PETITIONER:
MOHD. MUMTAZ
Vs.
RESPONDENT:
NANDINI SATPATHY AND ORS.
DATE OF JUDGMENT20/12/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
BHAGWATI, P.N. (CJ)
KHALID, V. (J)
OZA, G.L. (J)
NATRAJAN, S. (J)
CITATION:
1987 SCR (1) 680 1987 SCC (1) 279
JT 1987 (1) 28
ACT:
Criminal Procedure Code, 1973– Section 321 — Withdraw-
al from prosecution–Public Prosecutor–Right of–Conditions
under which -withdrawal is permissible– Competency of Court
to permit withdrawal.
HEADNOTE:
Prosecution was launched against Respondent No. 1 under
s.5(1)(d) read with s.5(2) of the Prevention of Corruption
Act, 1947 for having assets disproportionate to her known
sources of income.
The Special Public Prosecutor filed application for
withdrawal of the prosecution against Respondent No. 1. The
Additional Special Judge allowed the application. The High
Court dismissed the revision petition and confirmed the
order permitting withdrawal of the case.
Dismissing the Appeal to this Court,
HELD: Per Venkataramiah, J.
The Public Prosecutor had applied his mind to the case
before applying for withdrawal and the Chief Judicial Magis-
trate has not committed any error in giving his consent to
such withdrawal. [683D-E]
The State of Bihar v. Ram Naresh Pandey, [1957] S.C.R.
279 and R.K. Jain etc. v. State through Special Police
Establishment and others, [1980] 3 SCR 982, Relied upon.
Per Khalid, J.
1. What is to be decided in this case is whether the
order passed by the Magistrate under s.32I, Criminal Proce-
dure Code, is proper or not. The Court is not called upon to
consider the propriety of the charge framed and then examine
the evidence and see whether the accused should be dis-
charged or the charge framed should be upheld. [684D-E]
2. Consent can be given for withdrawal from the prosecution
of a
681
case, not only when the charge is not framed, but even after
the charge is framed and at any time before the judgment.
[684B-C]
The State of Bihar v. Ram Naresh Pandey, [3957] SCR
279 and R.K. Jain etc. v. State through Special Police
Establishment and others, [1980] 3 SCR 982, Relied upon.
Per Oza, J.
I. Ordinarily when the exercise of considering the
material on record for the purpose of determining whether
there is sufficient material to sustain the prosecution can
be performed by the Court under s.239 of the Code of Crimi-
nal Procedure 1973, the Court should not allow the prosecu-
tion to be withdrawn under s.321. [688C-E]
2. In the present case, there is no point in setting
aside the withdrawal and sending the case hack to the Spe-
cial Judge because there is no material at all to show that
there is a prima facie case and the charges appear to be
groundless. Respondent No. 1 would, therefore, be entitled
to be discharged under s.239. It is, therefore, not neces-
sary or expedient to interfere with the order made by the
Special Judge and confirmed by the High Court. [688E-F]
3. When the charge-sheet was filed, the Income Tax
Department re-opened the assessment, examined the whole
matter afresh and passed final orders during the pendency of
the case in this Court explaining all the items of assets
said to have been unaccounted and suppressed as also entries
pertaining to the house construction and other assets, which
show that there is nothing to indicate that Respondent No. 1
was possessed of assets disproportionate to her means.
[688A-B]
4. The application moved by the Special Public Prosecutor
for withdrawal from the prosecution was, therefore, clearly
bona fide and’ in furtherance of public justice and it was
clearly a false and vexatious criminal prosecution launched
against respondent No. 1. The Special Judge also on these
facts took the view that no useful purpose would be served
by continuance of the prosecution and accordingly permitted
the withdrawal which was upheld by the High Court in revi-
sion. [688B]
5. The first allegation relates to payments made to
Dharitri and Navjat Printers. Dharitri is a newspaper which
receives advertisements. There is nothing to show that the
payment received by Dharitri for advertisement had anything
to do with respondent No.1. [687.B-C]
682
6. The second allegation relates to valuation of assets
and the construction of the house and the third relates to
the monies received by the U.P.C.C. which are alleged to
have been paid by respondent No. 1. Lastly there are similar
items of monies paid to the sons and found in the possession
of her husband. It was on the basis of these allegations
that the Income Tax Department re-opened the assessments,
conducted detailed enquiries and ultimately passed a final
order accepting her returns as correct and rejecting the
allegations that she had suppressed any income from undis-
closed sources. [687C-E]
7. The application for withdrawal was made by the Spe-
cial Public Prosecutor in 1980 when respondent No.1 had
nothing to do with the party in power as she was in opposi-
tion party after the elections held in 1980. This is a
strong circumstance which indicates that the application for
withdrawal was made in furtherance of public justice.
[687E-G]
8. In the fight of the facts an record and the order
passed by the Income Tax Officer explaining all the items of
assets alleged to be unaccounted and suppressed, the charges
against respondent No. 1 appear to he groundless. [688C]
Per Natarajan, J.
1. Section 321 makes it clear that an application for
withdrawal of a case can he made by a Public Prosecutor or
Assistant Public Prosecutor who is incharge of the case
concerned, at any time before the judgment is pronounced.
The application for withdrawal of prosecution may he made at
any time ranging between the Court taking cognizance of the
case till such time the Court actually pronounces judgment.
Even where reliable evidence has been adduced to prove the
charges, the Public Prosecutor can seek the consent of the
Court to withdraw the prosecution. The section does not,
therefore, lay down that an application for withdrawal of
the prosecution should necessarily he made at the earliest
stages of the case or only if the evidence is of a weak and
infirm nature. [689E-G]
2. The Special Public Prosecutor had set out the reasons
which justified filing of an application under s.321 of the
Code for the withdrawal of the prosecution, and the Magis-
trate has considered the matter judicially, before giving
his consent. [689G-H]
The State of Bihar v. Ram Naresh Pandey [1157] SCR 279
and R.K. Jain etc. v. State through Special Police Estab-
lishment and others, [1980] 3 SCR 982, relied upon.
683
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 48
of 1983.
From the Judgment and Order dated 14.5.1981 of the
Orissa High Court in Crl. R. No. 22 of 1981.
V.J. Francis for the Appellant.
F.S. Nariman, Anil B. Divan, L.R. Singh, R.K. Mehta,
G.S. Chatterjee and Vinoo Bhagat for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. I agree that this appeal has to be
dismissed. I am of the view that the decision in The State
of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279 interpret-
ing section 494 of the Code of Criminal Procedure, 1898 and
the decision in R.K. Jain etc. v. State through Special
Police Establishment and Others, [1980] 3 SCR 992 interpret-
ing section 321 of the Code of Criminal Procedure, 1973 do
not call for any reconsideration. I am in full agreement
with the views expressed in these decisions. I am satisfied
that the Public Prosecutor had applied his mind to the case
before applying for withdrawal and the Chief Judicial Magis-
trate has not committed any error in giving his consent to
such withdrawal.
The appeal is, therefore, dismissed.
KHALID, J. I have just received (at 7.40 p.m. on 19th
December, 1986) a draft Judgment by Oza, J. in the above
case. I agree with the conclusion that the appeal has to be
dismissed, but not, with respect, with the reasoning con-
tained in the Judgment. Since the case is listed for Judg-
ment on 20th December, 1986, I do not have time to write a
detailed Judgment.
The question to be decided in this appeal is the scope
of Section 32 1 of Criminal Procedure Code, and I do not
agree with the following observation of Oza, J. since there
is no question of setting aside of the order passed by the
learned Additional Special Judge, Bhubaneswar;
“ …… But in the present case, there is
no point in setting aside the withdrawal and
sending the case back to the learned Special
Judge because after considering the entire
material on record in detail we are of the
view that there is
684
no material at all on the basis of which it
could be said that there is a prima facie case
against respondent No. 1 and the charges
against respondent No. 1 appear to be ground-
less and respondent No. 1 would, therefore, in
any event be entitled to be discharged under
Section 239 … ”
A cursory glance at Section 32 1 will satisfy anyone that
consent can given for withdrawal from the prosecution of a
case, not only when the charge is not framed, but even after
the charge is framed and at any time before the Judgment.
This appeal along with Criminal Appeal Nx. 49 of 1983
were directed to be posted before a Constitution Bench to
consider the scope of Section 32 1, Criminal Procedure Code.
That being so, I do not think it proper to abandon that
pursuit and take refuge under Section 239 of Criminal Proce-
dure Code.
In a separate Judgment to be pronounced by me in Crimi-
nal Appeal No.241 of 1983, I have outlined the scope of
Section 321 of Criminal Procedure Code. What is to be decid-
ed in this case is whether the order passed by the Magis-
trate under Section 321, Criminal Procedure Code, is proper
or not. We are not called upon to consider the propriety of
the charge framed and then examine the evidence and see
whether the accused should be discharged or the charge
framed should be upheld.
I adopt the reasons given by me in Criminal Appeal No.
241 of 1983, relying upon the decisions reported in [1957]
SCR 279 (State of Bihar v. Ram Naresh Pandey) and in [1980]
3 SCR 982 (R.K. Jain v. State) and uphold the order of
withdrawal passed by the Additional Special Judge, Bhubanes-
war, and upheld by the High Court in revision, and dismiss
the appeal.
OZA, J. The present appeal by special leave is directed
against the judgment and order of the High Court of Orissa
dated 14th May 1981 in Criminal Revision No. 22 of 1981
arising out of an order dated 20th December, 1980 of the
Additional Special Judge, Bhubaneswar allowing an applica-
tion filed by the Special Public Prosecutor praying for
withdrawal from prosecution in Case No. 13 of 1979 against
respondent No. 1. By the impugned judgment the Hon’ble High
Court dismissed the revision petition filed by the appellant
and confirmed the order passed by the learned Additional
Special Judge permitting withdrawal of the case by the
Special Public Prosecutor. The Vigilance
685
Department of the State submitted a charge-sheet against
respondent No. 1 on the allegation that she had no assets
prior to her election as a member of the Rajya Sabha in the
year 1962. Subsequently she was re-elected and became a
Union Deputy Minister from January 1966 to June 1970 and a
Union State Minister from June 1970 to June 1972. She became
the Chief Minister of Orissa from 15.6.72 to 28.2.73 and
again from 6.3.74 to 26.12.76. Even before becoming the
Chief Minister of Orissa she had no assets save and except a
thatched roof house at Pithapur, Cuttack and a bank balance
of Rs. 18,000. It was alleged that during her incumbency as
Chief Minister, the bank balance increased as well as her
other assets swelled-up and it was alleged that in 1977 her
net assets were to the tune of Rs.7,54,735,85 p. which were
disproportionate to her known sources of income.
In 1977 the respondent No. 1 left the Congress Party and
joined the Congress for Democracy. In the parliamentary
elections in 1977, the Congress was defeated and Janata
Party came to power and also in the Assembly elections which
followed, the Congress lost and the Janata Party came to
power in the State. It appears that although the Congress
for Democracy which respondent No. 1 had joined, merged with
the Janata Party, still many leaders of the Janata Party had
a grudge against her as during her regime as Chief Minister
when emergency was clamped, a number of leaders who were
prominent in the Janata Party were put behind bars and
ultimately for having assets disproportionate to her known
sources of income, a prosecution was launched against her
under Section 5(1)(d) read with Sec. 5(2) of the Prevention
of Corruption Act.
One of the allegations on the basis of which the
charge-sheet was filed was that on 15.7.74, respondent No. 1
passed an order in favour of M/s Ferro Alloys Corporation.
This order was, passed by her in her official capacity and
it is alleged that because of this order M/s Ferro Alloys
made a huge profit of about Rs.4 crores and on 3.10.75 and
7.10.75 cheques in the aggregate sum of Rs.48,000 were given
by M/s Ferro Alloys Corporation to Dharitri a newspaper for
an advertisement which was’ published in the ‘newspaper. It
was therefore alleged that respondent No. 1 obtained
Rs.48,000 from M/s Ferro Alloys Corporation.
The second allegation against respondent No. 1 was that
on 14.6.76 the Prime Minister requested respondent No. 1 to
indicate the approximate value of her recently completed
house at Bhubaneswar and no reply to this query is found on
the record of the Prime Minister.
686
The construction of the house started in September 1974 and
ended on 29th February, 1976. The investment in the con-
struction of the house is said to be Rs.3,32,000 and odd
whereas according to respondent No. 1 she had spent an
amount of Rs.2,68,000 and the difference of Rs.64,000 ac-
cording to the allegation of the prosecution was the amount
acquired by respondent No. 1 by illegal and corrupt means as
Chief Minister. It was alleged that the whole sum of
Rs.3,27,614 is surreptitious and not disclosed in income-tax
return for the financial years 1974-75 and 1975-76. It is
also alleged that Navjat Printers which is owned by Samajba-
di Society received a sum of Rs.3,94,540 between 6.3.74 and
29.2.76 in respect of orders placed by U.P.C.C. The allega-
tion is that U.P.C.C. between 6.3.74 and 29.2.76, paid only
Rs.60,964 and as regards the balance of Rs.3,33,576 it must
have been acquired by respondent No. 1 herself and paid to
Navjat Printers.
It was alleged that Shri Natchiketa Satpathy, son of
respondent No. 1 purchased a flat at Kailash Apartments, New
Delhi and for this purpose respondent No. 1 paid Rs.50,000
to her son in three instalments. Similarly it was alleged
that on 15.3.75 respondent No. 1 paid Rs. 15,000 to her
other son Tathagat Satpahty and managed to get invested a
sum of Rs.33,000 in different names fictitiously in M/s
Rosambi Private Limited. An amount of Rs. 15,000 is said to
have been a payment by cheque.
It was alleged that in the house of her husband, cash
was contained in two bags which was to the tune of Rs.5
1,766. One of the bags there had a visiting card of the
First Secretary of the USSR Embassy. This cash was discov-
ered after respondent No. 1 ceased to be Chief Minister. The
search was made on 8th July 1977 when respondent No. 1 had
already ceased to be Chief Minister nearly nine months
before that date. It was alleged that the cash must be
deemed to have been of the ownership of respondent No. 1 and
that it must have been acquired by her during the period
when she was the Chief Minister.
It appears that when charge-sheet was filed against
respondent No. 1, the Income Tax Department also issued
notice for re-opening of her assessments and examined the
whole matter afresh and during the period that this case has
been pending here, final orders have been passed by the
Income Tax Department which explain in detail all the items
of assets which according to the prosecution were dispropor-
tionate to the legitimate means of respondent No. 1. This
matter came up before us along with another case from Bihar
where we heard arguments at length on the question of with-
drawal from the prosecution
687
and its legal implications, but so far as the present case
is concerned, in view of the facts as they emerge, we do not
find it necessary to go into all these questions. The alle-
gations can be broadly classified into three heads:
The first head relates to payments made to Dharitri and
Navjat Printers or Samajbadi Society. These are clearly
distinct institutions which could not be said to belong to
respondent No. 1. It is not disputed that Dharitri is a
newspaper which receives advertisements and payment for
advertisement made to Dharitri could not possibly be co-
related to respondent No. 1 or regarded as receipt of re-
spondent No.1. There is nothing at all to show that the
payment received by Dharitri for advertisement (which in
fact was published in Dharitri) had anything to do with
respondent No. 1.
The second head of allegations relates to valuation of
assets and the construction of the house and the third
category to the monies received by the U.P.C.C. which are
alleged to have been paid by respondent No. 1. Lastly there
are similar items of monies paid to the sons and found in
the possession of her husband. So far as these allegations
are concerned, it may be pointed out that it was on the
basis of these allegations that the Income Tax Department
re-opened the assessments after giving notice and conducted
detailed enquiries and ultimately passed a final order
accepting her returns as correct and rejecting the allega-
tions that she had suppressed any income from undisclosed
sources.
It is also significant that the application for with-
drawal was made by the Special Public Prosecutor in 1980
when respondent No. 1 had nothing to do with the party in
power, as after the elections held in 1980, Congress-I came
back to power in Orissa and J.B. Patnaik became the Chief
Minister. Respondent No. 1 contested the Assembly election
as a candidate of Congress (Urs) Party and was elected,
defeating her Congress-I opponent Shri Profulla Bhanja and
she was a member of Congress (Urs) (Opposition) during that
period. This is to our mind a strong circumstance which
indicates that the application for withdrawal was made in
furtherance of public justice and distinguished the case of
respondent No. 1 from that of Dr. Jagannath Misra in the
Bihar case which is being disposed of by another judgment
today.
The Income Tax Officer examined in detail each one of
the items of assets said to have been unaccounted and sup-
pressed and the order passed by the Income Tax Officer which
has been placed on record
688
clearly explains all the items as also entries pertaining to
the house construction and other assets and shows that there
is nothing to indicate the respondent No. 1 was possessed of
assets disproportionate to his means. The application moved
by the Special Public Prosecutor for withdrawal from the
prosecution was therefore clearly bonafide and in further-
ance of public justice and it was clearly a false and vexa-
tious criminal prosecution which had been launched against
respondent No. 1 which was sought to be halted. The learned
Special Judge also on these facts took the view that no
useful purpose would be served by continuance of the prose-
cution and he accordingly permitted the withdrawal. The High
Court too maintained the order of the learned Special Judge.
We agree that in the light of the facts on record and the
order passed by the Income Tax Officer which explains all
the items of assets alleged to be unaccounted and sup-
pressed, the charges against respondent No. 1 appear to be
groundless. It is true that ordinarily when the exercise of
considering the material on record for the purpose of deter-
mining whether there is sufficient material to sustain the
prosecution can be performed by the Court under Section 239
of the Code of Criminal Procedure 1973 the Court should not
allow the prosecution to be withdrawn under Section 321 as
held by us in the Judgment in Dr. Jagannath Misra’s case,
which has been delivered today. But in the present case
there is no point in setting aside the withdrawal and send-
ing the case back to the learned Special Judge because after
considering the entire material on record in detail we are
of the view that there is no material at all on the basis of
which it could be said that there is a prima facie case
against respondent No. 1 and the charges against respondent
No. 1 appear to be groundless and respondent No. 1 would
therefore in any event be entitled to be discharged under
Section 239. We do not therefore think it necessary or
expedient to interfere with the order made by the learned
Special Judge and confirmed by the High Court.
The appeal will therefore stand dismissed.
NATARAJAN, J. In the withdrawal petition filed on
15.11.80 and the supplementary withdrawal petition filed on
16.12.80 the Special Public Prosecutor (Vig.) C.D., Cuttack
has set out the factors which have prevailed with him to
seek the consent on the Court to withdraw the prosecution
launched in V.C.R. Case No. 33 of 1977 against the accused
therein, viz. Smt. Nandini Satpathy & Anr.
The Additional Chief Judicial Magistrate has passed a
detailed and considered order on 20.12.80 wherein he has
fully discussed the
689
matter and thereafter given consent to the withdrawal of the
prosecution. The conclusion of the learned Magistrate is
contained in para 12 which reads as follows:–
“Taking the facts and circumstances of the
case into consideration. I am of the view that
the ends of public justice be met if the
consent be given for withdrawal of the case.”
The order of the learned Magistrate has been critically
assessed by a learned Judge of the Orissa High Court in Crl.
Rev. No. 21 and 22 of 1981 filed before the High Court. The
learned Judge upheld the order of the Magistrate ‘and has
summed up the High Court’s view as under:–
“The observations of the Supreme Court (in
R.K. Jain v. State–AIR 1980 Supreme Court
1510–1980 Volume 3 SCR 982) would not justify
entertaining this application when a Public
Prosecutor in his application had indicated
that the evidence already collected did not
support the prosecution there was no prospect
of a conviction and the appropriate authority
in the broad ends of justice need not contin-
ue.”
Section 321 makes it clear that an application for
withdrawal of a case can be made by a Public Prosecutor or
Assistant Public Prosecutor who is incharge of the case
concerned, at any time before the judgment is pronounced. In
other words, it means that the application for withdrawal of
prosecution may be made at any time ranging between the
court taking congnizance of the case till such time the
court actually pronounced judgment. Consequently, it follows
that even where reliable evidence has been adduced to prove
the charges, the Public Prosecutor can seek the consent of
the Court to withdraw the prosecution. The Section does not,
therefore, lay down that an application for withdrawal of
the prosecution should necessarily be made at the earliest
stages of the case or only if the evidence is of a weak and
infirm nature.
In his application a Special Public Prosecutor had set
out the reasons which justified his filing an application
under Section 32 1 of the Code to seek the consent of the
Court for the withdrawal of the prosecution. The learned
Magistrate has considered the matter judicially in the light
of the decision of this Court in R.K. Jain v. State, [1980]
3 SCR 982 which has followed the earlier decision in State
of
690
Bihar v. Ram Naresh Pandey, [1957] SCR 279. The order of the
learned Magistrate has been approved and affirmed by the
High Court.
There are no materials in the appeal to persuade me to
hold that the order passed by the Additional Chief Judicial
Magistrate or the High Court suffers from any error of law,
patent or latent. In that view the appeal has to be dis-
missed.
A.P.J. Appeal
dismissed.
691