarh Admn.)  and Ors.,  AIR 1980  SC  423; referred to.      4. Paucity  of evidence is not the only ground on which the Public  Prosecutor may withdraw from the prosecution. In the past, it has been found ex- 985 pedient and necessary in the public interest that the Public Prosecutor should  withdraw from prosecutions arising out of mass  agitations,   communal   riots,   regional   disputes, industrial conflicts,  student unrest  etc. Wherever  issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions  in order  to restore  peace, to  free the atmosphere from  the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow  the storm.  To persist  with prosecutions  where emotive issues  are involved  in the name of vindicating the law may  even  be  utterly  counter-productive.  An  elected Government, sensitive  and responsive  to the  feelings  and emotions of  the people,  will be amply justified if for the purpose of  not disturbing  a calm  which has  descended  it decides not  to prosecute  the offenders  involved or not to proceed further  with prosecutions already launched. In such matters, it  is only  the Government  and none  else can and should decide  in the  first instance  whether it  should be baneful or beneficial to launch or continue prosecutions.      [997 B-F]      5. Under  the Code  of Criminal  Procedure  it  is  the Public Prosecutor  that has to withdraw from the prosecution and it  is the  Court that  has to  give its consent to such withdrawal. Rightly  too, because  the independence  of  the judiciary so  requires  it.  The  Public  Prosecutor  is  an officer of  the Court.  He conducts  the prosecution  in the Court for the people. So it is he that is entrusted with the task of  initiating the  proceeding for  withdrawal from the prosecution. But,  where such  large and sensitive issues of public policy  are involved, he must, if he is right minded, seek advice  and guidance  from  the  policy-maker.  If  the policy makers  themselves move  in the  matter in  the first instance, as  indeed it  is proper  that they  should  where matters of  momentus public policy are involved, and if they advice  the   Public  Prosecutor   to  withdraw   from   the prosecution, it  is not  for  the  Court  to  say  that  the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there  be any  quibbling over words. If ill informed but well meaning bureaucrats choose to use expressions like "the Public Prosecutor  is directed" or "the Public Prosecutor is instructed",  the  Court  will  not  on  that  ground  alone

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stultify the  larger issue  of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as  a   free  agent  when  he  sought  withdrawal  from  the prosecution. What  is at  stake is  not the  language of the letter or  the prestige of the Public Prosecutor but a wider question of  policy. The  Court, in  such a  situation is to make an  effort to  elicit the  reasons for  withdrawal  and satisfy itself  that the Public Prosecutor too was satisfied that he  should withdraw  from the  prosecution for good and relevant reasons.      [997 G-H, 998 A-D]      However, the  bureaucrat too  should be  careful not to use peremtory language when addressing the Public Prosecutor since it  may give rise to an impression that he is coercing the Public  Prosecutor  to  move  in  the  matter.  He  must remember that  in addressing  the Public  Prosecutor  he  is addressing an  Officer of  the Court  and there should be no suspicion of  unwholesome pressure on the Public Prosecutor. Any suspicion  of such pressure on the Public Prosecutor may lead the Court to withhold its consent. [998 D-E]      6. It  is true  that the Indian Penal Code and the Code of  Criminal  Procedure  do  not  recognise  offences  of  a political nature, as a category of offences; they cannot, in the ordinary  course of  things.  That  does  not  mean  the offences  of   a  political   character   are   unknown   to jurisprudence or that judges must 986 exhibit such  naivette as  to feign ignorance about them. In fact International  Law recognises  offences of  a political character and the Indian Extradition Act specifically refers to them. [998 F-H]      Briefly, politics are about Government and therefore, a political offence  is  one  committed  with  the  object  of changing the  Government of a State or inducing it to change its policy.  The  expression  "political  offence"  is  thus commonly  used  and  understood  though  perhaps  "political offence" may escape easy identification. [998 H, 999 A, C]      To say  that an  offence is of a political character is not to absolve, the offenders of the offence. But it will be a valid  ground for  the Government  to  advise  the  Public Prosecutor to  withdraw from  the  prosecution.  The  Public Prosecutor may  withdraw from  the prosecution of a case not merely on  the ground  of paucity  of evidence  but also  in order to  further the  broad ends of public justice and such broad ends  of public  justice may  well include appropriate social, economic and political purposes. [999 E-F]      If the  Government of the day interpreted the result of the elections,  as in the appeal, as a mandate of the people and on  the basis  of that  interpretation,  the  Government advised  the   Public  Prosecutor   to  withdraw   from  the prosecution, it  cannot be  said that  the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can it be said that the Magistrate failed to exercise the  supervisory function  vested in  him in giving his consent. [999 H, 1000 A-B] Observation:      Criminal justice  is not a plaything and Criminal Court is not  a play-ground  for  politicking.  Political  fervour should not  convert the  prosecution  into  persecution  nor political  favour   reward  wrongdoer   by  withdrawal  from prosecution.  If   political  fortunes  are  allowed  to  be reflected in  the processes  of  the  Court  very  soon  the credibility of  the rule  of law  will be  lost. Courts when moved for permission for withdrawal from prosecution must be vigilant  and   inform  themselves   fully  before  granting

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consent. While it would be obnoxious and objectionable for a Public Prosecutor  to allow  himself to be ordered about, he should appraise  himself from  the Government and thereafter appraise the  Court the  host of  factors  relevant  to  the question  of   withdrawal  from  the  cases.  But  under  no circumstances should  he allow  himself to  become  anyone’s stooge. [1005 E-G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 287 of 1979.      Appeal by  special leave  from the  Judgment and  Order dated  12-10-1967  of  the  Delhi  High  Court  in  Criminal Revision No. 117 of 1977.                             WITH      SPECIAL LEAVE PETITION (CRIMINAL) No. 3115 of 1979.      From the  Judgment and  Order dated  21-9-1979  of  the Chief Judicial Magistrate Bhiwani in Case No. 1861 of 1978. 987                             AND      CRIMINAL MISCELLANEOUS PETITION No. 3890 of 1979.      An Application  for direction  under section  15 of the Contempt of  Courts Act  1971 and  Rule 3(b) of the Rules to regulate proceedings for contempt of Supreme Court, 1975.      Lal Narain Sinha Att. Genl., M. K. Banerjee, Addl. Sol. Genl. Miss  A. Subhashini and R. B. Datar for the Petitioner in Crl. Misc. Petition No. 3890/79.      U. D.  Gour Adv. Genl. Haryana and M. N. Shroff for the Respondent in Crl. Misc. Petition No. 3890/1979.      P. H.  Parekh, Hemant  Sharma, Rajan Karanjawala and C. B. Singh for the Petitioner in SLP 3115/79.      M. C.  Bhandare, Mrs. Sunanda Bhandare and T. Sridharan for Respondent No. 1 in SLP 3115/79.      A. N. Kharkhanis for Respondent No. 4 in SLP 3115/79.      U. D.  Gour Adv.  Genl. Haryana  and M.  N. Shroff  for Respondents 26-27 in SLP 3115/79.      Lal Narain Sinha, Att. Genl., Miss A. Subhashini and R. B. Datar for Respondent No. 30 in SLP 3115/79.      Ram Panjwani,  Raj Panjwani,  Vijay Panjwani  and S. K. Bagga for the Petitioner in Crl. A. 287/79.      Lal Narain  Sinha Att.  Genl. and  M. K. Banerjee Addl. Sol. Genl.  and Miss.  A. Subhashini for Respondent No. 1 in Crl. A. 297/79.      Ram Jethmalani,  Mrs. Sushma  Swaraj, A.  K. Pande  and Mrs. Hemanlika Wahi for Respondent No. 2 in Crl. A 297/79.      V. M.  Tarkunde, T.  U. Mehta,  P. H.  Parekh and  Miss Vineeta Caprihan  for Respondent No. 5 in Crl. A. No. 297 of 1979.      Ram Jethmalani  and Ranjan  Dwivedi for Respondent Nos. 2, 11, 12, and 13 in Crl. A. 287/79.      Ram Jethmalani, A. G. Noorani, Miss Rani Jethmalani and Mrs. Kamini Jaiswal for Respondent Nos. 3, 15 and 16 in Crl. A. 287/79.      Ram  Jethmalani   and  A.  G.  Noorani  and  Miss  Rani Jethmalani for Respondent No. 21 in Crl. A. 287/79.      Sushil Chandra  Bhatnagar in  person (Respondent No. 14 in Crl. A. 287/79). 988      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J.-A cocktail  of law  and  politics, reason and  extravagance is the only way we can describe the submissions made  to us  in  these  two  cases.  Well  known personalities  are  involved,  in  one  case  an  Ex-Central

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Minister, the  present Governor  of a State and some leading journalists, and  in the other an ex-Central Minister, and a host of  Government officials.  Perhaps that was responsible for  the   passion  and   the  tension   which  appeared  to characterise and  sometimes mar  the arguments  in  the  two cases.      We will first take up for consideration Criminal Appeal No. 287 of 1979.      In exercise of the powers conferred by s. 196(1) (a) of the Code  of Criminal  Procedure  1973,  and  s.  7  of  the Explosive Substances  Act, 1908,  the Government of India by its order  dated September 6, 1976 accorded sanction for the prosecution  of   George  Mathew   Fernandes  alias   George Fernandes and 24 others for alleged offences under Ss. 121-A Indian Penal  Code, 120-B Indian Penal Code read with Ss. 4, 5 and  6 of  Explosive Substances Act, and S. 5(3)(b) and S. 12 of  the Indian  Explosives Act, 1884. The first paragraph of the  order according  sanction set out the subject of the conspiracy in the following words:           "Whereas, it  is alleged  that after  the issue of      the proclamation of Emergency on 25th June, 1975 by the      President of  India in exercise of the powers conferred      by clause  (1) of  Article  352  of  the  Constitution,      George  Mathew   Fernandes  alias   George   Fernandes,      Chairman of  Socialist Party  of India  and Chairman of      All India  Railwaymen’s  Federation  sought  to  arouse      resistance against the said emergency by declaring that      the said emergency had been "clamped" on the country by      the  "despotic  rule"  of  Smt.  Indira  Gandhi,  Prime      Minister of  India and  to entertain  an  idea  that  a      conspiracy be  hatched with  the help of the persons of      his confidence,  to  over-awe  the  Government  and  in      pursuance of  the conspiracy  do such  acts which might      result in  the destruction of public property and vital      installations in the country".      Thereafter the order set out the various acts committed by the  several accused  persons in pursuance of the objects of  the   conspiracy.  On  September  24,  1976  the  Deputy Superintendent  of   Police,  Special  Police  Establishment Central Bureau of Investigation, Central Investi- 989 gation Unit  (A), New  Delhi, filed  a charge-sheet  in  the Court of  the Chief  Metropolitan Magistrate, Delhi, against the said  accused persons  for the offences mentioned in the order  sanctioning  the  prosecution.  Two  of  the  accused persons had been tendered pardon. They had, therefore, to be examined as  witnesses in the Court of the Magistrate taking cognizance of the offences notwithstanding the fact that the case was  exclusively triable  by the  Court of Session. The evidence of the approvers was recorded on March 22, 1977 and the case  was  adjourned  to  March  26,  1977  for  further proceedings. At that stage, on March 26, 1977, N. S. Mathur, Special Public Prosecutor filed an application under section 321 of  the Criminal  Procedure Code 1973, for permission to withdraw  from  the  prosecution.  The  application  was  as follows:      "It is submitted on behalf of the State as under:-           1.   That    on   24-9-76   the   Special   Police      Establishment after necessary investigation had filed a      charge sheet  in this Hon’ble Court against Shri George      Mathew Fernandes  and 24 others for offences u/s. 121 A      IPC, 120B  IPC r/w sections 4, 5 and 6 of the Explosive      Substances Act, 1908 and Section 5(3) (b) and 12 of the      Indian Explosives  Act, 1884 as well as the substantive      offences.

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         2. That  besides the  accused who were sent up for      trial two  accused namely  Shri  Bharat  C.  Patel  and      Rewati Kant  Sinha were  granted pardon  by the Hon’ble      Court and  were examined  as approver  u/s. 306(4)  Cr.      P.C.           3. That  out of 25 accused sent up for trial cited      in the charge sheet, 2 accused namely Ladli Mohan Nigam      and Atul  Patel were  declared proclaimed  offenders by      the Hon’ble Court.           4.   That   in   public   interest   and   changed      circumstances, the  Central Government  has desired  to      withdraw from the prosecutions of all the accused.           5. It  is therefore prayed that this Hon’ble Court      may accord consent to withdraw from 26th March 1977.      Sd/-      (N. S. Mathur)                                    Special Public Prosecutor                                   for the State, New Delhi". 990 On the  same day  the learned Chief Metropolitan Magistrate, expressing the  opinion that  it was  "expedient  to  accord consent to  withdraw  from  the  prosecution",  granted  his consent for withdrawal from the prosecution.      One Dr.  Rajender Kumar  Jain, and  Advocate,  filed  a petition in  the High  Court of  Delhi, under  s. 397 of the Criminal Procedure  Code for  revision of  the order  of the learned Chief  Metropolitan Magistrate giving his consent to the  Special   Public  Prosecutor   to  withdraw   from  the prosecution. Several  grounds were  raised all of which were negatived by  the High  Court. It  was also held by the High Court that  the applicant  had no locus standi. The Revision Petition was  dismissed. Dr.  Rajender Kumar  Jain has filed this appeal after obtaining special leave from this Court.      Shri Ram  Panjwani, learned  counsel for  the appellant made the  following submissions:  (1) The offences for which the accused  persons  were  to  be  tried  were  exclusively triable by a Court of Session and, therefore, the Committing Magistrate had no jurisdiction to give consent to the Public Prosecutor to  withdraw from the prosecution, (2) The Public Prosecutor had  abdicated his  function and  had  filed  the application at  the behest of the Central Government without applying his mind. (3) The Magistrate was in error in giving consent on  the ground  that it  was  expedient  to  do  so. Expedience was never for the judiciary. (4) S. N. Mathur who had  filed   the  application   for  withdrawal   from   the prosecution was  not the  Public Prosecutor  incharge of the case and  the application  was therefore,  incompetent.  The submissions of  Shri Ram  Panjwani were controverted by Shri Ram Jethmalani  and Shri V. M. Tarkunde, learned counsel for the respondents.  They also submitted that the offences with which the  accused persons  were charged were of a political nature and  if the  Government of  the day  thought that the Public Prosecutor  should withdraw  from the  prosecution on grounds of  public policy  and advised the Public Prosecutor to do  so, it  could not  be said that the Public Prosecutor abdicated  his  function  merely  because  the  proposal  to withdraw from  the prosecution  emanated from the Government and he  acted upon such proposal. It was also submitted that so far  as the fifth respondent was concerned no prosecution could be  launched or  continued against  him under Art. 361 (2) as  he was the Governor of a State. Shri Panjwani in his reply submitted  that political offences were unknown to the Municipal law  of the  land and that in the instant case the withdrawal from  the prosecution  was for a purely political purpose and  not in  the public interest at all. It was said

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that the  case was  withdrawn  in  order  that  Shri  George Fernandes could  be appointed  as a  Minister in the Central Cabinet. 991      S. 321  of the  Criminal Procedure  Code of  1973 which corresponds to  s. 494  of the Code of Criminal Procedure of 1898 is as follows:           "Withdrawal from prosecution.           321. The  Public Prosecutor  or  Assistant  Public      Prosecutor in charge of a case may, with the consent of      the  Court,   at  any   time  before  the  judgment  is      pronounced, withdraw from the prosecution of any person      either generally  or in  respect of  any one or more of      the offences  for which  he is  tried; and,  upon  such      withdrawal,-           (a)  if it  is  made  before  a  charge  has  been                framed, the  accused shall  be discharged  in                respect of such offence or offences;           (b)  if it is made after a charge has been framed,                or  when   under  this   Code  no  charge  is                required, he shall be acquitted in respect of                such offence or offences". We have not extracted the proviso as it is not necessary for the purposes of these cases.      Under s.  494 of  the Criminal  Procedure Code 1898, it was held  by this  Court in  State of  Bihar v.  Ram  Naresh Pandey, that  the Court  of the Committing Magistrate before whom a  committal proceeding  was pending  was  "the  Court" within the meaning of s. 494 which was competent to give its consent even  in the case of offences exclusively triable by the Court  of Session.  But, it was contended that after the enactment of  the  Criminal  Procedure  Code  of  1973,  the situation had  changed since under the new Code the Court of the  Committing  Magistrate  had  no  judicial  function  to perform in  relation to  the case  which he  was required to commit to  the Court of Session. The submission was that the Court contemplated  by s.  494  was  the  Court  capable  of pronouncing a judgment, ending the proceeding by an order of acquittal  or   discharge  and,   since  the  Court  of  the Committing Magistrate  under the  new Code  was not invested with the  power of  acquitting or discharging the accused it was not  the Court which could grant its consent to withdraw from the prosecution. In the first place there is no warrant for thinking  that only  the Court competent to discharge or acquit the  accused under  some other  provision of the Code can exercise the power under s. 321 Criminal Procedure Code. The power  conferred by  s. 321  is itself  a special  power conferred on  the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power 992 of the  Court to  acquit or discharge the accused under some other provision  of the  Code. The  power  to  discharge  or acquit the  accused under  s. 321 is a special power founded on s. 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or try the accused. Again, the  expression ’judgment’  in  the  context  may  be understood to  mean the  judgment which  may  be  ultimately pronounced if  the case  were to  be committed to a Court of Session. That  was the  view expressed in the State of Bihar v. Ram Naresh Pandey, (supra) where the Court observed:      "In any  view, even if ’judgment’ in this context is to be understood  in a limited sense it does not follow that an application during  preliminary enquiry-which is necessarily prior to judgment in the trial-is excluded".

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    In the  second place it may not be accurate to say that the  Committing  Magistrate  has  no  judicial  function  to perform under the 1973 Code of Criminal Procedure. S. 209 of the Criminal  Procedure Code  1973 obliges the Magistrate to commit the  case to  the Court of Session when it appears to the Magistrate  that the  offence is  triable exclusively by the Court  of Session.  Therefore, the  Magistrate has to be satisfied that  an offence  is prima-facie disclosed and the offence so  disclosed is triable exclusively by the Court of Session. If  no offence  is  disclosed  the  Magistrate  may refuse to  take cognizance  of the  case or  if the  offence disclosed is  one not  triable exclusively  by the  Court of Session he  may proceed  to deal  with it  under  the  other provisions of  the Code.  To that  extent the  Court of  the Committing Magistrate does discharge a judicial function. We therefore,  over-rule  the  first  submission  of  Shri  Ram Panjwani. We  do not  agree with  the view taken by the High Court  of  Andhra  Pradesh  in  A.  Venkataramana  v.  Mudem Sanjeeva Ragudu  & Ors.,  that the  court of  the Committing Magistrate is  not competent  to give  consent to the Public Prosecutor to withdraw from the prosecution.      The fourth  submission of  Shri Ram  Panjwani does  not appeal to  us. The  notification dated  June 17, 1966 of the Ministry of  Home Affairs,  Government of  India, shows that the  Senior   Public  Prosecutor,   Public  Prosecutor   and Assistant Public  Prosecutor of  the  Delhi  Special  Police Establishment attached  to the  Delhi office  of the Special Police Establishment  were appointed  as Public  Prosecutors under s.  492(1) of  the Criminal  Procedure  Code  1898  to conduct the cases of the Special Police Establishment before the Courts  of Magistrates,  Special  Judges,  and  Sessions Judges, in the Union Territory of Delhi. 993 All notifications  issued under  the old  Code are deemed to have been made under the corresponding provisions of the new Code. It  appears  that  Shri  N.  S.  Mathur  is  a  Public Prosecutor attached  to the  Special Police Establishment at Delhi and  has been  functioning  right  through  as  Public Prosecutor in  the Union  Territory of Delhi. The High Court has also pointed out on a scrutiny of the proceedings of the Magistrate that it was Shri N. S. Mathur who was incharge of the case practically throughout.      The second  and third  submissions of Shri Panjwani may be considered  together. Decisions  of this  Court have made clear the  functional dichotomy of the Public Prosecutor and the Court.  In the  State of  Bihar v.  Ram  Naresh  Pandey, (supra) the  Court while  considering s. 494 of the old Code explained:           "The section  is an  enabling one and vests in the      Public Prosecutor  the discretion to apply to the Court      for its consent to withdraw from the prosecution of any      person. ........  The function of the Court, therefore,      in granting  its consent  may well  be taken  to  be  a      judicial function.  It follows  that  in  granting  the      consent the  Court must exercise a judicial discretion.      But it  does not  follow that  the discretion  is to be      exercised only  with reference  to material gathered by      the judicial  method.  Otherwise  the  apparently  wide      language of  s. 494  would become considerably narrowed      down in  its application. In understanding and applying      the section  two main  features thereof have to be kept      in  mind.   The  initiative   is  that  of  the  Public      Prosecutor and what the Court has to do is only to give      its consent and not to determine any matter judicially.      ..... The  judicial function....  ..  implicit  in  the

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    exercise of  the judicial  discretion for  granting the      consent would  normally mean  that  the  Court  has  to      satisfy itself  that  the  executive  function  of  the      Public Prosecutor has not been improperly exercised, or      that it  is not an attempt to interfere with the normal      course of justice for illegitimate reasons or purposes.      In the  context it is right to remember that the Public      Prosecutor (though  an executive Officer ......) is, in      a larger  sense, also  an officer of the Court and that      he is  bound to  assist  the  Court  with  the  fairly-      considered view  and the  Court is entitled to have the      benefit of the fair exercise of his functions". The Court  also appreciated  that in this Country the scheme of the  administration of  Criminal Justice places the prime responsibility 994 of   prosecuting   serious   offences   on   the   executive authorities. The  investigation, including collection of the requisite evidence, and the prosecution for the offence with reference  to  such  evidence  were  the  functions  of  the executive, and  in that  particular segment the power of the Magistrate was limited and intended only to prevent abuse.      In M.  N. Sankaranarayanan Nair v. P. V. Balakrishnan & Ors. the  Court while  reiterating decision  that the  Court granting permission  for withdrawal  should  satisfy  itself that the executive function of the Public Prosecutor 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, observed  that the  wide  and  general powers conferred  on the  Public Prosecutor to withdraw from the prosecution  have to be exercised by him "in furtherance of, rather than as a hindrance to the object of the law" and that the  Court  while  considering  the  request  to  grant permission should  not do  so as  "a necessary formality-the grant of it for the mere asking".      In State  of Orissa  v. Chandrika  Mohapatra & Ors. the Court said:           "We cannot  forget that  ultimately every  offence      has a  social or  economic cause  behind it  and if the      State feels  that the elimination or eradication of the      social or  economic cause  of the crime would be better      served by  not proceeding  with  the  prosecution,  the      State should clearly be at liberty to withdraw from the      prosecution".      In  Balwant  Singh  &  Ors.  v.  State  of  Bihar,  the independent role  of the  Public  Prosecutor  in  making  an application  for   withdrawal   from   a   prosecution   was emphasised. It was pointed out that statutory responsibility for deciding upon withdrawal vested in the Public Prosecutor and the  sole consideration  which should  guide the  Public Prosecutor was  the larger  factor of  the administration of justice and  neither political  favour nor party pressure or the like.  Nor should  he allow himself to be dictated to by his  administrative   superiors   to   withdraw   from   the prosecution. The  Court also  indicated some  instance where withdrawal   from   prosecution   might   be   resorted   to independently of the merits of the case:           "Of course,  the interests of public justice being      the paramount  consideration  they  may  transcend  and      overflow 995      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

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    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 instance      also may be given".      In Subhash  Chander v.  The State  (Chandigarh Admn.) & Ors. the Court once again emphasised the independence of the Public Prosecutor  in the matter of seeking to withdraw from the prosecution.  It was observed "Any authority who coerces or  orders  or  pressures  a  functionary  like  the  Public Prosecutor, in  the exclusive  province of his discretionary powers, violates  the rule of law, and any Public Prosecutor who bends  before such  command betrays the authority of his office". However, it was indicated:           "Maybe, Government or the District Magistrate will      consider that  a prosecution  or class  of prosecutions      deserves to  be  withdrawn  on  grounds  of  policy  or      reasons of  public interest relevant to law and justice      in their  larger connotation  and  request  the  Public      Prosecutor to  consider whether  the case  or cases may      not be  withdrawn. Thereupon,  the Prosecutor will give      due weight  to the  material placed,  the policy behind      the recommendation  and  the  responsible  position  of      Government which, in the last analysis, has to maintain      public  order  and  promote  public  justice.  But  the      decision to withdraw must be his.      A reference  was made  to some considerations which may justify withdrawal from prosecution. It was said:           "The fact  that broader  considerations of  public      peace, larger considerations of public justice and even      deeper  considerations  of  promotion  of  long-lasting      security in  a  locality,  of  order  in  a  disorderly      situation or  harmony in a faction milieu, or halting a      false and  vexatious prosecution  in a court, persuades      the Executive,  pro bono  publico, sacrifice  a pending      case for a wider benefit, is not ruled out although the      power must  be sparingly  exercised and  the  statutory      agency to  be satisfied  is the  public prosecutor, not      the District Magistrate or Minister. The concurrence of      the 996      court is  necessary. The subsequent discovery of a hoax      behind the  prosecution or false basis for the criminal      proceeding as  is alleged  in this  case, may well be a      relevant ground  for withdrawal.  For the  court should      not be  misused to  continue a case conclusively proved      to be  a counterfeit.  This statement of the law is not      exhaustive but  is enough  for the  present purpose and      indeed, is well-grounded on precedents".      Thus, from the precedents of this Court; we gather,      1. Under  the scheme  of the  Code  prosecution  of  an offender  for   a   serious   offence   is   primarily   the responsibility of the Executive.      2. The  withdrawal from the prosecution is an executive function of the Public Prosecutor.      3. The  discretion to  withdraw from the prosecution is that of  the Public  Prosecutor and  none else,  and so,  he cannot surrender that discretion to someone else.      4. The  Government may suggest to the Public Prosecutor that he  may withdraw  from the  prosecution  but  none  can compel him to do so.      5.  The   Public  Prosecutor   may  withdraw  from  the prosecution not  merely on the ground of paucity of evidence but on  other relevant  grounds as  well in order to further the broad  ends of  public justice,  public order and peace.

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The broad  ends of  public justice  will  certainly  include appropriate social, economic and, we add, political purposes Sans Tammany Hall enterprise.      6. The Public Prosecutor is an officer of the Court and responsible to the Court.      7.  The   Court  performs  a  supervisory  function  in granting its consent to the withdrawal.      8. The  Court’s duty is not to reappreciate the grounds which led  the Public  Prosecutor to request withdrawal from the  prosecution   but  to   consider  whether   the  Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and  extraneous considerations.  The Court  has a special duty in this regard as it is the ultimate repository of legislative  confidence in  granting or  withholding  its consent to withdrawal from the prosecution.      We  may  add  it  shall  be  the  duty  of  the  Public Prosecutor to  inform the  Court and it shall be the duty of the Court to appraise itself of the 997 reasons which  prompt the Public Prosecutor to withdraw from the prosecution.  The Court has a responsibility and a stake in the  administration of  criminal justice  and so  has the Public Prosecutor,  its ’Minister  of Justice’.  Both have a duty to  protect  the  administration  of  criminal  justice against possible  abuse or misuse by the Executive by resort to the  provisions of  s. 361  Criminal Procedure  Code. The independence of  the judiciary  requires that  once the case has travelled to the Court, the Court and its officers alone must have  control over  the case  and decide  what is to be done in each case.      We have  referred to the precedents of this Court where it has  been said  that paucity  of evidence is not the only ground on  which the Public Prosecutor may withdraw from the prosecution. In  the past  we have often known how expedient and necessary  it is  in the  public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal  riots, regional  disputes,  industrial conflicts, student  unrest etc.  Wherever issues involve the emotions and  there  is  a  surcharge  of  violence  in  the atmosphere it  has often  been found  necessary to  withdraw from prosecutions  in order  to restore  peace, to  free the atmosphere from  the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow  the storm.  To persist  with prosecutions  where emotive issues  are involved  in the name of vindicating the law may  even  be  utterly  counter-productive.  An  elected Government, sensitive  and responsive  to the  feelings  and emotions of  the people,  will be amply justified if for the purpose of  creating an  atmosphere of  goodwill or  for the purpose of  not disturbing  a calm  which has  descended  it decides not  to prosecute  the offenders  involved or not to proceed further  with prosecutions already launched. In such matters who but the Government, can and should decide in the first instance,  whether it  should be baneful or beneficial to  launch  or  continue  prosecutions.  If  the  Government decides that  it would be in the public interest to withdraw from prosecutions,  how is  the Government  to go about this task ?      Under the  Code of  Criminal Procedure it is the Public Prosecutor that  has to withdraw from the prosecution and it is  the   Court  that  has  to  give  its  consent  to  such withdrawal. Rightly  too, because  the independence  of  the judiciary so requires it, as we have already mentioned. Now, the Public  Prosecutor is  an Officer  of the Court. He sets the criminal  law in  motion in  the Court.  He conducts the

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prosecution in the Court for the people. So it is he that is entrusted with  the task  of initiating  the proceeding  for withdrawal from  the prosecution.  But, where such large and sensitive issues of public policy are involved, he 998 must, if  he is  right minded, seek advice and guidance from the policy-makers.  His sources of information and resources are of  a very  limited nature  unlike those  of the policy- makers. If  the policy-makers  themselves move in the matter in the  first instance,  as indeed  it is  proper that  they should where matters of momentus public policy are involved, and if  they advise  the Public  Prosecutor to withdraw from the prosecution,  it is  not for  the Court  to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there  be any  quibbling over words. If ill-informed but well-meaning bureaucrats choose to use expressions like "the Public Prosecutor  is directed" or "the Public Prosecutor is instructed",  the  Court  will  not  on  that  ground  alone stultify the  larger issue  of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as  a   free  agent  when  he  sought  withdrawal  from  the prosecution. What  is at  stake is  not the  language of the letter or  the prestige of the Public Prosecutor but a wider question of  policy. The  Court, in  such a  situation is to make an  effort to  elicit the  reasons for  withdrawal  and satisfy itself, that the Public Prosecutor too was satisfied that he  should withdraw,  from the prosecution for good and relevant reasons.      We, however,  issue a  note of  warning. The bureaucrat too should  be careful  not to  use peremptory language when addressing the  Public Prosecutor  since it may give rise to an impression  that he  is coercing the Public Prosecutor to move in  the matter. He must remember that in addressing the Public Prosecutor  he is  addressing an Officer of the Court and there  should be no suspicion of unwholesome pressure on the Public Prosecutor. Any suspicion of such pressure on the Public  Prosecutor  may  lead  the  Court  to  withhold  its consent.      We may  now consider  Shri Ram Panjwani’s argument that the Criminal  law of  India does  not  recognise  ’political offences’  and  so  there  can  not  be  withdrawal  from  a prosecution on  the ground  that the  offences involved  are ’political offences’.  It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offences of a  political nature,  as a  category  of  offences.  They cannot, in the ordinary course of things. That does not mean that offences  of  a  political  character  are  unknown  to jurisprudence or that judges must exhibit such a naivette as to feign  ignorance about  them.  Offences  of  a  political character are well-known in International Law and the Law of Extradition. The  Indian  Extradition  Act  also  refers  to offences of  a political  character. For our present purpose it is  really unnecessary  to enter  into a discussion as to what are  political offences  except in a sketchy way. It is sufficient to say that politics 999 are about  Government and  therefore, a political offence is one committed  with the object of changing the Government of a State or inducing it to change its policy. Mahatma Gandhi, the father  of the  Nation, was  convicted  and  jailed  for offences against  the Municipal  laws; so  was his spiritual son and  the first Prime Minister of our country; so was the present Prime  Minister and  so were the first President and the present President of India. No one would hesitate to say

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that  the   offences  of  which  they  were  convicted  were political. Even  as we  are writing this judgment we read in the morning’s  newspapers that  King Birendra  of Nepal  has declared a  "general amnesty  to  all  Nepalese  accused  of political changes".  The expression  ’political offence’  is thus commonly  used and understood though perhaps ’political offence’ may escape easy identification.      Earlier in  the judgment  we set out the alleged object of the  conspiracy as  recited in  the order sanctioning the prosecution. It  was to overawe the Government by committing various acts  of destruction  of public  property and  vital installations and the motive attributed was that the accused wanted to  change the Government led by Shrimati Gandhi. One need  not   agree  with   the  ends   or  the  means-genuine revolutions have  never yet  been made  by acts of senseless terrorism or  wanton destruction, putting innocent lives and public property  in jeopardy-but,  it is clear that the very order sanctioning  the prosecution  imputes to  the offences alleged to  have been committed by the accused the character of ’political offences’.      To say  that an  offence is of a political character is not to absolve the offender of the offence. But the question is, is  it a  valid ground  for the Government to advise the Public Prosecutor  to withdraw  from the  prosecution  ?  We mentioned earlier  that the  Public Prosecutor  may withdraw from the  prosecution of  a case not merely on the ground of paucity of  evidence but  also in order to further the broad ends of  public justice  and that  such broad ends of public justice may  well include  appropriate social,  economic and political purposes.  It is  now a matter of history that the motivating force  of the party which was formed to fight the elections in  1977 was  the same  as the motivating force of the criminal  conspiracy as alleged in the order sanctioning the prosecution;  only the  means were  different. The party which came  to power  as a result of 1977 elections chose to interpret the  result of  the elections  as a mandate of the people against  the politics and the policy of the party led by Shrimati  Gandhi. Subsequent events leading upto the 1980 elections which  reversed the  result of  the 1977 elections may cast  a doubt  whether such  interpretation was correct; only history can tell. But, if the Government of the day 1000 interpreted the result of the 1977 elections as a mandate of the people  and on  the basis  of  that  interpretation  the Government advised  the Public  Prosecutor to  withdraw from the prosecution,  one cannot  say that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor  can one  say that  the Magistrate failed to exercise the  supervisory function  vested in  him in giving his consent.  We are  unable to  say  that  the  High  Court misdirected itself in affirming the order of the Magistrate. We  also  notice  that  the  learned  Attorney  General  who disassociated himself from the legal submissions made by the parties did not withdraw the counter affidavit filed earlier on  behalf   of  the   State.  No  fresh  counter  affidavit disclosing a  change of  attitude on  the part  of  the  new Government which took office in January this year was filed. Apparently the  new Government did not do so as a gesture of grace and  goodwill and  to prevent  rancor and  bitterness. That we  appreciate, Criminal  Appeal No.  287  of  1979  is therefore, dismissed.      Special Leave  Petition (Criminal) No. 3115 of 1979 has been filed  by one  Manohar Lal,  against the  order of  the Chief Judicial  Magistrate, Bhiwani,  permitting the  Public Prosecutor to withdraw from the prosecution in case No. 186-

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1 filed by the State against Chaudhury Bansi Lal, ex-Defence Minister, his  son Surinder  Singh, ex-M.L.A.,  R. S. Verma, Ex. Deputy Commissioner, Bhiwani and several other officials and non-officials  for a host of offences. The applicant has come  straight   to  this   Court  under  Art.  136  of  the Constitution without  going to  the High  Court in the first instance. On  that ground alone the petition is liable to be dismissed as  we do not ordinarily entertain such petitions. We refrain from doing so as the matter has been fully argued before us.      On July  13, 1977,  Manohar Lal,  laid information with the Station  House Officer,  Police Station,  Bhiwani  City, against the  several accused  persons. The  charge-sheet was filed by the Bhiwani Police on July 21, 1978 on the basis of information laid  with them  by Manohar Lal. The gravamen of the  allegation   against  the   accused  persons  was  that Chaudhury Bansi  Lal was  annoyed with  Manohar Lal  and his sons as they failed to transfer two plots of land to his son and a  relative. Chaudhury Bansi Lal, therefore, induced the Bhiwani Town  Improvement Trust to include in its successive schemes land  belonging to  Manohar Lal  and  his  sons,  in Bhiwani Town,  on which  stood some  buildings including two temples. As Manohar Lal apprehended that his buildings might be demolished, he filed a Writ Petition in the Supreme Court and obtained  an order  of stay  of demolition. However, the stay 1001 was vacated  on December 1, 1976 and on the same day, on the instructions, by  telephone or  wireless, of Chaudhury Bansi Lal, R.  S. Verma,  the Deputy  Commissioner instructed  his officers to demolish the buildings standing on the land. The Land Acquisition  Collector made  his Award  of compensation and deposited the amount in a bank. All this was done in the course of a few hours and the demolition of the building was started forthwith  and completed  by December  4, 1976.  The chargesheet, as  we  said,  was  filed  on  July  21,  1978. Chaudhury Bansi  Lal filed  a petition  in  this  Court  for transfer of the case to a Court outside the States of Punjab and Haryana.  This Court  issued notice  on the petition for transfer and granted stay of further proceedings in the case before the  Chief Judicial Magistrate, Bhiwani. The order of stay continued.  On September  20, 1979  on the  basis of  a letter addressed  to him  by the  District  Magistrate,  the Public Prosecutor  filed an  application  before  the  Chief Judicial Magistrate  for permission  to  withdraw  from  the prosecution. On  September 21,  1979 the  Court granted  its consent to  the withdrawal of the Public Prosecutor from the prosecution. It  is this  order that  is questioned  in  the Special Leave Petition.      Shri Parekh,  learned counsel  for the petitioner urged that the  public Prosecutor  filed the  application  at  the behest of Shri Bhajan Lal, the Chief Minister of Haryana and that he  never applied  his mind  to the  facts of the case. According  to  Shri  Parekh  Shri  Bhajan  Lal  ordered  the withdrawal of  the public  Prosecutor from  the  prosecution because his  Ministry would  not survive without the help of Chaudhury Bansi  Lal. A motion of no confidence was imminent against  Shri  Bhajan  Lal  and  was  to  be  considered  on September 24,  1979; so  he ordered  withdrawal of the cases against Chaudhury  Bansi Lal on September 20, 1979, in order to secure  the support  of his  group. It  was said that the withdrawal from  the prosecution was not based on any ground of public  policy. Shri  Parekh, drew  our attention  to the wireless message  which was  sent by  the Government  to the District  Magistrate,   Bhiwani  informing   him  that   the

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Government had  decided to withdraw the four cases mentioned in the  message, pending  in the  Court of  Bhiwani and that four  cases   should  be   withdrawn  immediately  from  the concerned Courts  and the  Government informed  accordingly. The District  Magistrate Bhiwani  forwarded a  copy  of  the wireless message  to  the  District  Attorney,  Bhiwani  for necessary action  directing him  to withdraw  the four cases from the  concerned courts  as desired by the Government and to report  compliance to  this office. The District Attorney there-after filed  an application for permission to withdraw from the  prosecution. On  September 21,  1979,  he  made  a statement before the Chief 1002      Judicial Magistrate that he had made the application on the orders  of District  Magistrate, Bhiwani  and  that  the reasons were  given in  the application.  In answer  it  was contended by  the advocate  General of  Haryana who appeared for the State of Haryana and M. C. Bhandare who appeared for Chaudhury Bansi  Lal, that  Surinder Singh, son of Chaudhury Bansi Lal  had petitioned  to the  Chief Minister of Haryana alleging that he, his father and their associates were being harassed by  numerous cases being filed against them without any justification.  He requested  the Chief Minister to stop needless  harassment.   The  Minister   constituted  a  Sub- Committee consisting  of himself,  the Finance  Minister and the Irrigation and Power Minister to look into the question. The Sub-Committee  examined the  cases in detail and decided that four  out of  twenty five cases filed against Chaudhury Bansi Lal  should be withdrawn as the evidence available was meagre and,  in particular,  in the  case based  on  Manohar Lal’s information the complainant had also been suitably and profitably compensated.  The decision  of the Government was communicated to  the District  Magistrate who  in turn asked the Public  prosecutor to  move the  Court  for  consent  to withdraw from  the prosecution.  The Chief  Minister and his colleagues  on   the  Sub-Committee  have  filed  before  us affidavits regarding  the constitution  of the Sub-Committee and the decision to withdraw from the prosecution. They have also denied  the allegation that the case had been withdrawn with a  view to  gain the  support of  Chaudhury  Bansi  Lal against a  no-confidence motion which the petitioner alleged was to  be moved  against the Chief Minister. It was pointed out in  the affidavits that no no-confidence motion was ever tabled against  Chief Minister  Bhajan Lal  and that  on the very figures  given by  the petitioner  regarding the  party position in  the Haryana  Assembly the  support of Chaudhary Bansi Lal  and his  group would  not  matter.  It  was  also brought out  in the  counter affidavits  filed on  behalf of some of  the respondents  that the  petitioner  had  himself admitted in the agreement which he had entered into with the Bhiwani Town  Planning Trust  on May  6, 1977, that his land and plots  had been  duly acquired under various development schemes, that  he desired to withdraw all the petitions etc. filed by  him in  various courts and that he would not claim any damages  against the  Trust.  The  Town  Planning  Trust agreed to release the lands to him with a view to enable him to reconstruct  the buildings.  It was  expressly recited in the agreement that the Bhiwani Town Improvement Trust agreed to the  terms of  the agreement  as it was thought to be "in the best interest of the parties concerned as well as in the good of  the residents  of the  Bhiwani Town  to settle  the matter amicably  and mutually".  The Government  of  Haryana also. it  was so  recited in the agreement, had accorded its approval to the 1003

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terms of  the settlement.  It  has  been  mentioned  in  the counter-affidavits that  the agreement  between Manohar  Lal and the  Bhiwani Town Improvement Trust in which Manohar Lal admitted the  title of the Bhiwani Town Improvement Trust to the  land   and  buildings   was  never  placed  before  the Jaganmohan Reddy  Commission. In  fact  it  is  one  of  the complaints of  Chaudhury Bansi  Lal that  those that were in charge of  producing evidence  before the  Jaganmohan  Reddy Commission took  care to  see that nothing in his favour was placed before  the Commission.  Chaudhury Bansi  Lal filed a counter-affidavit in which he has stated that the allegation that his  son and  relative wanted  to purchase  the land of Manohar Lal  was an  allegation which Manohar Lal never made in any  of the  objections filed  by him against the schemes proposed by  the Town  Improvement Trust.  It has  also been pointed out  that in  the several  writ Petitions  filed  by Manohar Lal  against the schemes no allegations of malafides were made against Bansi Lal. In one Writ Petition an attempt was made to introduce such an allegation by way of amendment but the  High Court  held that  the allegation  was  a  mere ’after-thought’. The  District Attorney has filed a counter- affidavit in  which he  has stated  that the evidence in the case was  of a  meagre nature and he was of the view that it might not be possible to obtain a conviction in the case. He had brought  it to  the notice  of the  District  Magistrate earlier but  as important personalities were involved it was not thought  proper and  prudent to  make an application for withdrawal from  the prosecution.  The occurrence  which was the subject  matter of the case was said to have taken place at 10  p.m. A  large number of accused had been named. There were reasons  to believe  that most  of  the  names  of  the accused  were  included  on  mere  suspicion.  In  fact  two advocates  who   had  been   implicated   as   accused   led unimpeachable evidence  that they were not in Bhiwani at all that night.  After he  received  advice  from  the  District Magistrate he  was convinced  that an  application should be filed for  withdrawal from  the prosecution  and so he filed the same. Sri Bhaskar Chatterji, the District Magistrate has also filed  an affidavit  in which  he has  stated that  the District Attorney  had informed  him that  some of the cases filed against  Chaudhury Bansi  Lal and  his family  members were weak  in nature. He did not however, take any action at that time  as important  personalities were  involved and as there were no directions from the Government in that regard. Later he  received a  wireless message which he forwarded to the District  Attorney for action, Shri Kataria Secretary to Government  of  Haryana,  Department  of  Administration  of Justice has  also tiled  a counter-affidavit in which he has mentioned the  detailed of  the proceedings  of the  Cabinet Sub-Committee which  took the  decision to withdraw the case on September 20, 1979. 1004      On  a   perusal  of   the  allegations   and   counter- allegations, the  facts which  emerge  from  the  record  as beyond dispute are:           (1)  The land of Manohar Lal and his sons on which                there were  certain buildings was included in                the Bhiwani Town Improvement Scheme.           (2)  The  allegation   that  Bansilal’s   son  and                relative  wanted   to   purchase   the   land                originally was not made by Manohar Lal in the                original objections  and writ Petitions filed                by Manohar Lal.           (3)  The Supreme  Court first  granted stay of the                demolition of buildings but later vacated the

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              stay on December 1, 1976.           (4)  As soon as stay was vacated, without any loss                of time,  the  demolition  work  started  and                completed. Dynamite and bull-dozers were used                and the buildings were demolished.           (5)  On May  6, 1977,  Manohar Lal  and  his  sons                entered into  an agreement  with the  Bhiwani                Town Improvement  Trust agreeing  to withdraw                all the  cases  filed  by  them  against  the                improvement Trust  and accepting the title of                the trust to the land acquired under the Town                Improvement   schemes.    In    return    the                Improvement Trust agreed to release the lands                to Manohar  Lal and  his sons for the purpose                of  reconstructing   the  buildings   and  to                receive the  compensation  assessed  for  the                demolished buildings.  It was  recited in the                agreement that the Town Improvement Trust had                agreed to this course as it was thought to be                "in  the   best  interest   of  the   parties                concerned as  well as  in  the  good  of  the                residents of the Bhiwani Town".           (6)  On July  13, 1977  Manohar Lal lodged a First                Information Report with the Police.           (7)  On July  21, 1978  the police filed a charge-                sheet in  the Court  of  the  Chief  Judicial                Magistrate, Bhiwani.           (8)  The  District   Attorney  had   informed  the                District Magistrate  that the evidence was of                a weak nature as most of the accused appeared                to have been implicated on mere suspicion and                some of  the accused were not even present in                the town on the night of the occurrence.           (9)  Surinder Singh,  son  of  Bansi  Lal  made  a                representation to  the Government  that  they                were  being  harassed  by  innumerable  cases                being filed against them. 1005           (10) On  September  20,  1979,  the  Cabinet  Sub-                Committee decided  that four  out  of  twenty                five cases filed against Bansi Lal and others                should be  withdrawn. A  wireless message was                sent  by   the  Government  to  the  District                Magistrate asking  him to  withdraw the  four                cases and  to report  compliance. The  letter                was forwarded  to the  District Attorney. The                District Attorney  filed an  application  for                withdrawal from  the prosecution  on the same                day.           (11) Neither before  nor after  the  Cabinet  Sub-                Committee took  its decision  was there a no-                confidence  motion   tabled   against   Chief                Minister Bhajanlal.           (12) On September  21, 1979, the Court granted its                consent  to  the  withdrawal  of  the  public                Prosecutor (the  District Attorney)  from the                case.      It is on this material we have to determine whether the withdrawal  from   the  prosecution  could  be  said  to  be malafide, that  is for  irrelevant or extraneous reasons. We are not  satisfied that there is sufficient basis to come to such a  conclusion particularly  in view  of two outstanding circumstances namely that only four out of twenty-five cases have  been   withdrawn  and   the  complainant  himself  had acknowledged the  title of the Town Improvement Trust to the

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lands and  the Trust  had not only returned the lands to the complainant  but   also  paid   him  compensation   for  the demolished buildings  in the  interest  of  all  parties  in Bhiwani town.  We,  therefore,  dismiss  the  Special  Leave Petition.      Before bidding  farewell  to  these  cases  it  may  be appropriate for  us to  say that  Criminal justice  is not a plaything and  a Criminal  Court is  not a  play-ground  for politicking.   Political    fervour   should   not   convert prosecution into  persecution, nor  political favour  reward wrongdoer  by  withdrawal  from  prosecution.  If  political fortunes are allowed to be reflected in the processes of the Court very  soon the  credibility of the rule of law will be lost. So we insist that Courts when moved for permission for withdrawal from  prosecution must  be  vigilant  and  inform themselves fully  before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant  to the  question of  withdrawal  from  the cases. But under no circumstances should be allow himself to become anyone’s stooge.      No arguments  were advanced  in Criminal  Miscellaneous Petition No. 3890 of 1979. It is, therefore, dismissed. S.R.                         Appeal and Petitions dismissed. 1006