PETITIONER:
MOHD. MUMTAZ
Vs.
RESPONDENT:
NANDINI SATPATHY AND ORS.
DATE OF JUDGMENT20/12/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
BHAGWATI, P.N. (CJ)
KHALID, V. (J)
OZA, G.L. (J)
NATRAJAN, S. (J)
CITATION:
1987 SCR (1) 680 1987 SCC (1) 279
JT 1987 (1) 28
ACT:
Criminal Procedure Code, 1973: ss.321 & 329–Nolle
prosequi-Withdrawal from prosecution–Right of public prose-
cutor–Charge framed against accused–Withdrawal whether
legal.
HEADNOTE:
Section 321 Criminal Procedure Code, 1973 empowers a
Public Prosecutor incharge of a case to withdraw with the
consent of the court from the prosecution of any person in
respect of any one or more of the offences for which he is
tried, at any time before the judgment is pronounced.
Respondent No.1 Ex-Chief Minister of Orissa, was alleged
to have misappropriated a huge sum, said to have been col-
lected by District Congress Committees from various compa-
nies for publication of their advertisements in party’s
souvenirs before the 1971 General Elections. A case was
registered by the Vigilance Department against her and a
charge-sheet submitted. The Addl. Chief Judicial Magistrate
framed charges under ss.406,467,471 and 120 of the IPC.
After the 1980 General Election, the State Government
took a policy decision to withdraw cases against political
leaders who were subjected to victimisation. The Special
Public Prosecutor on being satisfied that the charge of
criminal breach of trust would fail against respondent No.1
filed a petition under s.321 Cr.P.C. and sought the permis-
sion of the court in public interest for withdrawal of the
case, when the case was posted for consideration of charge.
After making an objective assessment of the merits of
the application and being satisfied that the withdrawal of
the prosecution would in no way affect any public interest
or improve any public confidence the Addl. Chief Judicial
Magistrate granted consent to withdraw from the prosecution.
The appellant’s revision petition having been dismissed by
the High Court he appealed by special leave to this Court.
Dismissing the appeal the Court,
692
HELD: Per Oza, J. (Bhagwati C.J.I. and Oza, J.)
I. Once a charge has been framed against the accused on
the basis that there was ground for presuming that he had
committed the offence charged against him, the Public Prose-
cutor cannot make an application for withdrawal from the
prosecution and the Magistrate cannot give his consent to
such withdrawal on the ground that there was insufficient or
no evidence to sustain the prosecution. [698H-699B]
2. The charge of criminal breach of trust framed against
respondent No. 1, however, was totally groundless. There was
nothing on record to indicate that the entrustment of funds
to her was for the specific purpose of being utilised only
for the purpose of publication of advertisements in the
souvenirs. It was not the case of the prosecution that any
of these amounts were handed over by any of the companies to
her. The entrustment of these amounts, if at all, was to the
souvenir committee of the All India Congress Committee and
respondent No. 1 could not be charged for utilising any of
these amounts for the purpose other than that for which it
was entrusted to her. The charge against her, therefore,
could not he sustained. [699E-G]
Instead of permitting the prosecution to he withdrawn
under s.321 the charge framed against respondent No. 1 is
quashed under s.239 of the Code of Criminal Procedure, 1973.
[699H-700A]
Per Venkataramiah, J.
I.I. Consent can he given under s.321 of the Code of
Criminal Procedure, 1973 for withdrawal from the prosecution
of a case at any time before the judgment is pronounced. The
framing of the charge cannot be an impediment to give con-
sent to such withdrawal.
1.2. In the instant case, the Public Prosecutor had
applied his mind to the case before applying for withdrawal
and the Chief Judicial Magistrate had not committed any
error in giving his consent to such withdrawal. The order
was, therefore, fully justified.”
2. The decision in State of Bihar v. Ram Naresh Pandey,
[1957] SCR 279, interpreting s.494 of the Code of Criminal
Procedure, 1898 and the decision in R.K. Jain v. State
through Special Police Establishment & Ors., [1980] 3 SCR
982, interpreting s.321 of the Code of Criminal Procedure,
1973 do not call for any reconsideration.[694C-E]
693
Per Khalid, J.
I. Order of withdrawal passed by the Additional Chief
Judicial Magistrate is upheld. [695D]
2. Consent can be given under s.321 of the Code of
Criminal Procedure for withdrawal from the prosecution of a
case, not only when the charge is not framed but even after
the charge is framed and at any time before the judgment.
[694H-695A]
3. Section 239 of the Code of Criminal Procedure 1973 is
not attracted to the facts of the case for the propriety of
the charge framed was not at issue. [695B, C]
Sheo Nandan Paswan v. State of Bihar, Criminal Appeal
No. 241 of 1983 decided on 20th December 1986, applied.
State of Bihar v. Ram Naresh Pandey, [1957] SCR 279 and
R.K. Jain v. State, [1980] 3 SCR 982, referred to.
Per Natarajan, J.
1. The consent given by the Additional Chief Judicial
Magistrate to the Special Public Prosecutor for withdrawal
of the prosecution suffers from no error of law, patent or
latent. [701G]
2. There is no material in the case to show that the
Special Public Prosecutor was influenced by any improper
motives for filing the application for withdrawal of the
prosecution or that he had acted against his will at the
behest of anyone else. The Additional Chief Judicial Magis-
trate had bestowed judicial consideration over the matter
and had thereafter passed a reasoned order. Not only he but
also the High Court had found after a careful scrutiny of
relevant factors and circumstances, that the application for
withdrawal of the prosecution made by the Special Public
Prosecutor fully satisfied the tests laid down by the Su-
preme Court inasmuch as the Public Prosecutor had not exer-
cised his executive function improperly and also had not
attempted to interfere with the normal course of justice for
illegitimate reasons or purposes. [700D-E, 701.E-F]
State of Bihar v. Ram Naresh Pandey, [1957] SCR 279 and
R.K. Jain v. State, [1980] 3 SCR 982, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.49
of 1983.
694
From the Judgment and Order dated May 14, 1981 of the
Orissa High Court in Crl. R. No. 21 of 1981.
V.J. Francis for the Appellant.
Anil B. Divan, D.P. Singh, G.S. Chatterjee, R.K. Mehta,
Salaman Khurshid, L.R. Singh and Vinoo Bhagat for the Re-
spondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J: I agree that this appeal has to be
dismissed. I am of the view that the decision in The State
of Bihar v. Ram Naresh Pandey, [1957] SCR 279 interpreting
section 494 of the Code of Criminal Procedure, 1898 and the
decision in R.K. Jain etc. v. State through Special Police
Establishment and Others, [1980] 3. SCR 982 interpreting
section 321 of the Code of Criminal Procedure, 1973 do not
call for any reconsideration. I am in full agreement with
the views expressed in these decisions. I am satisfied that
the Public Prosecutor had applied his mind to the case
before applying for withdrawal and the Chief Judicial Magis-
trate has not committed any error in giving his consent to
such withdrawal. Such consent can be given at any time
before the judgment is pronounced. The framing of the charge
cannot be an impediment to give consent to such withdrawal
as it is evident from section 321(b) of the Code of Criminal
Procedure, 1973.
The appeal is, therefore, dismissed.
KHALID, J: I have just received (at 3.45 p.m. on 19th
December, 1986) a draft Judgment by Oza. J. in the above
case. I agree with the conclusion that the appeal has to be
dismissed, but not, with respect, with the reasoning con-
tained in the Judgment. Since the case is listed for Judg-
ment on 20th December, 1986, I do not have time to write a
detailed Judgment.
The question to be decided in this appeal is the scope of
Section 321 of Criminal Procedure Code. Oza, J. has set
aside the permission granted by the Court to withdraw the
prosecution under Section 32 1, Criminal Procedure Code, but
allowed the appeal quashing the charge framed against re-
spondent No. 1 under Section 239 of the Code of Criminal
Procedure. I regret to state that I cannot re-concile myself
with this approach. A cursory. glance at Section 32 1 will
satisfy anyone that consent can be given for withdrawal from
the prosecution of a case,
695
not only when the charge is not flamed, but even after the
charge is framed and at any time before the Judgment.
This appeal along with Criminal Appeal No. 48 of 1983
were directed to be posted before a Constitution Bench to
consider the scope of Section 32 1, Criminal Procedure Code.
That being so, I do not think it proper to abandon that
pursuit and take refuge under Section 239 of Criminal Proce-
dure Code.
In a separate Judgment to be pronounced by me in Crimi-
nal Appeal No. 241 of 1983, I have outlined the scope of
Section 321 of Criminal Procedure Code. What is to be decid-
ed in this case is whether the order passed by the MagiS-
trate under Section 32 1, Criminal Procedure Code, is proper
or not. We are not called upon to consider the propriety of
the charge framed and then examine the evidence and see
whether the accused should be discharged or the charge
framed should be upheld.
I adopt the reasons given by me in Criminal Appeal No.
241 of 1983, relying upon the decision reported in [1957]
SCR 279 (State of Bihar v. Ram Naresh Pandey) and in [1980]
3 SCR 982 (R.K. Jain v. State) and uphold the order of
withdrawal passed by the Additional Chief Judicial Magis-
trate, Bhubaneswar, and upheld by the High Court in revi-
sion, and dismiss the appeal.
OZA, J: [For himself and on behalf of Bhagwati CJ.] The
present appeal by special leave is directed against the
judgment of the High Court of Orissa dated 14th May 1981 in
Criminal Revision No. 21 of 1981 arising out of an order
dated 20th September, 1980 passed by Additional Chief Judi-
cial Magistrate, Bhubaneswar allowing an application filed
by the Special Public Prosecutor wherein he prayed for
withdrawal from the prosecution of the Vigilance Case No. 33
of 1977 against Respondent No. 1 By the impugned judgment,
the High Court dismissed Criminal Revision filed by the
appellant-petitioner and confirmed the order passed by
Additional Chief Judicial Magistrate.
The Vigilance Department submitted a charge-sheet
against respondent No. 1 on the allegation that All India
Congress Party some time before the General Election of the
Parliament in the year 1971 set out a programme to raise
funds for publication of Souvenir on behalf of the said
party by each of the District Congress Committees under
different provincial Congress Committees to educate people
about the policy and programme of the Congress Party and the
achievements in
696
the context of 1971 Elections. It was alleged that the
Souvenir Committee was formed and huge amount was collected
from different companies at Delhi and Bombay for publication
of advertisements in the Souvenirs. It is further alleged
that Smt. Nandini Satpathy respondent No. 1 misappropriated
a sum of Rs. 1,02,200 out of this amount collected from the
companies and did not take steps for asking the Companies’
advertisements for publication in the Souvenirs. It is
alleged that forgery was committed and Shri Ramanath Panda,
respondent No. 2 was also alleged to have participated with
respondent No. 1 in misappropriation of the aforesaid
amount. On the information of Shri Shyamsunder Mohapatra,
Ex-Member of Parliament, a case was registered by the Vigi-
lance Department and ultimately a charge-sheet was submitted
against respondent Nos. 1 and 2. Shri B.M. Patnaik the then
Advocate General of Orissa was appointed as a Special Public
Prosecutor to conduct the case. By order dated 27.9. 1979,
the Additional Chief Judicial Magistrate framed charges
under Sections 406, 467, 471 and 120 of the I.P.C. against
respondent No. 1 and under Section 406 read with Section 34-
of the I.P.C. against respondent No. 2.
After the General Elections of May/June, 1980, Shri
Patnaik resigned from the office.Of Advocate General and
also informed the State Government that he was not inclined
to continue as Special Public Prosecutor in the case against
Smt. Nandini Satpathy. In fact, though the case had been
fixed on a number of dates between July and November, 1980
Shri Patnaik did ‘not appear in the case on any one of these
dates.
Thereafter respondent No. 4 who had been appointed as
Special Public Prosecutor to conduct the cases of the Vigi-
lance Department under Section 24(6) of the Code of Criminal
Procedure was instructed by the Government in the Vigilance
Department to take charge of this case. On 5.11.80, Shri
P.K. Mohanty, Advocate sent a letter to the then Advocate
General Shri Gobind Das requesting him for withdrawal of
this .case and by letter dated 6.11. 1980 the learned Advo-
cate General Shri Gobind Das forwarded this letter of Shri
P.K. Mohanty, Advocate to the Chief Secretary who endorsed
the letter to Inspector General (Vigilance) asking him for
his comments. I.G. of Police (Vigilance) suggested that it
would be proper to obtain the views of the Law Department,
and after receipt of the comments of I.G. of Police (Vigi-
lance) the Chief Secretary referred the matter to the Law
Department for advice and the Legal Remembrancer after
considering the legal position regarding the withdrawal of
the prosecution observed as under:
697
“As it sometimes happens, Political leaders are subjected to
victimisation. Resort is had to law courts to harass politi-
cal rivals. In view of the law laid down by the Supreme
Court Government may take a policy decision to curb such
political victimisation through law Courts and direct with-
drawal irrespective of the question whether or not there is
sufficient evidence in support of the prosecution.
The instant case is one instituted against Smt.
Nandini Satpathy, Ex-Chief Minister of Orissa.’ It is possi-
ble for Government to take notice of the intense political
rivalry between Smt. Nandini Satpathy, on the one hand and
the erstwhile leaders of Janta Party on the other hand that
motive behind institution of such cases was political vic-
timisation rather than vindication of the law. Government
may suggest withdrawal of such cases to the concerned Public
Prosecutor.”
On the receipt of this opinion from the law Department,
the file was endorsed by the Chief Secretary to the Law
Minister and the Law Minister endorsed the file to the Chief
Minister. After considering the matter from all angles, the
Chief Minister passed an order dated 13.11.1980 that the
case be withdrawn. By letter dated 15.11.1980, the I.G.
(Vigilance) communicated the decision of the Government to
withdraw the prosecution to the Special Public Prosecutor
Shri Dibakar Bhuyan and requested him to take necessary
action in the matter. After respondent No. 4 was put in
charge of the case, he examined the case diary and the
connected papers and on being satisfied that the charge of
criminal breach of trust would fail against Smt. Nandini
Satpathy, he filed an application under Section 32 1 of the
Code of Criminal Procedure for withdrawal from the prosecu-
tion on, having found that the charged amounts in this case
are contributions to Souvenir Committee of the All India
Congress Committee and that none of the members of the
Central Souvenir Committee has complained of any dishonest
use or fraud or injury or wrongful loss to the Committee or
AICC for such non-utilisation of the funds and that the
offences charged would ultimately depend upon the proof of
dishonest intention or fraud or wrongfUl loss to the’ Cen-
tral Souvenir Committee or to the AICC. On 16.12. 1980 the
Special Public Prosecutor made an application for additional
ground to be added in the application for withdrawal and the
additional ground alleged was that in public interest and in
the changed circumstances, the State Government desired to
withdraw from the prosecution.
698
After consideration of the case, the Additional Chief
Judicial Magistrate by order dated 20th December, 1980
recorded his consent and permitted the Special Public Prose-
cutor to withdraw from the prosecution. Thereafter one Mohd.
Mumtaz, the present appellant who was not a party to these
proceedings filed a revision petition in the High Court of
Orissa challenging the order of the Additional Chief Judi-
cial Magistrate permitting withdrawal of the case. But by an
order dated 14.5.81 the High Court dismissed the revision
petition. Hence this appeal by special leave.
The F.I.R. in this case was lodged by one Shyamsunder
Mohapatra against respondents Nos. 1 and 2 alleging that in
January and February 1971 certain companies had issued 49
cheques in the names of Presidents of the District Congress
Committees of Orissa totalling Rs.1,08,200 for advertise-
ments to be published in Souvenirs to be brought out in each
district by the respective District Congress Committee.
These cheques were deposited in the account of Chairman,
Souvenir Committee in Canara Bank, Bhubaneswar. It is al-
leged that respondent No. 1 misappropriated the amount by
drawing. in favour of self-bearer 9 cheques aggregating to
Rs.95,000 and two bearer cheques aggregating to Rs.32,854 in
the name of respondent No. 2. It was alleged that neither
advertisements were published nor the amounts returned to
the companies. It is significant to note that Shri Shyamsun-
der Mohapatra was neither an office-bearer of the U.P.C.C.
nor of the A.I.C.C. Admittedly he was neither a member of
the Central Souvenir Committee to which the money was en-
trusted for transmission to the State or the District Con-
gress Committee nor was he in any manner connected with any
of the companies which paid the money for publication of the
advertisements. Shri Shyamsunder Mohapatra lodged the com-
plaint when respondent No. 1 was not the Chief Minister of
the State. He had been suspended from the Congress Party for
his anti-party activities when respondent No. 1 was the
President of the U.P.C.C. and the Chief Minister of Orissa.
It is significant that these monies were paid by various
companies in the name of All India Souvenir Committee and
there is no material to indicate how the All India Souvenir
Committee transferred these cheques to the respective State
Congress Committees or the District Congress Committees.
There is no complaint also from any one of the companies
that the monies paid by them were not utilised for the
purpose for which they were given or were utilised for a
different purpose without their consent.
Now it is difficult to appreciate how the learned Special
Public
699
Prosecutor could make an application for withdrawal from the
prosecution and the learned Chief Judicial Magistrate gave
his consent to such withdrawal on the ground that there is
no evidence to sustain the prosecution when a charge was
already framed against respondent No. 1 on the basis that in
the opinion of the learned Chief Judicial Magistrate who
framed the charge there was ground for presuming that re-
spondent No. 1 had committed the offences charged against
her. There can therefore be no doubt that the withdrawal
from the prosecution could not be permitted on the ground
that there was insufficient’ or no evidence to sustain the
prosecution. But since entire record is before us and the
matter has been argued at great length on :he basis of the
material on record we propose to consider whether the charge
was rightly framed and if we take the view that on the basis
of the material on record no charge could be framed we must
quash the charge against respondent No. 1.
It is clear from the material on record that various
companies all over India gave monies by way of cheques to
the Souvenir Committee of the All India Congress Committee.
We will assume for the purpose. of argument that these
amounts were given by the companies for the purpose of
publication of advertisements in the souvenir which were
entitled to be brought out by each District Congress Commit-
tee, but there is no material on record at all to show that
when these amounts were distributed by the All India Con-
gress Committee to the respective provincial Congress Com-
mittees and by the provincial Congress Committees in their
turn to the respective District Congress Committees, the
entrustment of these amounts by the All India Congress
Committee was expressed to be for the specific purpose of
publication of advertisements in the souvenirs. When there
is nothing to indicate that the entrustment of these amounts
to respondent No. 1 was for the specific purpose of being
utilised only for the purpose of publication of advertise-
ments in the souvenirs, it is difficult to see how any
charge of criminal breach of trust can be sustained against
respondent No. 1. It is not the case of the prosecution that
any of these amounts were handedover by any of the companies
to respondent No. 1. The entrustment of these amounts, if at
all, was to the Souvenir Committee of the All India Congress
Committee and respondent No. 1 could not therefore possibly
be charged for utilising any of these amounts for a purpose
other than that for which it was entrusted to her. We are
therefore of the view that the charge framed against re-
spondent No. 1 was totally groundless and we would therefore
quash it.
We accordingly dismiss the appeal but instead of permitting
the
700
prosecution to be withdrawn under Section 321 we quash the
charge framed against respondent No. 1 under Section 239 of
the Code of Criminal Procedure, 1973.
NATARAJAN, J: This is a case where the Special Public
Prosecutor (Vig.) C.D. Cuttack had filed a petition under
Section 321 Cr.P.C. and sought the permission of the Court
for withdrawal of the case against the first respondent when
the case was posted for consideration of charge. Under
Section 321 Cr.P.C. a Public Prosecutor or Assistant Public
Prosecutor incharge of a case may, with the consent of the
court, at any time before the judgment is pronounced, with-
draw from the prosecution of any person either generally or
in respect of any one or more of the offences for which he
is tried.
In this case the Special Public Prosecutor had set out
in paras 5 and 6 of his application the relevant materials
which had prevailed upon him to seek withdrawal of prosecu-
tion of the case, after obtaining the consent of the Court,
to subserve the interests of justice better. There is no
material in the case to show that the Special Public Prose-
cutor was influenced by any improper motives for filing the
application for withdrawal of the prosecution or that he had
acted against his will at the behest of any one else.
The learned Additional Chief Judicial Magistrate has
bestowed judicial consideration over the matter and has
thereafter passed a reasoned order. While giving his consent
for the withdrawal of the prosecution the learned Magistrate
has borne in mind the principles laid down by this Court in
R.K. Jain v. State, [1980] 3 SCR 982 which has followed the
earlier decision of this Court in State of Bihar v. Ram
Naresh Pandey, [1957] SCR 279. Before passing the order, the
learned Magistrate has been fully alive to the responsibili-
ty of the Court before it grants consent to an application
made under Section 321 Cr.P.C. The portion extracted below
from the order of the learned Additional Chief Judicial
Magistrate fully reveals this position :–
“While mentioning the facts in the petition, I
have already indicated the reasons for which
the prosecutor does not want to prosecute. Now
the Court has to consider whether consent
should be given or not. The discretion as to
whether consent should be given to withdraw is
with the court but it should be exercised
judiciously and on correct legal principles.
It is not to be given as a matter of course
nor the court shall surrender its own inde-
pendence of judgment.”
701
After making an objective assessment of the merit of the
application, the learned Additional Chief Judicial Magis-
trate held that the withdrawal of the prosecution “would in
no way affect any public interest or improve any public
confidence” and concluded as follows:-
“Considering all these circumstances if the
public prosecutor most judiciously thought it
proper to withdraw from the case in my opin-
ion, the court should be not a stumbling block
by disallowing its consent. I feel it just and
proper to allow the petition”.
The order of the learned Additional Chief Judicial
Magistrate was affirmed, after a careful scrutiny by a
learned Judge of the Orissa High Court in Crl. Rev. No. 21
of 1981 filed in the High Court. The learned Judge observed
that the ratio laid down in R.K. Jain v. State (supra)
“would not justify entertaining this application when a
public prosecutor in his application had indicated that the
evidence already collected did not support the prosecution
and there was no prospect of a conviction and the appropri-
ate authority had taken the view that the prosecution in the
broad ends of justice need not continue”.
It may be thus seen that not only the learned Magistrate
but also the High Court has found, after a careful scrutiny
of relevant factors and circumstances, that the application
for withdrawal of the prosecution made by the Special Public
Prosecutor fully satisfied the tests laid down by this Court
in State of Bihar v. Ram Naresh Pandey (supra) reiterated in
R.K. Jain v. State (supra) for its being allowed viz. that
the executive function of the public prosecutor in applying
for withdrawal of the prosecution 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.
The appellant has failed to establish in this appeal
that the consent given by the learned Additional Chief
Judicial Magistrate to the Special Public Prosecutor for
withdrawal of the prosecution suffers from any error of law,
patent or latent. Consequently, the appeal fails and has,
therefore, to be dismissed.
P.S.S. Appeal
dismissed.
702