Full Judgment Text
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PETITIONER:
SUBHASH CHANDER
Vs.
RESPONDENT:
STATE (CHANDIGARH ADMN.) & ORS.
DATE OF JUDGMENT15/11/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION:
1980 AIR 423 1980 SCR (2) 44
1980 SCC (2) 155
CITATOR INFO :
RF 1980 SC1510 (12)
RF 1987 SC 877 (21,25,28,76)
ACT:
Criminal Procedure Code, Sections 321, 494-Scope of.
HEADNOTE:
The petitioner alleged that his house had been burgled
and that many valuables were lost. The police recovered the
property. Eventually, charges were also framed by the trial
court against two other persons who were said to be
collaborators.
During the pendency of the criminal case, the Asstt.
Public Prosecutor applied for withdrawal from prosecution
under section 321, Cr. P.C. on the ground that on fresh
investigation by a senior officer the alleged search and
seizure were discovered to be a frame-up by the concerned
police officer in order to pressurise the accused to
withdraw a certain civil litigation. The court required a
fuller application, the Assistant Public Prosecutor made a
fresh and more detailed petition for withdrawal which was
eventually granted by the trial court, despite the
petitioner’s remonstrance that the withdrawal was prompted
by political influence wielded by the jeweller leading to
instructions from high quarters to the Assistant Public
Prosecutor to withdraw from the case concerning that
accused. It was alleged that the Assistant Public Prosecutor
did not apply an independent mind in carrying out the said
instructions. The trial court nevertheless accepted the
request of the Assistant Public Prosecutor and directed
acquittal of the jeweller, while continuing the case against
the remaining two accused. The order was unsuccessfully
assailed in revision before the High Court by the
petitioner.
By special leave to appeal under Article 136 of the
Constitution, it was argued on behalf of the petitioner that
(i) a case which pends in court cannot be subject to a
second police investigation without the judge even knowing
about it, (ii) political considerations of the Executive
vitiate the motion for withdrawal of pending proceeding, and
(iii) the District Magistrate’s order to withdraw from a
case communicated to the Public Prosecutor and carried out
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by him, is compliance with section 494.
Dismissing the petition,
^
HELD: When a crime is committed, the assessment of
guilt and the award of punishment or, alternatively, the
discharge or acquittal of the accused are part of the
criminal justice process administered by the courts of the
land. It is not the function of the executive to administer
criminal justice and in our system, judges are not fungible.
[47 A]
When a case is pending in a criminal court, its
procedure and progress are governed by the Criminal
Procedure Code or other relevant statute. To intercept and
recall an enquiry or trial in a court, save in the manner
and to the extent provided for in the law, is itself a
violation of the law. Whatever needs to be done must be done
in accordance with the law. The function of administering
justice, under our constitutional order, belongs to those
entrusted with judicial power. One of the few exceptions to
the uninterrupted flow of the
45
court’s process is section 321, Cr. P.C. But even here it is
the Public Prosecutor and not any executive authority, who
is entrusted by the Code with the power to withdraw from a
prosecution, and that also with the consent of the court. To
interdict, intercept or jettison an enquiry or trial in a
court, save in the manner and to the extent provided for in
the Code itself, is lawlessness. The even course of criminal
justice cannot be thwarted by the executive, however high
the accused, however sure Government feels a case is false,
however, unpalatable the continuance of the prosecution to
the powers-that-be who wish to scuttle court justice because
of hubris, affection or other noble or ignoble
consideration. Among the very few exception to this
uninterrupted flow of the court process is section 494, Cr.
P.C. Even here, the Public Prosecutor is entrusted by the
Code with a limited power to withdraw from a prosecution
with the court’s consent whereupon the case comes to a
close. What the law has ignited, the law alone shall
extinguish. [47 D-H, 48 A]
The promotion of law and order is an aspect of public
justice. Grounds of public policy may call for withdrawal of
a prosecution. A prosecution discovered to be false and
vexatious cannot be allowed to proceed. But the power must
be cautiously exercised, and the statutory agency to be
satisfied is the Public Prosecutor in the first instance,
not the District Magistrate or other executive authority.
Finally, the consent of the court is imperative. [48 G-H]
There was no evidence to support the allegation of
political influence. At the same time, the District
Magistrate acted illegally in directing the Assistant Public
Prosecutor to withdraw. It has been alleged that the second
investigation of the case on the executive side, which led
to the discovery that the earlier investigation was
motivated, was vitiated by the omission to question the
first informant. That was a matter for the Assistant Public
Prosecutor to consider when deciding whether or not to
withdraw from the prosecution. It is abundantly clear that
the Assistant Public Prosecutor made an independent decision
on the material before him and did not act in blind
compliance with the instructions of the District Magistrate.
[50 F-H, 51 A]
The rule of law warns off the executive authorities
from the justicing process in the matter of withdrawal of
cases. Since the courts were satisfied that the Public
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Prosecutor did not yield to the directive of the District
Magistrate but made an independent study of informing
himself of the materials placed before the court and then
sought permission to withdraw from the prosecution, this
court declined to reverse the order of the courts below. [51
F-H]
M.N. Sankaranarayana Nair v. P.V. Bala Krishna & Ors.
AIR 1972 SC 496: Bansi Lal v. Chandan Lal, AIR 1976 SC 370:
Balwant Singh & Ors. v. Bihar, AIR 1977 SC 2265, affirmed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition
(Criminal) No. 2076 of 1978.
From the Judgment and Order dated 17-3-1978 of the
Punjab and Haryana High Court in Criminal Revision No.
181/77)
R.L. Kohli, S.K. Sabharwal and Subhash Chander for the
Petitioner.
46
R.N. Sachthey for Respondent No. 1.
Prem Malhotra for Respondent No. 2.
The Order of the Court was delivered by
KRISHNA IYER, J.-What constrains us to explain at some
length our reasons for rejection of leave to appeal in this
case is the desideratum that every executive challenge to
justice-in-action is a call to the court to strengthen
public confidence by infusing functional freshness into the
relevant law sufficient to overpower the apprehended evil.
The house of the petitioner is said to have been
burgled and he alleges that he lost many valuables. The
police, on information being laid, searched and recovered
the property. Eventually, charges were framed by the trial
court against one Hussan Lal, a jeweller, and one Madan Lal,
an alleged collaborator (respondents Nos. 2 and 3 in this
petition) under s. 411 I.P.C. and one Ashok Kumar under s.
380, I.P.C. During the pendency of the criminal case, the
Assistant Public Prosecutor applied for withdrawal from
prosecution under s. 321, Cr.P.C. on the ground that on
fresh investigation by a senior officer the alleged search
and seizure were discovered to be a frame-up by the
concerned police officer in order to pressurise the accused
Hussan Lal to withdraw a certain civil litigation. On the
court requiring a fuller application the Assistant Public
Prosecutor made a fresh and more detailed petition for
withdrawal which was eventually granted by the trial court,
despite the petitioner’s remonstrance that the withdrawal
was prompted by the political influence wielded by Hussan
Lal leading to instructions from high quarters to the
Assistant Public Prosecutor to withdraw from the case
concerning that accused. It was alleged that in carrying out
the instructions the Assistant Public Prosecutor did not
apply an independent mind. The court nevertheless accepted
the request of the Assistant Public Prosecutor and directed
acquittal of Hussan Lal, while continuing the case against
the remaining two accused. The order was unsuccessfully
assailed in revision before the High Court by the
petitioner. Undaunted by that dismissal, he has moved this
court under Art. 136 of the Constitution. In view of the
startling disclosures on either side we have listened at
some length to the oral submissions in supplementation of
the affidavits in the record.
The three focal points of arguments are whether (i) a
case which pends in court can be subject to a second police
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investigation without the judge even knowing about it, (ii)
political considerations of the Executive vitiate the motion
for withdrawal of pending proceeding, and (iii) the District
Magistrate’s order to withdraw from a case communicated to
the Public Prosecutor and carried out by him, is compliance
with s. 494.
47
When a crime is committed in this country, the
assessment of guilt and the award of punishment or,
alternatively, the discharge or acquittal of the accused are
part of the criminal justice process administered by the
courts of the land. It is not the function of the executive
to administer criminal justice and in our system, judges are
not fungible, as Justice Dougles in Chandler,(1) asserted:
Judges are not fungible; they cover the
constitutional spectrum; and a particular judge’s
emphasis may make a world of difference when it comes
to rulings on evidence. the temper of the courtroom,
the tolerance for a proffered defense, and the like.
Lawyers recognize this when they, talk about ’shopping’
for a judge; Senators recognize this when they are
asked to give their ’advice and consent’ to judicial
appointments; laymen recognize this when they appraise
the quality and image of the judiciary in their own
community."
When a case is pending in a criminal court its procedure and
progress are governed by the Criminal Procedure Code or
other relevant statute To intercept and recall an enquiry or
trial in a court, save in the manner and to the extent
provided for in the law, is itself a violation of the law.
Whatever needs to be done must be done in accordance with
the law. The function of administering justice, under our
constitutional order, belongs to those entrusted with
judicial power. One of the few exceptions to the
uninterrupted flow of the court’s process is s. 321, Cr.
P.C. But even here it is the Public Prosecutor, and not any
executive authority, who is entrusted by the Code with the
power to withdraw from a prosecution, and that also with the
consent of the court. We repeat for emphasis. To interdict,
intercept or jettison an enquiry or trial in a court, save
in the manner and to the extent provided for in the Code
itself, is lawlessness. The even course of criminal justice
cannot be thwarted by the Executive, however high the
accused, however sure Government feels a case is false,
however unpalatable the continuance of the prosecution to
the powers-that-be who wish to scuttle court justice because
of hubris, affection or other noble or ignoble
consideration. Justicing, under our constitutional order,
belongs to the judges. Among the very few exceptions to this
uninterrupted flow of the court process is s. 494, Cr.P.C.
Even here, the Public Prosecutor--not any executive
authority-is entrusted by the Code with a limited power to
withdraw from a prosecution, with the
(1) Chandler v. Judicial Council of the Tenth
Circuit of the U.S. 308 U.S. 74, 1970.
48
court’s consent whereupon the case comes to a close. What
the law has ignited, the law alone shall extinguish.
Although skeletal, the conditions for such withdrawal
are implicit in the provision, besides the general
principles which have been evolved through precedents. Once
a prosecution is launched, its relentless course cannot be
halted except on sound considerations germane to public
justice. All public power is a public trust, and the Public
Prosecutor cannot act save in discharge of that public
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trust, a public trust geared to public justice. The consent
of the court under s. 321 as a condition for withdrawal is
imposed as a check on the exercise. of that power. Consent
will be given only if public justice in the larger sense is
promoted rather than subverted by such withdrawal. That is
the essence of the nolle prosequi jurisprudence.
We wish to stress, since impermissible influences
occasionally infiltrate into this forbidden ground, that
court justice is out of bounds for masters and minions
elsewhere. We do not truncate the amplitude of the public
policy behind s. 494 Cr.P.C. but warn off tempting,
adulteration of this policy, taking the public prosecutor
for granted. Maybe, the executive, for plural concerns and
diverse reasons, may rightfully desire a criminal case to be
scotched. The fact that broader considerations of public
peace, larger considerations of public justice and even
deeper considerations of promotion of long-lasting security
in a locality, of order in a disorderly situation or harmony
in a factious milieu, or halting a false and vexatious
prosecution in a court, persuades the Executive, pro bono
pulico, sacrifice a pending case for a wider benefit, is not
ruled out although the power must be sparingly exercised and
the statutory agency to be satisfied is the public
prosecutor, not the District Magistrate or Minister. The
concurrence of the court is necessary. The subsequent
discovery of a hoax behind the prosecution or false basis
for the criminal proceeding as is alleged in this case, may
well be a relevant ground for withdrawal. For the court
should not be misused to continue a case conclusively proved
to be a counterfeit. This statement of the law is not
exhaustive but is enough for the present purpose and,
indeed, is well-grounded on precedents.
The promotion of law and order is an aspect of public
justice. Grounds of public policy may call for withdrawal of
the prosecution. A prosecution discovered to be false and
vexatious cannot be allowed to proceed. The grounds cover a
large canvas. But the power must be cautiously exercised,
and the statutory agency to be satisfied is the Public
Prosecutor in the first instance, not the District
Magistrate or other executive authority. Finally, the
consent of the court is impera-
49
tive. The law was explained by this Court in M. N.
Sankaranarayana Nair v. P. V. Bala Krishina & Ors.(1)
"A reading of Sec. 494 would show that it is the
public prosecutor who is in-charge of the case that
must ask for permission of the Court to withdraw from
the prosecution of any person either generally or in
respect of one or more of the offences for which he is
tried. This permission can be sought by him at any
stage either during the enquiry or after committal or
even before the judgment is pronounced. The section
does not, however, indicate the reasons which should
weigh with the Public Prosecutor to move the Court for
permission nor the grounds on which the Court will
grant or refuse permission. Though the Section is in
general terms and does not circumscribe the powers of
the Public Prosecutor to seek permission to withdraw
from the prosecution the essential consideration which
is implicit in the grant of the power is that it should
be in the interest of administration of justice which
may be either that it will not be able to produce
sufficient information before prosecuting agency would
falsify the prosecution evidence or any other similar
circumstances which it is difficult to predicate as
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they are dependent entirely on the facts and
circumstances of each case. Nonetheless it is the duty
of the Court also to see in furtherance of justice that
the permission is not sought on grounds extraneous to
the interest of justice or that offences which are
offences against the State go unpunished merely because
the Government as a matter of general policy or
expediency unconnected with its duty to prosecutor
offenders under the law directs the Public Prosecutor
to withdraw from the prosecution and the Public
Prosecutor merely does so at its behest."
The position was confirmed in Bansi Lal v. Chandan Lal(2)
and Balwant Singh & Ors. v. Bihar(3). The law is thus well
settled and its application is all that calls for caution.
In the special situation of this case, two principles must
be hammered home. The decision to withdraw must be of the
Public Prosecutor, not of other authorities, even of those
whose displeasure may affect his continuance in office.
(1) A.I.R. 1972 S.C. 496.
(2) A.I.R. 1976 S.C. 370.
(3) A.I.R. 1977 S.C. 2265.
50
The court is monitor, not servitor, and must check to see if
the essentials of the law are not breached, without, of
course, crippling or usurping the power of the public
prosecutor. The two matters which are significant are (a)
whether the considerations are germane, and (b) whether the
actual decision was made or only obeyed by the Public
Prosecutor.
In the setting of the present facts, the enquiry must
be whether the considerations on which withdrawal was sought
by the Assistant Public Prosecutor were germane and
pertinent, and whether the actual decision to withdraw was
made by the Assistant Public Prosecutor or was the result of
blind compliance with executive authority. If it appears
from the material before the Court that germane or relevant
considerations did not prompt the motion for withdrawal but
it was the pressure of political influence, the Court will
withhold its consent.
The functionary clothed by the Code with the power to
withdraw from the prosecution is the Public Prosecutor. The
Public Prosecutor is not the executive, nor a flunkey of
political power. Invested by the statute with a discretion
to withdraw or not to withdraw, it is for him to apply an
independent mind and exercise his discretion. In doing so,
he acts as a limb of the judicative process, not as an
extension of the executive.
In the present case, it appears that when the court
commenced proceedings, the accused Hussan Lal complained to
higher police officers that the concerned Assistant Sub-
Inspector had initiated the case merely for the purpose of
putting pressure on him to compromise a suit against a close
relative. The allegations were enquired into by a senior
officer and the District Magistrate, on the basis of the
material coming to light, directed disciplinary action
against the Assistant Sub-Inspector and instructed the
Assistant Public Prosecutor to withdraw from the case
against Hussan Lal. We find no evidence to support the
allegations of political influence. At the same time, it is
necessary to point out that the District Magistrate acted
illegally in directing the Assistant Public Prosecutor to
withdraw. It has been alleged that the second investigation
of the case on the executive side, which led to the
discovery that the earlier investigation was motivated, was
vitiated by the omission to question the first informant.
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That was a matter for the Assistant Public Prosecutor to
consider when deciding whether or not to withdraw from the
prosecution.
On the principal question arising in this case, the
record shows that the Public Prosecutor applied his mind to
the disclosures emerging from the second enquiry, and he
found that "even the recovery wit-
51
nesses Sarvashri Mato Ram and Phool Singh did not support
that they had witnessed the recovery or any disclosure
statement was made in their presence by Madan Lal accused."
He found that Phool Singh at the relevant time was bed-
ridden and had since expired. He also discovered that Mato
Ram had stated that nothing had happened in his presence but
his signatures were obtained by the Investigating Officer.
It is abundantly clear that the Assistant Public Prosecutor
made an independent decision on the material before him and
did not act in blind compliance with the instructions of the
District Magistrate.
We cannot dispose of this petition without drawing
attention to the very disturbing presence of the District
Magistrate in the withdrawal proceedings. The jurisprudence
of genuflexion is alien to our system and the law expects
every repository of power to do his duty by the Constitution
and the laws, regardless of commands, directives, threats
and temptations. The Code is the master for the criminal
process. Any authority who coerces or orders or pressurises
a functionary like a public prosecutor, in the exclusive
province of his discretion violates the rule of law and any
public prosecutor who bends before such command betrays the
authority of his office. May be, Government or the District
Magistrate will consider that a prosecution or class of
prosecutions deserves to be withdrawn on grounds of policy
or reasons of public interest relevant to law and justice in
their larger connotation and request the public prosecutor
to consider whether the case or cases may not be withdrawn.
Thereupon, the Prosecutor will give due weight to the
material placed, the policy behind the recommendation and
the responsbile position of Government which, in the last
analysis, has to maintain public order and promote public
justice. But the decision to withdraw must be his.
The District Magistrate who is an Executive Officer is
not the Public Prosecutor and cannot dictate to him either.
Maybe, the officer had not apprised himself of the
autonomous position of the Public Prosecutor or of the
impropriety of his intrusion into the Public Prosecutor’s
discretion by making an order of withdrawal. Similar
mistakes are becoming commoner at various levels and that is
why we have had to make the position of law perfectly clear.
We emphasise that the rule of law warns off the executive
authorities from the justicing process in the matter of
withdrawal of cases. Since we are satisfied that the Public
Prosecutor did not yield to the directive of the District
Magistrate but made an independent study of informing
himself of the materials placed before the court and then
sought permission to withdraw from the prosecution, we
decline to reverse the order passed by the courts below.
52
This trial court was satisfied that the Assistant
Public Prosecutor had not exercised the power of withdrawal
for any illegitimate purpose and the High Court endorsed
that conclusion. We are not disposed to interfere with the
order of the High Court.
One obvious grievance of the petitioner deserves to be
remedied. He is interested in getting back his stolen goods.
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The accused claims no property in the goods. In the event of
the complainant identifying them as his property, the trial
court will consider passing appropriate orders for their
return to him. Surely, criminal justice has many dimensions
beyond conviction and sentence, acquittal and innocence. The
victim is not to be forgotten but must be restored to the
extent possible.
The petition is rejected.
N.K.A.
Petition dismissed.
53