Full Judgment Text
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PETITIONER:
RAJENDRA KUMAR JAIN ETC.
Vs.
RESPONDENT:
STATE THROUGH SPECIAL POLICE ESTABLISHMENT AND ORS. ETC.ETC.
DATE OF JUDGMENT02/05/1980
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
KRISHNAIYER, V.R.
CITATION:
1980 AIR 1510 1980 SCR (3) 982
1980 SCC (3) 435
CITATOR INFO :
F 1983 SC 194 (6,10,14,19,55,TO,58,61)
R 1987 SC 863 (22,24,26,32,45,TO,47)
R 1987 SC 877 (26,28,31,44,47,48)
ACT:
Nolle Prosequi-Criminal Procedure Code, 1973 (Act II of
1974), Section 321, scope of-Conditions under which
withdrawal from prosecution are permissible-Competency of
the Magistrate’s Court to permit withdrawal-Public
Prosecutor in charge of the case, meaning of-Political
offences explained.
HEADNOTE:
Section 321 of the Code of Criminal Procedure, 1973
which corresponds to section 494 of the 1898 code provides
for the withdrawal from prosecution by the Public Prosecutor
or Assistant Public Prosecutor incharge of a case with the
consent of the Court at any time before the judgment is
pronounced. In Criminal Appeal No. 287/79, the case
instituted against George Mathew Fernandes & others on 24-9-
76 was allowed to be withdrawn on March 26, 1977 on an
application under section 321 of the Criminal Procedure
Code, 1973 made by N. S. Mathur Special Public Prosecutor.
The learned Chief Metropolitan Magistrate expressed his
opinion that "it was expedient to accord consent to withdraw
from the prosecution". A revision petition under section 397
of the Criminal Procedure Code, 1973 challenging the said
order granting permission to withdraw filed by the appellant
an advocate in the High Court failed. The High Court also
held that the appellant had no locus standi.
Special Leave Petition (Crl.) No. 3115/79 was filed by
one Manohar Lal directly under Article 136 of the
Constitution against the order of the Chief Judicial
Magistrate, Bhiwani, permitting the public prosecutor to
withdraw from the prosecution in case No. 186-1 filed by the
State against Chaudhury Bansilal Ex-Defence Minister, his
son Surinder Singh, Ex. M.L.A., R. S. Verma, Ex. Deputy
Commissioner, Bhiwani and several others officials and non
officials for a host of offences.
In Crl. Appeal No. 287/79, the Contentions were: (a)
The offence for which the accused persons were to be tried
were exclusively triable by a Court of Session, and
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therefore, the Committing Magistrate had no jurisdiction to
give consent to the Public Prosecutor to withdraw from the
prosecutions; (b) The Public Prosecutor had abdicated his
function and had filed the application at the behest of the
Central Government without applying his mind; (c) The
Magistrate was in error in giving consent on the ground that
it was expedient to do so. Expedience was never for the
judiciary; (d) S. N. Mathur who had filed the application
for withdrawal from the prosecution was not the Public
Prosecutor incharge of the case and the application was
therefore incompetent.
In the special leave (Crl.) No. 3115/79, it was
contended: (i) the Public Prosecutor filed the application
at the behest of Sri Bhajan Lal, the Chief Minister of
Haryana and that he never applied his mind to the facts of
the case; (ii) Sri Bhajan Lal ordered the withdrawal of the
Public Prosecutor from the prosecution because his ministry
would not survive without the help of
983
Chaudhuri Bansi Lal and (iii) the withdrawal was not based
on any public policy.
Dismissing the appeal by special leave and the special
leave petition, the Court
^
HELD: 1. The contention that under the new code of
Criminal Procedure, 1973, the Court of Committing Magistrate
had no judicial function to perform in relation to the case
which he was required to commit to the Court of Session as
was the position under section 494 of the 1898, and since
the Court of the Committing Magistrate under the new code
was not invested with the power of acquitting or discharging
the accused, it was not the Court which could grant its
consent to withdraw from the prosecution is erroneous. In
the first place there is no warrant for thinking that only
the Court competent to discharge or acquit the accused under
some other provision of the Code can exercise the power
under s. 321 Criminal Procedure Code. The power conferred by
s. 321 is itself a special power conferred on the Court
before whom a prosecution is pending and the exercise of the
power is not made dependent upon the power of the Court to
acquit or discharge the accused under some other provision
of the Code. The power to discharge or acquit the accused
under s. 321 is a special power founded on s. 321 itself, to
be exercised by the Court independently of its power of
enquiry into the offence or try the accused. Again, the
expression ’judgment’ in the context may be understood to
mean the judgment which may be ultimately pronounced if the
case were to be committed to a Court of Session. In the
second place it may not be accurate to say that the
Committing Magistrate has no judicial function to perform
under the 1973 Code of Criminal Procedure. S. 209 of the
Criminal Procedure Code 1973 obliges the Magistrate to
commit the case to the Court of Session when it appears to
the Magistrate that the offence is triable exclusively by
the Court of Session. Therefore, the Magistrate has to be
satisfied that an offence is prima facie disclosed and the
offence so disclosed is triable exclusively by the Court of
Session. If no offence is disclosed the Magistrate may
refuse to take cognizance of the case or if the offence
disclosed is one not triable exclusively by the Court of
Session he may proceed to deal with it under the other
provisions of the Code. To that extent the Court of the
Committing Magistrate does discharge a judicial function.
[991 E-H, 992 A-E]
State of Bihar v. Ram Naresh Pandey. [1957] SCR 279
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followed.
A. Venkataramana v. Mudem Sanjeeva Ragudu and Ors.
(1976) Andhra Law Times Reports 317; over ruled.
2. The notification dated June 17, 1966 of the Ministry
of Home Affairs, Government of India, shows that the Senior
Public Prosecutor, Public Prosecutor and Assistant Public
Prosecutor of the Delhi Special Police Establishment
attached to the Delhi office of the Special Police
Establishment were appointed as Public Prosecutors under s.
492(1) of the Criminal Procedure Code 1898 to conduct the
cases of the Special Police Establishment before the Courts
of Magistrates, Special Judges, and Sessions Judges, in the
Union Territory of Delhi. All notifications issued under the
old Code are deemed to have been made under the
corresponding provisions of the new Code. Sri S. N. Mathur
is a Public Prosecutor attached to the Special Police
Establishment at Delhi and has been functioning right
through as Public Prosecutor in the Union Territory of Delhi
and it was he who was in charge of the case practically
throughout.
[992 G-H, 993 A-B]
984
3. In this country the scheme of the administration of
Criminal Justice places the prime responsibility of
prosecuting serious offences on the executive authorities.
The investigation, including collection of the requisite
evidence, and the prosecution for the offence with reference
to such evidence were the functions of the executive, and in
that particular segment the power of the Magistrate was
limited and intended only to prevent abuse. [993 H, 994 A-B]
From the precedents of this Court, the following
propositions emerge:
(i) Under the scheme of the Code prosecution of an
offender for a serious offence is primarily the
responsibility of the Executive.
(ii) The withdrawal from the prosecution is an
executive function of the Public Prosecutor.
(iii) The discretion to withdraw from the prosecution
is that of the Public Prosecutor and none else, and so, he
cannot surrender that discretion to some one else.
(iv) The Government may suggest to the Public
Prosecutor that he may withdraw from the prosecution but
none can compel him to do so.
(v) The Public Prosecutor may withdraw from the
prosecution not merely on the ground of paucity of evidence
but on other relevant grounds as well in order to further
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 enterprises.
(vi) The Public Prosecutor is an officer of the Court
and responsible to the Court.
(vii) The Court performs a supervisory function in
granting its consent to the withdrawal.
(viii) 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.
[996 B-G]
It shall be the duty of the Public Prosecutor to inform
the Court and it shall be the duty of the Court to apprise
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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. 361 Criminal
Procedure Code. The independence of the judiciary requires
that once the case has travelled to the Court, the Court and
its officers alone must have control over the case and
decide what is to be done in each case. [996 H, 997 A-B]
State of Bihar v. Ram Naresh Pandey, [1957] SCR 279; M.
N. Sankaranarayanan Nair v. P. V. Balakrishnan and Ors.
[1972] 2 SCR 599; State of Orissa v. Chandrika Mahapatra and
Ors., [1977] 1 SCR 335 at 340; Balwant Singh and Ors. v.
State of Bihar, [1978] 1 SCR 604 @ 605; Subhash Chander v.
The State (Chandigarh Admn.) and Ors., AIR 1980 SC 423;
referred to.
4. Paucity of evidence is not the only ground on which
the Public Prosecutor may withdraw from the prosecution. In
the past, it has been found ex-
985
pedient and necessary in the public interest that the Public
Prosecutor should withdraw from prosecutions arising out of
mass agitations, communal 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 prosecutions in order to restore peace, to free the
atmosphere from the surcharge of violence, to bring about a
peaceful settlement of issues and to preserve the calm which
may follow the storm. To persist with prosecutions where
emotive issues are involved in the name of vindicating the
law may 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 not disturbing a calm which has descended it
decides not to prosecute the offenders involved or not to
proceed further with prosecutions already launched. In such
matters, it is only the Government and none else can and
should decide in the first instance whether it should be
baneful or beneficial to launch or continue prosecutions.
[997 B-F]
5. Under the Code of Criminal Procedure it is the
Public Prosecutor that has to withdraw from the prosecution
and it is the Court that has to give its consent to such
withdrawal. Rightly too, because the independence of the
judiciary so requires it. The Public Prosecutor is an
officer of the Court. He conducts the prosecution in the
Court for the people. So it is he that is entrusted with the
task of initiating the proceeding for withdrawal from the
prosecution. But, where such large and sensitive issues of
public policy are involved, he must, if he is right minded,
seek advice and guidance from the policy-maker. If the
policy makers themselves move in the matter in the first
instance, as indeed it is proper that they should where
matters of momentus 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. Nor
can there be any quibbling over words. If ill informed but
well meaning bureaucrats choose to use expressions like "the
Public Prosecutor is directed" or "the Public Prosecutor is
instructed", the Court will not on that ground alone
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stultify the larger issue of Public Policy by refusing its
consent on the ground that the Public Prosecutor did not act
as a free agent when he sought withdrawal from the
prosecution. What is at stake is not the language of the
letter or the prestige of the Public Prosecutor but a wider
question of policy. The Court, in such a situation is to
make an effort to elicit the reasons for withdrawal and
satisfy itself that the Public Prosecutor too was satisfied
that he should withdraw from the prosecution for good and
relevant reasons.
[997 G-H, 998 A-D]
However, the bureaucrat too should be careful not to
use peremtory language when addressing the Public Prosecutor
since it may give rise to an impression that he is coercing
the Public Prosecutor to move in the matter. He must
remember that in addressing the Public Prosecutor he is
addressing an Officer of the Court and there should be no
suspicion of unwholesome pressure on the Public Prosecutor.
Any suspicion of such pressure on the Public Prosecutor may
lead the Court to withhold its consent. [998 D-E]
6. It is true that the Indian Penal Code and the Code
of Criminal Procedure do not recognise offences of a
political nature, as a category of offences; they cannot, in
the ordinary course of things. That does not mean the
offences of a political character are unknown to
jurisprudence or that judges must
986
exhibit such naivette as to feign ignorance about them. In
fact International Law recognises offences of a political
character and the Indian Extradition Act specifically refers
to them. [998 F-H]
Briefly, politics are about Government and therefore, a
political offence is one committed with the object of
changing the Government of a State or inducing it to change
its policy. The expression "political offence" is thus
commonly used and understood though perhaps "political
offence" may escape easy identification. [998 H, 999 A, C]
To say that an offence is of a political character is
not to absolve, the offenders of the offence. But it will be
a valid ground for the Government to advise the Public
Prosecutor to withdraw from the prosecution. The Public
Prosecutor may withdraw from the prosecution of a case not
merely on the ground of paucity of evidence but also in
order to further the broad ends of public justice and such
broad ends of public justice may well include appropriate
social, economic and political purposes. [999 E-F]
If the Government of the day interpreted the result of
the elections, as in the appeal, as a mandate of the people
and on the basis of that interpretation, the Government
advised the Public Prosecutor to withdraw from the
prosecution, it cannot be said that the Public Prosecutor
was activated by any improper motive in withdrawing from the
prosecution nor can it be said that the Magistrate failed to
exercise the supervisory function vested in him in giving
his consent. [999 H, 1000 A-B]
Observation:
Criminal justice is not a plaything and Criminal Court
is not a play-ground for politicking. Political fervour
should not convert the prosecution into persecution nor
political favour reward wrongdoer by withdrawal from
prosecution. If political fortunes are allowed to be
reflected in the processes of the Court very soon the
credibility of the rule of law will be lost. Courts when
moved for permission for withdrawal from prosecution must be
vigilant and inform themselves fully before granting
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consent. While it would be obnoxious and objectionable for a
Public Prosecutor to allow himself to be ordered about, he
should appraise himself from the Government and thereafter
appraise the Court the host of factors relevant to the
question of withdrawal from the cases. But under no
circumstances should he allow himself to become anyone’s
stooge. [1005 E-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
287 of 1979.
Appeal by special leave from the Judgment and Order
dated 12-10-1967 of the Delhi High Court in Criminal
Revision No. 117 of 1977.
WITH
SPECIAL LEAVE PETITION (CRIMINAL) No. 3115 of 1979.
From the Judgment and Order dated 21-9-1979 of the
Chief Judicial Magistrate Bhiwani in Case No. 1861 of 1978.
987
AND
CRIMINAL MISCELLANEOUS PETITION No. 3890 of 1979.
An Application for direction under section 15 of the
Contempt of Courts Act 1971 and Rule 3(b) of the Rules to
regulate proceedings for contempt of Supreme Court, 1975.
Lal Narain Sinha Att. Genl., M. K. Banerjee, Addl. Sol.
Genl. Miss A. Subhashini and R. B. Datar for the Petitioner
in Crl. Misc. Petition No. 3890/79.
U. D. Gour Adv. Genl. Haryana and M. N. Shroff for the
Respondent in Crl. Misc. Petition No. 3890/1979.
P. H. Parekh, Hemant Sharma, Rajan Karanjawala and C.
B. Singh for the Petitioner in SLP 3115/79.
M. C. Bhandare, Mrs. Sunanda Bhandare and T. Sridharan
for Respondent No. 1 in SLP 3115/79.
A. N. Kharkhanis for Respondent No. 4 in SLP 3115/79.
U. D. Gour Adv. Genl. Haryana and M. N. Shroff for
Respondents 26-27 in SLP 3115/79.
Lal Narain Sinha, Att. Genl., Miss A. Subhashini and R.
B. Datar for Respondent No. 30 in SLP 3115/79.
Ram Panjwani, Raj Panjwani, Vijay Panjwani and S. K.
Bagga for the Petitioner in Crl. A. 287/79.
Lal Narain Sinha Att. Genl. and M. K. Banerjee Addl.
Sol. Genl. and Miss. A. Subhashini for Respondent No. 1 in
Crl. A. 297/79.
Ram Jethmalani, Mrs. Sushma Swaraj, A. K. Pande and
Mrs. Hemanlika Wahi for Respondent No. 2 in Crl. A 297/79.
V. M. Tarkunde, T. U. Mehta, P. H. Parekh and Miss
Vineeta Caprihan for Respondent No. 5 in Crl. A. No. 297 of
1979.
Ram Jethmalani and Ranjan Dwivedi for Respondent Nos.
2, 11, 12, and 13 in Crl. A. 287/79.
Ram Jethmalani, A. G. Noorani, Miss Rani Jethmalani and
Mrs. Kamini Jaiswal for Respondent Nos. 3, 15 and 16 in Crl.
A. 287/79.
Ram Jethmalani and A. G. Noorani and Miss Rani
Jethmalani for Respondent No. 21 in Crl. A. 287/79.
Sushil Chandra Bhatnagar in person (Respondent No. 14
in Crl. A. 287/79).
988
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-A cocktail of law and politics,
reason and extravagance is the only way we can describe the
submissions made to us in these two cases. Well known
personalities are involved, in one case an Ex-Central
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Minister, the present Governor of a State and some leading
journalists, and in the other an ex-Central Minister, and a
host of Government officials. Perhaps that was responsible
for the passion and the tension which appeared to
characterise and sometimes mar the arguments in the two
cases.
We will first take up for consideration Criminal Appeal
No. 287 of 1979.
In exercise of the powers conferred by s. 196(1) (a) of
the Code of Criminal Procedure 1973, and s. 7 of the
Explosive Substances Act, 1908, the Government of India by
its order dated September 6, 1976 accorded sanction for the
prosecution of George Mathew Fernandes alias George
Fernandes and 24 others for alleged offences under Ss. 121-A
Indian Penal Code, 120-B Indian Penal Code read with Ss. 4,
5 and 6 of Explosive Substances Act, and S. 5(3)(b) and S.
12 of the Indian Explosives Act, 1884. The first paragraph
of the order according sanction set out the subject of the
conspiracy in the following words:
"Whereas, it is alleged that after the issue of
the proclamation of Emergency on 25th June, 1975 by the
President of India in exercise of the powers conferred
by clause (1) of Article 352 of the Constitution,
George Mathew Fernandes alias George Fernandes,
Chairman of Socialist Party of India and Chairman of
All India Railwaymen’s Federation sought to arouse
resistance against the said emergency by declaring that
the said emergency had been "clamped" on the country by
the "despotic rule" of Smt. Indira Gandhi, Prime
Minister of India and to entertain an idea that a
conspiracy be hatched with the help of the persons of
his confidence, to over-awe the Government and in
pursuance of the conspiracy do such acts which might
result in the destruction of public property and vital
installations in the country".
Thereafter the order set out the various acts committed
by the several accused persons in pursuance of the objects
of the conspiracy. On September 24, 1976 the Deputy
Superintendent of Police, Special Police Establishment
Central Bureau of Investigation, Central Investi-
989
gation Unit (A), New Delhi, filed a charge-sheet in the
Court of the Chief Metropolitan Magistrate, Delhi, against
the said accused persons for the offences mentioned in the
order sanctioning the prosecution. Two of the accused
persons had been tendered pardon. They had, therefore, to be
examined as witnesses in the Court of the Magistrate taking
cognizance of the offences notwithstanding the fact that the
case was exclusively triable by the Court of Session. The
evidence of the approvers was recorded on March 22, 1977 and
the case was adjourned to March 26, 1977 for further
proceedings. At that stage, on March 26, 1977, N. S. Mathur,
Special Public Prosecutor filed an application under section
321 of the Criminal Procedure Code 1973, for permission to
withdraw from the prosecution. The application was as
follows:
"It is submitted on behalf of the State as under:-
1. That on 24-9-76 the Special Police
Establishment after necessary investigation had filed a
charge sheet in this Hon’ble Court against Shri George
Mathew Fernandes and 24 others for offences u/s. 121 A
IPC, 120B IPC r/w sections 4, 5 and 6 of the Explosive
Substances Act, 1908 and Section 5(3) (b) and 12 of the
Indian Explosives Act, 1884 as well as the substantive
offences.
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2. That besides the accused who were sent up for
trial two accused namely Shri Bharat C. Patel and
Rewati Kant Sinha were granted pardon by the Hon’ble
Court and were examined as approver u/s. 306(4) Cr.
P.C.
3. That out of 25 accused sent up for trial cited
in the charge sheet, 2 accused namely Ladli Mohan Nigam
and Atul Patel were declared proclaimed offenders by
the Hon’ble Court.
4. That in public interest and changed
circumstances, the Central Government has desired to
withdraw from the prosecutions of all the accused.
5. It is therefore prayed that this Hon’ble Court
may accord consent to withdraw from 26th March 1977.
Sd/-
(N. S. Mathur)
Special Public Prosecutor
for the State, New Delhi".
990
On the same day the learned Chief Metropolitan Magistrate,
expressing the opinion that it was "expedient to accord
consent to withdraw from the prosecution", granted his
consent for withdrawal from the prosecution.
One Dr. Rajender Kumar Jain, and Advocate, filed a
petition in the High Court of Delhi, under s. 397 of the
Criminal Procedure Code for revision of the order of the
learned Chief Metropolitan Magistrate giving his consent to
the Special Public Prosecutor to withdraw from the
prosecution. Several grounds were raised all of which were
negatived by the High Court. It was also held by the High
Court that the applicant had no locus standi. The Revision
Petition was dismissed. Dr. Rajender Kumar Jain has filed
this appeal after obtaining special leave from this Court.
Shri Ram Panjwani, learned counsel for the appellant
made the following submissions: (1) The offences for which
the accused persons were to be tried were exclusively
triable by a Court of Session and, therefore, the Committing
Magistrate had no jurisdiction to give consent to the Public
Prosecutor to withdraw from the prosecution, (2) The Public
Prosecutor had abdicated his function and had filed the
application at the behest of the Central Government without
applying his mind. (3) The Magistrate was in error in giving
consent on the ground that it was expedient to do so.
Expedience was never for the judiciary. (4) S. N. Mathur who
had filed the application for withdrawal from the
prosecution was not the Public Prosecutor incharge of the
case and the application was therefore, incompetent. The
submissions of Shri Ram Panjwani were controverted by Shri
Ram Jethmalani and Shri V. M. Tarkunde, learned counsel for
the respondents. They also submitted that the offences with
which the accused persons were charged were of a political
nature and if the Government of the day thought that the
Public Prosecutor should withdraw from the prosecution on
grounds of public policy and advised the Public Prosecutor
to do so, it could not be said that the Public Prosecutor
abdicated his function merely because the proposal to
withdraw from the prosecution emanated from the Government
and he acted upon such proposal. It was also submitted that
so far as the fifth respondent was concerned no prosecution
could be launched or continued against him under Art. 361
(2) as he was the Governor of a State. Shri Panjwani in his
reply submitted that political offences were unknown to the
Municipal law of the land and that in the instant case the
withdrawal from the prosecution was for a purely political
purpose and not in the public interest at all. It was said
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that the case was withdrawn in order that Shri George
Fernandes could be appointed as a Minister in the Central
Cabinet.
991
S. 321 of the Criminal Procedure Code of 1973 which
corresponds to s. 494 of the Code of Criminal Procedure of
1898 is as follows:
"Withdrawal from prosecution.
321. 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".
We have not extracted the proviso as it is not necessary for
the purposes of these cases.
Under s. 494 of the Criminal Procedure Code 1898, it
was held by this Court in State of Bihar v. Ram Naresh
Pandey, that the Court of the Committing Magistrate before
whom a committal proceeding was pending was "the Court"
within the meaning of s. 494 which was competent to give its
consent even in the case of offences exclusively triable by
the Court of Session. But, it was contended that after the
enactment of the Criminal Procedure Code of 1973, the
situation had changed since under the new Code the Court of
the Committing Magistrate had no judicial function to
perform in relation to the case which he was required to
commit to the Court of Session. The submission was that the
Court contemplated by s. 494 was the Court capable of
pronouncing a judgment, ending the proceeding by an order of
acquittal or discharge and, since the Court of the
Committing Magistrate under the new Code was not invested
with the power of acquitting or discharging the accused it
was not the Court which could grant its consent to withdraw
from the prosecution. In the first place there is no warrant
for thinking that only the Court competent to discharge or
acquit the accused under some other provision of the Code
can exercise the power under s. 321 Criminal Procedure Code.
The power conferred by s. 321 is itself a special power
conferred on the Court before whom a prosecution is pending
and the exercise of the power is not made dependent upon the
power
992
of the Court to acquit or discharge the accused under some
other provision of the Code. The power to discharge or
acquit the accused under s. 321 is a special power founded
on s. 321 itself, to be exercised by the Court independently
of its power of enquiry into the offence or try the accused.
Again, the expression ’judgment’ in the context may be
understood to mean the judgment which may be ultimately
pronounced if the case were to be committed to a Court of
Session. That was the view expressed in the State of Bihar
v. Ram Naresh Pandey, (supra) where the Court observed:
"In any view, even if ’judgment’ in this context is to
be understood in a limited sense it does not follow that an
application during preliminary enquiry-which is necessarily
prior to judgment in the trial-is excluded".
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In the second place it may not be accurate to say that
the Committing Magistrate has no judicial function to
perform under the 1973 Code of Criminal Procedure. S. 209 of
the Criminal Procedure Code 1973 obliges the Magistrate to
commit the case to the Court of Session when it appears to
the Magistrate that the offence is triable exclusively by
the Court of Session. Therefore, the Magistrate has to be
satisfied that an offence is prima-facie disclosed and the
offence so disclosed is triable exclusively by the Court of
Session. If no offence is disclosed the Magistrate may
refuse to take cognizance of the case or if the offence
disclosed is one not triable exclusively by the Court of
Session he may proceed to deal with it under the other
provisions of the Code. To that extent the Court of the
Committing Magistrate does discharge a judicial function. We
therefore, over-rule the first submission of Shri Ram
Panjwani. We do not agree with the view taken by the High
Court of Andhra Pradesh in A. Venkataramana v. Mudem
Sanjeeva Ragudu & Ors., that the court of the Committing
Magistrate is not competent to give consent to the Public
Prosecutor to withdraw from the prosecution.
The fourth submission of Shri Ram Panjwani does not
appeal to us. The notification dated June 17, 1966 of the
Ministry of Home Affairs, Government of India, shows that
the Senior Public Prosecutor, Public Prosecutor and
Assistant Public Prosecutor of the Delhi Special Police
Establishment attached to the Delhi office of the Special
Police Establishment were appointed as Public Prosecutors
under s. 492(1) of the Criminal Procedure Code 1898 to
conduct the cases of the Special Police Establishment before
the Courts of Magistrates, Special Judges, and Sessions
Judges, in the Union Territory of Delhi.
993
All notifications issued under the old Code are deemed to
have been made under the corresponding provisions of the new
Code. It appears that Shri N. S. Mathur is a Public
Prosecutor attached to the Special Police Establishment at
Delhi and has been functioning right through as Public
Prosecutor in the Union Territory of Delhi. The High Court
has also pointed out on a scrutiny of the proceedings of the
Magistrate that it was Shri N. S. Mathur who was incharge of
the case practically throughout.
The second and third submissions of Shri Panjwani may
be considered together. Decisions of this Court have made
clear the functional dichotomy of the Public Prosecutor and
the Court. In the State of Bihar v. Ram Naresh Pandey,
(supra) the Court while considering s. 494 of the old Code
explained:
"The section is an enabling one and vests in the
Public Prosecutor the discretion to apply to the Court
for its consent to withdraw from the prosecution of any
person. ........ The function of the Court, therefore,
in granting its consent may well be taken to be a
judicial function. It follows that in granting the
consent the Court must exercise a judicial discretion.
But it does not follow that the discretion is to be
exercised only with reference to material gathered by
the judicial method. Otherwise the apparently wide
language of s. 494 would become considerably narrowed
down in its application. In understanding and applying
the section two main features thereof have to be kept
in mind. 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
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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.
In the context it is right to remember that the Public
Prosecutor (though an executive Officer ......) is, in
a larger sense, also an officer of the Court and that
he is bound to assist the Court with the fairly-
considered view and the Court is entitled to have the
benefit of the fair exercise of his functions".
The Court also appreciated that in this Country the scheme
of the administration of Criminal Justice places the prime
responsibility
994
of prosecuting serious offences on the executive
authorities. The investigation, including collection of the
requisite evidence, and the prosecution for the offence with
reference to such evidence were the functions of the
executive, and in that particular segment the power of the
Magistrate was limited and intended only to prevent abuse.
In M. N. Sankaranarayanan Nair v. P. V. Balakrishnan &
Ors. the Court while reiterating decision that the Court
granting permission for withdrawal should 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, observed that the wide and general
powers conferred on the Public Prosecutor to withdraw from
the prosecution have to be exercised by him "in furtherance
of, rather than as a hindrance to the object of the law" and
that the Court while considering the request to grant
permission should not do so as "a necessary formality-the
grant of it for the mere asking".
In State of Orissa v. Chandrika Mohapatra & Ors. the
Court said:
"We cannot forget that 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 prosecution, the
State should clearly be at liberty to withdraw from the
prosecution".
In Balwant Singh & Ors. v. State of Bihar, the
independent role of the Public Prosecutor in making an
application for withdrawal from a prosecution was
emphasised. It was pointed out that statutory responsibility
for deciding upon withdrawal vested in the Public Prosecutor
and the sole consideration which should guide the Public
Prosecutor was the larger factor of the administration of
justice and neither political favour nor party pressure or
the like. Nor should he allow himself to be dictated to by
his administrative superiors to withdraw from the
prosecution. The Court also indicated some instance where
withdrawal from prosecution might be resorted to
independently of the merits of the case:
"Of course, the interests of public justice being
the paramount consideration they may transcend and
overflow
995
the legal justice of the particular litigation. For
instance, communal feuds which may have been amicably
settled should not re-erupt on account of one or two
prosecutions pending. Labour disputes which, might have
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given rise to criminal cases, when settled, might
probably be another instance where the interests of
public justice in the broader connotation may perhaps
warrant withdrawal from the prosecution. Other instance
also may be given".
In Subhash Chander v. The State (Chandigarh Admn.) &
Ors. the Court once again emphasised the independence of the
Public Prosecutor in the matter of seeking to withdraw from
the prosecution. It was observed "Any authority who coerces
or orders or pressures a functionary like the Public
Prosecutor, in the exclusive province of his discretionary
powers, violates the rule of law, and any Public Prosecutor
who bends before such command betrays the authority of his
office". However, it was indicated:
"Maybe, 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 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.
A reference was made to some considerations which may
justify withdrawal from prosecution. It was said:
"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 faction milieu, or halting a
false and vexatious prosecution in a court, persuades
the Executive, pro bono publico, 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
996
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".
Thus, from the precedents of this Court; we gather,
1. Under the scheme of the Code prosecution of an
offender for a serious offence is primarily 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 prosecution 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 paucity of evidence
but on other relevant grounds as well in order to further
the broad ends of public justice, public order and peace.
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The broad ends of public justice will certainly include
appropriate social, economic and, we add, political purposes
Sans Tammany Hall enterprise.
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.
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
997
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. 361 Criminal Procedure Code. The
independence of the judiciary requires that once the case
has travelled to the Court, the Court and its officers alone
must have control over the case and decide what is to be
done in each case.
We have referred to the precedents of this Court where
it has been said that paucity of evidence is not the only
ground on which the Public Prosecutor may withdraw from the
prosecution. In the past we have often known how expedient
and necessary it is in the public interest for the Public
Prosecutor to withdraw from prosecutions arising out of mass
agitations, communal 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 prosecutions in order to restore peace, to free the
atmosphere from the surcharge of violence, to bring about a
peaceful settlement of issues and to preserve the calm which
may follow the storm. To persist with prosecutions where
emotive issues are involved in the name of vindicating the
law may 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. 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 public interest to withdraw
from prosecutions, how is the Government to go about this
task ?
Under the Code of Criminal Procedure it is the Public
Prosecutor that has to withdraw from the prosecution and it
is the Court that has to give its consent to such
withdrawal. Rightly too, because the independence of the
judiciary so requires it, as we have already mentioned. Now,
the Public Prosecutor is an Officer of the Court. He sets
the criminal law in motion in the Court. He conducts the
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prosecution in the Court for the people. So it is he that is
entrusted with the task of initiating the proceeding for
withdrawal from the prosecution. But, where such large and
sensitive issues of public policy are involved, he
998
must, if he is right minded, 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 momentus public policy are involved,
and if they advise 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. Nor
can there be any quibbling over words. If ill-informed but
well-meaning bureaucrats choose to use expressions like "the
Public Prosecutor is directed" or "the Public Prosecutor is
instructed", the Court will not on that ground alone
stultify the larger issue of Public Policy by refusing its
consent on the ground that the Public Prosecutor did not act
as a free agent when he sought withdrawal from the
prosecution. What is at stake is not the language of the
letter or the prestige of the Public Prosecutor but a wider
question of policy. The Court, in such a situation is to
make an effort to elicit the reasons for withdrawal and
satisfy itself, that the Public Prosecutor too was satisfied
that he should withdraw, from the prosecution for good and
relevant reasons.
We, however, issue a note of warning. The bureaucrat
too should be careful not to use peremptory language when
addressing the Public Prosecutor since it may give rise to
an impression that he is coercing the Public Prosecutor to
move in the matter. He must remember that in addressing the
Public Prosecutor he is addressing an Officer of the Court
and there should be no suspicion of unwholesome pressure on
the Public Prosecutor. Any suspicion of such pressure on the
Public Prosecutor may lead the Court to withhold its
consent.
We may now consider Shri Ram Panjwani’s argument that
the Criminal law of India does not recognise ’political
offences’ and so there can not be withdrawal from a
prosecution on the ground that the offences involved are
’political offences’. It is true that the Indian Penal Code
and the Code of Criminal Procedure do not recognise offences
of a political nature, as a category of offences. They
cannot, in the ordinary course of things. That does not mean
that offences of a political character are unknown to
jurisprudence or that judges must exhibit such a naivette as
to feign ignorance about them. Offences of a political
character are well-known in International Law and the Law of
Extradition. The Indian Extradition Act also refers to
offences of a political character. For our present purpose
it is really unnecessary to enter into a discussion as to
what are political offences except in a sketchy way. It is
sufficient to say that politics
999
are about Government and therefore, a political offence is
one committed with the object of changing the Government of
a State or inducing it to change its policy. Mahatma Gandhi,
the father of the Nation, was convicted and jailed for
offences against the Municipal laws; so was his spiritual
son and the first Prime Minister of our country; so was the
present Prime Minister and so were the first President and
the present President of India. No one would hesitate to say
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that the offences of which they were convicted were
political. Even as we are writing this judgment we read in
the morning’s newspapers that King Birendra of Nepal has
declared a "general amnesty to all Nepalese accused of
political changes". The expression ’political offence’ is
thus commonly used and understood though perhaps ’political
offence’ may escape easy identification.
Earlier in the judgment we set out the alleged object
of the conspiracy as recited in the order sanctioning the
prosecution. It was to overawe the Government by committing
various acts of destruction of public property and vital
installations and the motive attributed was that the accused
wanted to change the Government led by Shrimati Gandhi. One
need not agree with the ends or the means-genuine
revolutions have never yet been made by acts of senseless
terrorism or wanton destruction, putting innocent lives and
public property in jeopardy-but, it is clear that the very
order sanctioning the prosecution imputes to the offences
alleged to have been committed by the accused the character
of ’political offences’.
To say that an offence is of a political character is
not to absolve the offender of the offence. But the question
is, is it a valid ground for the Government to advise the
Public Prosecutor to withdraw from the prosecution ? We
mentioned earlier that the Public Prosecutor may withdraw
from the prosecution of a case not merely on the ground of
paucity of evidence but also in order to further the broad
ends of public justice and that such broad ends of public
justice may well include appropriate social, economic and
political purposes. It is now a matter of history that the
motivating force of the party which was formed to fight the
elections in 1977 was the same as the motivating force of
the criminal conspiracy as alleged in the order sanctioning
the prosecution; only the means were different. The party
which came to power as a result of 1977 elections chose to
interpret the result of the elections as a mandate of the
people against the politics and the policy of the party led
by Shrimati Gandhi. Subsequent events leading upto the 1980
elections which reversed the result of the 1977 elections
may cast a doubt whether such interpretation was correct;
only history can tell. But, if the Government of the day
1000
interpreted the result of the 1977 elections as a mandate of
the people and on the basis of that interpretation the
Government advised the Public Prosecutor to withdraw from
the prosecution, one cannot say that the Public Prosecutor
was activated by any improper motive in withdrawing from the
prosecution nor can one say that the Magistrate failed to
exercise the supervisory function vested in him in giving
his consent. We are unable to say that the High Court
misdirected itself in affirming the order of the Magistrate.
We also notice that the learned Attorney General who
disassociated himself from the legal submissions made by the
parties did not withdraw the counter affidavit filed earlier
on behalf of the State. No fresh counter affidavit
disclosing a change of attitude on the part of the new
Government which took office in January this year was filed.
Apparently the new Government did not do so as a gesture of
grace and goodwill and to prevent rancor and bitterness.
That we appreciate, Criminal Appeal No. 287 of 1979 is
therefore, dismissed.
Special Leave Petition (Criminal) No. 3115 of 1979 has
been filed by one Manohar Lal, against the order of the
Chief Judicial Magistrate, Bhiwani, permitting the Public
Prosecutor to withdraw from the prosecution in case No. 186-
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1 filed by the State against Chaudhury Bansi Lal, ex-Defence
Minister, his son Surinder Singh, ex-M.L.A., R. S. Verma,
Ex. Deputy Commissioner, Bhiwani and several other officials
and non-officials for a host of offences. The applicant has
come straight to this Court under Art. 136 of the
Constitution without going to the High Court in the first
instance. On that ground alone the petition is liable to be
dismissed as we do not ordinarily entertain such petitions.
We refrain from doing so as the matter has been fully argued
before us.
On July 13, 1977, Manohar Lal, laid information with
the Station House Officer, Police Station, Bhiwani City,
against the several accused persons. The charge-sheet was
filed by the Bhiwani Police on July 21, 1978 on the basis of
information laid with them by Manohar Lal. The gravamen of
the allegation against the accused persons was that
Chaudhury Bansi Lal was annoyed with Manohar Lal and his
sons as they failed to transfer two plots of land to his son
and a relative. Chaudhury Bansi Lal, therefore, induced the
Bhiwani Town Improvement Trust to include in its successive
schemes land belonging to Manohar Lal and his sons, in
Bhiwani Town, on which stood some buildings including two
temples. As Manohar Lal apprehended that his buildings might
be demolished, he filed a Writ Petition in the Supreme Court
and obtained an order of stay of demolition. However, the
stay
1001
was vacated on December 1, 1976 and on the same day, on the
instructions, by telephone or wireless, of Chaudhury Bansi
Lal, R. S. Verma, the Deputy Commissioner instructed his
officers to demolish the buildings standing on the land. The
Land Acquisition Collector made his Award of compensation
and deposited the amount in a bank. All this was done in the
course of a few hours and the demolition of the building was
started forthwith and completed by December 4, 1976. The
chargesheet, as we said, was filed on July 21, 1978.
Chaudhury Bansi Lal filed a petition in this Court for
transfer of the case to a Court outside the States of Punjab
and Haryana. This Court issued notice on the petition for
transfer and granted stay of further proceedings in the case
before the Chief Judicial Magistrate, Bhiwani. The order of
stay continued. On September 20, 1979 on the basis of a
letter addressed to him by the District Magistrate, the
Public Prosecutor filed an application before the Chief
Judicial Magistrate for permission to withdraw from the
prosecution. On September 21, 1979 the Court granted its
consent to the withdrawal of the Public Prosecutor from the
prosecution. It is this order that is questioned in the
Special Leave Petition.
Shri Parekh, learned counsel for the petitioner urged
that the public Prosecutor filed the application at the
behest of Shri Bhajan Lal, the Chief Minister of Haryana and
that he never applied his mind to the facts of the case.
According to Shri Parekh Shri Bhajan Lal ordered the
withdrawal of the public Prosecutor from the prosecution
because his Ministry would not survive without the help of
Chaudhury Bansi Lal. A motion of no confidence was imminent
against Shri Bhajan Lal and was to be considered on
September 24, 1979; so he ordered withdrawal of the cases
against Chaudhury Bansi Lal on September 20, 1979, in order
to secure the support of his group. It was said that the
withdrawal from the prosecution was not based on any ground
of public policy. Shri Parekh, drew our attention to the
wireless message which was sent by the Government to the
District Magistrate, Bhiwani informing him that the
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Government had decided to withdraw the four cases mentioned
in the message, pending in the Court of Bhiwani and that
four cases should be withdrawn immediately from the
concerned Courts and the Government informed accordingly.
The District Magistrate Bhiwani forwarded a copy of the
wireless message to the District Attorney, Bhiwani for
necessary action directing him to withdraw the four cases
from the concerned courts as desired by the Government and
to report compliance to this office. The District Attorney
there-after filed an application for permission to withdraw
from the prosecution. On September 21, 1979, he made a
statement before the Chief
1002
Judicial Magistrate that he had made the application on
the orders of District Magistrate, Bhiwani and that the
reasons were given in the application. In answer it was
contended by the advocate General of Haryana who appeared
for the State of Haryana and M. C. Bhandare who appeared for
Chaudhury Bansi Lal, that Surinder Singh, son of Chaudhury
Bansi Lal had petitioned to the Chief Minister of Haryana
alleging that he, his father and their associates were being
harassed by numerous cases being filed against them without
any justification. He requested the Chief Minister to stop
needless harassment. The Minister constituted a Sub-
Committee consisting of himself, the Finance Minister and
the Irrigation and Power Minister to look into the question.
The Sub-Committee examined the cases in detail and decided
that four out of twenty five cases filed against Chaudhury
Bansi Lal should be withdrawn as the evidence available was
meagre and, in particular, in the case based on Manohar
Lal’s information the complainant had also been suitably and
profitably compensated. The decision of the Government was
communicated to the District Magistrate who in turn asked
the Public prosecutor to move the Court for consent to
withdraw from the prosecution. The Chief Minister and his
colleagues on the Sub-Committee have filed before us
affidavits regarding the constitution of the Sub-Committee
and the decision to withdraw from the prosecution. They have
also denied the allegation that the case had been withdrawn
with a view to gain the support of Chaudhury Bansi Lal
against a no-confidence motion which the petitioner alleged
was to be moved against the Chief Minister. It was pointed
out in the affidavits that no no-confidence motion was ever
tabled against Chief Minister Bhajan Lal and that on the
very figures given by the petitioner regarding the party
position in the Haryana Assembly the support of Chaudhary
Bansi Lal and his group would not matter. It was also
brought out in the counter affidavits filed on behalf of
some of the respondents that the petitioner had himself
admitted in the agreement which he had entered into with the
Bhiwani Town Planning Trust on May 6, 1977, that his land
and plots had been duly acquired under various development
schemes, that he desired to withdraw all the petitions etc.
filed by him in various courts and that he would not claim
any damages against the Trust. The Town Planning Trust
agreed to release the lands to him with a view to enable him
to reconstruct the buildings. It was expressly recited in
the agreement that the Bhiwani Town Improvement Trust agreed
to the terms of the agreement as it was thought to be "in
the best interest of the parties concerned as well as in the
good of the residents of the Bhiwani Town to settle the
matter amicably and mutually". The Government of Haryana
also. it was so recited in the agreement, had accorded its
approval to the
1003
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terms of the settlement. It has been mentioned in the
counter-affidavits that the agreement between Manohar Lal
and the Bhiwani Town Improvement Trust in which Manohar Lal
admitted the title of the Bhiwani Town Improvement Trust to
the land and buildings was never placed before the
Jaganmohan Reddy Commission. In fact it is one of the
complaints of Chaudhury Bansi Lal that those that were in
charge of producing evidence before the Jaganmohan Reddy
Commission took care to see that nothing in his favour was
placed before the Commission. Chaudhury Bansi Lal filed a
counter-affidavit in which he has stated that the allegation
that his son and relative wanted to purchase the land of
Manohar Lal was an allegation which Manohar Lal never made
in any of the objections filed by him against the schemes
proposed by the Town Improvement Trust. It has also been
pointed out that in the several writ Petitions filed by
Manohar Lal against the schemes no allegations of malafides
were made against Bansi Lal. In one Writ Petition an attempt
was made to introduce such an allegation by way of amendment
but the High Court held that the allegation was a mere
’after-thought’. The District Attorney has filed a counter-
affidavit in which he has stated that the evidence in the
case was of a meagre nature and he was of the view that it
might not be possible to obtain a conviction in the case. He
had brought it to the notice of the District Magistrate
earlier but as important personalities were involved it was
not thought proper and prudent to make an application for
withdrawal from the prosecution. The occurrence which was
the subject matter of the case was said to have taken place
at 10 p.m. A large number of accused had been named. There
were reasons to believe that most of the names of the
accused were included on mere suspicion. In fact two
advocates who had been implicated as accused led
unimpeachable evidence that they were not in Bhiwani at all
that night. After he received advice from the District
Magistrate he was convinced that an application should be
filed for withdrawal from the prosecution and so he filed
the same. Sri Bhaskar Chatterji, the District Magistrate has
also filed an affidavit in which he has stated that the
District Attorney had informed him that some of the cases
filed against Chaudhury Bansi Lal and his family members
were weak in nature. He did not however, take any action at
that time as important personalities were involved and as
there were no directions from the Government in that regard.
Later he received a wireless message which he forwarded to
the District Attorney for action, Shri Kataria Secretary to
Government of Haryana, Department of Administration of
Justice has also tiled a counter-affidavit in which he has
mentioned the detailed of the proceedings of the Cabinet
Sub-Committee which took the decision to withdraw the case
on September 20, 1979.
1004
On a perusal of the allegations and counter-
allegations, the facts which emerge from the record as
beyond dispute are:
(1) The land of Manohar Lal and his sons on which
there were certain buildings was included in
the Bhiwani Town Improvement Scheme.
(2) The allegation that Bansilal’s son and
relative wanted to purchase the land
originally was not made by Manohar Lal in the
original objections and writ Petitions filed
by Manohar Lal.
(3) The Supreme Court first granted stay of the
demolition of buildings but later vacated the
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stay on December 1, 1976.
(4) As soon as stay was vacated, without any loss
of time, the demolition work started and
completed. Dynamite and bull-dozers were used
and the buildings were demolished.
(5) On May 6, 1977, Manohar Lal and his sons
entered into an agreement with the Bhiwani
Town Improvement Trust agreeing to withdraw
all the cases filed by them against the
improvement Trust and accepting the title of
the trust to the land acquired under the Town
Improvement schemes. In return the
Improvement Trust agreed to release the lands
to Manohar Lal and his sons for the purpose
of reconstructing the buildings and to
receive the compensation assessed for the
demolished buildings. It was recited in the
agreement that the Town Improvement Trust had
agreed to this course as it was thought to be
"in the best interest of the parties
concerned as well as in the good of the
residents of the Bhiwani Town".
(6) On July 13, 1977 Manohar Lal lodged a First
Information Report with the Police.
(7) On July 21, 1978 the police filed a charge-
sheet in the Court of the Chief Judicial
Magistrate, Bhiwani.
(8) The District Attorney had informed the
District Magistrate that the evidence was of
a weak nature as most of the accused appeared
to have been implicated on mere suspicion and
some of the accused were not even present in
the town on the night of the occurrence.
(9) Surinder Singh, son of Bansi Lal made a
representation to the Government that they
were being harassed by innumerable cases
being filed against them.
1005
(10) On September 20, 1979, the Cabinet Sub-
Committee decided that four out of twenty
five cases filed against Bansi Lal and others
should be withdrawn. A wireless message was
sent by the Government to the District
Magistrate asking him to withdraw the four
cases and to report compliance. The letter
was forwarded to the District Attorney. The
District Attorney filed an application for
withdrawal from the prosecution on the same
day.
(11) Neither before nor after the Cabinet Sub-
Committee took its decision was there a no-
confidence motion tabled against Chief
Minister Bhajanlal.
(12) On September 21, 1979, the Court granted its
consent to the withdrawal of the public
Prosecutor (the District Attorney) from the
case.
It is on this material we have to determine whether the
withdrawal from the prosecution could be said to be
malafide, that is for irrelevant or extraneous reasons. We
are not satisfied that there is sufficient basis to come to
such a conclusion particularly in view of two outstanding
circumstances namely that only four out of twenty-five cases
have been withdrawn and the complainant himself had
acknowledged the title of the Town Improvement Trust to the
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lands and the Trust had not only returned the lands to the
complainant but also paid him compensation for the
demolished buildings in the interest of all parties in
Bhiwani town. We, therefore, dismiss the Special Leave
Petition.
Before bidding farewell to these cases it may be
appropriate for us to say that Criminal justice is not a
plaything and a Criminal Court is not a play-ground for
politicking. Political fervour should not convert
prosecution into persecution, nor political favour reward
wrongdoer by withdrawal from prosecution. If political
fortunes are allowed to be reflected in the processes of the
Court very soon the credibility of the rule of law will be
lost. So we insist that Courts when moved for permission for
withdrawal from prosecution must be vigilant and inform
themselves fully before granting consent. While it would be
obnoxious and objectionable for a Public Prosecutor to allow
himself to be ordered about, he should appraise himself from
the Government and thereafter appraise the Court the host of
factors relevant to the question of withdrawal from the
cases. But under no circumstances should be allow himself to
become anyone’s stooge.
No arguments were advanced in Criminal Miscellaneous
Petition No. 3890 of 1979. It is, therefore, dismissed.
S.R. Appeal and Petitions dismissed.
1006