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PETITIONER: SUBHASH CHANDER

       Vs.

RESPONDENT: STATE (CHANDIGARH ADMN.) & ORS.

DATE OF JUDGMENT15/11/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR  423            1980 SCR  (2)  44  1980 SCC  (2) 155  CITATOR INFO :  RF         1980 SC1510  (12)  RF         1987 SC 877  (21,25,28,76)

ACT:      Criminal Procedure Code, Sections 321, 494-Scope of.

HEADNOTE:      The petitioner  alleged that his house had been burgled and that  many valuables were lost. The police recovered the property. Eventually,  charges were also framed by the trial court  against  two  other  persons  who  were  said  to  be collaborators.      During the  pendency of  the criminal  case, the Asstt. Public Prosecutor  applied for  withdrawal from  prosecution under section  321, Cr.  P.C. on  the ground  that on  fresh investigation by  a senior  officer the  alleged search  and seizure were  discovered to  be a  frame-up by the concerned police  officer  in  order  to  pressurise  the  accused  to withdraw a  certain civil  litigation. The  court required a fuller application,  the Assistant  Public Prosecutor made a fresh and  more detailed  petition for  withdrawal which was eventually  granted   by  the   trial  court,   despite  the petitioner’s remonstrance  that the  withdrawal was prompted by political  influence wielded  by the  jeweller leading to instructions from  high quarters  to  the  Assistant  Public Prosecutor  to   withdraw  from  the  case  concerning  that accused. It was alleged that the Assistant Public Prosecutor did not  apply an  independent mind in carrying out the said instructions. The  trial  court  nevertheless  accepted  the request of  the Assistant  Public  Prosecutor  and  directed acquittal of the jeweller, while continuing the case against the remaining  two accused.  The  order  was  unsuccessfully assailed  in   revision  before   the  High   Court  by  the petitioner.      By special  leave to  appeal under  Article 136  of the Constitution, it was argued on behalf of the petitioner that (i) a  case which  pends in  court cannot  be subject  to  a second police  investigation without  the judge even knowing about it,  (ii) political  considerations of  the  Executive vitiate the motion for withdrawal of pending proceeding, and (iii) the  District Magistrate’s  order to  withdraw from  a case communicated  to the  Public Prosecutor and carried out

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by him, is compliance with section 494.      Dismissing the petition, ^      HELD: When  a crime  is committed,  the  assessment  of guilt and  the award  of punishment  or, alternatively,  the discharge or  acquittal of  the  accused  are  part  of  the criminal justice  process administered  by the courts of the land. It  is not the function of the executive to administer criminal justice and in our system, judges are not fungible. [47 A]      When a  case  is  pending  in  a  criminal  court,  its procedure  and   progress  are   governed  by  the  Criminal Procedure Code  or other  relevant statute. To intercept and recall an  enquiry or  trial in  a court, save in the manner and to  the extent  provided for  in the  law, is  itself  a violation of the law. Whatever needs to be done must be done in accordance  with the  law. The  function of administering justice, under  our constitutional  order, belongs  to those entrusted with  judicial power. One of the few exceptions to the uninterrupted flow of the 45 court’s process is section 321, Cr. P.C. But even here it is the Public  Prosecutor and  not any executive authority, who is entrusted  by the  Code with the power to withdraw from a prosecution, and that also with the consent of the court. To interdict, intercept  or jettison  an enquiry  or trial in a court, save  in the manner and to the extent provided for in the Code itself, is lawlessness. The even course of criminal justice cannot  be thwarted  by the  executive, however high the accused,  however sure Government feels a case is false, however, unpalatable  the continuance  of the prosecution to the powers-that-be who wish to scuttle court justice because of   hubris,   affection   or   other   noble   or   ignoble consideration.  Among   the  very   few  exception  to  this uninterrupted flow  of the court process is section 494, Cr. P.C. Even  here, the  Public Prosecutor  is entrusted by the Code with  a limited  power to  withdraw from  a prosecution with the  court’s consent  whereupon the  case  comes  to  a close. What  the  law  has  ignited,  the  law  alone  shall extinguish. [47 D-H, 48 A]      The promotion  of law  and order is an aspect of public justice. Grounds of public policy may call for withdrawal of a prosecution.  A prosecution  discovered to  be  false  and vexatious cannot  be allowed  to proceed. But the power must be cautiously  exercised, and  the statutory  agency  to  be satisfied is  the Public  Prosecutor in  the first instance, not the  District Magistrate  or other  executive authority. Finally, the consent of the court is imperative. [48 G-H]      There was  no evidence  to support  the  allegation  of political  influence.   At  the   same  time,  the  District Magistrate acted illegally in directing the Assistant Public Prosecutor to  withdraw. It has been alleged that the second investigation of  the case  on the executive side, which led to  the   discovery  that   the  earlier  investigation  was motivated, was  vitiated by  the omission  to  question  the first informant.  That was a matter for the Assistant Public Prosecutor to  consider when  deciding  whether  or  not  to withdraw from  the prosecution.  It is abundantly clear that the Assistant Public Prosecutor made an independent decision on the  material  before  him  and  did  not  act  in  blind compliance with the instructions of the District Magistrate. [50 F-H, 51 A]      The rule  of law  warns off  the executive  authorities from the  justicing process  in the  matter of withdrawal of cases. Since  the courts  were  satisfied  that  the  Public

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Prosecutor did  not yield  to the  directive of the District Magistrate  but  made  an  independent  study  of  informing himself of  the materials  placed before  the court and then sought permission  to withdraw  from the  prosecution,  this court declined to reverse the order of the courts below. [51 F-H]      M.N. Sankaranarayana  Nair v.  P.V. Bala Krishna & Ors. AIR 1972  SC 496: Bansi Lal v. Chandan Lal, AIR 1976 SC 370: Balwant Singh & Ors. v. Bihar, AIR 1977 SC 2265, affirmed.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 2076 of 1978.      From the  Judgment and  Order dated  17-3-1978  of  the Punjab and  Haryana High  Court  in  Criminal  Revision  No. 181/77)      R.L. Kohli,  S.K. Sabharwal and Subhash Chander for the Petitioner. 46      R.N. Sachthey for Respondent No. 1.      Prem Malhotra for Respondent No. 2.      The Order of the Court was delivered by      KRISHNA IYER,  J.-What constrains us to explain at some length our  reasons for rejection of leave to appeal in this case is  the desideratum  that every  executive challenge to justice-in-action is  a call  to  the  court  to  strengthen public confidence  by infusing functional freshness into the relevant law sufficient to overpower the apprehended evil.      The house  of the  petitioner  is  said  to  have  been burgled and  he alleges  that he  lost many  valuables.  The police, on  information being  laid, searched  and recovered the property.  Eventually, charges  were framed by the trial court against one Hussan Lal, a jeweller, and one Madan Lal, an alleged  collaborator (respondents  Nos. 2  and 3 in this petition) under  s. 411  I.P.C. and one Ashok Kumar under s. 380, I.P.C.  During the  pendency of  the criminal case, the Assistant Public  Prosecutor  applied  for  withdrawal  from prosecution under  s. 321,  Cr.P.C. on  the ground  that  on fresh investigation  by a  senior officer the alleged search and  seizure  were  discovered  to  be  a  frame-up  by  the concerned police  officer in order to pressurise the accused Hussan Lal  to withdraw  a certain  civil litigation. On the court requiring  a fuller  application the  Assistant Public Prosecutor made  a fresh  and  more  detailed  petition  for withdrawal which  was eventually granted by the trial court, despite the  petitioner’s remonstrance  that the  withdrawal was prompted  by the  political influence  wielded by Hussan Lal leading  to  instructions  from  high  quarters  to  the Assistant  Public  Prosecutor  to  withdraw  from  the  case concerning that accused. It was alleged that in carrying out the instructions  the Assistant  Public Prosecutor  did  not apply an  independent mind.  The court nevertheless accepted the request  of the Assistant Public Prosecutor and directed acquittal of  Hussan Lal,  while continuing the case against the remaining  two accused.  The  order  was  unsuccessfully assailed  in   revision  before   the  High   Court  by  the petitioner. Undaunted  by that  dismissal, he has moved this court under  Art. 136  of the  Constitution. In  view of the startling disclosures  on either  side we  have listened  at some length  to the  oral submissions  in supplementation of the affidavits in the record.      The three  focal points  of arguments are whether (i) a case which  pends in court can be subject to a second police

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investigation without  the judge even knowing about it, (ii) political considerations of the Executive vitiate the motion for withdrawal of pending proceeding, and (iii) the District Magistrate’s order  to withdraw  from a case communicated to the Public  Prosecutor and carried out by him, is compliance with s. 494. 47      When  a   crime  is  committed  in  this  country,  the assessment  of   guilt  and  the  award  of  punishment  or, alternatively, the discharge or acquittal of the accused are part of  the criminal  justice process  administered by  the courts of  the land. It is not the function of the executive to administer criminal justice and in our system, judges are not fungible, as Justice Dougles in Chandler,(1) asserted:           Judges  are   not   fungible;   they   cover   the      constitutional  spectrum;   and  a  particular  judge’s      emphasis may  make a  world of difference when it comes      to rulings  on evidence.  the temper  of the courtroom,      the tolerance  for a  proffered defense,  and the like.      Lawyers recognize this when they, talk about ’shopping’      for a  judge; Senators  recognize this  when  they  are      asked to  give their  ’advice and  consent’ to judicial      appointments; laymen  recognize this when they appraise      the quality  and image  of the  judiciary in  their own      community." When a case is pending in a criminal court its procedure and progress are  governed by  the Criminal  Procedure  Code  or other relevant statute To intercept and recall an enquiry or trial in  a court,  save in  the manner  and to  the  extent provided for  in the  law, is itself a violation of the law. Whatever needs  to be  done must  be done in accordance with the law.  The function  of administering  justice, under our constitutional  order,   belongs  to  those  entrusted  with judicial  power.   One  of   the  few   exceptions  to   the uninterrupted flow  of the  court’s process  is s.  321, Cr. P.C. But  even here it is the Public Prosecutor, and not any executive authority,  who is  entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of  the court. We repeat for emphasis. To interdict, intercept or  jettison an  enquiry or trial in a court, save in the  manner and  to the  extent provided  for in the Code itself, is  lawlessness. The even course of criminal justice cannot be  thwarted  by  the  Executive,  however  high  the accused, however  sure Government  feels a  case  is  false, however unpalatable  the continuance  of the  prosecution to the powers-that-be who wish to scuttle court justice because of   hubris,   affection   or   other   noble   or   ignoble consideration. Justicing,  under our  constitutional  order, belongs to the judges. Among the very few exceptions to this uninterrupted flow  of the  court process is s. 494, Cr.P.C. Even  here,   the  Public   Prosecutor--not  any   executive authority-is entrusted  by the  Code with a limited power to withdraw from a prosecution, with the      (1)  Chandler  v.  Judicial  Council  of   the   Tenth           Circuit of the U.S. 308 U.S. 74, 1970. 48 court’s consent  whereupon the  case comes  to a close. What the law has ignited, the law alone shall extinguish.      Although skeletal,  the conditions  for such withdrawal are  implicit   in  the   provision,  besides   the  general principles which  have been evolved through precedents. Once a prosecution  is launched,  its relentless course cannot be halted except  on sound  considerations  germane  to  public justice. All  public power is a public trust, and the Public Prosecutor cannot  act save  in  discharge  of  that  public

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trust, a  public trust geared to public justice. The consent of the  court under  s. 321 as a condition for withdrawal is imposed as  a check  on the exercise. of that power. Consent will be  given only if public justice in the larger sense is promoted rather  than subverted  by such withdrawal. That is the essence of the nolle prosequi jurisprudence.      We  wish  to  stress,  since  impermissible  influences occasionally infiltrate  into this  forbidden  ground,  that court justice  is out  of bounds  for  masters  and  minions elsewhere. We  do not  truncate the  amplitude of the public policy  behind   s.  494  Cr.P.C.  but  warn  off  tempting, adulteration of  this policy,  taking the  public prosecutor for granted.  Maybe, the  executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched. The  fact that  broader considerations  of  public peace, larger  considerations of  public  justice  and  even deeper considerations  of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a  factious milieu,  or halting  a  false  and  vexatious prosecution in  a court,  persuades the  Executive, pro bono pulico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the  statutory   agency  to   be  satisfied  is  the  public prosecutor, not  the District  Magistrate or  Minister.  The concurrence  of  the  court  is  necessary.  The  subsequent discovery of  a hoax  behind the  prosecution or false basis for the  criminal proceeding as is alleged in this case, may well be  a relevant  ground for  withdrawal. For  the  court should not be misused to continue a case conclusively proved to be  a counterfeit.  This statement  of  the  law  is  not exhaustive but  is  enough  for  the  present  purpose  and, indeed, is well-grounded on precedents.      The promotion  of law  and order is an aspect of public justice. Grounds of public policy may call for withdrawal of the prosecution.  A prosecution  discovered to  be false and vexatious cannot  be allowed to proceed. The grounds cover a large canvas.  But the  power must  be cautiously exercised, and the  statutory agency  to be  satisfied  is  the  Public Prosecutor  in   the  first   instance,  not   the  District Magistrate  or   other  executive  authority.  Finally,  the consent of the court is impera- 49 tive.  The  law  was  explained  by  this  Court  in  M.  N. Sankaranarayana Nair v. P. V. Bala Krishina & Ors.(1)           "A reading  of Sec.  494 would show that it is the      public prosecutor  who is  in-charge of  the case  that      must ask  for permission  of the Court to withdraw from      the prosecution  of any  person either  generally or in      respect of  one or more of the offences for which he is      tried. This  permission can  be sought  by him  at  any      stage either  during the  enquiry or after committal or      even before  the judgment  is pronounced.  The  section      does not,  however, indicate  the reasons  which should      weigh with  the Public Prosecutor to move the Court for      permission nor  the grounds  on which  the  Court  will      grant or  refuse permission.  Though the  Section is in      general terms  and does  not circumscribe the powers of      the Public  Prosecutor to  seek permission  to withdraw      from the  prosecution the essential consideration which      is implicit in the grant of the power is that it should      be in  the interest  of administration of justice which      may be  either that  it will  not be  able  to  produce      sufficient information  before prosecuting agency would      falsify the  prosecution evidence  or any other similar      circumstances which  it is  difficult to  predicate  as

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    they  are   dependent  entirely   on  the   facts   and      circumstances of  each case. Nonetheless it is the duty      of the Court also to see in furtherance of justice that      the permission  is not  sought on grounds extraneous to      the interest  of justice  or that  offences  which  are      offences against the State go unpunished merely because      the  Government  as  a  matter  of  general  policy  or      expediency unconnected  with  its  duty  to  prosecutor      offenders under  the law  directs the Public Prosecutor      to  withdraw   from  the  prosecution  and  the  Public      Prosecutor merely does so at its behest." The position  was confirmed  in Bansi  Lal v. Chandan Lal(2) and Balwant  Singh &  Ors. v. Bihar(3). The law is thus well settled and  its application  is all that calls for caution. In the  special situation  of this case, two principles must be hammered  home. The  decision to  withdraw must be of the Public Prosecutor,  not of  other authorities, even of those whose displeasure may affect his continuance in office.      (1) A.I.R. 1972 S.C. 496.      (2) A.I.R. 1976 S.C. 370.      (3) A.I.R. 1977 S.C. 2265. 50 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 prosecutor. The  two matters  which are  significant are (a) whether the  considerations are germane, and (b) whether the actual decision  was made  or  only  obeyed  by  the  Public Prosecutor.      In the  setting of  the present facts, the enquiry must be whether the considerations on which withdrawal was sought by  the   Assistant  Public   Prosecutor  were  germane  and pertinent, and  whether the  actual decision to withdraw was made by the Assistant Public Prosecutor or was the result of blind compliance  with executive  authority. If  it  appears from the  material before the Court that germane or relevant considerations did  not prompt the motion for withdrawal but it was  the pressure  of political influence, the Court will withhold its consent.      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  flunkey of political power.  Invested by  the statute with a discretion 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.      In the  present case,  it appears  that when  the court commenced proceedings,  the accused Hussan Lal complained to higher police  officers that  the concerned  Assistant  Sub- Inspector had  initiated the  case merely for the purpose of putting pressure on him to compromise a suit against a close relative. The  allegations were  enquired into  by a  senior officer and  the District  Magistrate, on  the basis  of the material  coming  to  light,  directed  disciplinary  action against  the  Assistant  Sub-Inspector  and  instructed  the Assistant  Public  Prosecutor  to  withdraw  from  the  case against Hussan  Lal. We  find no  evidence  to  support  the allegations of  political influence. At the same time, it is necessary to  point out  that the  District Magistrate acted illegally in  directing the  Assistant Public  Prosecutor to withdraw. It  has been alleged that the second investigation of the  case  on  the  executive  side,  which  led  to  the discovery that  the earlier investigation was motivated, was vitiated by  the omission  to question  the first informant.

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That was  a matter  for the  Assistant Public  Prosecutor to consider when  deciding whether  or not to withdraw from the prosecution.      On the  principal question  arising in  this case,  the record shows  that the Public Prosecutor applied his mind to the disclosures  emerging from  the second  enquiry, and  he found that "even the recovery wit- 51 nesses Sarvashri  Mato Ram  and Phool  Singh did not support that they  had witnessed  the  recovery  or  any  disclosure statement was  made in their presence by Madan Lal accused." He found  that Phool  Singh at  the relevant  time was  bed- ridden and  had since  expired. He also discovered that Mato Ram had stated that nothing had happened in his presence but his signatures  were obtained  by the Investigating Officer. It is  abundantly clear that the Assistant Public Prosecutor made an  independent decision on the material before him and did not act in blind compliance with the instructions of the District Magistrate.      We cannot  dispose of  this  petition  without  drawing attention to  the very  disturbing presence  of the District Magistrate in  the withdrawal proceedings. The jurisprudence of genuflexion  is alien  to our  system and the law expects every repository of power to do his duty by the Constitution and the  laws, regardless  of commands,  directives, 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 authority 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 reasons of public interest relevant to law and justice in their larger  connotation and  request the public prosecutor to consider  whether the case or cases may not be withdrawn. Thereupon, the  Prosecutor  will  give  due  weight  to  the material placed,  the policy  behind the  recommendation and the responsbile  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.      The District  Magistrate who is an Executive Officer is not the  Public Prosecutor and cannot dictate to him either. Maybe,  the   officer  had   not  apprised  himself  of  the autonomous position  of the  Public  Prosecutor  or  of  the impropriety of  his intrusion  into the  Public Prosecutor’s discretion  by   making  an  order  of  withdrawal.  Similar mistakes are becoming commoner at various levels and that is why we have had to make the position of law perfectly clear. We emphasise  that the  rule of  law warns off the executive authorities from  the justicing  process in  the  matter  of withdrawal of  cases. Since we are satisfied that the Public Prosecutor did  not yield  to the  directive of the District Magistrate  but  made  an  independent  study  of  informing himself of  the materials  placed before  the court and then sought permission  to  withdraw  from  the  prosecution,  we decline to reverse the order passed by the courts below. 52      This trial  court  was  satisfied  that  the  Assistant Public Prosecutor  had not exercised the power of withdrawal for any  illegitimate purpose  and the  High Court  endorsed that conclusion.  We are  not disposed to interfere with the order of the High Court.      One obvious  grievance of the petitioner deserves to be remedied. He is interested in getting back his stolen goods.

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The accused claims no property in the goods. In the event of the complainant  identifying them as his property, the trial court will  consider passing  appropriate orders  for  their return to  him. Surely, criminal justice has many dimensions beyond conviction and sentence, acquittal and innocence. The victim is  not to  be forgotten  but must be restored to the extent possible.      The petition is rejected. N.K.A. Petition dismissed. 53