http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 70  

PETITIONER: SHEO NANDAN PASWAN

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT20/12/1986

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

CITATION:  1987 AIR  877            1987 SCR  (1) 702  1987 SCC  (1) 288        JT 1986  1132  1986 SCALE  (2)1099  CITATOR INFO :  R          1987 SC 863  (31)  R          1988 SC1531  (191)  RF         1992 SC 248  (44)  RF         1992 SC 604  (114,140)

ACT:     Review   of   judgments  or  orders   by   the   Supreme Court--Constitution  of India, 1950, Article-137  read  with Rule 1 of order XL of the Supreme Court Rules,  1966--Nature of  the  power of Review by the Supreme  Court--Whether  the Supreme  Court  could interfere with  the  granting  consent orders  for "Nolles Prosequi" against the accused, when  the orders of the Special Judge, of the High Court in  Revision, and of the majority of the Judges of the Supreme Court in an appeal by special leave, were in favour of the accused.     Review  order  is  to the effect  "the  review  petition should be admitted and the appeal should be reheard  immedi- ately  after  the decision of Nandini Satpathi’s  case  Crl. Appeals 48 and 49 referred to a Constitution Bench"--Meaning and   consequence   of  the  order  admitting   the   Review Petition--Whether the judgment sought to be reviewed was set aside or not.     Code of Criminal Procedure, 1973, section 321--Withdraw- al  from  the  Prosecution--Scope and  construction  of  the provisions  of  the section as to the power  of  the  Public Prosecutor  to  withdraw and the power to grant  consent  to such  withdrawal by the Magistrate--Whether on the  face  of the record, there was any error apparent--Whether the  prin- ciple  of administrative law be invoked for  construing  the section.     Locus standi of a complainant in a criminal  proceedings to  file a revision before the High Court and an  appeal  by special leave before the Supreme Court under Article 136  of the  Constitution,  against  an order  granting  consent  to withdraw the criminal case.     "Discharge"  of  an accused, consequent to  the  consent passed  by the Magistrate under section 321 and  "Discharge" of  an accused made under section 227 or 239 of the Code  of Criminal Procedure.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 70  

HEADNOTE:     Under  Article  137  of the Constitution  of  India  The Supreme  Court shall have power to review any judgment  pro- nounced or order 703 made  by  it, subject to the provisions of any law  made  by Parliament or any rules made under Article 145. The  Supreme Court, in exercise of the powers conferred by Article 145 of the  Constitution and all other powers enabling it and  with the approval of the President made the "Supreme  Court’Rules 1966".  Under  Rule I of Order XL thereof,  the  "Court  may review  its judgment or order but no application for  review will he entertained  ......  in a criminal proceeding except on  the ground of an error apparent on the face of  the  re- cord."     Patna Urban Cooperative Banks was registered in May 1970 and  it  commenced its banking business with  Nawal  Kishore Sinha as its Chairman, K.P. Gupta as its Honorary Secretary, M.A.  Hydary  as Manager and A.K. Singh as loan  clerk.  Dr. Jagannath  Misra  who was then a Member of  the  Legislative Council was closely associated with Nawal Kishore Sinha  and helped  the  Cooperative  Bank and Nawal  Kishore  Sinha  in diverse ways in connection with the affairs of the Bank  and assisted  in  mobilisation of the resources  for  the  Bank. There  were some irregularities in the affairs of the  Bank. The  then  Chief  Minister Shri Abdul  Ghafoor  ordered  the prosecution of the officers and staff of the Bank  including its  Honorary Secretary Shri K.P. Gupta, Manager, M.A.  Hai- dary  and  the loan clerk. However, this was  not  done.  On 11.4.1975  Shri Abdul Ghafoor was replaced by Dr.  Jagannath Misra as Chief Minister. On May 16, 1975 he passed an  order that  only stern action should he taken for  realisation  of loans since on the perusal of the file it appeared there was no  allegation of defalcation against the Chairman and  mem- bers  of the Board. This date is alleged to have been  later changed to May 14, 1975 by a fresh order. As per the revised order directions for restoration of normalcy and holding  of Annual  General Meeting "of the bank was made. On  15.4.1976 the Reserve Bank cancelled the banking licence issued to the Bank  and  a  liquidator was appointed.  Consequent  to  the report  of  the Estimates Committee and the  debate  in  the Assembly, Dr. Jagannath Misra directed, on 4.8.76 the prose- cution  against those involved in the defalcation.  Thus  23 criminal  cases  were filed against the office  bearers  and loanees  but  Nawal Kishore Sinha was  excluded  from  being arraigned as an accused. In June 1977 there was a change  of Ministry  at the Centre. In June 1977 the Government  headed by Dr. Jagannath Misra was replaced by the Government headed by Sri Karpoori Thakur.     As  a sequel to the memorandums submitted by  the  Patna Secretariat  Non-gazetted Employees’ Association to the  now Chief  Minister on 9.7.1977 requesting him to  enquire  into allegations  against Dr. Jagannath Misra, after  a  detailed procedure and obtaining requisite 704 sanction of the Governor, a criminal case was instituted  by the  vigilance  Department against Dr. Jagannath  Misra  and others.     The charge sheet filed by the State of Bihar against the respondents  on 19th February, 1979, was for offences  under sections  420/466/  471/109/120-B of Indian Penal  Code  and under  Sections  5(1)  (a), S(a) (b) & 5(1)  (d)  read  with Section 5(2) of the Prevention of Corruption Act, 1947.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 70  

charge  against Dr. Jagannath Misra was that he, who at  all material times, was either a Minister or the Chief  Minister of  Bihar abusing his position as a Public servant, in  con- spiracy with the other accused, sought to interfere with the criminal prosecution and surcharge proceedings against Nawai Kishore  Sinha and others with a view to obtain  to  himself and  to  the other respondents pecuniary  advantage  to  the detriment  of Patna Urban Cooperative Bank. The Chief  Judi- cial Magistrate took cognizance of the case on 29.7.1979.     There was a change of ministry in Bihar in June 1980 and the  second  respondent became the Chief Minister  again.  A policy decision was taken on 10.6.1980, that criminal  cases launched  out  of political vendetta and cases  relating  to political  agitation be withdrawn. On 24.2.1981 the  Govern- ment appointed Shri L.P. Sinha as a Special Public  prosecu- tor. On 25.2.1981, the secretary to the Government of  Bihar wrote  a letter to the District Magistrate informing him  of the policy decision taken by the Government,to withdraw from prosecution  of two vigilance cases including the case  with which the Court is concerned. He was requested to take steps for  the  withdrawal of the case. On I7th June,  1981,  Shri Sinha made an application under s.32I of the Cr.P.C. to  the Special Judge seeking permission to withdraw from the prose- cution  of respondent Nos. 2, 3 and 4 on four  grounds;  (a) Lack  of prospect of successful prosecution in the light  of the evidence, (b) Implication of the persons as a result  of political  and  personal vendetta; (c) Inexpediency  of  the prosecution  for the reasons of the State and public  policy and (d) Adverse effects that the continuance of the prosecu- tion  will  bring  on public interest in the  light  of  the changed  situation. The learned Special Judge  gave  consent sought,  by his order dated 20th June, 1981. The  appellant, thereupon, filed a criminal Revision Application No.  874/81 against the order permitting withdrawal of the  prosecution. The  said  application was dismissed in limine by  the  High Court  by an order dated 14.9.1981. The appellant  therefore preferred  Crl. Appeal No. 241/82 by special leave  to  this Court.  In two well reasoned concurring  judgments,  Baharul Islam  J  and R.B. Misra J. dismissed the  appeal  by  their judgments dated December 16, 1982 and by an equally reasoned judgment, Tulzapurkar J. dissented from the 705 main  judgement  and  allowed the  appeal.  (See  Sheonandan Paswan  v. State of Bihar & 0rs.,[(1983) 2 SCR  61]  Baharul Islam  J. demited office on 13.1. 1983. An  application  was filed on 17.1. 1983 to review the judgment under Article 137 of the Constitution read with Order XI of the Supreme  Court Rules. On 22.8.1983, the matter was heard in open court by a Bench  consisting  of Tulzapurkar J., A.N. Sen J.  and  R.B. Misra  J,  and  A.N. Sen J. passed an  order  admitting  the Review  Petition without disclosing any reason therefor  and directed the rehearing of the petition immediately after the decision  in Mohd. Mumtaz v. Smt. Nandini Satpathy [1983]  4 SCC  104,  which was referred already  to  a  Constitutional Bench  of  five Judges. Hence the rehearing of the  case  to review the two concurrent judgments.     Dismissing the appeal, in accordance with the opinion of the  majority, the Court, (Per Venkataramiah  J.)  (Majority view)     Held: 1.1  Merely because a court discharges or  acquits an accused arraigned before it, the court cannot be  consid- ered  to have compromised with the crime. True,  corruption, particularly at high places should be put down with a  heavy hand. But, the passion to do so should not overtake  reason. The  Court always acts on the material before it and  if  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 70  

finds  that  the material is not sufficient to  connect  the accused  with the crime, it has to discharge or acquit  him, as the case may be, notwithstanding the fact that the  crime complained of is a grave one. Similarly if the case has been withdrawn by the Public Prosecutor for good reason with  the consent of the Court, Supreme Court should be slow to inter- fere with the order of withdrawal. In either case, where the Special  Judge had rejected the application  for  withdrawal and  the High Court had affirmed that order, and  where  the special  judge  had permitted the withdrawal  but  the  High Court  had  reversed that order, the Supreme Court  may  not have  interfered  with the orders of the  High  Court  under Article  136 of the Constitution. But this is a  case  where the Special Judge had permitted the withdrawal of the prose- cution,  and the said order of withdrawal has been  affirmed by  the High Court as well as by the majority judgment  pro- nounced  by Supreme Court earlier. Interference by  the  Su- preme Court on review must only be on strong and  compelling reasons. [766D-H]     1.2 When the earlier decisions of the Supreme Court  are allowed  to  remain in tact, there is  no  justification  to reverse  the  majority judgments of Baharul Islam  and  R.B. Misra  JJ., reported in [1983] 2 SCR 61 by which the  appeal had  already  been dismissed. The reversal  of  the  earlier judgment  of Supreme Court by the process of Review  strikes at 706 the finality of judgments of Supreme Court and would  amount to the abuse of the power of review vested in Supreme Court, particularly in a criminal case. This case which was  admit- ted  solely on the ground that Nandini Satpathy’s  case  had been  subsequently referred to a larger Bench to review  the earlier decision cannot be converted into an appeal  against the earlier decision of Supreme Court. [774A-C]     R.K.  Jain etc. v. State through Special  Police  Estab- lishment and Ors. etc., [1980] 3 SCR 982 and State of  Bihar v. Ram Naresh Pandey, [1957] SCR 279, referred to.     2.1 Section 321 of the Code of Criminal Procedure cannot be  construed in the light of the principles of  Administra- tive law. The legal position expounded by the Supreme  Court in  R.K.  Jain’s case and in Ram Naresh  Pandey’s,  case  is correct.  If any change in the law is needed it is for  Par- liament  to make necessary amendments to section 321 of  the Code of the Criminal Procedure, 1973, which has remained  so despite  the judgment of the Supreme Court in Pandey’s  case rendered in 3957. [773D-E]     2.2  The judgment of a Public Prosecutor  under  section 321 of the Code of Criminal Procedure, 1973 cannot be light- ly interfered with unless the Court comes to the  conclusion that he has not applied his mind or that his decision is not bona  fide. A person may have been accused of several  other misdeeds,  he may have been an anthema to a section  of  the public  media  or he may be an  unreliable  politician.  But these  circumstances should not enter into the  decision  of the  Court while dealing with a criminal charge against  him which must be based only on relevant material. [773B-C ]     2.3 In the circumstances of this case, it cannot be said that  the Public Prosecutor had not applied his mind to  the case or had conducted himself in an improper way. If in  the light  of the material before him the Public Prosecutor  has taken  the  view that there was no prospect  of  securing  a conviction of the accused it cannot be said that his view is an unreasonable one. The Public Prosecutor is not a Persecu- tor. He is the representative not of an ordinary party to  a controversy, but of a sovereignty whose obligation to govern

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 70  

impartially is as compelling as its obligation to govern  at all,  and whose interest, therefore, in a criminal  prosecu- tion is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the  servant of the land, the two fold aim of which is  that guilt shall not escape or innocence suffer. He may prosecute with earnest and vigour indeed, he 707 should do so. But while he may strike hard blows, he is  not at  liberty to strike foul ones. It is as much his  duty  to refrain from improper methods calculated to produce a wrong- ful conviction as it is to use every legitimate one to bring about a just one. [772E-H] Berger v. United States, 295 US 78, quoted with approval.     2.4  Further  the questions involved in this  case  are: whether Dr. Jagannath Misra has been a privy to the misdeeds committed  in the Patna Urban Co-operative Bank; whether  he and his co-accused should be prosecuted for the offences  of conspiracy, bribery etc., and whether the Public  Prosecutor had  grievously erred in applying for the withdrawal of  the case.  All the other Judges who have dealt with the case  on merits from the Special Judge onwards, except Tulzapurkar J. have  opined  that  the permission was  properly  given  for withdrawal. In the circumstances, it is difficult to take  a different view. [770G-H; 771A-B]     The  three circumstances put up against the  accused  in this case are (i) that Jiwanand Jha had credited Rs.  10,000 and  Rs. 3000 on 27.12.1973 and on 1.4.1974 respectively  in the  Savings Bank account of Dr. Jagannath Misra; (ii)  that there  was ante-dating of the order passed by Dr.  Jagannath Misra  on 14.5.1975; and (iii) that there was a second  con- fessional  statement of Hydary which supported the  prosecu- tion.  As  regards the two items of bribe, it has  not  been shown by any extract of bank account that the said two  sams came  from the Patna Urban Cooperative Bank. If that was  so there  would  have been entries in the Bank  accounts.  Mere crediting  of the two sums, without any other reliable  evi- dence,  in  a bank account by a political ally or  a  friend does  not  by itself show that the sums  were  either  bribe amounts or any official favour had been shown. This fact  by itself is not conclusive about the guilt of the accused. The passing of the two orders one on 15.6.1975 on the note sheet and the other on buff paper which is dated 14.5.1975  cannot be  faulted  on account of the explanation that it  was  the practice in the Bihar Secretariat that whenever an order  is changed  it  is done by writing the later order on  a  buff- sheet  and pasting it on the earlier order. It is  not  also shown  by  the prosecution that any action  had  been  taken pursuant to the order dated 16.5.1975 by any of the  depart- mental  authorities. If any action had been taken  it  would have  been a matter of record readily available for  produc- tion.  No  such  record is produced  before  Supreme  Court. Hence’ it is a mere surmise to say that any such action  was sought  to  be  nullified, particularly when  there  was  no acceptable evidence at all on the communication of the order dated  16.5.1975 to any departmental  authorities.  [769F-G; 770D-G ] 708 Per  Khalid  J. (on behalf of himself and on  behalf  of  S. Natarajan J.)     1.1  Admitting a review petition is not, the same  thing as setting aside the order sought to be reviewed. Order  47, Rule  1 C.P.C. deals with review in civil  matters,  Article 137 of the Constitution is a special power with the  Supreme Court to review any judgment pronounced or order made by it.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 70  

An  order passed in a criminal case can be reviewed and  set aside  only if there are errors apparent on the  record.  In this case, one of the Judges who was a party to the order to review (R.B. Misra J) had earlier dismissed the appeal  with convicting  reasons.  If the judgment was set aside  by  the order passed in the review petition, the learned Judge would definitely  have  given his own reasons for doing  so  by  a separate  order. This has not been done. All that the  order says  is  that the review petition had  been  admitted.  The direction  to re-hear the appeal, therefore can only  be  to ascertain  reasons to see whether the judgment need  be  set aside. [776C-G]     2.1 There is no error apparent on the face of the record in  the judgment reported as Sheonandan Paswan v.  State  of Bihar & Ors., [1983] 2 SCR 61. [776G-H]     2.2  All the three judges who gave the earlier  judgment in this case have correctly declined to accept the plea that Shri  Sinha  was  not a competent  Public  Prosecutor  since Datt’s appointment has not been cancelled. [780B-C]     3.1  Section 321 needs three requisite to make an  order under  it  valid; (1) The application should be filed  by  a public  prosecutor  or Assistant Public  Prosecutor  who  is competent to make an application for withdrawal; (2) he must be in charge of the case; (3) the application should get the consent  of the court before which the case is pending.  All the three requisites are satisfied here. [780D-E]     3.2  In  the  absence of any  allegation  of  mala  fide against the public prosecutor or of bias against the Special Judge the Public Prosecutor should normally be credited with fairness  in exercise of his power under s.321. Equally,  in the  absence of a challenge in the revision petition  before the  High  Court to the order of the  Special  Judge  giving consent, it has to be assumed that he has perused the  rele- vant records before passing the consent order. [781 C-E]     3.3  Section 321 gives the public prosecutor  the  power for  withdrawal of any case at any stage before judgment  is pronounced. This 709 pre-supposes the fact that the entire evidence may have been adduced in the case, before the application is made. When an application  under s.32I Cr. P.C. is made, it is not  neces- sary for the court to assess the evidence to discover wheth- er the case would end in conviction or acquittal. To contend that the court when it exercises its limited power of giving consent under s.32I has to assess the evidence and find  out whether the case would end in acquittal or conviction, would be to re-write s.321 Cr.P.C. and would be to concede to  the court  a  power which the scheme of s.321 does  not  contem- plate. [781 F-H]     3.4 The acquittal or discharge order under s.321 are not the  same as the normal final orders in criminal cases.  The conclusion  will not be hacked by a detailed  discussion  of the  evidence in the case of acquittal or absence  of  prima facie  case or groundlessness in the case of discharge.  All that the court has to see is whether the application is made in good faith, in the interest of public policy and  justice and  not to thwart or stifle the process of law. The  court, after considering these facets of the case, will have to see whether  the application suffers from such improprieties  or illegalities  as to cause manifest injustice if  consent  is given.  On a reading of the application for withdrawal,  the order  of consent and the other attendant circumstances,  it must  be  held that the application for withdrawal  and  the order  giving  consent were proper and strictly  within  the confines of section 321 Cr.P.C. [781H; 782A-C]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 70  

   3.5  While construing s.321, it is necessary to bear  in mind  the wide phraseology used in it, the scheme behind  it and  its  field  of operation. True, it does  not  give  any guideline regarding the grounds on which an application  for withdrawal  can  be made. But since it was  enacted  with  a specific purpose, it would be doing violence to its language and  contents by importing into the section words which  are not there or by restricting its operation by fetters in  the form of conditions and provisos. [782C-D]     3.6 While conferring powers upon the Subordinate  courts under  s.321 of the Code, the Legislature had only  intended that the court should perform a supervisory function and not an  adjudicatory  function in the legal sense of  the  term. Section  321 clothes the public prosecutor to withdraw  from the  prosecution of any person, accused of an  offence  both when  no  evidence is taken or even if entire  evidence  has been  taken. The outer limit for the exercise of this  power is  "at  any time before the judgment  is  pronounced".  The initiative  is  that of the Public Prosecutor and  what  the court has to do’ only to give its consent and not to  deter- mine  any matter judicially. The Judicial function  implicit in the 710 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. [484A-B; C-D]     3.7  The courts’ function is to give consent. It is  not obligatory on the part of the court to record reasons before consent  is  given. However, consent of the court is  not  a matter  of  course.  When the Public  Prosecutor  makes  the application  for withdrawal after taking into  consideration all the materials before him, the Court exercises its  judi- cial  discretion by considering such materials and  on  such consideration  either gives consent or declines consent.  If on  a reading of the order giving consent a higher court  is satisfied that such consent was given on an overall  consid- eration of the materials available, the order giving consent has necessarily to be upheld. [484D-G]     3.8  The order under section 321 is pot  appealable  but only  revisable  under section 397 of the Code  of  Criminal Procedure. While considering the legality, propriety or  the correctness  of  a finding or a  conclusion,  normally,  the revising  court does not dwell at length into the facts  and evidence of the case. The Court, in revision, considers  the materials  only  to satisfy itself  about  the  correctness, legality  and propriety of the findings, sentence  or  order and  refrains from substituting an order passed under  s.397 appeal  comes  to the Supreme Court by special  leave  under Article 136 of the Constitution of India. [789B-C]     It has been the declared policy of the Supreme Court not to embark upon a roving enquiry into the facts and  evidence of  cases like this or even an order against discharge.  The Supreme  Court will not allow itself to be converted into  a court  of facts and evidence. The Supreme Court seldom  goes into evidence and facts. That is as it should be. Any depar- ture  from  this salutary self imposed restraint  is  not  a healthy  practice.  As  an apex Court,  any  observation  on merits  or on facts and evidence of a case which has  to  go back to the courts below will seriously prejudice the  party affected  and  it should be the policy of the court  not  to tread  upon this prohibited ground and invite  unsavory  but justifiable  criticism.  Supreme  Court  cannot  assess  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 70  

evidence  to find out whether there is a case for  acquittal or conviction and cannot convert itself into a trial  court. Nor  can this court order a retrial and examination of  hun- dred  witnesses  to find out whether the case would  end  in acquittal or conviction. [789D-G] 711     3.9 Section 321 Crl. P.C. is virtually a step by way  of composition  of  he offence by the State. The State  is  the master of the litigation in criminal cases. By the  exercise of functions under s.321 the accountability of the concerned person  or persons does not disappear. A  private  complaint can still be filed if a party is aggrieved by the withdrawal of  the prosecution but running the possible risk of a  suit of  malicious prosecution if the complaint is bereft of  any basis. [789G-H; 790A]     3.10 When the Magistrate states in his order that he has considered the materials, it is not proper for the court not to accept that statement. The proper thing to do is to  hold that  Magistrate gave consent on objective consideration  of the relevant aspects of the case. It would be acting against the mandate s.321 to find fault with the Magistrate in  such cases,  unless the order discloses that the  Magistrate  has failed  to consider whether the application is made in  good faith, in the interest of public policy and justice and  not to thwart or strifle the process of law. The application for withdrawal  by the Public Prosecutor has been made  in  good faith  after careful consideration of the  materials  placed before him and the order of consent given by the  Magistrate was  also  after  the consideration of  various  datails  as indicated above. It would be improper for the Court, keeping in  view  the  scheme of s.321, to embark  upon  a  detailed inquiry into the facts and evidence of the case or to direct re-trial  for  that would be destructive of the  object  and intent of the section. [792C-E; 793B-D]     State  of  Bihar v. Ram Naresh Pandey, [1957]  SCR  279; M.N.  Sankaranarayanan  Nair  v.P.V.  Balakrishnan  &  Ors., [1972]2 SCR 599; Bansi Lal v. Chandan Lal, AIR 1976 AC  370; State of Orissa v. Chandrika Mohapatra & Ors., [1977] 1  SCR 335;  Balwant  Singh v. State of Bihar, [1978]  1  SCR  604; Subhash Chander v. State, [1980] 2 SCR 44 and Rajendra kumar Jain v. State, [1980] 3 SCR 982, referred to.     4.1  In this case the Supreme Court is called upon  only to  consider the ambit and scope of s.321 Crl. P.C. and  not the  truth or otherwise of the allegations against  the  re- spondent  No.  2. The appellant is  admittedly  a  political rival  of  respondent No.2. There is no  love  lost  between them.  It  is at the instance of such  a  highly  interested person  that the Court is called upon to direct re-trial  of the  case,  setting aside the consent given by  the  Special Judge.  The  second respondent is a leader  of  a  political party. He was a rival to the Chief Minister who followed him after  the 1977 at the time of institution of the  case.  In 1977,  when the second respondent was the Chief Minister,  a warrant of arrest was issued 712 against  Shri Karpoori Thakur for his arrest and  detention. It  has been suggested that Shri Thakur had  grudge  against the  second respondent. Viewed against this background,  and on the unsatisfactory factual details of the case, accepting the appeal and ordering retrial would not advance either the interests of justice or public interest. [796B-E]     4.2 There were two confessional statements of Haidari in this case one on 4.11.1976 and another on 24.1.1978. In  the former he did not implicate respondent No.2 but he did it in the  next one. The second statement at best is  the  confes-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 70  

sional  statement  of a co-accused which normally  will  not inspire  confidence,  in any court. It is also  a  statement an  accomplice  turned approver and hence of a  very  little evidentiary  value. When Supreme Court exercises its  juris- diction  while  considering an order giving  consent  on  an application under s.321, consistent with the declared policy of  the  court not to embark upon evidence, request  for  an order  for retrial on this legally weak and infirm  evidence should be rejected. [795A-E]     4.3  As to the accusation of forgery, taking the  entire evidence against the appellant it cannot be held that he has committed  forgery  under s.463 or an offence  under  s.466. Even though there is overwriting or pasting or interpolation or  change  of digits, there is no evidence at all  to  show that  this paper went out of the Chief Minister’s office  or that  any  one was unduly favoured or that any  one  secured undue advantage by use of such overwriting. [796A-B]     Per  Bhagwati  (on behalf of himself and  G.L.  Oza  J.) (Minority view). (Per contra)     1.1  The Review Bench did exercise the power  of  review and set aside the order made by the Original Bench. When the Review  Bench  used the expression "I   .......   admit  the Review"  and  directed rehearing of the appeal, it  must  by necessary  implication  be held to have allowed  the  Review Petition and set aside the order of the Original Bench.  The true  meaning  and effect of the order of the  Review  Bench cannot be allowed to be obfuscated by a slight ineptness  of the language used by the Review Bench. The substance of  the order must always be looked in to its apparent form.  [737F- H]     1.2 There can be no doubt that the Review Bench was  not legally bound to give reasons for the order made by it.  The apex  Court being the final court against which there is  no further appeal, it is not under any legal compulsion to give reasons for an order made by it. But 713 merely because there may be no legal compulsion on the  apex court  to  give reasons. It does not follow  that  the  apex court  may  dispose of cases without giving any  reasons  at all. It would be eminently just and desirable on the part of the  apex court to give reasons for the orders made  by  it. But  when  the apex court disposes of a Review  Petition  by allowing  it  and setting aside the order sought to  be  re- viewed  on  the ground of an error apparent on the  face  of record, it would be desirable for the apex court not to give reasons  for  allowing the Review Petition. Where  the  apex court  holds that there is an error apparent on the face  of the  record and the order sought to be reviewed must  there- fore  be  set aside and the case must be reheard,  it  would considerably  prejudice the losing party if the  apex  court were  to  give reasons for taking this view. If  the  Review Bench of the Court were required to give reasons, the Review Bench  would have to discuss the case fully and  elaborately and expose what according to it constitutes an error in  the reasoning  of the Original Bench and this  would  inevitably result in pre-judgment of the case and prejudice is  rehear- ing. A reasoned order allowing a Review Petition and setting aside the order sought to be reviewed would, even before the reheating of the case, dictate the direction of the  rehear- ing and such direction, whether of binding or of  persuasive value, would conceivably in most cases adversely affect  the losing  party at the rehearing of the case.  Therefore,  the Review Bench, in the present case, could not be faulted  for not  giving  reasons for allowing the  Review  Petition  and directing rehearing of the appeal. [738B-G]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 70  

   2. It is now well settled law that a criminal proceeding is  not a proceeding for vindication of a private  grievance but it is a proceeding initiated for the purpose of  punish- ment  to the offender in the interest of the society. It  is for  maintaining  stability and orderliness in  the  society that certain acts are constituted offences and the right  is given  to any citizen to set the machinery of  the  criminal law  in motion for the purpose of bringing the  offender  to book.  Locus standi of the complainant is a concept  foreign to  criminal jurisprudence. Now if any citizen can  lodge  a first  information  report or file a complaint and  set  the machinery of the criminal law in motion and his locus standi to  do so cannot be questioned, a citizen who finds  that  a prosecution  for  an offence against the  society  is  being wrongly  withdrawn can oppose such withdrawal cannot  oppose such withdrawal. If he can be a complainant or initiator  of criminal  prosecution,  he  should equally  be  entitled  to oppose  prosecution which has already been initiated at  his instance.  If the offence for which a prosecution  is  being launched is an offence against the society and not merely an individual wrong, any member of the society must have  locus to initiate a prosecution as also to resist 714 withdrawal  of such prosecution, if initiated. Here  in  the present  case,  the offences charged against  Dr.  Jagannath Misra and others are offences of corruption, criminal breach of trust etc. ’and therefore any person who is interested in cleanliness  of  public administration and  public  morality would  be entitled to file a complaint; equally he would  be entitled to oppose the withdrawal of such prosecution, if it is already instituted. [739C-H; 740A] R.S.  Nayak v. A.R. Antulay, [1984] 2 SCR 500,  referred  to 3.1.     It is undoubtedly true that the effect of withdrawal  of the  prosecution  against Dr. Jagannath Misra  was  that  he stood  discharged in respect the offences for which  he  was sought to be prosecuted but it was not an order of discharge which  was challanged by Sheonandan Paswan in  the  revision application filed by him before the High Court but it was an order  granting  consent for withdrawal of  the  prosecution that was assailed by him. [740E-G]     3.2  The  analogy of an order of  discharge  made  under section 227 or section 239 of the Code of Criminal Procedure is  not  apposite because there the Sessions  Judge  or  the Magistrate, as the case may be, considers the entire materi- al before him and then comes to the conclusion that there is not  sufficient ground or proceeding against the accused  or that  the  charge against the accused  is  groundless.  But, here, when the Magistrate makes an order granting consent to withdrawal  of the prosecution under s.321, it is a  totally different  judicial exercise which he performs and it  would not  therefore be right to say that if the High  Court  sets aside the order of the Magistrate granting consent to  with- drawal  from the prosecutor, the High Court would be  really setting aside an order of discharge made by the  Magistrate. What  the  High Court would be doing would be no  more  than holding  that  the withdrawal from  the  prosecution  should proceed  against the accused and ultimately if there is  not sufficient  evidence  or  the charges  are  groundless,  the accused may still be discharged. Even the order of discharge can be discharged by the High Court in revision if the  High Court  is satisfied that the order passed by the  Magistrate is  incorrect, illegal or improper or that  the  proceedings resulting in the order of discharge suffer from any  irregu- larity. [740F-H; 741A-C]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 70  

   3.3  The  revisional power exercised by the  High  Court under  s.397 is couched in words of widest amplitude and  in exercise of this power can satisfy itself as to the correct- ness,  legality propriety of any order passed by the  Magis- trate  or  as to the regularity of any proceedings  of  such Magistrate. When the Supreme Court is hearing an appeal 715 against  an order made by the High Court in the exercise  of its  revisional power under s.397 it is the same  revisional power  which the Supreme Court would be exercising  and  the Supreme  Court, therefore, certainly can interfere with  the order made by the Magistrate and confirmed by the High Court if  it is satisfied that the order is incorrect, illegal  or improper.  In  fact, in a case like the  present  where  the question  is of purity and public administration at  a  time when  moral  and ethical values are fast  deteriorating  and there seems to be a crises of character in public life,  the Supreme Court should regard as its bounded duty-a duty  owed by  it  to the society-to examine carefully whenever  it  is alleged  that a prosecution for an offence of corruption  or criminal  breach  of trust by a person holding  high  public office  has been wrongly withdrawn and it should not  matter at all as to how many judges in the High Court or the  lower court  have been party to the granting of such  consent  for withdrawal. The mathematics of numbers cannot, therefore, be invoked  for  the  purpose of persuading the  court  not  to exercise  its discretion under Article I36 of the  Constitu- tion. [741C-H]     4.1  It is a well-established proposition of law that  a criminal  prosecution,  if otherwise justifiable  and  based upon  adequate evidence does not become vitiated on  account of  mala fides or political vendetta of the first  informant or the complainant. [742D-E] State  of  Punjab v. Gurdial Singh, [1980] 1 SCR  1076,  re- ferred to.     4.2 The fact that the prosecution against Dr.  Jagannath Misra was initiated by the successor Government of  Karpoori Thakur after the former went out of power, by itself  cannot support the inference that the initiation of the prosecution was actuated by political vendetta or mala fides because  it is  quite possible that there might be  material  justifying the  initiation of prosecution against Dr.  Jagannath  Misra and  the successor Government might have  legitimately  felt that there was a case for initiation of prosecution and that is why the prosecution might have been initiated. Therefore, the  prosecution cannot be said to be vitiated on  that  ac- count. [742G-H; 743A]     Krishna  Ballabha  Sahay and Ors. v. Commission  of  En- quiry, [1969] 1 SCR 387 and P.V. Jagannatha Rao v. State  of Orissa, [1968] 3  SCR 789, referred to.     5.1 There is no provision of law which requires that  no prosecution should be launched against a former Chief Minis- ter  or  a person holding high political  office  under  the earlier regime without first set- 716 ting  up  a  Commission of Enquiry for  enquiring  into  his conduct. It cannot be said that if a prosecution is initiat- ed without an inquiry being held by a Commission of  Enquiry set  up  for that purpose, the prosecution would be  bad  or that  on that ground alone the prosecution could be  allowed to be withdrawn. [743G-H; 744A]     5.2 In view of the tardy and slow moving criminal  proc- ess  in India causing inordinate delay and  availability  of adequate  protection  under different existing laws  to  the accused, it would be perfectly legitimate for the  successor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 70  

government  to  initiate  a prosecution of  a  former  Chief Minister  or  a person who has held  high  political  office under  the  earlier regime without first having  an  enquiry made  by  a Commission of Enquiry, provided of  course,  the investigation is fair and objective and there is  sufficient material to initiate such prosecution. [744A-D]     6.  No unfettered or unrestricted power is conferred  on the  Public  prosecutor/Assistant  Public  Prosecutor  under section  321  of the Code to apply for withdrawal  from  the Prosecution,  but  the said power must be  a  controlled  or guided power or else it will fail foul of Article 14 of  the Constitution-  Section  321 is more or less similar  to  the powers  of the police under s. 173 of the Code  of  Criminal Procedure. [746F-H]     The  police  has no absolute  or  unfettered  discretion whether to prosecute an accused or not to prosecute him.  In fact,  in  the  constitutional scheme,  conferment  of  such absolute  and uncanalised discretion would be  violative  of the  equality clause of the Constitution. The Magistrate  is therefore  given  the  power to structure  and  control  the discretion  of the police. The discretion of the  police  to prosecute  is thus’ ’combined and confined" and, subject  to appeal  or  revision, and the Magistrate is made  the  final arbiter on this question. The Legislature has in its  wisdom taken  the view it would be safer not to vest absolute  dis- cretion to prosecute in the police which is an Executive arm of  the government but to subject it to the control  of  the judicial  organ of the State. The same scheme has been  fol- lowed  by  the  Lesiglature while conferring  power  on  the Public  Prosecutor  to withdraw from the  prosecution.  This power can be exercised only with the consent of the court so that  the court can ensure that the power is not  abused  or misused  or  exercised in an arbitrary or  fanciful  manner. Once the charge-sheet is filed and the prosecution is initi- ated,  it is not left to the sweet-will of the State or  the Public Prosecutor to withdraw from the prosecution. Once the prosecution  is  launched, its relentless course  cannot  be halted  except  on sound considerations  germane  to  public justice.  The  Public Prosecutor cannot  therefore  withdraw from the prosecution unless the Court 717 before  which the prosecution is pending gives  its  consent for  such  withdrawal.  This is a  provision  calculated  to ensure non-arbitrarinesS on the part of the Public  Prosecu- tor and compliance with the equality clause of the Constitu- tion. [748D-H]     H.S.  Bains v. State, AIR 1980 SC 1883; Subhash  Chander v. State & Ors., [1980] 2 SCR 44; M.N. Sankaranarayanan Nair v. P.N. Balakrishnan & Ors., [1972] 2 SCR 599; and State  of Orissa. v. C. Mohapatra, [1977] 1 SCR 385, referred to.     7.1  The  position  in law in regard to  the  degree  of autonomy  enjoyed  by the Public  Prosecutor  vis-a-vis  the government  in filling an application for withdrawal of  the prosecution  is rather confused. Now there can be  no  doubt that  prosecution  of  an offender who is  alleged  to  have committed an offence is primarily the responsibility of  the Executive.  It  is the Executive which is  vested  with  the power to file a chargesheet and initiate a prosecution. This power is conferred on the Executive with a view to  protect- ing the society against offenders who disturb the peace  and tranquility of the society by committing offences. Of course it is left to the court to decide whether to take cognizance of  the offences set out in the charge-sheet but the  filing of  the  charge-sheet and initiation of the  prosecution  is solely within the responsibility of the Executive. It is the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 70  

State  through the investigating authorities which  files  a charge-sheet  and  initiate the prosecution and  the  Public Prosecutor is essentially counsel for the State for conduct- ing  the  prosecution  on behalf of the  State.  The  Public Prosecutor  is  an  officer of the court,  as  indeed  every advocate  practising  before the court is, and  he  owes  an obligation  to  the court to be fair and just: he  must  not introduce any person interest in the prosecution nor must he be anxious to secure conviction at any cost. He must present the case on behalf of the prosecution fairly and  objective- ly. He is bound to assist the court with his fairly  consid- ered view and the fair exercise of his intention. But at the same  time  he  conducts the prosecution on  behalf  of  the Central Government or the State Government, as the case  may be,  and he is an advocate acting on behalf on  the  Central Government  or the State Government which has  launched  the prosecution. There is nothing wrong if the government  takes a decision to withdraw from the prosecution and  communicate such direction to the Public Prosecutor. The Public Prosecu- tor,  would, inter alia, consider the grounds on  which  the government  has  taken  the decision to  withdraw  from  the prosecution  and if he is satisfied that those  grounds  are legitimate,  he may file an application for withdrawal  from the prosecution. If on the other hand he takes the view that the grounds which have been given by the government are not 718 legitimate  he  has  two options available to  him.  He  may inform the government that in his opinion, the grounds which have  weighed with the government are not valid and that  he should be relieved from the case and if this request of  his is not granted he may tender his resignation or else, he may make  an application for withdrawal from the prosecution  as directed by the government and at the hearing of the  appli- cation  he may offer his considered view to the  court  that the application is not sustainable on grounds set out by him and  leave it to the court to reject the application.  There is  nothing wrong in the Public Prosecutor being advised  or directed by the government to file an application for  with- drawal  from the prosecution and the application  for  with- drawal  made by him pursuant to such direction or advice  is not  necessarily  vitiated.  The Public  Prosecutor  can  of course come to his own independent decision that the  prose- cution should be withdrawn but ordinarily if he is wise  and sensible  person  he will not apply for  withdrawal  without consulting the government because it is the government which has launched the prosecution and is prosecuting the accused. Theoretically  of  course, he can make  an  application  for withdrawal  from  the  prosecution  without  consulting  the government  and he cannot be accused of any  illegality  for doing  so and the court may give its consent for such  with- drawal but in that event the Public Prosecutor would  render the  risk  of incurring the displeasure  of  the  Government which has appointed him. If the Public Prosecutor seeks  the permission of the government for withdrawal from the  prose- cution and the government grants such permission to him  and on  the basis of such permission he applies  for  withdrawal the  application cannot be said to be vitiated. The  proviso to  s.321  in  fact contemplates in so many  terms  that  in certain  categories  of offences the Public  Prosecutor  ap- pointed  by the State Government cannot move the  court  for its  consent  to withdraw from the prosecution  without  the permission of the Central Government. There is no danger  of abuse or misuse of power by the Government inherent in  this process  because there are two principal safeguards  against any such abuse or misuse of power by the government: one  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 70  

that  an application must be based on grounds which  advance public  justice and the other is that there can be no  with- drawal  without the consent of the Court.  [755C-H;  756A-H; 757A-F]     State  of  Bihar v. Ram Naresh Pandey, [1957]  SCR  279; Balwant  Singh  v. State of Bihar, [1978] 1  SCR  604;  M.N. Sankaranarayanan Nair v. P.V. Balakrishnan & Ors., [1972]  2 SCR 599;.State of Orissa, v. C. Mohapatra, [1977] 1 SCR  335 and R.K. Jain v. State, [1980] 3 SCR 982, referred to. 7.2 The Public Prosecutor cannot maintain an application for 719 withdrawal  from  the  prosecution on the  ground  that  the government  does  not want to produce evidence  and  proceed with the prosecution against the accused or that the govern- ment considers that it is not expedient to proceed with  the prosecution.  The  Public Prosecutor has to  make  out  some ground  which would advance or further the cause  of  public justice.  If the Public Prosecutor is able to show  that  he may  not be able to produce sufficient evidence  to  sustain the charge, an application for withdrawal from the  prosecu- tion may be legitimately made by. him. [758H; 759A-B]     7.3 However, where a charge has been framed by the court either under s.228 or s.240 of the Code of Criminal.  Proce- dure, 1973 it would not be open to the Public Prosecutor  to apply  for withdrawal from the prosecution on the ground  of insufficiency of evidence in support of the prosecution. The reason  is  that in both these cases the Court  applies  its mind to the material consisting of the police report and the documents sent with it under s.173 and comes to a conclusion that  a prima facie case has been made out against  the  ac- cused  and the charge should therefore be framed.  When  the court  has come to this conclusion after full  consideration and  framed a charge, the court cannot be persuaded  on  the same material to hold that there is not sufficient  evidence to sustain the prosecution. The Public Prosecutor cannot  be permitted  to  make a volte face on the basis  of  the  same material. To do so would be mockery of justice and it  would shake the confidence of the court in the purity and integri- ty of the administration of justice. It is, therefore, clear that  though the prosecution can be withdrawn at any  stage, even after the framing of the charge, it would not be compe- tent to the Public Prosecutor once the charge is framed,  to apply  for withdrawal of the prosecution on the ground  that the same material which was before the court when it  framed the charge is not sufficient to sustain the prosecution.  Of course,  if  some material has subsequently  come  to  light which  throws doubt on the veracity of the prosecution  case the Public Prosecutor can certainly apply for withdrawal  on the ground that the prosecution is not well-founded. It  may also happen in the meanwhile a key witness may have died  or some important evidence may have become unavailable or  some such  thing  may  have happened in that  event,  the  Public Prosecutor may legitimately feel that it will not be  possi- ble  to sustain the prosecution in the absence of such  evi- dence and he may apply for withdrawal from the  prosecution. But  on the same material without anything more, the  Public Prosecutor cannot apply for withdrawal from the  prosecution after  the  charge is framed. To allow him to  do  so  would impair  the faith of the people in the purity and  integrity of the judicial process. [759C-H; 760A-E] 720 Bansi Lal v. Chandi Lal, AIR 1976 SC 370, referred to.     7.4 Further while exercising its function under s.239 is to  consider the police report and the document  sent  along with  it  as also any statement made by the accused  if  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 70  

court  chooses to examine him. And if the court  finds  that there  is no prima facie case against the accused the  court discharges  him.  But that is precisely what  the  court  is called  upon to do when an application for  withdrawal  from the  prosecution  is made by the public  prosecutor  on  the ground that there is insufficient or no evidence to  support the prosecution- There also the court would have to consider the  material placed before it on behalf of the  prosecution for the purpose of deciding whether the ground urged by  the public  prosecutor  for  withdrawal of  the  prosecution  is justified or not and this material would he the same as  the material  before  the court while discharging  its  function under  s.239. If the court while considering an  application for withdrawal on the ground of insufficiency or absence  of evidence  to support the prosecution has to  scrutinise  the material  for  the purpose of deciding whether there  is  in fact insufficient evidence or no evidence at all in  support of the prosecution, the court might as well engage itself in this  exercise  while considering under  s.239  whether  the accused  shall  he discharged or a charge  shall  he  framed against  him.  It is an identical exercise which  the  court will  he  performing whether the court acts under  s.239  or under s.321. If that he so, in a warrant case instituted  on a police report the public prosecutor should not he entitled to  make an application for withdrawal from the  prosecution on  the ground that there is insufficient or no evidence  in support of the prosecution. The court will have consider the same issue under s.239 and it will most certainly further or advance the case of public justice if the court examines the issue under s.239 and gives its reasons for discharging  the accused  after  a  judicial consideration  of  the  material before it, rather than allow the prosecution to he withdrawn by the Public Prosecutor. When the prosecution is allowed to he withdrawn there is always an uneasy feeling in the public mind  that  the  case has not been allowed  to  be  agitated before  the  court and the court has not  given  a  judicial verdict.  But if on the other hand, the court  examines  the material  and  discharges the accused under  s.239  it  will always  carry  greater conviction with  the  people  because instead of the prosecution being withdrawn and taken out  of the  ken of judicial scrutiny the judicial verdict based  on assessment  and evaluation of the material before the  court will  always inspire greater confidence- Since  the  guiding consideration in all these cases is the imperative of public justice and it is absolutely essential that justice must not only he done but also appear to be done. Hence in a  warrant case instituted on a police report--which the 721 present  case against Dr. Jagannath Misra and others  admit- tedly is-it should not be a legitimate ground for the public prosecutor  to urge in support of the application for  with- drawal that there is insufficient or no evidence in  support of the prosecution. The court in such a case should be  left to  decide  under s.239 whether the accused should  be  dis- charged  or a charge should be framed against him.  [761A-H; 762A-B]     7.5  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  prosecu- tion,  the  State should clearly be at liberty  to  withdraw from  the prosecution. Though in this area no hard and  fast rule  can  be laid down nor can any categories of  cases  be defined in which an application for withdrawal of the prose- cution could legitimately be made. It must ultimately depend

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 70  

on the facts and circumstances of each case in the light  of what  is necessary in order to promote the ends of  justice. [762C-D; H; 763A-B]     7.6  The Court, while considering whether to grant  con- sent  or not, must not accept the ipse dixit of  the  public prosecutor  and content itself by merely  examining  whether the  public prosecutor has applied an independent  mind  but the court must satisfy itself not only that the grounds  are germane  or  relevant to advancement of public  justice  but also  whether the grounds in fact are satisfactorily  estab- lished. The ultimate test which must be applied by the court in  order  to  determine the validity of the  grounds  in  a particular  case is that the requirement of  public  justice outweighs the legal justice of that case so that  withdrawal from the prosecution could be permitted in the larger inter- est  of  public justice. The imperative  of  public  justice provides  the  only relevant consideration  for  determining whether consent should be granted or not. It is not possible to  provide an exclusive definition of what may be  regarded as  failing  within the imperative of public  justice  in  a straitjacket formula. Every case must depend on its peculiar facts and circumstances because there may be a myriad situa- tion  where this question may have to be considered  by  the Court. [763G-H; 764A-D]     8. Applying these principles to the facts of the present case,  it  is clear, that the court of  the  Chief  Judicial Magistrate  Patna  as also the High Court  were  clearly  in error in granting consent to the withdrawal from the  prose- cution against Dr. Jagannath Misra and others. There are two very strong and cogent reasons why consent to the withdrawal of the prosecution must be refused. In the first place,  the learned  Chief  Judicial Magistrate  could  have  considered under s.239 whether the 722 material  placed  before him was sufficient to  make  out  a prima  facie case against Dr. Jagannath Misra and the  other accused  so  that if the learned Chief  Judicial  Magistrate came  to the conclusion on the basis of such  material  that the charge against Dr. Jagannath Misra and the other accused was  groundless,  he would be bound to  discharge  them  for reasons to be recorded by him in writing. There is no reason why  in these circumstances the public prosecutor should  be allowed  to withdraw from the prosecution under  s.321.  The same exercise could be performed by the learned Chief  Judi- cial  Magistrate  by acting under s.239.  Moreover,  in  the present case, the decision to withdraw from the  prosecution was taken by the Cabinet at a meeting held on 24th  February 1981  and  this meeting was presided over by  Dr.  Jagannath Misra  himself. It may be that Shri Lallan Prasad Sinha  did not implicitly obey the decision of the Cabinet and  applied his independent mind to the question whether the prosecution should  be withdrawn or not but even so, it would  seriously undermine the confidence of the people in the administration of justice if a decision to withdraw the prosecution against him  is  taken by the accused himself and pursuant  to  this decision the Special Public Prosecutor who was appointed  by the State Government of which the accused is Chief Minister, applies  for withdrawal from the prosecution. It is an  ele- mentary  principle that justice must not only done but  must also appear to be done. It would be subversive of all  prin- ciples of justice that the accused should take a decision to withdraw  the prosecution against himself and then the  Spe- cial Public Prosecutor appointed in effect and substance  by him  makes an application for withdrawal from  the  prosecu- tion. [764E-H; 765A-E]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 70  

   8.2 It is no doubt true that if there is not  sufficient evidence  to sustain the prosecution against  Dr.  Jagannath Misra and the other accused, it would be subjecting them  to harassment  and inconvenience to require them to appear  and argue before the Court for the purpose of securing an  order of discharge under s.239, but even so it would be  desirable in  the interest of public justice that high political  per- sonages, accused of offences should face the judicial  proc- ess  and get discharged, rather than seem to  manoeuvre  the judicial  system  and thus endanger the  legitimacy  of  the political  as well as the judicial process. It  is  possible that  in a particular case personal harassment or  inconven- ience may be caused by non withdrawal of the prosecution, if the  accused is really innocent and is ultimately liable  to be discharged, but such harassment or inconvenience must  be considered  as an inevitable cost of public life, which  the repositories  of public power should have no  hesitation  to pay,  as justice must not only be done but must also  appear to be done. [765E-H; 766A] 723

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 241 of 1982     From  the Judgment and Order dated 14.9.81 of the  Patna High Court in Crl. Revision No. 874/81.     Dr. L.M. Singhvi, S.K. Sinha, S.K. Verma, A.M.  Singhvi, S. Singh, C. Mukhopadhya and R. Tyagi for the Appellants.     Dr.  Y.S.  Chitale, F.S. Nanman, S.N.  Kacker,  Rajinder Singh,  D.  Goburdhan,  D. Chandrachud,  L.R.  Singh,  Gopal Singh, M.P. Jha, R.K. Jain, Ranjit Kumar and B.P. Singh  for the Respondents. The following Judgments were delivered:     BHAGWATI, CJ. This case has had a chequered history  and it  is necessary to state the facts in some detail in  order to  appreciate the questions which arise  for  determination before us. The principal actor in the drama in this case  is Dr. Jagannath Misra, one time Chief Minister of the State of Bihar.  The  main  controversy  around-which  all  questions revolve  is  whether the prosecution  launched  against  Dr. Jagannath Misra at a time when he was not in power has  been rightly allowed to be withdrawn by the Chief Judicial Magis- trate or whether such withdrawal is invalid and must be  set aside  so  that  the prosecution can  continue  against  Dr. Jagannath Misra.     The fact-situation out of which this case arises relates to the affairs of a cooperative Bank called the ’Patna Urban Cooperative Bank’ (hereinafter referred to as the  ’Coopera- tive Bank’). The Cooperative Bank was registered in May 1970 and  it  commenced its banking business with  Nawal  Kishore Sinha as its Chairman, K.P. Gupta as its Honorary Secretary, M.A.  Hyderi as its Manager and A.K. Singh as a loan  clerk. It  was not seriously disputed that most of the  members  of the  Cooperative  Bank were closely  associated  with  Nawal Kishore  Sinha.  The object of the Cooperative Bank  was  to help  people  financially  to set up  small  industries  and businesses and to assist people in ordinary circumstances to carry on their vocation or business. There was a sub-Commit- tee formed, called "Loan Sub Committee", consisting of Nawal Kishore Sinha, K.P. Gupta and one Purnendu Narain, an  Advo- cate,  to attend to the work of sanctioning and granting  of loans. The Chairman, i.e., Nawal Kishore Sinha, was, accord- ing  to  the bye-laws, the ultimate  deciding  authority  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 70  

regard to all the functions of the Cooperative Bank and  the Honorary Secre- 724 tary i.e.K.P. Gupta along with the Chairman had to  exercise supervisory control over all the activities of the  Coopera- tive  Bank,  while the Manager, i.e. M.A. Hyderi,  was  con- cerned  only  with its :lay-to-day  working.  Dr.  Jagannath Misra  who was then a Member of the Legislative Council  was closely  associated with Nawal Kishore Sinha and  he  helped the Cooperative Bank and Nawal Kishore Sinha in diverse ways in  connection with the affairs of the Cooperative Bank  and also assisted in mobilisation of resources for the  Coopera- tive  Bank. Sometime in 1974 separate audits into the  func- tioning  of  the Cooperative Bank were carried  out  by  the Reserve Bank of India as well as the Cooperative  Department of the State of Bihar for the years 1972-73 and 1973-74  and as  a  result of these audits, there came to light  a  large number  of  irregularities such as non-maintenance  of  cash books  in a proper manner and grant of overdraft  facilities without  current account as also illegal practices and  acts of defalcation and malversation of funds of the  Cooperative Bank. The audit reports disclosed that huge amounts  running into  lakhs  of rupees, had been squandered away  by  giving loans  to  non-members, giving loans even  without  applica- tions, agreements or promissory notes, giving loans  without hypothecation  or security, giving short-term loans  instead of releasing cash from sale proceeds of hypothecated  goods, giving  loans  to the same persons in  different  names  and giving loans to fictitious persons and non-existing firms or industries. There were instances where loans had been grant- ed  on the security of Gandhi Maidan and Patna Railway  Sta- tion. The audit team of the Reserve Bank in its Report  came to  the conclusion that Nawal Kishore Sinha and others  were responsible for ’bad loans’ to the tune of Rs. 12 lakhs  and misappropriation and embezzlement of funds to the extent  of Rs.25 lakhs.     On  the  basis  of these audit  reports,  the  Registrar Cooperative Societies, at the instance of the Reserve  Bank, made  an order on 10th July 1974 superseding the  management of  the Cooperative Bank, removing Naval Kishore  Sinha  and other  Directors on the Board from their office as  Chairman and  Directors and appointing an officer of the  Cooperative Department as Special Officer to  look-after the affairs  of the  Cooperative Bank. The Registrar, Cooperative  Societies followed  up  this  action by putting up a  note  dated  4th November  1974  to the Secretary, Cooperation  pointing  out that, according to the audit reports, prima facie charges of defalcations,  embezzlement of funds, conspiracy  etc.  were made  out against the officials of the Cooperative Bank  and legal  action should be taken against them after taking  the opinion of the Public Prosecutor. The Secretary, Cooperation by  his note dated 7th November 1974 sought the  opinion  of the Law Depart- 725 ment in regard to the action to be taken as suggested in the note  of the Registrar, Cooperative Societies. The  Law  De- partment  recorded its opinion in the relevant file on  18th November  1974  that a prima facie case  of  conspiracy  and criminal  breach of trust was made out against  the  loanees and the office bearers of the Cooperative Bank. On the basis of  this  opinion, a draft complaint was  prepared  on  16th December  1974  by the Asstt. Public Prosecutor,  Patna  for being  filed in the court of the Chief Judicial  Magistrate, Patna and on the same day, an office noting was made on  the file suggesting that the advice of the Law Department on the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 70  

draft  complaint  be  obtained. This course  of  action  was approved by the Secretary, Cooperation and the Minister  for Cooperation  also approved of it on1st January 1975  and  it also received the approval of the then Chief Minister,  Shri Abdul  Ghafoor on 2nd January 1975. The file was  then  sent back  to  the Law Department and the  Law  Department  again reiterated its earlier advice for launching the  prosecution and  on the file being received back on 17th  January  1975, the Secretary Cooperation, endorsed the file on 21st January 1975 to the Additional Public Prosecutor, Shri Girish Narain Sinha,  for necessary action, that is, to file the  prosecu- tion.  Thus, by 21st January 1975 a firm decision was  taken to  launch a criminal prosecution- against the  loanees  and the  members  of the Board of Directors of  the  Cooperative Bank  including the Chairman Naval Kishore Sinha and a  com- plaint  in that behalf duly approved by the  Law  Department and  signed by Shri Jagdish Narain Verma, District  Coopera- tive Officer, Patna on 25th January 1975 was ready with  the Addl. Public Prosecutor, for being filed in the court of the Chief Judicial Magistrate. But before the Additional  Public prosecutor could file the complaint, Dr. Jagannath Misra who was  then  Minister incharge of Agriculture  and  Irrigation wrote  a buff-sheet note dated 24th January 1975 asking  the Secretary Cooperation to send the concerned file along  with the  audit  reports to him before instituting  the  criminal case.  It  may be pointed out that  under  the  Notification dated  30th  April 1974 issued under Article 166(3)  of  the Constitution  read  with Rule 5 of the  Rules  of  Executive Business of the State of Bihar, the then Chief Minister Shri Abdul  Ghafoor, was holding inter alia the portfolio of  Law but,  according  to the affidavit of  Shri  Neelanand  Singh dated 19th October 1982 filed on behalf of respondent No.  1 in this Court, Shri Abdul Ghafoor had, with a view to lessen his  heavy  burden, requested Dr. Jagannath  Misra  to  look after  the work of the Law  Department.  Since  Dr.   Jagan- nath   Misra   asked  for  the concerned  file,  Shri  Abdul Ghafoor, on a reference made to him directed on 27th January 1975  that the file may be sent to Dr. Jagannath Misra.  The Secretary, Cooperation accordingly recalled the comp- 726 laint and other papers from the Additional Public Prosecutor on  28th January 1975. The file was then placed before  R.K. Srivastava, Minister of Cooperation and he made an  endorse- ment  on the file on 31st January 1975 pointing out  various instances  of criminal conspiracy criminal breach  of  trust and misappropriation of public funds which had come to light against  the Directors of the Cooperative Bank and sent  the file  to  Dr. Jagannath Misra route to  the  Chief  Minister since  they wanted to see the file before the complaint  was actually  lodged. It does not appear from the record  as  to when  the file was actually sent to Dr. Jagannath Misra  but in  any  event the file was in the hands  of  Dr.  Jagannath Misra  on  24th February 1975. The file  remained  with  Dr. Jagannath  Misra for over two and a half months and  no  en- dorsement  was made by him on that file until the middle  of May 1975 with the result that prosecution could not be filed against  Naval Kishore Sinha and the other Directors.  Mean- while on 11th April 1975, Shri Abdul Ghafoor was thrown  out and in his place Dr. Jagannath Misra became Chief  Minister. Dr.  Jagannath Misra made an Order in his own hand in  Hindi in  the  file on 16th May 1975 regarding the  action  to  be taken against Nawal Kishore Sinha and others and the English translation of this Order ran as follows:               "Much time has passed. On perusal of the  File               it  appears  that there is  no  allegation  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 70  

             defalcation  against  the  Chairman  and   the               Members of the Board of the Bank. Stern action               should be taken for realisation of loans  from               the  loanees and if there are difficulties  in               realisation  from the loanees  surcharge  pro-               ceedings should be initiated against the Board               of Directors. The normal condition be resorted               in  the Bank after calling the Annual  General               Meeting and holding the election.                                                                Sd/ -               May 16, 1975                            Jagan-               nath Misra     In the margin opposite to this Order, the seal  contain- ing the despatch entry originally showed May 16, 1975 as the date on which the file was despatched from the Chief  Minis- ter’s  ,secretariat to the Cooperative Department after  Dr. Jagannath  Misra had made the Order. It is obvious from  the first  part  of the Order that Dr. Jagannath Misra  did  not want  any criminal prosecution to be launched against  Nawal Kishore  Sinha  and the other Members of the  Board  of  the Cooperative Bank and that is why he observed that there  was no  allegation of defalcation against the Chairman  and  the Members of the 727 Board though that was not correct. The object of making this observation clearly was to pre-empt the filing of any crimi- nal  prosecution against Nawal Kishore Sinha and  the  other members of the Board. The second part of the Order  provided that if there was any difficulty in realisation of the loans from the loanees, surcharge proceedings should be  initiated against  the  Chairman and other members of  the  Board  and since the loans advanced by the Cooperative Bank were mostly in  fictitious names and in any event it was  impossible  to recover  them. It was clear that, on the basis of this  part of the Order, surcharge proceedings would have to be adopted against the Chairman and other Directors of the  Cooperative Bank.  Now,  according to the despatch entry  as  originally made,  the  file containing this Order must  have  left  the office  of Dr. Jagannath Misra on 16th May 1975, though  the case  of Dr. Jagannath Misra is that it never left  his  of- fice. If the file left the office of Dr. Jagannath Misra  on 16th May 1975, it does not appear from the record as to when i4 came back, because there is no endorsement or seal  show- ing  inward  receipt of the file by the Secretariat  of  Dr. Jagannath Misra. But whether the file remained in the office of  Dr.  Jagannath Misra as claimed by him or  it  left  the office  on 16th May 1975 and subsequently came back  to  the office,  it is indisputable that Dr. Jagannath Misra  passed another  Order in his own hand on a piece of paper in  Hindi under his signature and had it pasted over the earlier order dated 16th May 1975 so as to efface the same completely  and this  subsequent Order was ante-dated to 14th May 1975.  The date of despatch namely, 16th May 1975 in the despatch entry appearing in the margin was also altered to 14th May 1975 by over-writing.  The English translation of this second  Order addressed to the Minister, Cooperation was in the  following terms:               "Please  issue order for restoring the  normal               condition  in  the Bank after  holding  Annual               General Meeting".                                                                 Sd /-               May 14, 1975                            Jagan-               nath Misra"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 70  

The  explanation given on behalf of Dr. Jagannath Misra  was that,  as  Chief  Minister, he had authority  and  power  to revise or review his earlier order and that it is the  usual practice  prevailing at the Patna Secretariat that  whenever any order passed earlier is sought to be revised or reviewed by  the same officer or Minister, it is done by  pasting  it over  by a piece of paper containing the revised order.  But even  with  this  explanation, the  admitted  position  that emerges is that the first Order dated 16th May 1975 made  by Dr. Jagannath Misra in 1 is own 728 handwriting in the file was obliterated by the second  Order made  by him subsequent to 16th May 1975 but  ante-dated  to 14th  May  1975 and the date 16th May 1975 in  the  despatch entry was also changed to 14th May 1975 by overwriting.  The effect of this action on the part of Dr. Jagannath Misra was that  even  the  direction to  adopt  surcharge  proceedings against  the Chairman and Board of Directors in  default  of realisation of the loans from the loanees, was wiped out and the only direction which remained was that normal  condition in  the Cooperative Bank should be restored by  calling  the Annual  General Meeting and holding the election. Thus,  not only  no  approval was given by Dr. Jagannath Misra  to  the filing  of the prosecution against the Chairman and  members of the Board of Directors but no direction was given even in regard  to  the adoption of  surcharge  proceedings  against them.  There  can be no doubt that Dr.  Jagannath  Misra  as Chief  Minister  had the authority and power to  revise  the earlier  Order dated 16th May 1975 and he could have  easily done sO, but instead, he ante-dated the second Order to 14th May 1975 and pasted it over the earlier Order dated to  16th May 1975 so as to efface it altogether and also altered  the date of the despatch entry to 14th May 1975. The  contention was  that this was deliberately done by Dr. Jagannath  Misra with  the  fraudulent intent to override the effect  of  the earlier Order dated 16th May 1975 and protect Nawal  Kishore Sinha  from civil liability arising from initiation of  sur- charge  proceedings. This contention was disputed on  behalf of  Dr.  Jagannath Misra and it was said that  this  was  an innocent  act in accordance with the practice of  the  Patna secretariat and the ante-dating was not mala fide but simply a  result of bona fide error. This is a matter  which  would have  to be gone into by the Court if the withdrawal of  the prosecution is set aside and the prosecution is directed  to be continued against Dr. Jagannath Misra.     So  far as the filing of the prosecution  against  Nawal Kishore  Sinha and the other members of the Board of  Direc- tors was concerned, it appears that the Cooperative  Depart- ment  wanted to go ahead with it and the Minister,  Coopera- tion  accordingly  put up a Note dated 28th  June  1975  and sought directions from Dr. Jagannath Misra as to what should be the next course of action in the matter of filing of  the complaint.  Dr.  Jagannath Misra in response to  this  query passed  the following Order in the file on 30th  June  1975: "Discussion  has  been held. There is no need  to  file  the prosecution."  This clearly shows that Dr.  Jagannath  Misra did  not  want  any prosecution to be  filed  against  Nawal Kishore Sinha and others and wanted to protect Nawal Kishore Sinha against any such criminal prosecution. It appears that in July 1975 there were questions and call attention motions in the 729 Bihar Legislative Assembly and in the course of the proceed- ings, the propriety of not filing prosecution against  Nawal Kishore  Sinha and others connected with the affairs of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 70  

Cooperative Bank, despite the advice of the Law  Department, was  discussed  and the Speaker referred the matter  to  the Estimates  Committee  of  the House. The  next  event  which happened  in  chronological  sequence was  that  the  annual general  meeting  of the Cooperative Bank was held  and  the associates of Nawal Kishore Sinha were elected in  November, 1975, the management of the Cooperative Bank was handed over to  the  elected  directors. But, on 15th  April,  1976  the Reserve  Bank of India cancelled the banking licence of  the Cooperative  Bank  and on 19th April, 1976  the  Cooperative Bank was ordered to be liquidated and T. Nand Kumar, an  IAS officer, was appointed liquidator of the Cooperative Bank.     The  Estimates  Committee to which the matter  had  been referred  by the Speaker submitted its report in June,  1976 recommending  prosecution of Nawal Kishore Sinha and  others and  this led to a debate in the Bihar Legislative  Assembly in  July 1976, the upshot of which was that  the  Government was  forced to agree to launch prosecution against the  cul- prits.  Dr. Jagannath Misra accordingly passed an  order  on 4th  August 1976 directing launching of prosecution  against those involved in the sordid affairs of the Cooperative Bank but even there, he directed that the prosecution be launched against  some  of the office bearers and  loanees  including K.P. Gupta, M.A. Hyderi and A.K. Singh but not against Nawal Kishore  Sinha. Thus, 23 criminal cases were  filed  against these office bearers and loanees but Nawal Kishore Sinha was excluded from being arraigned as an accused in these  cases. This order made by Dr. Jagannath Misra affords the  clearest indication  that, even with all the furore which had  arisen on  account  of non-prosecution of Nawal Kishore  Sinha  and others.  Dr.  Jagannath Misra persisted in  his  attempt  to shield Nawal Kishore Sinha from prosecution. T. Nand  Kumar, liquidator  of  the  Cooperative Bank  however  addressed  a communication  to the Registrar Cooperative  Societies  sug- gesting that besides the other office bearers, Nawal Kishore Sinha  also  deserved to be prosecuted for the  offences  of embezzlement, forgery, cheating etc. but the matter was kept pending. for the report of the Superintendent of the  Police (Cooperative  Vigilance Cell). The Superintendent of  Police (Cooperative Vigilance Cell) after collecting the  necessary evidence  got it examined by the Deputy Secretary, Law,  and on the basis of the opinion given by the Law Department that a  criminal case was fully made Out against  Nawal   Kishore Sinha. He proposed on the file on 8th October, 1976 that a 730 fresh  criminal case as per draft first information  report, should  be filed against Nawal Kishore Sinha and  he  should also be made co-accused in the previously instituted  cases. This  proposal was approved by the Deputy Inspector  General (CID)  and it was submitted to the Commissioner of  Coopera- tive  Department  for obtaining the approval  of  the  Chief Minister, that is, Dr. Jagannath Misra. Since Dr.  Jagannath Misra  had earlier made an order restricting the  filing  of criminal  cases against some of the office bearers and  loa- nees and excluded Nawal Kishore Sinha from the  prosecution, the Superintendent of Police in charge of cooperative  vigi- lance  cell categorically stated in his note that the  draft first  information  report against Nawal Kishore  Sinha  had been  vetted by the Deputy Secretary, Intelligence  CID,  as well as by Inspector General of Police. The Commissioner  of Cooperative  Department after examining the entire  material carefully and obtaining clarifications on certain points put up  a  lengthy note on 15th January, 1977, to  the  Minister Cooperation in which he specifically placed the proposal  of the  Superintendent of Police (Cooperative  Vigilance  Cell)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 70  

for launching first information report against Nawal Kishore Sinha  for his approval and also suggested that the  Hon’ble Minister may obtain the approval of the Chief Minister.  The Minister  Cooperation in his turn endorsed the file on  20th January,  1977 to the Chief Minister for approval. The  file was  received  in the secretariat of the Chief  Minister  on 30th  March, 1977 and Dr. Jagannath Misra as Chief  Minister instead  of clearly and specifically approving the  proposal or  even indicating his mind either way, merely  marked  the file to ’I.G. of Police’ on 9th April, 1977. It is difficult to  understand this endorsement made by Dr. Jagannath  Misra because the draft first information report had already  been vetted  and approved by the Inspector General of Police  and there  was  no  point in referring the matter  back  to  the Inspector  General  of Police. If Dr.  Jagannath  Misra  was merely  approving the action proposed to be taken  he  would have  either  made  an endorsement of approval  or  put  his signatures  or  initials without saying  anything  more  but instead  he  marked the file to ’I.G. of Police’.  There  is considerable  force in the submission made on bahalf of  the appellant  that  the object of making this  endorsement  was merely  to  put off the matter. Soon thereafter  however  on 30th April, 1977 the Government of Dr. Jagannath Misra  went out  of power and President’s Rule was imposed in the  State of  Bihar. The file containing the proposal for  prosecution of  Nawal Kishore Sinha then went to the  Advisor  (Coopera- tion) under the President’s Rule and he approved the propos- al  on 15th May, 1977 and the then Governor, Shri  Jagannath Kaushal, gave his approval to the proposal on 16th May, 1977 with  the result that a criminal case ultimately came to  be filed against 731 Nawal  Kishore Sinha on 30th May, 1977. It is  obvious  from this narration of facts that Dr. Jagannath Misra, whilst  he was  in power, made determined effort to protect  Nawal  Ki- shore Sinha against any criminal prosecution even though the filing  of criminal prosecution was advised by  the  Reserve Bank  of India and the Cooperative Department,  proposed  by the investigating authorities, recommended by the  Estimates Committee and strongly supported by the Law Department.  But ultimately a criminal prosecution was launched against Nawal kishore Sinha after Dr. Jagannath Misra went out of power.        Sometime in May, 1977 as a result of fresh  elections to the State Legislature, a new Government came to power  in the  State  of Bihar and at the instance  of  Shri  Karpoori Thakur who became the Chief Minister in the new  Government, an  inquiry  was  directed into  the  allegations  regarding irregularities  in the affairs of the Cooperative Bank.  The inquiry was entrusted to the then Secretary Shri D.N. Sahay. Meanwhile a Commission of Inquiry had already been institut- ed  by  the State Government and Shri D.N.  Sahay  therefore addressed  a communication dated 1st September, 1977 to  the Special  Secretary in regard to the charge relating  to  the affairs  of  the Cooperative Bank and he  pointed  out  that since an inquiry had already been instituted, it may not  be desirable to proceed with a vigilance inquiry. Shri Karpoori Thakur  however  directed that the vigilance  inquiry  might continue  as  the  materials collected as a  result  of  the vigilance inquiry could be made use of by the Commission  of Inquiry.  The vigilance inquiry was thereafter entrusted  to Shri  D.P. Ojha who was posted as Superintendent of  Police, Vigilance, by Shri Karpoori Thakur and all the cases  relat- ing to the affairs of the Cooperative Bank were  transferred to the vigilance department. M.A. Hyderi who was already  an accused  in the previously instituted cases was  re-arrested

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 70  

in  connection  with those cases and in the  course  of  the fresh  investigation  started by the  vigilance  department, M.A.  Hyderi  made a second confessional statement  on  24th January,  1978  which implicated Dr. Jagannath  Misra  which sought to support the case that Dr. Jagannath Misra had been helping  Nawal Kishore Sinha by abusing his office  and  for making illegal gains for himself. It may be noted that  M.A. Hyderi  had earlier made a confessional statement  on  3/4th November, 1976 in which he had not implicated Dr.  Jagannath Misra  but in the second confessional statement recorded  on 24th  January, 1978 he clearly and unequivocally  implicated Dr.  Jagannath Misra. On 28th January, 1978 A.K. Singh  also made  a confessional statement supporting  the  confessional statement of M.A. Hyderi. Immediately after recording  these confessional statements Shri D.P. Ojha submitted his inquiry report 732 recommending  institution  of  criminal  cases  against  Dr. Jagannath Misra and others. This recommendation was support- ed by the Deputy Inspector General of Police (Vigilance)  as also  by  the inspector General of Police  (Vigilance).  The file  was then referred to the Advocate General,  Shri  K.D. Chatterjee, and the recommendation to institute  prosecution against  Dr. Jagannath Misra and others was approved by  the Advocate General who opined that there was sufficient  mate- rial for the prosecution of Dr. Jagannath Misra and  others. The file was then placed before the Chief Minister, Karpoori Thakur, on 31st January, 1978 and it was approved by him  on the  same day and a direction was given to  investigate  the case against Dr. Jagannath Misra and others and to institute prosecution  against them. The police in the  vigilance  de- partment thereafter filed Vigilance P.S. Case No. 9(2)78 and carried out further investigation and ultimately as a result of such investigation, two charge sheets were filed  against Dr. Jagannath Misra and others on 21st February, 1979.     One,  A.K.  Datta, a senior advocate of the  Patna  High Court  was appointed Special Public Prosecutor by the  State Government  on  26th  February, 1979 to  conduct  these  two vigilance  cases against Dr. Jagannath Misra and others  and on  21st November, 1979, the Chief Judicial  Magistrate-cum- Special Judge, Patna took cognizance of these two cases. But before  these  two cases could proceed further there  was  a change of Government in the State of Bihar and Dr. Jagannath Misra  once again became the Chief Minister in  June,  1980. Dr. Jagannath Misra after coming back to power constituted a Cabinet subCommittee on 15th September, 1980 to consider the expediency of the withdrawal of the prosecution and on  20th February,  1981 the Cabinet sub-Committee  recommended  that the  cases against Dr. Jagannath Misra and others should  be withdrawn. This recommendation of the Cabinet  sub-Committee was placed before the Cabinet presided over by Dr. Jagannath Misra  and it was approved by the Cabinet on 24th  February, 1981.  On  the same day on which the recommendation  of  the Cabinet  sub-Committee  was approved, a decision  was  taken that  the two cases against Dr. Jagannath Misra  and  others should  be withdrawn and the State Government cancelled  the panel of lawyers which had been constituted by the  previous Government for conducting cases pertaining to the  vigilance department and in its place constituted a new panel consist- ing  of four lawyers including one Lallan Prasad Sinha.  The Secretary to the Government of Bihar thereafter addressed  a letter dated 25th February, 1981 to the District  Magistrate which was in the following terms:- 733 "       Government of Bihar

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 70  

         Law (Justice) Department From:  Shri Ambika Prasad Sinha        Secretary to Government,        Bihar, Patna To:   The District Magistrate       Patna.                                Patna, Dated 25th Feb. 1981. Subject: In connection with the withdrawal of Vigilance P.S. Case No. 9(2)78 and P.S. case No. 53(8)78.               Sir,                        I  am directed to say that the  State               Government  have  decided  to  withdraw   from               prosecution  the above mentioned two  criminal               cases on the ground of inexpediency of  prose-               cution for reasons of State and public policy.                         You  are,  therefore,  requested  to               direct the public prosecutor to pray the Court               after  himself considering for the  withdrawal               of the above mentioned two cases for the above               reasons  under  section  321 of  the  Code  of               Criminal Procedure.                         Please  acknowledge receipt  of  the               letter and also intimate this department about               the result of the action taken.                                                          Yours               faithfully,                                                              sd.               Illegible                                                  Secretary               to Govt. Patna.               Memo No. MW 26/81, 1056 J.                 Patna, dated 25th February, 1981                         Copy forwarded to Vigilance  Depart-               ment for information."               734     Shri Lallan Prasad Sinha thereupon filed an  application in the Court of the Chief Judicial Magistrate on 16th  Jane, 1981 praying for permission to withdraw from the prosecution of Dr. Jagannath Misra and others under Vigilance P.C.  Case No.  9(2)78. There were four grounds stated in the  applica- tion  for  permission to withdraw from the  prosecution  and they may be stated as follows in the language of the  appli- cation itself:-               (1) Lack of prospect of successful prosecution               in the light of evidence,               (2) the implication of the persons as a result               of political and personal vendetta,               (3)  inexpediency of the prosecution  for  the               reasons of the State and public policy, and               (4) the adverse effects that the  continuation               of the prosecution will bring on public inter-               est in the light of the changed situation. The application after setting out these grounds proceeded to elaborate them in the following words:-               "   .....  That I have therefore gone  through               the  case  diary and  the  relevant  materials               connected  with the case and have come to  the               conclusion that in the circumstances  prevail-               ing at the time of institution of the case and               the investigation thereof, it appears that the               case was instituted on the ground of political               vendetta and only to defame the fair image  of               Dr.  J.N. Mishra, who was then the  leader  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 70  

             the  opposition  and one of  the  acknowledged               leaders of the Congress party in the  country.               The  prosecution was not launched in order  to               advance  the  interest of  public  justice.  I               crave  leave to place materials in support  of               the  above  submission and conclusion  at  the               time of moving this petition.                         That  it is in public interest  that               the prosecutor which has no reasonable  chance               of  success and has been launched as a  result               of  political  vendetta unconnected  with  the               advancement  of  the cause of  public  justice               should  not proceed further. More so,  as  the               same  is  directed  against the  head  of  the               Executive in whom not only the electorate have               put  their  faith and confidence but  who  has               been elected               735               leader  of the majority party in the  legisla-               ture,  both events have taken place after  the               institution of the case  ......" The  application  for withdrawal was opposed  by  Sheonandan Paswan,  a member of the Bihar Legislative Assembly and  its Deputy  Speaker  at the material time. The locus  standi  of Sheonandan Paswan to object to the application for withdraw- al  was  challenged  by Shri Lallan Prasad  Sinha  and  this challange  was upheld by the learned Chief  Judicial  Magis- trate  and it was held that Sheonandan Paswan had  no  locus standi to oppose the application for withdrawal. The learned Chief  Judicial Magistrate then considered  the  application for  withdrawal  on merits and passed an  order  dated  28th JUne,  1981 in which, after reciting the  rival  contentions urged  before  him,  held that "it is a fit  case  in  which prayer of the 1earned Special Public Prosecutor to  withdraw should  be  allowed  and it is therefore  allowed"  and  Dr. Jagannath Misra and other accused persons were ordered to be discharged. It will thus be seen that no reasons at all were given by the learned Chief Judicial Magistrate in his  order for giving his consent to the withdrawal of the  prosecution against  Dr. Jagannath Misra and others. It does not  appear from  the order as to which ground or grounds’  appealed  to the learned Chief Judicial Magistrate for giving his consent to the withdrawal.     Sheonandan  Paswan  thereupon  filed  Criminal  Revision Application No. 874 of 1981 against the order of the learned Chief  Judicial  Magistrate  permitting  withdrawal  of  the prosecution but this application was dismissed in limine  by the  High Court by an order dated 14th September  1981.  The High  Court observed that the learned Chief Judicial  Magis- trate  having considered the grounds urged by Lallan  Prasad Sinha for withdrawal of the prosecution "was satisfied  that permission should be accorded to the special public prosecu- tor  to withdraw the prosecution" and there was,  therefore, no  illegality  in  the Order passed by  the  learned  Chief Judicial  Magistrate. The High Court did not  even  consider for  itself whether the grounds on which withdrawal  of  the prosecution was sought were justified or not. The High Court seem  to  proceed  on the basis that if  the  learned  Chief Judicial Magistrate was satisfied that permission should  be accorded for withdrawal of the prosecution, that was  enough and  it was not necessary for the High Court to examine  the validity of the grounds urged for such withdrawal. This view taken  by  the High Court was, as we shall  presently  point out, wholly erroneous. Since the High Court rejected the Revision Application in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 70  

736 limine,  Sheo Nandan Paswan filed the present  appeal  after obtaining  special  leave from this Court.  The  appeal  was heard by a Bench of three Judges consisting of  Tulzapurkar, Baharul Islam and R.B. Misra, JJ. There was a difference  of opinion amongst the Judges in regard to the decision of  the appeal.  Tulzapurkar,  J. took the view that a  prima  facie case  was clearly made out against Dr. Jagannath  Misra  and others  and the ground urged on behalf of the State  Govern- ment that there was not sufficient evidence which could lead to the conviction of Dr. Jagannath Misra and others, was not well founded. The learned Judge took this view on a detailed consideration  of the material which was on record and  held that  the  withdrawal of the prosecution was  not  justified either  on  merits  or in law and being illegal  had  to  be quashed.  Baharul  Islam and R.B. Misra, JJ., on  the  other hand, took the view that the entire investigation was  viti- ated  and no person could be convicted on the basis of  evi- dence  procured  as a result of such investigation  and  the withdrawal  of  the prosecution was,  therefore,  justified. Having regard to the majority judgment of Baharul Islam  and R.B. Misra, JJ., the appeal was dismissed.     Sheo Nandan Paswan thereupon filed a Review  application before this Court. But on the date when the Review  applica- tion  was filed, Baharul Islam, J. had already resigned  his office  as  a Judge of this Court. Now, under the  Rules  of this  Court  the Review application had to be heard  by  the same  Bench but since Baharul Islam, J. had ceased to  be  a Judge,  A.N. Sen, J. was asked to join Tulzapurkar and  R.B. Misra,  JJ.  and thus the Bench consisting  of  Tulzapurkar, A.N.  Sen and R.B. Misra, JJ. heard the Review  application. The judgment of the Review Bench was delivered by A.N.  Sen, J on 22nd August 1983 and after setting out the rival  argu- ments the learned Judge observed:               "Applying the well-settled principles  govern-               ing  a  review  petition and  giving  my  very               anxious and careful consideration to the facts               and circumstances of this case, I have come to               the conclusion that the review petition should               be admitted and the appeal should be re-heard.               I have deliberately refrained from stating  my               reasons and the various grounds which have led               me  to  this conclusion. Any decision  of  the               facts  and  circumstances which, to  my  mind,               constitute errors apparent on the face of  the               record  and  my reasons for the  finding  that               these   facts  and  circumstances   constitute               errors  apparent  on the face  of  the  record               resulting  in the success of the review  peti-               tion, may have the possibility of               737               prejudicing the appeal which as a result of my               decision has to be re-heard." and  in the result the learned Judge passed an order  admit- ting  the  review petition and directing re-hearing  of  the appeal.  But  since prior to the date of this  judgment  the case of Mohd. Mumtaz v. Smt. Nandini Satpathy, [1983] 4  SCC 104 had already been referred to a Bench of five Judges, the learned  Judge  directed that the present appeal  should  be re-heard immediately after Nandini Satpathy’s case. That  is how  the  present appeal has now come before this  Bench  of five Judges.     There  was  one contention of a preliminary  nature  ad- vanced  by Mr. Nariman on behalf of Dr. Jagannath Misra  and that contention was that on a proper reading of the order on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 70  

the  Review Petition made by A.N. Sen, J. it was clear  that the  Review Bench did not exercise the power of  review  and set aside the order made by the Original Bench. The argument was  that  the order made by the Original  Bench  stood  un- quashed and unreserved and it was therefore not competent to the Constitution Bench to rehear the appeal on merits as  if the  order of the Original Bench did not exist. It was  also urged  by Mr. Nariman on behalf of Dr. Jagannath Misra  that the  order made by the Review Bench was not legal and  valid since it was a non-speaking order which did not contain  any reasons  why the order of the Original Bench should  be  re- viewed.  This contention was of course not strongly  pressed by Mr. Nariman but in any event we do not think that it  has any substance. It is undoubtedly true that the order of  the Review Bench did not in so many terms set aside the order of the  Original  Bench and used a rather  unhappy  expression, namely,  "I  ......  admit the Review Petition". But  it  is clear  that  when  the  Review  Bench  used  the  expression "I .....  admit the Review Petition" it plainly unequivocal- ly  meant that it was allowing the Review Petition and  set- ting aside the order of the Original Bench, otherwise it  is difficult  to understand how it could possibly  "direct  the reheating  of the appeal". The appeal could be reheard  only if  the  Review Petition was allowed and the  order  of  the Original  Bench was set aside and therefore  obviously  when the  Review Bench directed rehearing of the appeal, it  must by’ necessary implication be held to have allowed the Review Petition  and set aside the Order of the Original Bench.  We cannot allow the true meaning and effect of the order of the Review  Bench to be obfuscated by a slight ineptness of  the language  used  by  the Review Bench. We must  look  at  the substance  of  the Order rather than its apparent  form.  We must  therefore proceed on the basis that the Order  of  the Original Bench 738 was  set aside and reheating of the appeal directed  by  the Review Bench.     We  must  concede that no reasons appear  to  have  been given  by the Review Bench for allowing the Review  petition and  directing heating of the appeal. The question is:  does this  introduce  any infirmity in the Order  of  the  Review Bench.  There can be no doubt that the Review Bench was  not legally bound to give reasons for the Order made by it.  The apex  court being the final court against which there is  no further appeal, it is not under any legal compulsion to give reasons for an order made by it. It is not uncommon to  find the  Supreme Court of the ’United States allowing a writ  of certiorari  without giving any reasons. But  merely  because there  may be no legal compulsion on the apex court to  give reasons, it does not follow that the apex court may  dispose of  cases  without giving any reasons at all.  It  would  be eminently  just and desirable on the part of the apex  court to give reasons for the orders made by it. But when the apex court  disposes  of  a Review Petition by  allowing  it  and setting aside the order sought to be reviewed on the  ground of  an  error apparent on the face of record,  it  would  be desirable for the apex court not to give reasons for  allow- ing  the  Review Petition. Where the apex court  holds  that there is an error apparent on the face of the record and the order sought to be reviewed must therefore be set aside  and the  case must be reheard, it would  considerably  prejudice the losing party if the apex court were to give reasons  for taking this view. If the Review Bench of the apex court were required  to  give reasons, the Review Bench would  have  to discuss  the  case  fully and elaborately  and  expose  what

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 70  

according to it constitutes an error in the reasoning of the Original  Bench  and this would inevitably  result  in  pre- judgment of the case and prejudice its reheating. A reasoned order allowing a Review Petition and setting aside the order sought  to be reviewed would, even before the  rehearing  of the  case, dictate the direction of the reheating  and  such direction, whether of binding or of persuasive value,  would conceivably in most cases adversely affect the losing  party at  the reheating of the case. We are therefore of the  view that  the  Review  Bench in the present case  could  not  be faulted  for  not  giving reasons for  allowing  the  Review Petition  and directing reheating of the appeal. It is  sig- nificant  to  note that all the three Judges of  the  Review Bench  were unanimous in taking the view that "any  decision of the facts and circumstances which  .....constitute errors apparent  on the face of record and my  .....   reasons  for the  finding that these facts and  circumstances  constitute errors  apparent  on  the face of record  resulting  in  the success of the Review Petition, may have the possibility  of prejudicing the 739 appeal which as a result of my decision has to be  reheard". This contention of Mr. Nariman must therefore be rejected.     The  learned  counsel on behalf of Dr.  Jagannath  Misra also raised another contention of a preliminary nature  with a  view to displacing the locus standi of Sheonandan  Paswan to  prefer the present appeal. It was urged that  when  Shri Lallan  Prasad Sinha applied for permission to withdraw  the prosecution against Dr. Jagannath Misra and others, Sheonan- dan  Paswan had no locus to oppose the withdrawal  since  it was a matter entirely between the Public Prosecutor and  the Chief Judicial Magistrate and no other person had a right to intervene  and oppose the withdrawal, and  since  Sheonandan Paswan had no standing to oppose the withdrawal, he was  not entitled  to  prefer  an appeal against  the  order  of  the learned Chief Judicial Magistrate and the High Court  grant- ing permission for withdrawal. We do not think there is  any force  in  this  contention. It is now settled  law  that  a criminal proceeding is not a proceeding for vindication of a private  grievance but it is a proceeding initiated for  the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness  in the  society that certain acts are constituted offences  and the  right is given to any citizen to set the  machinery  of the  criminal law in motion for the purpose of bringing  the offender  to book. It is for this reason that in R.S.  Nayak v.  A.R.  Antulay, [1984] 2 SCC 500 this Court  pointed  out that  "punishment  of the offender in the interests  of  the society being one of the objects behind penal statute enact- ed  for larger goods of society, the right to initiate  pro- ceedings cannot be whittled down, circumscribed of  lettered by putting it into a strait jacket formula of locus standi". This Court observed that locus standi of the complainant  is a  concept  foreign to criminal jurisprudence.  Now  if  any citizen  can  lodge  a first information report  or  file  a complaint  and  set  the machinery of the  criminal  law  in motion  and his locus standi to do so cannot be  questioned, we do not see why a citizen who finds that a prosecution for an  offence against the society is being wrongly  withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator  of  criminal prosecution, he  should  equally  be entitled  to oppose withdrawal of the  criminal  prosecution which  has  already been initiated at his instance.  If  the offence  for  which a prosecution is being  launched  is  an offence  against  the society and not merely  an  individual

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 70  

wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such  prosecu- tion,  if initiated. Here in the present case, the  offences charged against Dr. Jagannath Misra and others are  offences of  corruption, criminal breach of trust etc. and  therefore any person who is interested in cleanliness of public 740 administration and public morality would be entitled to file a  complaint,  as held by this Court in  R.S.  Nayak  v.A.R. Antulay  (supra) and equally he would be entitled to  oppose the  withdrawal of such prosecution if it is already  insti- tuted.  We  must therefore reject the  contention  urged  on behalf of Dr. Jagannath Misra that Sheonandan Paswan had  no locus standi to oppose the withdrawal of the prosecution. If he was entitled to oppose the withdrawal of the prosecution, it  must follow a fortiori that on the turning down  of  his opposition  by the learned Chief Judicial Magistrate he  was entitled to prefer a revision application to the High  Court and on the High Court rejecting his revision application  he had  standing  to prefer an appeal to this  Court.  We  must therefore  reject  this contention of  the  learned  counsel appearing on ’behalf of Dr. Jagannath Misra.     There  was also one other contention urged on behalf  of Dr.  Jagannath  Misra with a view to bunking an  inquiry  by this  Court into the merits of the appeal. It was argued  on behalf  of Dr. Jagannath Misra that this was not a fit  case in  which the Court should interfere in the exercise of  its extraordinary jurisdiction under Article 136 of the  Consti- tution  since  the permission granted by the  learned  Chief Judicial  Magistrate for withdrawal of the  prosecution  had resulted  in discharge of Dr. Jagannath Misra in respect  of the offences for which he was charge-sheeted and this  order of  discharge was upheld by the High Court in  revision  and finally  by  two out of three Judges of this  Court  and  it would be unfair and unjust to reverse the order of discharge and direct a retrial of Dr. Jagannath Misra. We have consid- ered this argument but it does not appeal to us. We fail  to see  any  logic behind it. It is undoubtedly true  that  the effect  of  the withdrawal of the  prosecution  against  Dr. Jagannath  Misra was that he stood discharged in respect  of the offences for which he was sought to be prosecuted but it was not an order of discharge which was challenged by  Sheo- nandan  Paswan  in  the revision application  filed  by  him before  the High Court but it was an order granting  consent for withdrawal of the prosecution that that assailed by him. The analogy of an order of discharge made under section  227 or  section  239 of the Code of Criminal  Procedure  is  not apposite because there the Sessions Judge or the Magistrate, as the case may be, considers the entire material before him and  then comes to the conclusion that there is  not  suffi- cient ground for proceeding against the accused or that  the charge against the accused is groundless. But here when  the Magistrate makes an order granting consent to withdrawal  of the prosecution under section 321, it is a totally different judicial exercise which he performs and it would not  there- fore  be right to say that if the High Court sets aside  the order of the Magistrate granting consent 741 to withdrawal from the prosecution, the High Court would  be really  setting  aside  an order of discharge  made  by  the Magistrate.  What the High Court would be doing would be  no more  than holding that the withdrawal from the  prosecution was  incorrect or improper and that the  prosecution  should proceed  against the accused and ultimately if there is  not sufficient  evidence  or  the charges  are  groundless,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 70  

accused may still be discharged. Moreover it may be  pointed out  that even an order of discharge made by the  Magistrate can  be set aside by the High Court in revision if the  High Court  is satisfied that the order passed by the  Magistrate is  incorrect, illegal or improper or that the.  proceedings resulting in the order of discharge suffer from any  irregu- larity.  The  revisional power exercised by the  High  Court under  section 397 is couched in words of  widest  amplitude and  in exercise of this power can satisfy itself as to  the correctness,  legality or propriety or any order  passed  by the Magistrate or as to the regularity of any proceedings of such  Magistrate.  When  this Court  is  hearing  an  appeal against  an order made by the High Court in the exercise  of its revisional power under section 397 it is the same  revi- sional  power which this Court would be exercising and  this Court therefore certainly can interfere with the order  made by  the Magistrate and confirmed by the High Court if it  is satisfied that the order is incorrect, illegal or  improper. In fact, in a case like the present where the question is of purity  of  public administration at a time when  moral  and ethical values are fast deteriorating and there seems to  be a  crisis  of character in public life,  this  Court  should regard as its bounden duty--a duty owed by it to the  socie- ty--to  examine  carefully  whenever it is  alleged  that  a prosecution for an offence of corruption or criminal  breach of  trust  by a person holding high public office  has  been wrongly withdrawn and it should not matter at all as to  how many  Judges in the High Court or the lower court have  been party  to the granting of such consent for withdrawal.  Here in  the  present case, it is no doubt true  that  the  order granting consent for withdrawal of the prosecution was  made by  the learned Chief Judicial Magistrate and it was  upheld by  the High Court and two out of three Judges of the  bench of  this Court which initially heard the appeal agreed  with the view taken by the High Court but we cannot overlook  the fact that according to the Review Bench which also consisted of three Judges, there was an error apparent on the face  of the record in the judgment of the earlier Bench. The  mathe- matics  of numbers cannot therefore be invoked for the  pur- pose of persuading this Court not to exercise its discretion under Article 136 of the Constitution. It was then contended on behalf of Dr. Jagannath Misra that 742 Sheonandan  Paswan was Minister in the cabinet  of  Karpoori Thakur  and continued to be a member of the political  party opposed to Dr.  Jagannath Misra and he was therefore actuat- ed  by  political motivation in opposing the  withdrawal  of prosecution against Dr. Jagannath Misra and in preferring  a revision application to the High Court and an appeal to this Court.  This contention is also without substance  and  does not command itself to us. We may concede for the purpose  of argument  that Sheonandan Paswan opposed the  withdrawal  of the prosecution against Dr. Jagannath Misra because he had a political  score to settle with Dr. Jagannath Misra  and  he was motivated by a political vendetta. But that is no reason why  this Court should sustain an order made by the  learned Cheif Judicial Magistrate granting consent for withdrawal of the prosecution if otherwise the order appears to be improp- er  and  unjustified.  The question is even if  no  one  had opposed the withdrawal of the prosecution, would the learned Chief  Judicial  Magistrate  and the High  Court  have  been justified  in  granting  consent to the  withdrawal  of  the prosecution  and that would depend essentially on the  facts and  particulars  of the case placed before the  Court.  The political motivation or vendetta of Sheonandan Paswan  could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 70  

not  possibly  be a valid ground for  granting  consent  for withdrawal of the prosecution if otherwise on the facts  and circumstances of the case it was improper and invalid. It is a well-established proposition of law that a criminal prose- cution,  if  otherwise justifiable and based  upon  adequate evidence does not become vitiated on account of mala  fides, or  political  vendetta of the first informant or  the  com- plainant.  It  was rightly observed by Krishna lyer,  J.  in State of Punjab v. Gurdial Singh, [1980] 1 SCR 1076. "If the use  of power is for the fulfilment of a legitimate  object, the actuation or catalisation by malice is not  legiciable." The  same principle must obviously apply where a  person  is opposing  withdrawal of prosecution against an accused.  His political  motivation  or vendetta cannot justify  grant  of consent for withdrawal if otherwise it is not legitimate  or justified.     It is undoubtedly true that the prosecution against  Dr. Jagannath Misra was initiated by the successor Government of Karpoori Thakur after Dr. Jagannath Misra went out of power. But  that  by itself cannot support the inference  that  the initiation  of  the prosecution was  actuated  by  political vendetta  or  mala fides because it is quite  possible  that there might be material justifying the initiation of  prose- cution against Dr. Jagannath Misra and the successor Govern- ment might have legitimately felt that there was a case  for initiation  of prosecution and that is why  the  prosecution might  have been initiated. There would be nothing wrong  on the part of the successor Government in 743 doing  so and the prosecution cannot be said to be  vitiated on  that  account. This is precisely what  Hidayatullah,  J. speaking  for the Constitution Bench pointed out in  Krishna Ballabha Sahay and others v. Commission of Enquiry, [1969] 1 SCR 387:-               "The  contention  that  the  power  cannot  be               exercised by the succeeding ministry has  been               answered  already by this Court in two  Cases.               The earlier of the two has been referred to by               the  High Court already. The more recent  case               is Shri P.V. Jagannath Rao & Ors. v. State  of               Orissa, [1968] 3 SCR 789. It hardly needs  any               authority  to state that the inquiry  will  be               ordered  not by the Minister  against  himself               but by some one else. When a Minister goes out               of  office,  its successor  may  consider  any               glaring  charges and may, if justified,  order               an  inquiry.  Otherwise,  each  Ministry  will               become  a  law  unto itself  and  the  corrupt               conduct  of its Ministers will  remain  beyond               scrutiny." These  observations afford a complete answer to the  conten- tion urged on behalf of Dr. Jagannath Misra that this  Court should not interfere with the withdrawal of the  prosecution because  the  successor  Government of  Karpoori  Thakur  or Sheonandan  Paswan was actuated by political  motivation  or vendetta.     The learned counsel on behalf of Dr. Jagannah Misra also contended that the prosecution should not have been initiat- ed against Dr. Jagannath Misra without a prior inquiry  made through a Commission of Enquiry set up for that purpose. The argument  was that both prudence and propriety requires  the setting up of a Commission of Enquiry prior to initiation of the prosecution because an inquiry made through the  Commis- sion of Enquiry would act as a filter for politically  moti- vated  or mala fide prosecution. This argument is  also,  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 70  

our  opinion, without any force and cannot be sustained.  It is  undoubtedly true that in the past there have been  cases where  a  successor Government has set up  a  Commission  of Enquiry to enquire into the conduct of former Chief Minister and  other persons connected with the administration  during the  regime of the former Chief Minister but that  does  not mean that no prosecution should be launched against a former Chief  Minister  or a person holding high  pOlitical  office under the earlier regime without first setting up a  Commis- sion of Enquiry for enquiring into his conduct. There is  no provision  of law which requires such a course of action  to be  adopted and it cannot be said that if a  prosecution  is initiated without an inquiry being held by a Commis- 744 sion  of  Enquiry set up for that purpose,  the  prosecution would  be bad or. that on that ground alone the  prosecution could  be allowed to be withdrawn. The criminal  process  in India is quite tardy and slow moving and as it is, it  takes considerable time for a prosecution to ultimately come to an end and if a requirement were super-imposed that no prosecu- tion shall be launched against a person holding high politi- cal office under an earlier regime without first setting  up a Commission of Enquiry and the Commission coming to a prima facie  conclusion that such person has committed acts  which would constitute offences, the entire criminal process would be  reduced to a mockery because the Commission  of  Enquiry itself  might go on for years and after the inquiry is  con- cluded the prosecution will start where the entire  evidence will have to be led again and it would be subject to  cross- examination followed by lengthy arguments. It would, in  our opinion,  be perfectly legitimate for the successor  Govern- ment to initiate a prosecution of a former Chief Minister or a person who has held high political office under the earli- er regime without first having an inquiry made by a  Commis- sion  of Enquiry, provided, of course, the investigation  is fair  and  objective  and there is  sufficient  material  to initiate  such  prosecution. There are, under  the  existing law, sufficient safeguards for the purpose of ensuring  that no public servant is harassed by false and vexatious  prose- cution or charges of corruption because no such  prosecution can  be  initiated without sanction under section 6  of  the prevention  of Corruption Act or section 197 of the Code  of Criminal Procedure, 1973. These safeguards cannot be said to be inadequate even if they do not afford adequate protection in  any particular case, the Magistrate is. always there  to protect an innocent accused because if in the opinion of the Magistrate, there is not sufficient evidence and the  charge against the accused appears to be groundless, the Magistrate may  straightaway discharge the accused without  taking  any evidence.    It   would   become   very    difficult--almost impossible--to  bring, to use the words of Krishna lyer,  J. "the  higher  inhabitants  of Indian  public  and  political decks"  within the net of the criminal law if an  additional requirement is imposed that there should first be an inquiry by  the Commission of Enquiry before any prosecution can  be launched  against them. This contention urged on  behalf  of Dr. Jagannath Misra must also, therefore, fail.     That  takes  us to the merits of  the  question  debated before us, namely, whether the learned Chief Judicial Magis- trate and the High Court were right in granting consent  for withdrawal  of the prosecution against Dr.  Jagannath  Misra and others. The application for withdrawal was made by  Shri Lallan Prasad Sinha and consent for such 745 withdrawal  was given by the learned Chief  Judicial  Magis-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 70  

trate  under section 321 of the Code of Criminal  Procedure, 1973  and consequently, it is this section which  falls  for construction and application in the present case. The  ques- tion is whether the application for withdrawal made by  Shri Lallan Prasad Sinha was within the scope of his power  under section  321  and  whether the consent given  by  the  Chief Judicial Magistrate for such withdrawal was within the terms of that section. Section 321 reads as follows:-               "321. Withdrawal from prosecution--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:               Provided that where such offence--               (i)  was against any law relating to a  matter               to  which  the executive power  of  the  Union               extends, or               (ii)  was  investigated by the  Delhi  Special               Police  Establishment under the  Delhi  Police               EStablishment Act, 1946 (25 of 1946); or               (iii)  involved  the misappropriation  or  de-               struction  of,  or  damage  to,  any  property               belonging to the Central Government, or               (iv) was committed by a person in the  service               of  the  Central Government  while  acting  or               purporting  to  act in the  discharge  of  his               official duty,               746               and  the Prosecutor in charge of the case  has               not been appointed by the Central  Government,               he shall not, unless he has been permitted  by               the  Central  Government to do  so,  move  the               Court  for  its consent to withdraw  from  the               prosecution  and the Court shall,  before  ac-               cording  consent,  direct  the  Prosecutor  to               produce  before it the permission  granted  by               the  Central Government to withdraw  from  the               prosecution." This section corresponds to section 494 of the old  Criminal Procedure  Code,  1898 and it incorporates  certain  changes which  have relevance in that they threw some light  on  the true  interpretation  of the section. It may be  noted  that there  are two limbs of section 321. The first is  that  any Public Prosecutor or Assistant Public prosecutor incharge of a  case may withdraw from the prosecution of any person  but this power to withdraw from the prosecution is not an unfet- tered or unrestricted power because it can be exercised only "with the consent of the Court". If the Court does not give, its consent to the withdrawal of the prosecution, the Public Prosecutor  or the Assistant Public Prosecutor cannot  with- draw  it. But the question is as to what are the grounds  on which  the Public Prosecutor or Assistant Public  Prosecutor can  apply  for  withdrawal from the  prosecution  and  also similarly what are the considerations which must weigh  with the Court in granting or refusing consent for the withdrawal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 70  

of the prosecution. There have been a number of decisions of this  Court  bearing  on both these issues but  it  must  be conceded  straightaway that these decisions do not  disclose any uniform approach. The Court has in some decisions  taken very  narrow  view  while in some others it  has  adopted  a broader  view.  The Court has swung from narrow  grounds  to broad  ones  in different decisions from time  to  time.  We shall consider some of these decisions a little later.     Now  one  thing is certain that no unfettered  or  unre- stricted  power is conferred on the Public  Prosecutor--when we  refer  to Public Prosecutor, we also  include  Assistant Public Prosecutor--to apply for withdrawal from the prosecu- tion.  It is obvious that the power conferred on the  Public Prosecutor  to withdraw from the prosecution must be a  con- trolled or guided power or else it will fall foul of Article 14  of the Constitution. It is necessary in this context  to refer  to certain other provisions of the Code  of  Criminal Procedure,  1973 which, though not directly relevant,  throw some  light on the determination of the question as to  what is  the  extent  of the power of the  Public  Prosecutor  to withdraw  from the prosecution and how it is controlled  and regulated. 747 When  a First Information Report relating to the  commission of a cognizable offence is lodged in a Police Station  under section  154 or an order is made by a  Magistrate  directing the  police to investigate a non-cognizable case under  sec- tion  155,  the police is bound to investigate  the  offence alleged to have been committed. The powers of the police  in regard to investigation and the procedure to be followed  by them  in such investigation are set out in sections  157  to 172. Section 173 sub-section (1) casts an obligation on  the police  to  complete the investigation  without  unnecessary delay  and sub-section (2) of section 173 then  proceeds  to state  that as soon as the investigation is  completed,  the officer-incharge  of the Police Station shall forward  to  a Magistrate empowered to take cognizance of the offence on  a police  report, a report in the prescribed form stating  the ,various particulars mentioned in that sub-section.  Section 190 confers power on the Magistrate to take cognizance of an offence  and there are three different ways in which  cogni- zance  of  an  offence may be taken by  a  Magistrate.  This section states that cognizance of an offence may be taken(a) upon receiving a complaint of facts which constitute such an office  (b) upon a police report of such facts and (c)  upon information  received  from any person other than  a  police officer or upon his own knowledge that such offence has been committed.  We may concentrate our attention on  clause  (b) since the section read with that clause clearly goes to show that  even  in the matter of initiating a  prosecution,  the police has no unfettered discretion. It is now  well-settled as a result of several decisions of this Court, of which  we may mention only one, namely, H.S. Bains v. State; AIR  1980 SC 1883, that even if the report submitted by the police  to the Magistrate under section 173 states that in the  opinion of the police no offence appears to have been committed  and no  prosecution may therefore be initiated,  the  Magistrate can still form an opinion on the facts set out in the report that  they constitute an offence and he can take  cognizance of  the offence and issue process against the  accused.  The Magistrate may also find, after considering the report, that the  investigation is unsatisfactory or incomplete or  there is  scope for further investigation and in that  event,  the Magistrate  may decline to accept the report and direct  the police to make further investigation and then decide whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 70  

or  not to take cognizance of the offence after  considering the  report  submitted  by the police as a  result  of  such further investigation. It will thus be seen that the  police has  no absolute or unfettered discretion whether to  prose- cute  an  accused or not to prosecute him. In fact,  in  our constitutional  scheme,  conferment  of  such  absolute  and uncanalised  discretion would be violative of  the  equality clause  of  the Constitution. The  Magistrate  is  therefore given  the power to structure and control the discretion  of the 748 police. If the Magistrate finds from the report made by  the police either on initial investigation or on further  inves- tigation  directed  by the Magistrate, that prima  facie  an offence  appears to have been committed, the  Magistrate  is empowered to take cognizance of the offence  notwithstanding the contrary opinion of the police and equally if the Magis- trate  forms  an opinion that on the facts set  out  in  the report no offence prima facie appears to have been committed though the police might have come to a contrary  conclusion, the  Magistrate  can decline to take cognizance of  the  of- fence.  The  discretion of the police to prosecute  is  thus ’cabined  and confined’ and, subject to appeal or  revision, and  the Magistrate is made the final arbiter on this  ques- tion. The Legislature has in its wisdom taken the view  that it would be safer not to vest absolute discretion to  prose- cute in the police which is an Executive arm of the  Govern- ment but to subject it to the control of the judicial  organ of the State.     The  same  scheme has been followed by  the  Legislature while conferring power on the Public Prosecutor to  withdraw from the prosecution. This power can be exercised only  with the  consent of the Court so that the Court can ensure  that the power is not abused or misused or exercised in an  arbi- trary or fanciful manner. Once the charge-sheet is filed and the  prosecution is initiated, it is not left to the  sweet- will of the State or the Public Prosecutor to withdraw  from the  prosecution. The Court is entrusted with  control  over the  prosecution and as pointed out by Krishna lyer,  J.  in Subhash  Chander v. State and others; [1980] 2 SCR 44.  "The even  course of criminal justice cannot be thwarted  by  the Executive however high the accused, however sure the Govern- ment feels a case is false, however unpalatable the continu- ance  of the prosecution to the powers-that-be who  wish  to scuttle court justice because of hubris, affection or  other noble  or  ignoble consideration." Once the  prosecution  is launched,  its relentless course cannot be halted except  on sound  considerations germane to public justice. And  again, to  quote  the words of Krishna lyer, J. in the  same  case, "the  Court is monitor, not servitor, and must check to  see if  the essentials of the law are not breached, without,  of course, crippling or usurping the power of the public prose- cutor." The Public Prosecutor cannot therefore withdraw from the  prosecution unless the Court before which the  prosecu- tion is pending gives its consent for such withdrawal.  This is a provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with the equal- ity clause of the Constitution. It is also necessary to point out that the law has fashioned 749 another safeguard against arbitrary exercise of power by the Public  Prosecutor in withdrawing from the  prosecution  and this  safeguard is that the Public Prosecutor can apply  for withdrawal  only on the basis of certain legitimate  grounds which  are  germane  or relevant to public  justice.  It  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 70  

significant to note that the entire development of  adminis- trative  law  is  characterised by a  consistent  series  of decisions  controlling and structuring the  discretion  con- ferred on the State and its officers. The Law always  frowns on  uncanalised and unfettered discretion conferred  on  any instrumentality of the State and it is the glory of adminis- trative  law that such discretion has been through  judicial decisions  structured and regulated. This Court  has  there- fore,  despite fluctuating opinions delivered  in  different cases, laid down the broad principle and consistently  acted upon it, namely, that the power to apply for withdrawal from the  prosecution  can be exercised only  in  furtherance  of justice. It was pointed out by this Court in M.N. Sankarana- rayanan  Nair V.P.V. Balakrishnan and others, [1972]  2  SCR 599,  "the essential consideration which is implicit in  the grant  of the power is that it should be in the interest  of administration  of justice." So also, one of us,  (Bhagwati, J. as he then was) said in State of Orissa v. C.  Mohapatra, [1977]  1 SCR 385 "the ultimate guiding  consideration  must always  be the interest of administration of Justice."  That is  the broad principle under which the  Public  prosecutor, must  bring  his  case in order to be able  to  justify  his application  for withdrawal from the prosecution.  What  are the  different grounds which may possibly come  within  this principle  is a matter which we shall presently discuss  but whatever be the grounds on which the application is made  it can  be  sustained only if those grounds  are  relatable  to furtherance of public justice.     There was one major question debated before us in regard to  the position of the Public Prosecutor in relation to  an application  for  withdrawal from the  prosecution  and  the issue was as to what is the degree of autonomy conferred  on the Public Prosecutor vis-a-vis the Government whilst filing an application for withdrawal. This issue can be operationa- lised  into three different questions: (1) Does section  321 permit  a Public Prosecutor to withdraw from a case  without seeking the opinion of the Government (2)whether section 321 empowers a Public Prosecutor to refuse to withdraw from  the prosecution despite the advice of the Government to withdraw and (3) where a public prosecutor withdraws from the  prose- cution  on the advice and direction of the Government,  does he  act  contrary to the requirement of section  321?  These questions  have presented a lot of difficulty  and  unfortu- nately as mentioned earlier the decisions of this Court have not been 750 consistent in the answer to be given to these questions.  We shall  refer to a few of these decisions. In State of  Bihar v.  Ram  Naresh Pandey; [1957] SCR 279 which  is  the  first important case dealing with the interpretation and  applica- tion  of section 321, this Court while deliberating  on  the role of a Public Prosecutor said:-               "   .......  it is right to remember that  the               Public Prosecutor (though an executive officer               as  stated by the Privy Council in Bawa  Faqir               Singh v. The Kind Emperor, [1938] L.R. 65 I.A.               388,  395)  is, in a larger sense  ,  also  an               officer  of the Court and that he is bound  to               assist  the Court with  his  fairly-considered               view  and  the Court is entitled to  have  the               benefit of the fair exercise of his  function.               It  has  also to be appreciated that  in  this               country  the scheme of the  administration  of               criminal justice,is that the primary responsi-               bility of prosecuting serious offences  (which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 70  

             are  classified as cognizable offences) is  on               the executive authorities. Once information of               the commission of any such offence reaches the               constituted  authorities,  the   investigation               including  collection  of the  requisite  evi-               dence,  and  the prosecution for  the  offence               with  reference  to  such  evidence,  are  the               functions of the executive. But the Magistrate               also  has his allotted functions in course  of               these  stages.  "............... In all  these               matters  he exercises discretionary  functions               in respect of which the initiative is that  of               the executive but the responsibility is his." These observations seem to suggest that the prosecution  for an  offence  is the function of the Executive and  that  the Public  Prosecutor  is really an Executive  Officer  who  is conducting  the prosecution on behalf of the State. So  also in  M.N. Sankarayaraya Nair v. P.V. Balakrishnan and  others (supra)  we  find that there is a paragraph which  seems  to impliedly  accept  governmental directive in the  matter  of withdrawal  from  the  prosecution as  legitimate  and  that paragraph reads as follows:-               "The  appellant’s  Advocate later  during  the               course of the argument conceded that there  is               no  force  in  the first  of  his  contentions               namely  that  the  Public  Prosecutor   cannot               either  be  asked by the State  Government  to               consider  the filing of a petition under  sec-               tion 494 nor would it be proper for him if  he               was of the opinion that the prosecution  ought               not  to  proceed  to get the  consent  of  the               Government to the               751               filing  of a petition under that  section  for               obtaining permission of the Court to  withdraw               from the prosecution." This  Court also seemed to accept in State of Orissa  v.  C. Mohapatra  (supra) that the policy decision  for  withdrawal from  the  prosecution can be made by the State  though  the application  for  withdrawal  would be made  by  the  Public Prosecutor. This is what the Court said in that case:               "We  cannot forget that ultimately  every  of-               fence  has Social or economic cause behind  it               and  if  the State feels that  elimination  or               eradication  of the social or  economic  cause               behind  it would be better served by not  pro-               ceeding with the prosecution the State  should               be at liberty to withdraw." (italics are ours) This  position  seems  to obtain until 1978 so  far  as  the decided cases are concerned.     But  in 1978 the trend changed when in Balwant Singh  v. State of Bihar; [1978] 1 SCR 604 the view that found  favour was  that the Public Prosecutor is the primary authority  to decide  on the question of withdrawal from the  prosecution. This Court speaking through Krishna Iyer, J observed in this case:-               "The  Statutory  responsibility  for  deciding               upon  withdrawal squarely vests on the  public               prosecutor. It is non-negotiable and cannot be               bartered  away in favour of those who  may  be               above  him  on the  administrative  side.  The               Criminal Procedure Code is the only matter  of               the  public  prosecutor and he  has  to  guide               himself  with reference to Criminal  Procedure               Code only’.  .....  Here, the Public  Prosecu-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 70  

             tor is ordered to move for withdrawal. This is               not  proper for a District Magistrate  to  do.               Indeed,  it is not proper to have  the  public               prosecutor  ordered  about.  It  is   entirely               within  the discretion of the public  prosecu-               tor. It may be open to the District Magistrate               to bring to the notice of the Public  Prosecu-               tor and suggest to him to consider whether the               prosecution  should  be withdrawn or  not.  He               cannot command where he can only command." This decision for the first time made the Public  Prosecutor autonomous of the Executive in so far as withdrawal from the prosecution is 752 concerned and held that the Public Prosecutor must apply his own  mind and come to his own decision whether to apply  for withdrawal or not, irrespective of the opinion or advice  of the Executive.     The same view was reiterated by Krishna lyer J.,  speak- ing on behalf of the Court, in Subhash Chander v. State  and others (supra) where the learned Judge said:-               "The functionary clothed by the Code with  the               power to withdraw from the prosecution is  the               Public  Prosecutor. The Public  Prosecutor  is               not  the executive, nor a flunk  of  political               power. Invested by the Statute with a  discre-               tion to withdraw or not to withdraw, it is for               him to apply an independent mind and  exercise               his discretion. In doing so, he acts as a limb               of the judicative process, not as an extension               of the executive." The  learned  Judge strongly depricated the  action  of  the District  Magistrate in directing the Public  Prosecutor  to withdraw the prosecution in the case before him and observed in words admitting of no doubt:-               "The jurisprudence of’ genuflexion is alien to               our system and the law expects every reposito-               ry of power to do his duty by the Constitution               and  the law, regardless of  commands,  direc-               tives,  threats and temptations. The  Code  is               the  master  for  the  criminal  process.  Any               authority who coerces or orders or pressurises               a functionary like a public prosecutor, in the               exclusive province of his discretion  violates               the rule of law and any public prosecutor  who               bends before such command betrays the authori-               ty  of his office. May be, Government  or  the               District  Magistrate  will  consider  that   a               prosecution or class of prosecutions  deserves               to  be withdrawn on grounds of policy or  rea-               sons  of public interest relevant to  law  and               justice  in their larger connotation  and  re-               quest the public prosecutor to consider wheth-               er  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." this  case  also, like the earlier one in Balwant  Singh  v. State of Bihar 753 (supra),  introduced the concept of independent  application

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 70  

of  mind by the Public Prosecutor on the question  of  with- drawal from the prosecution and insisted that the  Executive cannot  direct or pressurise the Public Prosecutor to  with- draw  from  the prosecution and the Public  Prosecutor  must come to his own decision without bending before the  command of the Executive. Once this component of independent  appli- cation  of  mind on the part of the  Public  Prosecutor  was introduced  the Court while considering whether consent  for such  withdrawal  should be granted or not was  required  to deliberate  not only on the legitimacy of the grounds  urged in  support  of the withdrawal but also whether  the  Public Prosecutor had applied his mind in the matter.      But  then again there was a slight shift in this  posi- tion in the latest decision in R.K. Jain v. State, [ 1980] 3 SCR 982. The Court in this case adopted a more middle of the road  approach and after pointing out what ’the  Court  con- ceived  to be the correct position in law in  the  following words:-               "Whilst at one point it said that 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 reasons  which               prompt the Public Prosecutor to withdraw  from               the prosecution. The Court has a responsibili-               ty and 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.321 Cr. PC." (emphasis is ours) The  Court recognised that the Government has a role in  the administration of criminal justice and observed:                       "An elected Government, sensitive  and               responsive to the feelings and emotions of the               people,  will be amply justified if  for  pur-               poses of creating an atmosphere of goodwill or               for  the  purpose of not disturbing  the  calm               which  has descended it decides not to  prose-               cute 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  interest  to               withdraw from               754               prosecutions,  how  is the  Government  to  go               about to task?" (emphasis is ours). and  proceeded to add that the Public Prosecutor may act  on the  advice of the Government in applying for withdrawal  of the prosecution "where large and sensitive issues of  public policy are involved." Chinnappa Reddy, J. speaking on behalf of the Court elaborated this view in the following words:-               "Where  large and sensitive issues  of  public               policy  are  involved he must if he  is  right               minded  the Public Prosecutor 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               momentous  public policy are involved  and  if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 70  

             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."               (Emphasis is ours) The  majority  Judges however took a different view  in  the present  appeal  when  it was heard by  the  earlier  Bench. Baharul  Islam,  J. stated the view of the majority  in  the following terms:-               "Unlike  the Judge, the Public  Prosecutor  is               not  an absolutely independent officer. He  is               an  appointee  of the Government,  Central  or               State (see sections 24 and 25, CrPC), appoint-               ed for conducting in court any prosecution  or               other proceedings on behalf of the  Government               concerned.  So  there is the  relationship  of               counsel and client between the Public Prosecu-               tor  and the Government. A  Public  Prosecutor               cannot act without instructions of the Govern-               ment;  a  Public Prosecutor cannot  conduct  a               case absolutely on his own, or contrary to the               instruction of his client, namely, the Govern-               ment ... Section 321 of the Code does not  lay               any  bar on the Public Prosecutor  to  receive               any instruction from the Government before  he               files  an application under that  section.  If               the  Public Prosecutor receives such  instruc-               tions, he cannot be said to act under extrane-               ous  influence.  On the contrary,  the  Public               Prosecutor  cannot  file  an  application  for               withdrawal of a               755               case  on his own without instruction from  the               Government ......  In our opinion, the  object               of  Section  321, Cr. P.C. appears  to  be  to               reserve  power to the Executive Government  to               withdraw  any criminal case on larger  grounds               of  public  policy  such  as  inexpediency  of               prosecutions  for  reasons of  State,  broader               ’public interest like maintenance of ,law  and               order, maintenance of public peace and  harmo-               ny,  social, economic and  political;  changed               social  and political situation; avoidance  of               destabilization of a stable government and the               like. And such powers have been, in our  opin-               ion, rightly reserved for the Government, for,               who but the Government is in the know of  such               conditions  and  situations  prevailing  in  a               State or in the country? The Court is not in a               position to know such situations." It will thus be seen that the position in law  in regard  to the  degree  of autonomy enjoyed by  the  Public  Prosecutor vis-a-vis the Government in filing an application for  with- drawal of the prosecution is rather confused and it would be desirable to approach the question on first principle.     Now there can be no doubt that prosecution of an offend- er who is alleged to have committed an offence is  primarily the  responsibility  of the Executive. It is  the  executive which  is vested with the power to file a  charge-sheet  and initiate  a  prosecution.  This power is  conferred  on  the Executive  with  a view to protecting  the  society  against offenders  who  disturb the peace and  tranquillity  of  the society by committing offences. Of course it is left to  the Court  to decide whether to take cognizance of the  offences

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 70  

set  out in the charge-sheet but the filing of  the  charge- sheet and initiation of the prosecution is solely within the responsibility  of  the Executive. When the  prosecution  is initiated  by  filing a charge-sheet the  Public  Prosecutor comes  into the picture. Of course, even before the  charge- sheet is filed, the investigating, authorities may seek  the advice of the Public Prosecutor in regard to the prosecution of  the  accused but it is not obligatory  on  the  investi- gating authorities to do so. The Public Prosecutor comes  on the  scene as soon as the charge-sheet is filed and  he  ap- pears  and argues the case on behalf of the prosecution.  It is  the  State through the investigating  authorities  which files  a charge-sheet and initiate the prosecution  and  the Public  Prosecutor is essentially counsel for the State  for conducting  the  prosecution  on behalf of  the  State.  The expression "Public Prosecutor" is defined in section  clause (u)  to  mean"  any person appointed under  section  24  and includes any person acting under the 756 directions of a Public Prosecutor." Section 24 provides  for the  appointment of a Public Prosecutor: sub-section (1)  of section  24  states that "for every High Court  the  Central Government or the State Government shall, after consultation with  the  High Court, appoint a Public Prosecutor  and  may also  appoint one or more Additional Public Prosecutors  for conducting  in such court any prosecution, appeal  or  other proceeding  on  behalf of the Central  Government  or  State Government,  as the case may be". (Emphasis is  ours).  Sub- section(3) of section 24 enacts that for every District, the State  Government shall appoint a Public Prosecutor and  may also  appoint one or more Additional Public Prosecutors  for the  district  and under sub-section(7) of  that  section  a person is eligible for being appointed as a Public  Prosecu- tor  or an Additional Public Prosecutor only if he has  been in  practice as an advocate for not less than 7 years.  Thus the  Public  Prosecutor appointed by  the  State  Government conducts  the prosecution on behalf of the State  Government and  the Public Prosecutor appointed by the Central  Govern- ment  does  so on behalf of the Central  Government.  It  is undoubtedly true that the Public Prosecutor is an officer of the  Court, as indeed every advocate practising  before  the Court is, and he owes an obligation to the Court to be  fair and just: he must not introduce any personal interest in the prosecution  nor must he be anxious to secure conviction  at any cost. He must present the case on behalf of the prosecu- tion fairly and objectively and as pointed out by this Court in  State of Bihar v. Ram Naresh Pandey (supra) he is  bound to assist the court with his fairly considered view and  the fair exercise of his judgment. But at the same time it  must be noted that he conducts the prosecution on. behalf of  the Central Government or the State Government, as the case  may be,  and he is an advocate acting on behalf of  the  Central Government  or the State Government which has  launched  the prosecution.  We  are therefore of the view  that  there  is nothing wrong if the Government takes a decision to withdraw from  the prosecution and communicate such direction to  the Public  Prosecutor. The Public Prosecutor would  inter  alia consider  the grounds on which the Government has taken  the decision  to  withdraw  from the prosecution and  if  he  is satisfied that these grounds are legitimate, he may file  an application  for withdrawal from the prosecution. If on  the other  hand  he takes the view that the grounds  which  have been  given by the Government are not legitimate he has  two options available to him. He may inform the Government  that in  his  opinion, the grounds which have  weighed  with  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 70  

Government are not valid and that he should be relieved from the  case and if this request of his is not granted, he  may tender his resignation. Or else, he may make an  application for withdrawal from the prosecution as directed by the 757 Government  and  at the hearing of the  application  he  may offer his considered view to the court that the  application is  not sustainable on the grounds set out by him and  leave it  to the court to reject the application. We do not  think there  is  anything  wrong in the  Public  Prosecutor  being advised or directed by the Government to file an application for withdrawal from the prosecution and the application  for withdrawal made by him pursuant to such direction or  advice is  not necessarily vitiated. The Public Prosecutor  can  of course come to his own independent decision that the  prose- cution should be withdrawn but ordinarily if he is wise  and ’sensible  person he will not apply for  withdrawal  without consulting the Government because it is the Government which has launched the prosecution and is prosecuting the accused. The  critically, of course, he can make an  application  for withdrawal  from  the  prosecution  without  consulting  the Government  and he cannot be accused of any  illegality  for doing  so and the court may give its consent for such  with- drawal but in that event the Public Prosecutor would  render the  risk  of incurring the displeasure  of  the  Government which has appointed him.  If the Public Prosecutor seeks the permission of the Government for withdrawal from the  prose- cution and the Government grants such permission to him  and on  the basis of such permission he applies  for  withdrawal the  application cannot be said to be vitiated. The  proviso to section 321 in fact contemplates in so many terms that in certain  categories  of offences the Public  Prosecutor  ap- pointed  by the State Government cannot move the  Court  for its  consent  to withdraw from the prosecution  without  the permission of the Central Government. There is no danger  of abuse or misuse of power by the Government inherent in  this process  because there are two principal safeguards  against any such abuse or misuse of power by the Government: one  is that the application must be based on grounds which  advance public  justice and the other is that there can be no  with- drawal without the consent of the court.     Now  let  us consider the question as to  what  are  the grounds  on which the Public Prosecutor can apply for  with- drawal  from the prosecution. These grounds have  been  var- iously  stated in the decisions of this Court but the  basic principle  under lying all these grounds is that  the  with- drawal can be sought only for furthering the cause of public justice.  If  we. may repeat what we have said  before,  the paramount  consideration  must  always be  the  interest  of administration of justice. That is the touch-stone on  which the  question must be determined whether an application  for withdrawal  of the prosecution can be sustained. This  Court tried  to  formulate several instances where  the  cause  of public justice Would be served better by withdrawal from the pro- 758 secution.  It was observed by this Court in M.N.  Sankarava- raya  v. P.V. Balakrishnan (supra) that an  application  for withdrawal  from the prosecution may be made on  the  ground that "it will not be possible to produce sufficient evidence to sustain the charge or that subsequent information  before prosecuting agency would falsify the prosecution evidence or in any other similar circumstances which it is difficult  to predicate  aS they are dependent entirely on the  facts  and circumstances of each case". This Court also pointed out  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 70  

State  of  Orissa v. C. Mohapatra (supra) that  "it  is  not sufficient for the Public Prosecutor merely to say’ that  it is not expedient to proceed with the prosecution. He has  to make  out some ground which would show that the  prosecution is sought to be withdrawn because inter alia the prosecution may  not be able to produce sufficient evidence  to  sustain the  charge  or that the prosecution does not appear  to  be well-founded  or that there are circumstances which  clearly show that the object of administration of justice would  not be advanced or furthered by going on with the  prosecution." It  was also emphasised by this Court in Subhash Chander  v. State (supra) that "justice cannot be allowed to be scuttled by  the  Public Prosecutor or the State  because  of  hubris affection  or other noble or ignoble  considerations."  This Court also observed in R.K. Jain v. State (supra):               "In the past we have often known how expedient               and necessary it is in the public interest for               the public Prosecutor to withdraw from  prose-               cutions arising out of mass agitations, commu-               nal   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 prosecu-               tions  in order to restore peace, to free  the               atmosphere from the surcharge of violence,  to               bring  about a peaceful settlement  of  issues               and to persist with prosecutions where emotive               issues are involved in the name of vindicating               the law 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."   It  will  thus be seen that the Public  Prosecutor  cannot maintain an application for withdrawal from the  prosecution on the ground that the 759 Government  does  not want to produce evidence  and  proceed with the prosecution against the accused or that the Govern- ment considers that it is not expedient to proceed with  the prosecution.  The  Public Prosecutor has to  make  out  some ground  which would advance or further the cause  of  public justice.  If the Public Prosecutor is able to show  that  he may  not be able to produce sufficient evidence  to  sustain the charge, an application for withdrawal from the  prosecu- tion  may  be legitimately made by him. But  there  are  two clarifications  which we would like to introduce  where  the prosecution is sought to be withdrawn on this ground.     The first qualification is that where a charge has  been framed by the Court either under section 228 or section  240 of  the  Code of Criminal Procedure, 1973, it would  not  be open  to the Public Prosecutor to apply for withdrawal  from the  prosecution on the ground of insufficiency of  evidence in  support  of the prosecution. The reason  is  that  under section 228 a charge can be framed by the Court only if  the court is of opinion that there is ground for presuming  that the  accused  has  committed an offence and  so  also  under Section  240 the Court can frame a charge only if it  is  of opinion that there is ground for presuming that the  accused has  committed  an offence. The Court in  both  these  cases

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 70  

applies  its mind to the material consisting of  the  police report and the documents sent with it under section 173  and comes to a conclusion that a prima facie case has been  made out  against the accused and the charge should therefore  be framed.  When  the Court has come to this  conclusion  after full consideration and framed a charge, it is difficult’  to see  how on the same material the Court can be persuaded  to hold  that there is not sufficient evidence to  sustain  the prosecution.  How can the Public Prosecutor be permitted  to make  a volte face on the basis of the same  material?  That would  be mockery of justice and it would shake  the  confi- dence  of  the  people in the purity and  integrity  of  the administration  of justice. That is why this  Court  pointed out in Bansi Lal v. Chandi Lal, AIR [1976] SC 370 that,  "if the  material before the Additional Sessions Judge was  con- sidered  sufficient  to  enable him  to  frame  the  charges against  the  respondents, it is not possible  to  say  that there  was no evidence in support of the prosecution  case." So also in Balwant Singh v. State (supra) this Court reiter- ated that "the State should not stultify the Court by  first stating that there is a true case to be tried and then  make volte face to the effect that on a second investigation  the case has been discovered to be false." The Public Prosecutor in  this  last  mentioned case sought to rely  on  a  second investigation for supporting.the application for  withdrawal but, that was clearly and unequivocally not countenanced  by this 760 Court.  Obviously,  the Public Prosecutor would be  on  much weaker ground when on the same material which was before the Court  when it flamed the charge, he subsequently  seeks  to withdraw  the  prosecution on the ground that there  is  not sufficient  evidence  to  sustain the  prosecution.  It  is, therefore, dear that though the prosecution can be withdrawn at any stage, even after the flaming of the charge, it would not  be competent to the Public Prosecutor, once the  charge is framed, to apply for withdrawal of the prosecution on the ground  that  the same material which was before  the  Court when  it framed the charge is not sufficient to sustain  the prosecution.  Of course, if some material  has  subsequently come  to  light which throws doubt on the  veracity  of  the prOsecution  case the Public Prosecutor can certainly  apply for  withdrawal  on the ground that the prosecution  is  not well-founded. It may also happen that in the meanwhile a key witness  may have died or some important evidence  may  have become unavailable or some such thing may have happened;  in that event, the Public Prosecutor may legitimately feel that it  will not be possible to sustain the prosecution  in  the absence  of  such evidence and he may apply  for  withdrawal from  the  prosecution. But, on the  same  material  without anything more, the Public Prosecutor cannot apply for  with- drawal  from the prosecution after the charge is flamed.  To allow  him to do so would impair the faith of the people  in the purity and integrity of the judicial process.     The second qualification which we must introduce relates to  a  situation  where a charge-sheet has  been  filed  but charge  has not been framed in a warrant case instituted  on police  report. Section 239 of the Code of  Criminal  Proce- dure, 1973 provides:-               "If,  upon considering the police  report  and               the  documents sent with it under section  173               and  making such examination, if any,  of  the               accused as the Magistrate thinks necessary and               after  giving the prosecution and the  accused               an opportunity of being heard, the  Magistrate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 70  

             considers the charge against the accused to be               groundless,  he shall discharge  the  accused,               and record his reasons for so doing." Now when a warrant case instituted on a police report  comes before the Court, the Court is required to consider only the police  report and the documents sent alongwith it  and  the Court  may make such examination, if any, of the accused  as it thinks necessary and on the basis of such material if the Court,  after  giving  the prosecution and  the  accused  an opportunity of being heard, considers the charge against the accused  to be groundless, the Court is bound  to  discharge the accused. 761 What  the Court, therefore, does while exercising its  func- tion under section 239 is to consider the police report  and the  document sent along with it as also any statement  made by  the accused if the court chooses to examine him. And  if the  court finds that there is no prima facie  case  against the accused the court discharges him. But that is  precisely what the court is called upon to do when an application  for withdrawal from the prosecution is made by the public prose- cutor  on the ground that there is insufficient or  no  evi- dence to support the prosecution. There also the court would have to consider the material placed before it on behalf  of the  prosecution  for the purpose of  deciding  whether  the ground urged by the public prosecutor for withdrawal of  the prosecution  is justified or not and this material would  be the same as the material before the court while  discharging its function under section 239. If the court while consider- ing an application for withdrawal on the ground of  insuffi- ciency  or, absence of evidence to support  the  prosecution has  to scrutinise the material for the purpose of  deciding whether  there is in fact insufficient evidence or  no  evi- dence at all in support of the prosecution, the court  might as  well  engage itself in this exercise  while  considering under section 239 whether the accused shall be discharged or a  charge  shall be framed against him. It is  an  identical exercise  which  the Court will be  performing  whether  the court  acts under section 239 or under section 321. If  that be so, we do not think that in a warrant case instituted  on a police report the public prosecutor should be entitled  to make  an application for withdrawal from the prosecution  on the  ground  that there is insufficient or  no  evidence  in support of the prosecution. The court will have to  consider the same issue under section 239 and it will most  certainly further  or advance the case of public justice if the  court examines  the issue under section 239 and gives its  reasons for  discharging the accused after a judicial  consideration of the material before it, rather than allow the prosecution to be withdrawn by the Public Prosecutor. When the  prosecu- tion  is allowed to be withdrawn there is always  an  uneasy feeling  in the public mind that the case has not  been  al- lowed to be agitated before the court and the court has  not given  a  judicial verdict. But, if on the other  hand,  the court examines the material and discharges the accused under section  239, it will always carry greater  conviction  with the  people because instead of the prosecution  being  with- drawn  and  taken out of the ken of  judicial  scrutiny  the judicial  verdict based on assessment and evaluation of  the material before the court will always inspire greater confi- dence. Since the guiding consideration in all these cases is the imperative of public justice and it is absolutely essen- tial  that justice must not only be done but also appear  to be done. We would hold that in a warrant case instituted  on a police report--which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 70  

762 the  present  case against Dr. Jagannath  Misra  and  others admittedly is--it should not be a legitimate ground for  the public prosecutor to urge in support of the application  for withdrawal  that  there is insufficient or  no  evidence  in support of the prosecution. The court in such a case  should be  left  to decide under section 239  whether  the  accused should  be discharged or a charge should be  framed  against him.     We may also reiterate what was pointed out by this Court in  State of Orissa v.C. Mohapatra (supra) that in  a  given case it may not be "conducive to the interest of justice  to continue  the prosecution  .... since the  prosecution  with the possibility of conviction" may rouse feelings of bitter- ness and antagonism and disturb the calm and peaceful atmos- phere  which has been restored. We cannot forget that  ulti- mately  every offence has a social or economic cause  behind it  and if the State feels that the elimination or  eradica- tion  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.  This  was the ground on which  this  court  in State of Orissa v.C. Mohapatra (supra) allowed withdrawal of the  prosecution in a case where the incident  resulting  in the  commission  of the offence had arisen  out  of  rivalry between two trade unions but since the date of the  incident calm  and  peaceful atmosphere prevailed in  the  industrial undertaking.  There may be 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  factious milieu which may legitimately  persuade  the State to "sacrifice a pending case for a wider benefit". The imperative of public justice may in such cases transcend and overflow  the legal justice of a particular  litigation.  We are  wholly  in agreement with what this  Court  in  Balwant Singh  v. State of Bihar (supra): "... communal feuds  which may  have been amicably settled should not re-erupt  on  ac- count  of one or two prosecutions pending.  Labour  disputes which,  might have given rise to criminal cases,  when  set- tled, might probably be another instance where the interests of  public  justice in the broader connotation  may  perhaps warrant  withdrawal from the prosecution." We  also  express our approval of the observations made by this Court in  R.K. Jain v. State (supra) which we have reproduced above: These  are broadly the considerations which can  be  brought under  the  rubric  of public justice so as  to  justify  an application for withdrawal from prosecution. But, of course, we  must  make it clear that in this area no hard  and  fast rule can be laid down nor can any categories of 763 cases  be defined in which an application for withdrawal  of the  prosecution could legitimately be made. It  must  ulti- mately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the  ends of justice.     When the application for consent to the withdrawal  from the  prosecution comes for consideration, the Court  has  to decide  whether to grant such consent or not.  The  function which  the court exercises in arriving at this decision,  as pointed  out by this Court in State of Bihar v. Ram  Naresh, is a judicial function. The Court has to exercise its  judi- cial  discretion with reference to such material as is  then available to it and in exercise of this discretion the court has  to  satisfy itself that the executive function  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 70  

public prosecutor has not been improperly exercised and that the  grounds urged in support of the application  for  with- drawal  are  legitimate  grounds in  furtherance  of  public justice. The discretion has not to be exercised by the court mechanically  and  the  consent applied for has  not  to  be granted as a matter of formality or for the mere asking. The Court  has  to consider the material placed  before  it  and satisfy  itself  that the grant of consent would  serve  the interest  of  justice. That is why this Court  in  State  of Bihar  v.  Ram Naresh (supra) examined the  entire  material which  was available to it for the purpose of coming to  the conclusion that there was no evidence worth the name on  the basis  of which the prosecution could be  sustained  against the  accused Mahesh Desai. This court pointed out that  con- sent is not to be lightly given on the application of public prosecutor  "without  a careful and proper scrutiny  of  the grounds  on which the application for consent is  made."  It was  emphasised  by  this Court that in  these  matters  the public  prosecutor  exercises  discretionary  functions   in respect of which the initiative is that of the executive but the  responsibility is that of the court. This  court  again reiterated in M.N. Sankarayaraynanan Nair v. P.V. Balakrish- nan  & Ors. (supra) that the court must satisfy itself  that the executive function of the public prosecutor has not been improperly exercised and that it is not an attempt to inter- fere  with the normal course of justice and added  that  the court may give its permission only if it is satisfied on the materials  placed before it that the grant of  consent  sub- serves the administration of justice. The same view has been taken in all the subsequent cases and it must now be regard- ed as well settled that the court while considering  whether ’to  grant consent or not must not accept the ipse dixit  of the public prosecutor and content itself by merely examining whether  the  public prosecutor has applied  an  independent mind  but  the court must satisfy itself not only  that  the grounds  are  germane or relevant to advancement  of  public justice but also 764 whether the grounds in fact are satisfactorily  established. The  ultimate  test which must be applied by  the  court  in order to determine the validity of the grounds in a particu- lar case is that the requirement of public justice outweighs the  legal justice of that case so that withdrawal from  the prosecution  could  be permitted in the larger  interest  of public  justice. The same considerations which we have  dis- cussed while determining what are the legitimate grounds  on which  an application may be made by the  public  prosecutor for  withdrawal  from  the prosecution must  also  apply  in guiding  the court as to whether consent for  withdrawal  of the  prosecution  should  be granted or not.  We  may  again emphasise that the imperative of public justice provides the only relevant consideration for determining whether  consent should  be granted or not. It is not possible to provide  an exclusive  definition  of what may be  regarded  as  falling within  the imperative of public justice nor is it  possible to  place the concept of public justice in  a  strait-jacket formula.  Every case must depend on its peculiar  facts  and circumstances because there may be a myriad situation  where this  question may have to be considered by this court.  The paramount  consideration must be the requirement  of  public justice  and some of the grounds which would bring the  case within  the fabric of public justice have already been  dis- cussed  by  us in the preceding paragraphs and we  need  not repeat them. The same grounds may be regarded as germane and relevant  to the requirement of public justice and  if  they

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 70  

exist,  the court would be justified in granting consent  to withdrawal from the prosecution.     If we apply these principles to the facts of the present case,  it  is  clear that the court of  the  Chief  Judicial Magistrate,  Patna  as also the High Court were  clearly  in error in granting consent to the withdrawal from the  prose- cution  against  Dr. Jagannath Misra and others. We  do  not propose to go into the question whether the material  avail- able  to the court could be regarded as sufficient for  sus- taining  the prosecution of Dr. Jagannath Misra  and  others because  if we consider this question and make any  observa- tions  in  regard to the sufficiency of the  material,  such observations  may tend to prejudice Dr. Jagannath Misra  and the other accused. Of course, if there were no other reasons which  would persuade the court not to grant consent to  the withdrawal of the prosecution, we would have had to go  into the question whether the material produced before the  court was sufficient prima facie to sustain the prosecution.  But, there are two very strong and cogent reasons why consent  to the  withdrawal of the prosecution must be refused.  In  the first  place,  the learned Chief Judicial  Magistrate  could have  considered  under  section 239  whether  the  material placed before him was 765 sufficient to make out a prima facie case against Dr. Jagan- nath  Misra  and the other accused so that  if  the  learned Chief  Judicial  Magistrate came to the  conclusion  on  the basis of such material that the charge against Dr. Jagannath Misra  and  the other accused was groundless,  he  would  be bound to discharge them for reasons to be recorded by him in writing.  There is no reason why in these circumstances  the public  prosecutor  should be allowed to withdraw  from  the prosecution  under section 321. The same exercise  could  be performed by the learned Chief Judicial Magistrate by acting under section 239. Moreover, in the present case, the  deci- sion  to  withdraw  from the prosecution was  taken  by  the Cabinet  at  a meeting held on 24th February 1981  and  this meeting was presided over by Dr. Jagannath Misra himself. It may be that Shri Lallan Prasad Sinha did not implicitly obey the decision of the Cabinet and applied his independent mind to the question whether the prosecution should be  withdrawn or not but even so, it would seriously undermine the  confi- dence  of the people in the administration of justice  if  a decision to withdraw the prosecution against him is taken by the  accused himself and pursuant to this decision the  Spe- cial Public Prosecutor who is appointed by the State Govern- ment of which the accused is the Chief Minister, applied for withdrawal from the prosecution. It is an elementary princi- ple that justice must not only be done but must also  appear to  be  done. It would be subversive of  all  principles  of justice that the accused should take a decision to  withdraw the prosecution against himself and then the Special  Public Prosecutor appointed in effect and substance by him makes an application  for withdrawal from the prosecution. We are  of the  view  that these two considerations are so  strong  and cogent that consent to withdraw from the prosecution  should not have been granted in the present case.     It  is  no doubt true that if there  is  not  sufficient evidence  to sustain the prosecution against  Dr.  Jagannath Misra and the other accused, it would be subjecting them  to harassment  and inconvenience to require them to appear  and argue before the Court for the purpose of securing an  Order of  discharge  under section 239, but even so  we  think  it would  be desirable in the interest of public  justice  that high’ political personages, accused of offences should  face

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 70  

the judicial process and get discharged, rather than seem to manoeuvre the judicial system and thus endanger the  legiti- macy of the political as well as the judicial process. It is possible  that in a particular case personal  harassment  or inconvenience may be caused by non withdrawal of the  prose- cution, if the accused is really innocent and is  ultimately liable  to be discharged, but such harassment  or  inconven- ience  must  be considered as an inevitable cost  of  public life, which the repositories of public power should have  no hesitation to pay, as justice must not only be 766 done but must also appear to be done.      We  accordingly allow the appeal, set aside  the  Order made  by the Chief Judicial Magistrate and confirmed by  the High  Court  and  direct that the  prosecution  may  proceed against Dr. Jagannath Misra and the other accused in accord- ance with law.     VENKATARAMIAH,  J. I have gone through the judgments  of Bhagwati, C.J. and Khalid, J. which are pronounced today.  I have  also gone through the orders of the Special Judge  who permitted the withdrawal of the prosecution, the judgment of the High Court affirming it, the three judgments  pronounced by  Tulzapurkar, J., Bahrul Islam, J. and R.B. Misra, J.  by which  this Court by majority affirmed the order  permitting withdrawal of the criminal case in question and also of A.N. Sen, J. who passed the orders admitting the review petition. The facts of the case are set out in the judgments  referred to  above and it is unnecessary to repeat them here. I  have given my anxious consideration to the case since it  relates to the purity of public life.     At the outset it should be stated that merely because  a court discharges or acquits an accused arraigned before  it, the Court cannot be considered to have compromised with  the crime. Corruption, particularly at high places should be put down with a heavy hand. But our passion to do so should  not overtake  reason.  The  Court always acts  on  the  material before  it and if it finds that the material is  not  suffi- cient  to  connect  the accused with the crime,  it  has  to discharge or acquit him, as the case may be, notwithstanding the fact that the crime complained of is a grave one.  Simi- larly if the case has been withdrawn by the Public  Prosecu- tor  for  good reason with the consent of  the  Court,  this Court  should be slow to interfere with the order  of  with- drawal.  In this case if the Special Judge had rejected  the application  for withdrawal and the High Court had  affirmed that  Order,  this Court may not have interfered  with  that order  under Article 136 of the Constitution of India.  Even if  the Special Judge had permitted the withdrawal  but  the High Court had reversed that order, this Court may not  have interfered with the orders of the High Court. But this is  a case where the Special Judge had permitted the withdrawal of the  prosecution, and the said order of withdrawal has  been affirmed by the High Court as well as by the majority  judg- ment  pronounced  by  this Court earlier.  The  question  is whether this Court on review should interfere with the order permitting the withdrawal of the ease. Are there any  strong and  compelling reasons which require interference with  the order permitting withdrawal? This is the question which  has arisen before us now. 767     Since the orders of the Special Judge, of the High Court and of Bahrul Islam, J. and R.B. Misra, J. are in favour  of the  accused, I shall not refer to them. I shall refer  only to  the judgment of Tulzapurkar, J. (See  Sheonandan  Paswan versus  State of Bihar and others); [1983] 2 S.C.R. 61,  who

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 70  

has  held  against the accused to decide whether  there  are sufficient  incriminating  circumstances which  compel  this Court  to set aside the order permitting withdrawal  of  the prosecution.  In his judgment at pages 101 to 103  Tulzapur- kar,  J.  summarises the case against  Dr.  Jagannath  Misra thus:               "It  will appear clear from the above  discus-               sion  that the documentary evidence  mentioned               above,  the  genuineness of  which  cannot  be               doubted, clearly makes out a prima facie  case               against Respondent No. 2 sufficient to put him               on  trial for the offence of criminal  miscon-               duct  under s. 5(1) (d) read with s.  5(2)  of               the Prevention of Corruption Act, 1947.  Simi-               lar  is the position with regard to the  inci-               dental offence of forgery under s.466,  I.P.C.               said  to  have  been committed  by  him,  for,               ante-dating of the second order by him is  not               disputed;  and it is on record that in  regard               to such ante-dating no explanation was offered               by  him during the investigation when  he  was               questioned  about  it in the presence  of  his               lawyers  and there has been no explanation  of               any  kind  in any  of  the  counter-affidavits               filed  before  us. But during  the  course  of               arguments his counsel offered the  explanation               that  could  only be ascribed as a  bona  fide               mistake or slip (vide written arguments  filed               on  14.10.1982) but such explanation does  not               bear  scrutiny, having regard to the  admitted               fact  that  after  the  ante-dated  order  was               pasted over the first order the despatch  date               appearing in the margin was required to be and               has been altered to 14.5.1975 by  over-writing               is  required to be done there cannot any  bona               fide  mistake or slip. The ante-dating in  the               circumstances would be with oblique intent  to               nullify any possible action that could have or               might  have been taken pursuant to  the  first               order  as stated earlier, that being the  most               natural consequence flowing from it which must               in law be presumed to have intended. It would,               of course, be open to him to rebut the same at               the trial but at the moment there is no  mate-               rial  on  record--by way of rebuttal.  In  the               circumstances  it is impossible to accept  the               paucity  of  evidence or lack of  prospect  of               successful  prosecution as a valid ground  for               withdrawal from the prosecution. On the               768               aforesaid  undisputed documentary evidence  no               two  views are possible in the absence of  any               rebuttal  material,  which,  of  course,   the               respondent  No.2 will have the opportunity  to               place  before the Court at the trial. What  is               more  the  socalled  unfair  or   over-zealous               investigators were miles away when the  afore-               said evidence came into existence.                        As  far  as Respondent No.  3  (Nawal               Kishore  Sinha) and Respondent No.4  (Jiwanand               Jha) are concerned it cannot be forgotten that               they have been arraigned alongwith  Respondent               No.  2 on a charge of criminal  conspiracy  in               pursuance  whereof  the several  offences  are               said  to have been committed by all  of  them.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 70  

             Further  it  is  obvious  that  the  principal               beneficiary of the offence of criminal miscon-               duct said to have been committed by Respondent               No.  2 under s. 5(1) (d) read with s. 5(2)  of               Prevention  of Corruption Act, 1947  has  been               Respondent No. 3 and so far as Respondent No.4               is  concerned it cannot be said that there  is               no material on record suggesting his complici-               ty.  Admittedly,  he has been  very  close  to               Respondent No. 2 for several years and attend-               ing  to his affairs-priVate and party  affairs               and the allegation against him in the F.I.R is               that he was concerned with the deposit of  two               amounts   of  Rs.  10,000  and   Rs.3,000   on               27.12.1973  and 1.4.1974 in the  Savings  Bank               Account  of Respondent No. 2 with the  Central               Bank  of  India, Patna  Dak  Bungalow  Branch,               which sums, says the prosecution,  represented               some  of the bribe amounts said to  have  been               received by respondent No. 2 and the  tangible               documentary  evidence  in  proof  of  the  two               deposits  having been made in  Respondent  No.               2’s  account consists of two pay-in  slips  of               the concerned branch of Central Bank of India.               Whether the two amounts came from the funds of               the  Patna Urban Co-operative Bank or not  and               whether they were really paid as bribe amounts               or  not would be aspects that will have to  be               considered  at the trial. However, as  pointed               out earlier the offence under s.5(1) (d) would               even otherwise be complete if pecuniary advan-               tage (by way of scuttling the civil  liability               of  surcharge) was conferred on Nawal  Kishore               Sinha  and others. If Respondent No. 2 has  to               face the trial then in a case where conspiracy               has been charged no withdrawal can be  permit-               ted  against Respondent No. 3  and  Respondent               No.  4.  In arriving at  the  conclusion  that               paucity of evidence               769               is not a valid ground for withdrawal from  the               prosecution in regard to Respondents Nos.  2,.               3  and  4. I have deliberately  excluded  from               consideration  the  debatable  evidence   like               confessional statements of the approvers  etc.               (credibility  and effect whereof would be  for               the  trial court to decide) said to have  been               collected by the allegedly over-zealous inves-               tigating  officers after Respondent No.2  went               out of power in 1977."     The  three circumstances put up against the  accused  in this  case are (i) that Jiwanand Jha had credited  Rs.10,000 and  Rs.3000 on 27.12.1973 and on 1.4.1974  respectively  in the  Savings Bank account of Dr. Jagannath Misra, (ii)  that there  was ante-dating of the order passed by Dr.  Jagannath Misra  on  16.5.1975 and it had been shown  as  having  been passed on 14.5.1975, and (iii) that there was a confessional statement of Hydari which supported the prosecution.  Tulza- purkar,  J.  himself  has found it not safe to  act  on  the confessional  statement.  He observes "I  have  deliberately excluded  from  consideration the  debatable  evidence  like confessional statement of approvers (credibility and  effect whereof would be for the trial court to decide) said to have been  collected by the allegedly over-zealous  investigating officers after Respondent No. 2 went out of power in  1977".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 70  

The  two  other circumstances on which Tulzapurkar,  J.  has acted  are (i) the crediting of Rs. 10,000 and  Rs.3,000  on 27.12.1973  and  1.4.1974 respectively in the  Savings  Bank Account of Dr. Jagannath Misra by Jiwanand Jha and (ii)  the ante-dating of the orders dated 16.5.1975.     As  regards the first of these two circumstances  Tulza- purkar, J. Observes: "Admittedly, he (Jiwanand Jha) has been very  close  to Respondent No. 2 (Dr. Jagannath  Misra)  for several years and attending to his affairs-private and party affairs and the allegation against him in the F.I.R. is that he  was  concerned with the deposit of two. amounts  of  Rs. 10,000  and Rs.3,000 on 27.12.1973 and on  1.4.1974  respec- tively in the Savings Bank Account of Respondent No. 2  with the Central Bank of India, Patna Dak Bungalow Branch,  which sums,  says  the prosecution represented some of  the  bribe amounts  said to have been received by Respondent  No.2  and the tangible documentary evidence of the two deposits having been  made  in Respondent No. 2’s account  consists  of  two pay-in-slips  of  the concerned Branch of  Central  Bank  of India.  Whether the two amounts came from the funds  of  the Patna  Urban Co-operative Bank or not and whether they  were really  paid as bribe amounts or not would be  aspects  that will  have to be considered at the trial". On this  observa- tion, it has to be stated, that it 770 has  not been shown by any extract of bank account that  the said  two sums came from the Patna Urban Co-operative  Bank. If  that  was so there would have been entries in  the  Bank accounts.  Mere  crediting of two sums,  without  any  other reliable  evidence, in a bank account by a politically or  a friend  does  not by itself show that the sums  were  either bribe  amounts or any official. favour had been shown.  This fact  by  itself is not conclusive about the  guilt  of  the accused.     As regards the ante-dating of the order dated  16.5.1975 it  may be noticed that Tulzapurkar, J. himself observes  in the course of his order "It is true that a mere  ante-dating a  document  or an order would not amount to an  offence  of forgery but if the document or the order is ante-dated  with the  obligue  motive or fraudulent  intent  indicated  above (without  the  same  actually materialising) it  will  be  a forgery."     The  passing of the two orders one on 16.5.1975  on  the note  sheet  and  the other on buff  paper  which  is  dated 14.5.1975 is not in dispute. It is explained that it was the practice in the Bihar Secretariat that whenever an order  is changed  it  is done by writing the later order on  a  buff- sheet  and  pasting it on the earlier order. We  were  shown another  file of the Bihar Government where similar  pasting had  been  done. Tulzapurkar, J. observes that  "the  second order which was ante-dated with the obvious fradulent intent of  nullifying or rendering any action that could have  been or  in  fact  might have been taken (even  if  not  actually taken)  pursuant to the first order after the file had  left the  Chief Minister’s Secretariat on 16.5.1975,  that  being the most material consequence flowing from the act of  ante- dating the second order". It is not shown by the prosecution that  any action had been taken pursuant to the order  dated 16.5.1975  by  any of the departmental authorities.  If  any action had been taken it would have been a matter of  record readily available for production. No such record is produced before the Court. Hence it is a mere surmise to say that any such  action was sought to be nullified,  particularly  when there was no acceptable evidence at all on the communication of  the order dated 16.5.1975 to any  departmental  authori-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 70  

ties. I also adopt the reasons given by Bahrul Islam. J. and R.B. Misra, J. in support of my judgment.     In  fact  about  23 criminal cases  have  been  launched against  Naval  Kishore Sinha and others  for  the  offences alleged  to have been committed by them. They  remain  unaf- fected. The questions involved in this case are whether  Dr. Jagannath  Misra has been a privy to the misdeeds  committed in  the  Patna Urban Co-operative Bank, whether he  and  his co-accused should be prosecuted for the offences of conspi- 771 racy,  bribery etc., and whether the Public  Prosecutor  had grievously erred in applying for the withdrawal of the case. All the other Judges who have dealt with the case on  merits from the Special Judge onwards, except Tulzapurkar, J., have opined that the permission was properly given for  withdraw- al. In the circumstances, it is difficult to take a  differ- ent view in this case.     I  respectfully  agree with the legal  position  flowing from  section.  321  of the Code of  Criminal  Procedure  as explained  by Krishna Iyer and Chinnappa Reddy, JJ.  in  re- spect  of cases relating to Bansi Lal and Fernandes in  R.K. Jain  etc.,  v.  State through Special Police  Establishment and  Ors.,  etc.  etc., [1980] 3 S.C.R. 982.  In  that  case Chinnappa  Reddy, J. has summarised the true legal  position thus:               "1.  Under the scheme of the Code  prosecution               of  an offender for a serious offence is  pri-               marily 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  prose-               cution  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 pauci-               ty  of evidence but on other relevant  grounds               as well in order to further the 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  enter-               prise.               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.               772               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 reasons which prompt the  Public

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 70  

             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.321  Criminal               Procedure Code. The independence of the  judi-               ciary  requires  that once the case  has  tra-               velled  to the Court, the Court and its  offi-               cers  alone’ must have control over  the  case               and decide what is to be done in each case."     In the circumstances of this case I find it difficult to say  that the Public Prosecutor-had not applied his mind  to the case or had conducted himself in an improper way. If  in the  light of the material before him the Public  Prosecutor has taken the view that there was no prospect of securing  a conviction of the accused it cannot be said that his view is an  unreasonable one. We should bear in mind the  nature  of the role of a Public Prosecutor. He is not a persecutor.  He is the representative not of an ordinary party to a  contro- versy, but of sovereignty whose obligation to govern  impar- tially is as compelling as its obligation to govern at  all, and whose interest, therefore, in a criminal prosecution  is not  that  it shall win a case, but that  justice  shall  be done.  As such he is in a peculiar and very  definite  sense the  servant of the land the two fold aim of which  is  that guilt shall not escape or innocence suffer. He may prosecute with  earnest and vigour indeed, he should do so. But  while he  may  strike hard blows, he is not at liberty  to  strike fould ones. It is as much his duty to refrain from  improper methods calculated to produce a wrongful conviction as it is to use every legitimate one to bring about a just one.  (See Berger v. United States), 295 U.S. 78. It is a privilege  of an accused that he should be prosecuted by a Public Prosecu- tor in all cases involving 773 heinous  charges whenever the State undertakes  prosecution. The judgment of a Public Prosecutor under section 321 of the Code  of Criminal Procedure, 1973 cannot be  lightly  inter- fered with unless the Court comes to the conclusion that  he has  not applied his mind or that his decision is  not  bona fide.     A  person  may have been accused of several  other  mis- deeds,  he  may have been an anathema to a  section  of  the public  media  or he may be an  unreliable  politician.  But these  circumstances should not enter into the  decision  of the  Court while dealing with a criminal charge against  him which must be based only on relevant material.     Judged by the well-settled principles laid down by  this Court in State of Bihar v. Ram Naresh Pandey; [1957]  S.C.R. 279 and R.K. Jain’s case (supra), it is seen that the  aver- ments  in the application are similiar to the avernments  in the application made for withdrawal in the case relating  to Fernandes which are to be found in R.K. Jain’s case (supra). I  feel  that  no case has been made out in  this  case  for interference. I am also of the opinion that there is no need to differ from the legal position expanded in the above  two decisions.  If  any change in the law is needed, it  is  for Parliament to make necessary amendment to section 321 of the Code  of  Criminal Procedure, 1973. It is  significant  that section  321  of  the Code of Criminal  Procedure,  1973  is allowed  to remain in the same form in 1973 even  though  in 1957  this  Court had construed section 494  of  the  former

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 70  

Criminal Procedure Code as laid down in Ram Naresh  Pandey’s case  (supra).  I, however, find it  difficult  to  construe section  321 of the Code of Criminal Procedure, 1973 in  the light of the principles of administrative law.     Before leaving this case I may refer to another  circum- stance  which is rather disturbing. The Review Petition  was filed  before  this  Court after the  retirement  of  Bahrul Islam,  J. Allegations of bias were made against him  appar- ently  to get the petition admitted. But later on they  were withdrawn  before  the  Court hearing  the  Review  Petition pronounced its order. But again in the course of the hearing before this Bench an attempt was made to repeat the  allega- tion  of  bias against the learned Judge. But  on  objection being  taken by the Court, it was promptly  withdrawn.  This conduct  on the part of the appellant deserves to be  depre- cated.     The  Review Petition was admitted after the  appeal  had been dismissed only because Nandini satpathy’s case had been subsequently reffered to a larger Bench to review the earli- er decisions. When the 774 earlier decisions are allowed to remain intact, there is  no justification to reverse the decision of this Court by which the  appeal had already been dismissed. There is no  warrant for  this  extra-ordinary procedure to be  adopted  in  this case. The reversal of the earlier judgment of this Court  by this  process strikes at the finality of judgments  of  this Court  and would amount to the abuse of the power of  review vested  in this Court, particularly in a criminal  case.  It may  be  noted that no other court in the country  has  been given  the  power of review in criminal cases. I am  of  the view  that the majority judgement of Bahrul Islam  and  R.B. Misra,  JJ. should remain undisturbed. This case  cannot  be converted  into  an appeal against the earlier  decision  of this Court.     Having considered all aspects of the case, I agree  with the  decision  of Khalid, J. and dismiss  the  appeal  filed against the judgment of the High court.     KHALID,  J. I regret I cannot persuade myself  to  agree with  the Judgment now pronounced by the learned Chief  Jus- tice, the last portion of which was received by me on 18.12. 1986. It is unfortunate that a discussion could not be  held about this case by the Judges who heard this case, after  it was  reserved for Judgment in September, 1986. It was  by  a sheer  accident that this appeal came before a  Constitution Bench. Criminal Appeal Nos. 48 & 49 of 1983 were  originally directed  to be posted before a Constitution Bench and  this Appeal was also directed to be heard by a Constitution Bench because  the same points were involved. Judgments are  being pronounced  today in those appeals dismissing them.  I  have agreed  with the conclusion but not with the reasoning.  Due to  paucity  of time I have written only  a  short  Judgment there.  This appeal has been pending for a long time. I  am, therefore,  pronouncing a Judgment of my own hurriedly  pre- pared so that this matter can be given quietus.     2.  This appeal had an unpleasant history. I am  grieved at the turn of events in this case. Even so, it is necessary to  have the utmost restraint in dealing with the said  turn of events, because what is involved here, is the credibility of this Court as the Highest Court of the land. In two  well reasoned  concurring Judgments, Beharul Islam, J.  and  R.B. Misra,  J.  dismissed the appeal by  their  Judgments  dated December  16,  1982  and by an  equally  reasoned  Judgment, Tulzapurkar, J. dissented from the main Judgment and allowed the appeal. These Judgments are reported in 1983 (2) SCR 61.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 70  

One  of  the  Judges (Baharul  Islam,J)  demited  office  on 13.1.1983. An application was filed on 17.1.1983, to  review the judgment. This application can only 775 be  to  review the concurring judgments.  On  27.1.1983,  an application to raise additional grounds, specifically, based on bias was filed. The review application was considered  in chambers  on  13.4.1983. Notice was  issued,  returnable  on 19.4.1983. In July, 1983, the matter was again considered in chambers  when allegation of bias was given up.  In  August, 1983, the matter was heard in open Court by Tulzapurkar, J., A.N.  Sen,  J. and R.B, Misra, J. On August  22,  1983,  the order worded as follows (reported in 1983(4) SCC 104) was by A.N. Sen, J.               "1,  therefore, admit the review petition  and               direct the rehearing of the appeal." The learned Judge who gave this order justified his  conclu- sion with the following observation:               "In  view of the limited scope of the  present               proceeding  I do not consider it necessary  to               deal  at length with the  various  submissions               made  by  the  learned  counsel  appearing  on               behalf of the parties. In the view that I have               taken after a very anxious and careful consid-               eration of the facts and circumstances of this               case I am further of the opinion that it  will               not  be proper for me in this  proceedings  to               express  any views on the same.  Applying  the               well-settled  principles  governing  a  review               petition and giving my very anxious and  care-               ful  consideration  to the facts  and  circum-               stances  of  this  case, I have  come  to  the               conclusion that the review petition should  be               admitted and the appeal should be re-heard.  I               have  deliberately refrained from  stating  my               reasons and the various grounds which have led               me  to  this conclusion. Any decision  of  the               facts  and  circumstances which, to  my  mind,               constitute errors apparent on the face of  the               record  and  my reasons for the  finding  that               these   facts  and  circumstances   constitute               errors apparent on the face of the record. re-               sulting in the success of the review petition,               may  have the possibility of  prejudicing  the               appeal which as a result of my decision has to               be re-heard." In paragraph 15, the learned judge directed as follows:               "Accordingly, I further direct that the appeal               be re-heard immediately after the decision  of               Nandani Satpathy case." The other Judges agreed with this. 776     3. Thus the Bench that heard the review petition did not disclose  in  the order, the reasons why re-hearing  of  the appeal  was  ordered nor did it outline in the  order,  what constituted  errors  apparent on the face of the  record  to justify  the order passed. By this order, the Bench did  not set  aside  the earlier judgment. All that was done  was  to admit  the review petition and to direct re-hearing  of  the appeal.  The  one question seriously debated at the  bar  is whether the Judgment sought to be reviewed was set aside  or not.  It was forcefully contended that the earlier  judgment was not set aside and was still at large. This was met  with the  plea that if it was not set aside, what is it that  the Court now hears? I will examine this contention presently.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 70  

   4. One incontrovertible fact is that the earlier was not in  terms set aside. Admitting a review petition is not  the same  thing  as setting aside the order, sought  to  be  re- viewed. Order  47 Rule 1 C.P.C. deals with review in civil  matters. Article 137 of the Constitution is a special power with  the Supreme  Court  to review any judgment pronounced  or  order made  by it. An order passed in a criminal case can  be  re- viewed  and set aside only if there are errors  apparent  on the  record.  In this case, we are left only to  guess  what reasons  or grounds persuaded the Judge to pass this  order, for,  the  learned  Judge has  deliberately  refrained  from stating his reasons and ’various grounds’ in the order.     That  the  Judgment was not set aside can  be  concluded from  one important fact. One of the Judges who was a  party to  this  order (R.B. Misra, J) had  earlier  dismissed  the appeal  with  convincing reasons. If the Judgment  was  set, aside  by  the  order passed in  the  review  petition,  the learned  Judge would definitely have given his  own  reasons for  doing so by a separate order. This has not  been  done. All that the order says is that the review petition had been admitted.  The direction to re-hear the  appeal,  therefore, can only be to ascertain reasons to see whether the Judgment need be set aside. In my view, with great respect, it  would be  highly unfair to the learned Judge (R.B. Misra, J. )  to contend that his earlier Judgment was set aside.     It  is  left to us now, the unpleasant task  to  unravel this  mystery and to divine the mind of man. I must  confess my  failure  in this task. After heating the  lengthy  argu- ments,  I have not been able to find any error  apparent  on the  face of the record in the earlier Judgment. The  direc- tion  contained in the second order was to re-hear  the  ap- peal.  That wish has been set aside by the  reviewing  order nor any error 777 discernable  on the face of the record shown, in my  consid- ered view, the original order has to stand, which means that the  appeal  has to be dismissed affirming it. This  is  the short manner in which this appeal can be dismissed and I  do so.  However,  I do not propose to rest  content  with  this manner of disposal of the appeal.     5.  This matter was heard at length. The stand taken  by the  appellant  is that the earlier Judgment  has  been  set aside. Therefore, it is only fair that the facts of the case and the questions of law beating on them are also considered since  the  matter has been placed before a  bench  of  five Judges.     6.  The appeals referred to this Bench do not raise  any questions  of constitutional law. There are  decisions  ren- dered  by  Benches of three Judges and two  Judges  of  this Court wherein the scope of Section 321 of Criminal Procedure Code  (Section 494 of Old Criminal Procedure Code) has  been discussed at length. Two criminal appeals 48 and 49 of  1983 were referred to a Constitution Bench, originally. The Bench that referred these appeals did not doubt the correctness of such  earlier Judgments. The reference order reads  as  fol- lows:               "Special leave granted in both the matters. In               view  of certain decisions referred to at  the               time  of  the hearing of  the  petitions  with               differing interpretations, it appears that  in               order  to clarify the legal  issues  connected               with power of withdrawal of criminal cases and               put  them  beyond pale of controversy,  it  is               better the matter be placed before Hon’ble the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 70  

             Chief  Justice  to place the matter  before  a               larger Bench of five Judges."     It  is this order of reference and the direction by  the Bench that heard the review petition, to re-hear this appeal immediately  after the decision in Nandani Satpathy’s  case, criminal appeal Nos.48 and 49 of 1983, that has brought this case also before this Bench. This is the accidental  coinci- dence  about which reference was made by me in  the  opening paragraph of this Judgment.     7. It is not necessary to deal at length with the  facts leading to this appeal. The background facts have been given in  detail in the Judgment sought to be reviewed. I do  not, therefore, think it necessary to encumber this Judgment with all  the facts. I shall refer only to the bare facts  neces- sary for the purpose of this Judgment. 778     8.  The appellant and respondent No. 2 belonged  to  the rival  political parties. The appellant is a member  of  the Bihar  Legislative Assembly. Respondent No. 2 was the  Chief Minister  of Bihar. Respondent No. 4 was a close  associated of  Respondent  No. 2. Respondent No. 3  started  the  Patna Urban  Co-operative  Bank and became its  Chairman.  He  and respondent No. 2 were close friends. There were some irregu- larities in the affairs of the bank. Proceedings were  taken to  prosecute those connected with the bank for the  irregu- larities. The then Chief Minister (Respondent No. 2) ordered the prosecution of the office bearers and staff of the  bank including  its Honorary Secretary Shri K.P.  Gupta,  Manager M.A. Haidari and the loan clerk.     Consequent  upon  a mid term poll to the  Lok  Sabha  in March,  1977, there was a change of Ministry at the  Centre. In April, 1977, the Patna Secretariat Non-Gazetted Employees Association  submitted a representation against  the  second respondent  to the Prime Minister and the Home  Minister  of the Union Government. In June, the Government, headed by the second respondent, was replaced by the Government headed  by Shri Karpoori Thakur. The Employees’ Association submitted a copy  of their representation to the new Chief  Minister  on July 9, 1977, requesting him to enquire into the allegations against  the second respondent. After a  detailed  procedure and obtaining requisite sanction from the Governor, a crimi- nal case was instituted by the vigilance against the  second respondent  and  others. On 19.2.1979,  a  charge-sheet  was filed.     9. The charge-sheet filed by the State of Bihar  against the  respondents  on 19th February, 1979, was  for  offences under  Sections  420/466/471/109/120-B of I.P.C.  and  under Sections  5(1)(a), 5(a)(b) & 5(1)(d) read with Section  5(2) of  the  Prevention  of Corruption  Act,  1947.  The  charge against the second respondent was that he, who at all  mate- rial  times, was either a Minister or the Chief Minister  of Bihar abusing his position as a public servant, in conspira- cy  with  the other accused, sought to  interfere  with  the criminal prosecution and surcharge proceedings against Nawal Kishore  Sinha and others with a view to obtain  to  himself and  to  the other respondents pecuniary  advantage  to  the detriment  of Patna Urban Cooperative Bank. The Cheif  Judi- cial Magistrate took cognizance of the case on 29.7.1979.     10.  There  was a change of ministry in Bihar  in  June, 1980  and  the second respondent became the  Chief  Minister again. A policy decision was taken on 10.6.1980, that crimi- nal  cases  launched  out of political  vendetta  and  cases relating to political agitation be with- 779 drawn.  On  24.2.1981, the Government  appointed  Shri  L,P.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 70  

Sinha  as  a Special Public Prosecutor.  On  25.2.1981,  the secretary  to the Government of Bihar wrote a letter to  the District  Magistrate  informing him of the  policy  decision taken by the Government to withdraw from prosecution of  two vigilance  cases including the case with which we  are  con- cerned. He was requested to take steps for the withdrawal of the case. On 17th June, 1981, Shri Sinha made an application under  Section  32  1 of the Cr.P.C. to  the  Special  Judge seeking  permission  to  withdraw from  the  prosecution  of respondent  Nos.  2,  3 & 4, on four grounds;  (a)  Lack  of prospect  of  successful  prosecution in the  light  of  the evidence,  (b)  Implication of the persons as  a  result  of political  and  personal vendetta, (c) Inexpediency  of  the prosecution  for the reasons of the State and public  policy and (d) Adverse effects that the continuance of the prosecu- tion  will  bring  on public interest in the  light  of  the changed  situation. The learned Special Judge  gave  consent sought,  by  his  order dated 20th June,  1981.  A  criminal revision was tiled before the High Court against this order. This was dismissed on 14th September, 1981 and this dismiss- al has given rise to this appeal. 11. The application for withdrawal and their order  granting consent are assailed on the following grounds:               (1) The withdrawal was unjustified on merits.               (2)  It was against the principles settled  by               this Court in various decisions governing  the               exercise of power under Section  321 Cr. P.C.               (3)  Neither  the public  prosecutor  nor  the               Special Judge applied their mind in the appli-               cation for withdrawal and in the order  giving               consent.               (4) Shri L.P. Sinha was not competent to apply               for withdrawal since Shri A.K.Datta’s appoint-               ment  to conduct the case under Section  24(8)               of the Cr.P.C. had not been cancelled.               (5)  In  the circumstances of the.  case  Shri               Sinha  did not function independently but  was               influenced and guided by the State  Government               decision in the matter and the withdrawal  was               vitiated for this reason. 12. I will dispose of question No. 4 first. It is not neces- sary to 780 consider  in  detail  the question whether  Shri  Sinha  was competent  to make the application for withdrawal. The  con- tention  is that Shri Sinha’s appointment is bad  since  the earlier  appointment of Shri Datta had not been  set  aside. This case was pressed before the three Judges who heard  the appeal  first and is repeated before us also. All the  three Judges  who  gave the Judgement in the  case  of  Sheonandan Paswan  v.  State  of Bihar & Ors., [1983] 2  SCR  61,  have declined to accept the plea that Shri Sinha was not a compe- tent public prosecutor since Shri Datt’s appointment had not been  cancelled. I adopt the reasons given in  the  judgment and reject the plea repeated before us.     13.  The real question that has to be answered  in  this case is whether the executive function of the public  prose- cutor in applying for, and the supervisory functions of  the Court  in  granting  consent to, the  withdrawal  have  been properly performed or not. The four remaining points enumer- ated above virtually revolve around this question.     14. Section 321 needs three requisites to make an  order under  it  valid; (1) The application should be filed  by  a public  prosecutor  or Assistant public  prosecutor  who  is competent to make an application for withdrawal, (2) He must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 70  

be in charge of the case, (3) The application should get the consent of the Court before which the case is pending.     I find that all the three requisites are satisfied here. The question is whether the functions by the public prosecu- tor and the Court were properly performed. At no stage was a case put forward by any one that the application made by the public prosecutor was either mala fide or that it was not in good  faith.  There  is no allegation of  bias  against  the Special Judge. The application filed by the public  prosecu- tor  discloses  the fact that he had gone through  the  case diary and the relevant materials connected with the case and that  he came to the conclusion that in.  the  circumstances prevailing at the time of institution of the case and inves- tigation  thereof, the case was instituted on the ground  of political  vendetta  and only to defame the’ fair  image  of J.N. Misra. This statement of the public prosecutor has  not been  challenged as borne out of any unwholesome motive.  It has not been made out or suggested that the public  prosecu- tor  was  motivated  by improper  considerations.  The  only contention raised is that the reasons are not sufficient  or relevant. 15..The  public prosecutor should normally be credited  with fair- 781 ness in exercise of his power under Section 321, when  there is  no  attack against him of having acted  in  an  improper manner. He had before him the State Government’s  communica- tion  of the policy taken by it. He had before him the  case diary statements and other materials. He perused them before filing  the application. Thus his part under Section 321  in this  case  has been performed strictly in  conformity  with this Section. The question that remains then is whether  the grounds  urged by him in support of withdrawal  were  suffi- cient  in law. The application clearly shows that Sh.  Sinha applied   his   mind to the facts of, the  case.  One  would normally not expect a more detailed statement in an applica- tion  for withdrawal than the one contained in the  applica- tion  in question, when one keeps in view the scope of  Sec- tion 321 and the wide language it uses. The plea that  there was lack of application of mind by the public prosecutor has only to be rejected in this case.     16.  The  Chief Judicial Magistrate was  acting  as  the Special Judge. In his order giving consent he has  expressly stated  that  he perused the relevant records  of  the  case before  granting consent. This statement was not  challenged in  the  revision petition before the High  Court.  It  has, therefore,  to  be assumed that the Magistrate  perused  the relevant records before passing the order. We must give  due credence  to this statement by the Magistrate. There  is  no other  allegation against the Special Judge. Thus the  func- tion  of the Special Judge was also performed in  conformity with  the Section. The matter was taken in  revision  before the  High Court. The High Court dismissed the  revision  and while  doing  so exercised its power  properly  because  the materials  before the Court would justify only an  order  of dismissal and not an order ordering retrial.     17. Section 32 1 gives the public prosecutor, the  power for  withdrawal of any case to any stage before judgment  is pronounced.  This  pre-supposes  the fact  that  the  entire evidence  may  have  been adduced in the  case,  before  the application is ’made. When an application under Section  321 Cr.P.C. is made, it is not necessary for the Court to assess the  evidence  to  discover whether the case  would  end  in conviction  of acquittal. To contend that the Court when  it exercises its limited power of giving consent under  Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 70  

321 has to assess the evidence and find out whether the case would  end in acquittal or conviction, would be to  re-write Section  321 Cr.P.C. and would be to concede to the Court  a power which the scheme of Section 321 does not  contemplate. The  acquittal or discharge order under Section 321 are  not the  same as the normal final orders in criminal cases.  The conclusion  will not be backed by a detailed  discussion  of the evidence in the case of 782 acquittal  or absence of prima facie case or  groundlessness in  the case of discharge. All that the Court has to see  is whether the application is made in good faith, in the inter- est of public policy and justice and not to thwart or stifle the process of law. The Court, after considering these facts of  the case, will have to see whether the application  suf- fers  from  such improprieties or illegalities as  to  cause manifest  injustice if consent is given. In this case, on  a reading  of  the application for withdrawal,  the  order  of consent  and  the other attendant circumstances, I  have  no hesitation  to hold that the application for withdrawal  and the order giving consent were proper and strictly within the confines of Section 321 Cr.P.C.     18.  While  construing Section 321, it is  necessary  to bear  in  mind the wide phraseology used in it,  the  scheme behind it and its field of operation. True, it does not give any guideline regarding the grounds on which an  application for  withdrawal can be made. But in applying it, we have  to bear in mind that it was enacted with a specific purpose and it would be doing violence ’to its language and contents  by importing  into the section words which are not there or  by restricting  its operation by fetters in the form of  condi- tions and provisos. Its predecessor Section 494 had been  on the  statute book from the inception of the Criminal  Proce- dure  Code. When the code was amended in 1973, this  Section was re-numbered and the only change brought in this  section is to add the words "in charge of the case" while  referring to the Public Prosecutor or Assistant Public Prosecutor.     19.  The old code contained a section which enabled  the Advocate  General  to inform the High Court before  which  a case  is pending at any stage before the return of the  ver- dict  that he will not further prosecute the defendant  upon the  charge. This was Section 333 Cr.P.C. The discretion  of the Advocate General under this Section was absolute. It was not  subject to any control. When the Advocate  General  in- forms  the High Court that he does  not propose  to  proceed with  the prosecution, the Court has no alternative  but  to stay  all  proceedings and to act in  accordance  with  that section.  That section has now been deleted from  the  Code. Public  Prosecutors  are lesser mortals  and  therefore  the discretion given to them by section 321 is less plenary  and is made subject to one limitation and that is the consent of the Court before which the prosecution is pending.     Section 333, which was deleted consequent on the discon- tinuance of original criminal trials in the High Court,  has still a beating, while considering the scope of Section 32 1 corresponding to Section 783 494  of the earlier code and a comparative study of the  two sections  and  their  scope will be  appropriate.  Both  the Sections  pertain  to withdrawal of prosecutions  though  at different  level.  A  harmonious view should,  in  my  view, prevail in the reading of the two sections. Section 333 does not  give any discretion or choice to the High Court when  a motion  is made under it. Such being the case,  Section  321 must  also be construed,as conferring powers within  circum-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 70  

scribed limits to the Court to refuse to grant permission to the public prosecutor to withdraw the prosecution. If such a harmonious  view  is  not taken it would then  lead  to  the anomalous  position  that while under Section  333,  a  High Court  has to yield helplessly to the representation of  the Advocate  General and stop the proceedings and discharge  or acquit the accused, the subordinate courts when moved  under Section  321  Cr.P.C. would have a power to refuse  to  give consent for withdrawal of the prosecution if it is of  opin- ion  that the case did not suffer from paucity of  evidence. The  legislature would not have intended to  confer  greater powers  on the subordinate courts than on the High Court  in the exercise of powers under Section 494 of the old Code and Section  333 respectively. It would, therefore, be just  and reasonable  to  hold that while conferring powers  upon  the subordinate  courts under Section 494 to give consent  to  a public prosecutor withdrawing the prosecution, the  legisla- ture  had  only intended that the courts  should  perform  a supervisory function and not an adjudicatory function in the legal sense of the term.               Section 321 reads as follows:               "321. Withdrawal from prosecution--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." (Proviso omitted) This Section enables the Public prosecutor, in charge of the case  to withdraw from the prosecution of any person at  any time before the 784 Judgment is pronounced, but this application for  withdrawal has  to get the consent of the Court and if the Court  gives consent  for such withdrawal the accused will be  discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed.  It clothes the public prosecutor to withdraw from the  prosecu- tion  of  any  person, accused of an offence  both  when  no evidence is taken or even if entire evidence has been taken. The  outer limit for the exercise of this power is  "at  any time before the Judgment is pronounced".     20. The Section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations  on which the Court is to grant its  consent. 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 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  jus- tice for illegitimate reasons or purposes.     21.  The Court’s function is to give consent. This  sec- tion  does not obligate the Court to record  reasons  before consent  is  given. However, I should not be taken  to  hold

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 70  

that  consent of the Court is a matter of course.  When  the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him,  the Court exercises its judicial discretion by considering  such materials and on such consideration, either gives consent or declines  consent.  The section should not be  construed  to mean  that the Court has to give a detailed  reasoned  order when  it gives consent. If on a reading of the order  giving consent,  a higher Court is satisfied that such consent  was given  on an overall consideration of the  materials  avail- able, the order giving consent has necessarily to be upheld.     22.  It  would  be useful to compare the  scope  of  the Court’s power under Section 321 with some other sections  of the  Code. There are some provisos in the Code which  relate to the manner in which Courts have to exercise their  juris- diction  in  pending cases when applications  are  made  for their  withdrawal or when the Court finds that there  is  no ground  to proceed with the cases. Sections  203,227,245,257 and  258  are some such sections. Section  203  of  Criminal Procedure Code empowers a Magistrate to dismiss a  complaint at  the initial stage itself if he is of opinion that  there is no sufficient ground for proceeding. But, 785 before  doing so, the Magistrate is called upon  to  briefly record  his reasons for so doing. The Section reads as  fol- lows:               "203. Dismissal of complaint.               If,  after considering the statements on  oath               (if  any) of the complainant and of  the  wit-               nesses and the result of the enquiry or inves-               tigation  (if  any)  under  Section  202,  the               Magistrate  is  of opinion that  there  is  no               sufficient  ground  for proceeding,  he  shall               dismiss the complaint, and in every such  case               he  shall  briefly record his reasons  for  so               doing."     Section 245(1) deals with the power of the Magistrate in discharging  an  accused  when no case  has  been  made  out against  him. However, the Section imposes an obligation  on the Magistrate to record his reasons before discharging  the accused, Section 245(1) reads as follows:               "If, upon taking all the evidence referred  to               in Section 244, the Magistrate considers,  for               reasons  to be recorded, that no case  against               the accused has been made out which, if  unre-               butted,  would  warrant  his  conviction,  the               Magistrate shall discharge him." This section gives the Magistrate, in cases where he consid- ers  that the accused should be discharged, a power to  dis- charge  him  but the power is lettered by an  obligation  to record his reasons for doing so. If reasons are not recorded in  an  order of discharge that would be  violative  of  the mandate of the Section.     Section  245(2) enables the Magistrate to  discharge  an accused  "at  any  previous stage" of the case  also  if  he considers that the charge against an accused is  groundless. Sub-section  (1) deals with a stage when all  evidences  re- ferred  to in Section 244 is taken. Section 244  deals  with evidence in any warrant case instituted otherwise than on  a police  report. It.is when all such evidence has been  taken that the Magistrate can discharge the accused under  Section 245(1),  while Section 245(2) deals with the case  in  which the evidence referred to in Section ’244 has not been taken. Here  again the order of discharge by Magistrate has  to  be supported  with reasons for discharge. Section 245(2)  reads

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 70  

as follows: 786 "Nothing in this section shall be deemed to prevent a Magis- trate from discharging the accused at any previous stage  of the case if, for reasons to be recorded by such  Magistrate, he considers the charge to be groundless." An  order of discharge under either of the two  sub-sections can  be  sustained only if the Magistrate has  recorded  his reasons for discharge.     Section  257 in chapter 20, deals with trial of  summons cases  by  a Magistrate and provides for the  withdrawal  of complaints. It reads as follows:               "257. Withdrawal of Complaint--If a  complain-               ant,  at  any  time before a  final  order  is               passed in any case under this Chapter,  satis-               fies the Magistrate that there are  sufficient               grounds  for  permitting him to  withdraw  his               complaint against the accused, or if there  be               more  than one accused, against all or any  of               them,  the Magistrate may permit him to  with-               draw the same, and shall thereupon acquit  the               accused  against  when  the  complaint  is  so               withdrawn." The wording of this section is also significantly  different from Section 32 1. When a complainant wants to withdraw  his complaint against the accused, the Magistrate can permit him to withdraw the same and acquit the accused against whom the complaint is so withdraw, only when he satisfies the  Magis- trate  that there are sufficient grounds for permitting  him to withdraw his complaint. In. other words, the  complainant cannot  withdraw  his complaint as he pleases  nor  can  the Magistrate permit him to do so unless the Magistrate  satis- fies  himself that there are sufficient grounds to  withdraw the  complaint.  This  section thus  contemplates  an  order disclosing  sufficient grounds to satisfy the Magistrate  to accord  permission  to  withdraw the  complaint.  The  power conferred on a Magistrate under this Section is in order  to ensure that a complainant does not abuse the process of  law by filing a false or vexatious complaint against another and withdrawing  the complaint after adequately embarrassing  or harassing the accused so as to escape the consequences of  a complaint  or suit for malacious prosecution by the  accused in the complaint.     Section  258 Cr.P.C. in the same chapter deals with  the power  of  Magistrate to stop proceedings in  certain  cases which can also be usefully read. 787               "258.  Power  to stop proceedings  in  certain               cases-In any summons case instituted otherwise               than upon complaint, a Magistrate of the first               class  or, with the previous sanction  of  the               Chief Judicial Magistrate, any other  Judicial               Magistrate, may, for reasons to be recorded by               him, stop the proceedings at any stage without               pronouncing any judgment and where such  stop-               page of proceeding is made after the  evidence               of  the principal witness has  been  recorded,               pronounce a judgment of acquittal, and in  any               other  case,  release the  accused,  and  such               release shall have the effect of discharge." This  section deals with the stopping of proceedings at  any stage  without  pronouncing any judgment and  acquitting  or discharging the accused as the case may be, but the  section mandates the Magistrate to record his reasons for doing  so. The  Magistrate, cannot stop proceedings under this  section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 70  

without  recording his reasons. Even in a Sessions case  the Sessions Court cannot exercise its powers of discharge under Section 227 without recording reasons therefore. Section 227 is in the following terms:-               "If,  upon consideration of the record of  the               case  and the documents  submitted  therewith,               and  after  hearing  the  submissions  of  the               accused  and the prosecution in  this  behalf,               the  Judge considers that there is not  suffi-               cient  ground for proceeding against  the  ac-               cused,  he  shall discharge  the  accused  and               record his reasons for so doing." It  is  thus  clear that the scheme of  the  above  Sections differ from Section 321.     The  scope  of Section 321 can be  tested  from  another angle  and  that with reference to Section 320  which  deals with "compounding of offences". Both these Sections occur in Chapter  24  under  the heading "General  Provisions  as  to Enquiries  and Trials". Section 320(1) pertains to compound- ing  of offences, in the table, which are not of  a  serious nature  while  Section  320(2) pertains  to  offences  of  a slightly  serious  in  nature  but  not  constituting  grave crimes.  The offences in the table under Section 320(1)  may be  compounded by the persons mentioned in the third  column of  the table without the permission of the Court and  those given in the Table-II, under Section 320(2) can be compound- ed  only with the permission of the Court. Under  Subsection 4(a),  when  a person who would otherwise  be  competent  to compound  an offence under Section 320, is under the age  of 18 years 788 or  is an idiot or a lunatic, any person competent  to  con- tract  on his behalf may, with the permission of the  Court, compound such offence. Sub-section 4(b) provides that when a person  who  would  otherwise be competent  to  compound  an offence  under this Section is dead, the  legal  representa- tive,  as  defined in the Code of Civil Procedure,  of  such person  may,  with the consent of the Court,  compound  such offence.      These  two  sub-sections use the expression  "with  the permission of the Court" and "with the consent of the Court" which are more or less ejusden generis. On a fair reading of the  above-mentioned Subsections it can be  safely  presumed that  the  Sections confer only a supervisory power  on  the Court  in  the  matter of compounding of  offences.  in  the manner  indicated  therein,  with this  safeguard  that  the accused  does  not by unfair or deceitful  means,  secure  a composition of the offence. Viewed thus I don’t think that a plea  can be successfully put forward that granting  permis- sion  or  giving consent under Subsection 4(a) or  4(b)  for compounding  of an offence, the Court is enjoined to make  a serious detailed evaluation of the evidence or assessment of the  case  to  be satisfied that the case  would  result  in acquittal  or  conviction. It is necessary to bear  in  mind that  an  application for compounding of an offence  can  be made  at any stage. Since Section 321 finds a place in  this chapter immediately after Section 320, one will be justified in saying that it should take its colour from the immediate- ly preceding Section and in holding that this Section, which is  a  kindred to Section 320, contemplates consent  by  the Court only in a supervisory manner and not essentially in an adjudicatory manner, the grant of consent not depending upon a detailed assessment of the weight or volume of evidence to see the degree of success at the end of the trial. All  that is  necessary  for the Court to see is to  ensure  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 70  

application  for  withdrawal has been properly  made,  after independent  consideration, by the public prosecutor and  in furtherance of public interest.      I  referred to these sections only by way of  illustra- tion  to  emphasis the distinction between section  321  and other  sections of the Code dealing with orders  withdrawing criminal  cases or discharging or stopping  proceedings.  My purpose  in referring to the above sections is only to  show that  Section  321, in view of the wide  language  it  uses, enables the public prosecutor to withdraw from the  prosecu- tion any accused, the discretion exercisable under which  is lettered only by a consent from Court on a consideration  of the  materials before it and that at any stage of the  case. The  Section does not insists upon a reasoned order  by  the Magistrate while giving consent. All that is 789 necessary  to satisfy the section is to see that the  public prosecutor  acts  in good faith and that the  Magistrate  is satisfied  that  the exercise of discretion  by  the  public prosecutor is proper.     23.  There is no appeal provided by the Act  against  an order  giving  consent under Section 321. But the  order  is revisable under Section 397 of the Criminal Procedure  Code. Section  397  gives  the High Court or  the  Sessions  Judge jurisdiction  to consider the correctness, legality or  pro- priety  of  any  finding, sentence or order and  as  to  the regularity  of the proceedings of any inferior Court.  While considering the legality, propriety or the correctness of  a finding  or a conclusion, normally, the revising Court  does not dwell at length into the facts and evidence of the case. The Court in revision considers the materials only to satis- fy  itself about the correctness, legality and propriety  of the findings, sentence or order and refrains from substitut- ing  its  own conclusion on an  elaborate  consideration  of evidence.     An order passed under Section 321 comes to this Court by special  leave,  under Article 136 of  the  Constitution  of India.  The  appeal  before us came thus. It  has  been  the declared  policy of this Court not to embark upon  a  roving enquiry  into the facts and evidence of cases like  this  or even  an order against discharge. This Court will not  allow itself  to be converted into a Court of facts and  evidence. This  Court seldom goes into evidence and facts. That is  as it should be. Any departure from this salutary self  imposed restraint  is  not a healthy practice and does  not  commend itself  to  me. It is necessary for this Court  to  remember that as an apex Court, any observation on merits or on facts and  evidence of a case which has to go back to  the  Courts below  will  seriously prejudice the party affected  and  it should  be the policy of this Court not to tread  upon  this prohibited ground and invite unsavory but justifiable criti- cism.  Is  this  Court to assess the evidence  to  find  out whether  there  is a case for acquittal  or  conviction  and convert itself into a trial Court? Or is this Court to order a  retrial and examination of hundred witnesses to find  out whether  the  case  would end in  acquittal  or  conviction? Either of these conclusions in the case is outside the scope of Section 321. This can be done only if we rewrite  Section 321.     24.  Section 321 Cr.P.C. is virtually a step by  way  of composition  of the offence by the State. The State  is  the master of the litigation in criminal cases. It is useful  to remember  that  by the exercise of functions  under  Section 321,  the accountability of the concerned person or  persons does  not disappear. A private complaint can still be  filed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 70  

if a party is aggrieved by the withdrawal of the prosecution but running the 790 possible  risk  of a suit of malicious  prosecution  if  the complaint is bereft of any basis.     25.  Since  Section  32 1 does not  give  any  guideline regarding the grounds on which a withdrawal application  can be made, such guidelines have to be ascertained with  refer- ence  to  decided cases under this section as’ well  as  its predecessor  Section 494. I do not propose to  consider  all the  authorities  cited before me for the reason  that  this Court  had  occasion  to consider the question  in  all  its aspects in some of its decisions. Suffice it to say that  in the Judgments rendered by various High Courts, public  poli- cy, interests of the administration, inexpediency to proceed with  the  prosecution for reasons of State and  paucity  of evidence were considered good grounds for withdrawal in many cases  and not good grounds for withdrawal in certain  other cases depending upon the peculiar facts and circumstances of the  cases in those decisions. AIR 1932. Cal. 699  (Giribala Dasi  v.  Mader Gazi), AIR 1943 Sind 161 (Emperor  v.  Sital Das), AIR 1936 Cal. 356 (Marihar Sinha v. Emperor), AIR 1949 Patna 233 (The King v. Moule Bux and Ors.) AIR 1952 Raj.  42 and 1933 Privy Council 266 are some of the cases which  were brought to our notice.     Ram  Naresh Pandey’s case reported in 1957 SCR 279 is  a land mark case which has laid down the law on the point with precision  and certainty. In this decision the functions  of the  Court  and the Public Prosecutor  have  been  correctly outlined. While discussing the role of the Court, this Court observed:               "His discretion in such matters has necessari-               ly  to be exercised with. reference,  to  such               material as is by then available and it is not               a  prima facie judicial determination  of  any               specific issue. The Magistrate’s functions  in               these matters are not only supplementary, at a               higher  level, to those of the  executive  but               are  intended  to prevent abuse.  Section  494               requiring  the consent of the Court for  with-               drawal  by  the public prosecutor is  more  in               line  with this scheme, than with  the  provi-               sions  of the Code relating to  inquiries  and               trials  by Court. It cannot be taken to  place               on  the Court the responsibility for  a  prima               facie determination of the triable issue.  For               instance the discharge that results  therefrom               need not always conform to the standard of "no               prima  facie case" under Sections  209(1)  and               253(1)  or of ’groundlessness’ under  Sections               209(2)  and 253(2). This is not to say that  a               consent is to be lightly given on the applica-         X       X tion of the               791               public  prosecutor,  without]a  careful   and               proper  scrutiny of the grounds on  which  the               application for consent is made." This decision was approved by this Court in M.N.  Sankarana- rayanan  Nair v. P.V. Balakrishnan & Ors., [1972] 2 SCR  599 as is seen at page 606:               "  .....  In the State of Bihar v. Ram  Naresh               Pandey  (1957 SCR 279) it was pointed  out  by               this  Court that though the Section  does  not               give any indication as to the ground on  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 70  

             the Public Prosecutor may make an  application               on the consideration of which the Court is  to               grant  its  consent,  it  must   none-the-less               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  .....  " 26.  I will now briefly refer to some other cases  cited  to understand  how Courts considered the scope of  Section  321 depending upon the facts of each case.     In the case of Bansi Lal v. Chandan Lal, AIR 1976 SC 370 this Court followed its earlier decision reported in  [1972] 2 SCR 599 which in turn followed [1957] SCR 279 and declined consent  when withdrawal ’was sought on the ground that  the prosecution  did not want to produce evidence  and  continue the criminal matter against the accused. The Sessions  Judge gave  his  consent as it appeared to him "futile  to  refuse permission  to  the  State to  withdraw  prosecution".  This consent was set aside because reluctance to produce evidence was held to be not sufficient ground for withdrawal.     In State of Orissa v. Chandrika Mohapatra & Ors., [1977] 1  SCR  335 the application for withdrawal was made  on  two grounds:  (i) that it was considered inexpedient to  proceed with  the  case;  (ii) that the  evidence  collected  during investigation  was  meagre and no useful  purpose  would  be served by proceedings with the case against the accused. The Magistrate gave consent holding that compelling the State to go on with the prosecution would involve unnecessary expend- iture  and waste of public time. This Court upheld the  con- sent  and held that meagre evidence was a legitimate  ground for  withdrawal.  The following observation at page  338  is useful for our purpose on an important aspect- In that case, as  in this case, the Magistrate had clearly stated  in  his order  that  he was giving consent after going  through  the materials placed before him. This is how the Court summed up its finding: 792               "It is difficult for us to understand how  the               High Court could possibly observe in its order               that  the Magistrate had not perused the  case               diary when in terms the learned Magistrate has               stated in his order that he had read the  case               diary and it was after reading it that he  was               of the opinion that the averment of the prose-               cution  that the evidence was  not  sufficient               was  not iII-founded. Then again it is  diffi-               cult  to comprehend how the High  Court  could               possibly  say  that  the  learned   Magistrate               accorded  consent  to the  withdrawal  of  the               prosecution on the ground that it was  inexpe-               dient  to proceed with the case, when,  in  so               many  terms, the learned  Magistrate  rejected               that  ground and granted consent only  on  the               second   ground   based   on   inadequacy   of               evidence .." When the Magistrate states in his order that he has  consid- ered  the materials, it is not proper for this Court not  to accept  that  statement. The proper thing to do is  to  hold that the Magistrate gave consent on objective  consideration of  the  relevant aspects of the case. It  would  be  acting against  the mandate of Section 32,1 to find fault with  the Magistrate  in such cases, unless the order  discloses  that the  Magistrate has failed to consider whether the  applica- tion is made in good faith, in the interest of public policy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 70  

and justice and not to thwart or strifle the process of law.     In  Balwant  Singh v. State of Bihar, [1978] 1  SCR  604 this  Court felt unhappy when the public prosecutor and  the Magistrate  had  surrendered  their  discretion,  but  still declined to grant leave under Article 136 and the withdrawal stood confirmed.     In Subhash Chander v. State, [1980] 2 SCR 44, this Court upheld the consent given for withdrawal since a fresh inves- tigation  had revealed that the case was framed by the  con- cerned  Police  Officers with ulterior motives.  This  Court observed  that two relevant matters to be  considered  about the consent are: (1) whether the considerations are  germane and  (2)  whether actual decision was taken  by  the  public prosecutor  or he only obeyed the orders dictated to him  by others.     in Rajendra Kumar Jain v. State, [1980] 3 SCR 982,  this Court  had to deal with two sets of cases--one  relating  to the  Baroda  Dynamite case and the other the  Bhiwam  Temple Demolition  case. In that case, this Court summarised  eight propositions  which  are given in the judgment  rendered  by Tulzapurkar,  J.  in Sheonandan Paswan v. State of  Bihar  & Ors., This Court observed that paucity of evidence is not 793 the only ground on which the Public Prosecutor may  withdraw from  the prosecution, though that is a  traditional  ground for  withdrawal. Political purposes and  political  vendetta afford sufficient ground for withdrawal.     27. All the above decisions have followed the  reasoning of  Ram Naresh Pandey’s case and the principles  settled  in that decision were not doubted.     It  is in the light of these decisions that the case  on hand  has to be considered. I find that the application  for withdrawal  by the Public Prosecutor has been made  in  good faith  after careful consideration of the  materials  placed before him and the order of consent given by the  Magistrate was  also  after due consideration of  various  details,  as indicated above. It would be improper for this Court,  keep- ing  in  view the scheme of Section 321, to  embark  upon  a detailed enquiry into the facts and evidence of the case  or to  direct  re-trial for that would be  destructive  of  the object and intent of the Section.     Now, I propose to quickly rush through the facts of  the case to make the discussion complete.     28.  When the matter was first heard by this Court,  the documents produced were profusely referred to by counsel  on both sides. This consisted of also affidavits filed by  both sides.  Baharul Islam, J, after discussing the questions  of law  examined  the factual aspect also.  Referring  to  Shri Venugopalan’s  arguments (the appellants’ counsel then),  on facts, the learned Judge observed as follows:               "The  learned Counsel fairly concedes that  he               does  not take much reliance or Oral  evidence               but  takes  strong reliance on two  pieces  of               documentary evidence, namely alleged  creation               of  forged  documents by Dr.  Mishra  and  the               confessional statement of Haidari  implicating               Dr. Mishra." On this concession, the learned Judge proceeded to  consider the  factual details pressed by th  1 ?798