Court Judgments

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.

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
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
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
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.
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]
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
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-
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]
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]
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
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
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
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
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
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]
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
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
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
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”
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
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)
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
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
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
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
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
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
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
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
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
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
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-
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
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
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
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
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-
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
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
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
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
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
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
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
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
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
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
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
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
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.
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″.
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-
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
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
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.
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.
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
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.
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
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
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-
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
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
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
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
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
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
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
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
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