# RAJENDRA KUMAR JAIN ETC v. STATE THROUGH SPECIAL POLICE ESTABLISHMENT AND ORS. ETC. ETC

- **Citation:** [1980] 3 S.C.R. 982
- **Court:** Supreme Court of India
- **Decided:** 1980-05-02
- **Case number:** Crimina~ Appeal No. 287 of 1979
- **Bench:** V. R. Krishna Iyer, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajendra-kumar-jain-etc-v-state-through-special-police-establishment-and-ors-8228
- **Pages:** 24

## Headnote

Nolle Prost'iqui-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 ca.re, meanin'g of-Political ofJences explained.
C
Section 321 of the Code of Criminal Procedure, 1973 which correspond& to
section 494 of the 1898 cod'e provides for the withdtawal from prosecution by
the Public Prosecutor or Assistoot 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 allowOd to be withdrown on March 26, 1977
on an application under section 321 of the Criminal Procedure Code, 1973 made
D
by N. S. Mathur Special Public Prosecutor.
The learn'ed 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 ihe appellant an advocate in the High Court f:u1ed. The High
Court also held that the appellant had no locus standL
E
Special Leave Petition (Cr!.) No. 31iS/79 was filed by one Manohar Lal
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directly under Article 136 of the Constitution against the order of the Chief
Judicial Magistrate, Bhiwani, permitting the public prosecutor to withdraw from
tho prosecution in case No. 186-1 filed by the State aaainst Choudhury Bansilal
Ex-Defence Minister, his son Surinder Singh, Ex. M.L.A., R. S. Verma, Ex.
Deputy Commissioner, Bhiwani and several othets officials and non officials for
a hos'.t of' offences.
In Cr!. Appeal No. 287179, the Contentions were : (a) The Offence
for
which the accused persons were to be tried were exclusively triable by a
Court of Session, and therefore, the Committing Magistrate had no
jurisdic8
tion to give consent to the Public Prosecutor to withdraw from the prosecu;..
tions; (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 !'ODSent 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
\Vas
therefore incompetent.
'
·
In the special leave (Cr!.) No. 3115179, 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 ihe help of
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R· K. JAIN V. STATE
983
Chaudhuri Bansi Lal :i:nu (tii) the withdrawal was not based on any public
A
policy.
Dismissing the appeal by special leave and the special lec\ve petition, the)
Court
.
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HELD : I. The contention that under the new code .of Criminal Procedure,
l 973, the Court of Committing Magistrate had no iJldicial function to perform
in rel:ition to the case which he was required to commit to the Court of Session as W<l'S the position under section 494 of the 1898, and since the Court of
the Committing Magistrate under the new ccxle 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 prosecutioii is erroneous. In the fin;t
place there is no warrant for thinking that only tha 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 prosecutiont is
pendi

## Text

_Characters 0–39,984 of 66,046. This is a partial read: ask again with offset=39984 for what follows._

B
i. :
982
RAJENDRA KUMAR JAIN ETC.
v.
STATE THROUGH SPECIAL POLICE ESTABLISHMENT
AND ORS. ETC. ETC.
May 2, 1980
[V. R. KRISHNA IYER AND 0. CHINNAPPA REDDY, JJ.J
Nolle Prost'iqui-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 ca.re, meanin'g of-Political ofJences explained.
C
Section 321 of the Code of Criminal Procedure, 1973 which correspond& to
section 494 of the 1898 cod'e provides for the withdtawal from prosecution by
the Public Prosecutor or Assistoot 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 allowOd to be withdrown on March 26, 1977
on an application under section 321 of the Criminal Procedure Code, 1973 made
D
by N. S. Mathur Special Public Prosecutor.
The learn'ed 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 ihe appellant an advocate in the High Court f:u1ed. The High
Court also held that the appellant had no locus standL
E
Special Leave Petition (Cr!.) No. 31iS/79 was filed by one Manohar Lal
F
G
B
directly under Article 136 of the Constitution against the order of the Chief
Judicial Magistrate, Bhiwani, permitting the public prosecutor to withdraw from
tho prosecution in case No. 186-1 filed by the State aaainst Choudhury Bansilal
Ex-Defence Minister, his son Surinder Singh, Ex. M.L.A., R. S. Verma, Ex.
Deputy Commissioner, Bhiwani and several othets officials and non officials for
a hos'.t of' offences.
In Cr!. Appeal No. 287179, the Contentions were : (a) The Offence
for
which the accused persons were to be tried were exclusively triable by a
Court of Session, and therefore, the Committing Magistrate had no
jurisdic8
tion to give consent to the Public Prosecutor to withdraw from the prosecu;..
tions; (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 !'ODSent 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
\Vas
therefore incompetent.
'
·
In the special leave (Cr!.) No. 3115179, 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 ihe help of
I
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R· K. JAIN V. STATE
983
Chaudhuri Bansi Lal :i:nu (tii) the withdrawal was not based on any public
A
policy.
Dismissing the appeal by special leave and the special lec\ve petition, the)
Court
.
J
HELD : I. The contention that under the new code .of Criminal Procedure,
l 973, the Court of Committing Magistrate had no iJldicial function to perform
in rel:ition to the case which he was required to commit to the Court of Session as W<l'S the position under section 494 of the 1898, and since the Court of
the Committing Magistrate under the new ccxle 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 prosecutioii is erroneous. In the fin;t
place there is no warrant for thinking that only tha 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 prosecutiont 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 indepen,1
dently ·of its power of Cnquiry inlo the offence or try the accused.
Again, tho
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 Crintinal Procedure.· S. 209 of the Criminal Procedure Code 1973
obliges the Magistrate to commit the case to the Court of Session whe11 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 oftence. 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-El
litate of Bihar v. Ram Naresh Pandey, [1957] SC:R 279 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 Prosecu·
tor and Assistant Public Prosecutor of the Delhi Special Police Establishment
attached to the Delhi office of the Special Police Establishment were appointm
as Public Prosecutors under s: 492(1) of the Crimiqal 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
~
Delhi. All notifications issued under the · old Code are deemed to have been
made under the correspQnding provisions of the new Code. Sri S. N. Mathur
is a Public Prosecutor attached to the Special Police E.stablishment at Delhi and
has been functioning right throueh as Public Prosecntoc in the Union Territory
of Delhi and it was be who was in charge of the case practically throughout
[992 G·H, 993 A-BJ
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SUPREME COURT REPORTS
[1980] 3 s.c.R.
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3. In this country the scheme of the administration of Criminal Justice
places the prime ·responsibility of prosecuting serious offences on the executive
authorities. 1hJ 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-BJ
From the precedents of this Court, the following propQSitions emerge '
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(i) Under the scheme of the COde prosecotio1' of an offender for a oerieus
offence is primarily the responsibility of the Executive.
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(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 PubliCi
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 maJI'
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\ WI
the Court.
·
' (vii) The Court porforms a supervisory function in granting its co111ent .to
the withdrawal.
(viii) The Conrt's duty is not to reappreciaic 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, uninlluenced
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-0]
It shall be the duty of the Public Prosecutor to inform the Court and it shall
be the duty of the Court to apprise itself of the reasons which prompt Iha
Public Prosecutor to withdraw from the prosecution. The Court has a reoponsibility and a stake in the administrallion of criminal justice and so hall 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 Ex&o
cutive by resort to the provisions of s. 361 Criminal Procedure COde. The
independence of the judjiciary requires that once the case has travelled to t1io
COurt, the COurt and its officers alone must have control over the calie and
decide what is to be done in each case.
[996 H, 997 A-BJ
State of Blhar v. Ram Naresh Pandey, [1957J SCR 279; M. N. SaRkara•
narayanan 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; Ba/":ant Single
. and Ors. v. State of Bihar, [1978] 1 SOR 604 @ 605; Subhmh Chander v. Th•
State (Chandigarh Admn.) and Ors., AIR 1980 SC 423; referred to.
4. Paucity of evidence is not the only ground on which the Public Prooecu·
tor may withdraw from the .prooecution. In the past, it has been fomid e»-
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R· K. JAIN V. STATE
985 .
pedient and necessary in the public interest that the Public Prosecutor should
withdraw from prosecutions arising out of mass agitations,
communal riot.5,
regional disputes, -industrial
conflicts,
student unrest etc. Wherever issues -
involve ihe emotions and there is a surcharge of violence iill the atmoiphere 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 '\\'"ith 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, y.-ill be amply justified if for the purpose: of not disturbing a calm
v;hich 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 Govemnient and nonei else can and should decide in the first instance
. y,·hether it should be baneful or beneficial to launch or continue proseCutions.
[997 B·FJ
5. Under the Code of Criminal Procedure it is the Public Prosecutor that
has to \Vithdraw from the prOsecution and it is the Court that has to give its
consent to such '\vithdrawal.
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 proceedingJor withdrawal from the prosecution..
But, where such large and sensitive issu'es of Public policy are involved, he must~
if be· is right ntlnded, seek advice and guidance from the policy-maker. If the
Policy makers themselve'j move in the matter.' in the first instance, as indeed
it is proper that they should "'·here matters of momentus public policy are involved, and if they ad"·ice the Public Prosecutor to withdraw from the prose--
cution, it iS not for the Court to say t!iat the initiative ;came frorμ the Govem1 ·
ment 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!
sougb.t withdrawal from the prosecution. \Vhat is at stake is not the language
of the tetter 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 '\Vithdraw from ~he prosecution for good and refevant rea-sons.
[997 G-H, 998 A-DJ
Ho\vever, 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 be is coercing the Public Prosecutor to move in the matter. !le
must remember -that in addressing the Public Prosecutor be is addressing an
Officer of the Court and there should be no suspicion of unwholesome pressure
on the Public Prosecutor. ·Any· suspicion of such pressun; 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 jurisProdence or that judges must
4-610SCI/80
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986
SUPREME COURT REPORTS
(1980] 3 S.C.R.
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 offencC is
one committed with the object of changing the Government of a State or inducing it to change its policy. 'fhe expression ''po1itical 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
char,acter is not to absolve, the
Qll"enders of the offence.
But it will be a valid ground for the Government to
advise the Public Prosecutor to withdravl from the prosecution. The Public Pro.-
secutor. 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, es in
the appeal, as a mandate of the people and on the besis 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 lt be
&trid
that the
Magistrate failed to exercise the supervisory function vested in him in giving
. his consent. (999 H, 1000 A-Bl
Observation :
Criminal justice is not a plaything and Criminal Court is
not a
playground for politicking. Political fervour should not convert the prosecution
into persecution nor political favour reward . wrongdoer by withdrawal from
prosecution. If political fortnnes 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 grsnting consent. While
it would be
obnoxious and objectionable for a Public Prosecutor to allow himself to be
ordered about, he should llppraise
himself from the Government and thet'tafter 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]
CRIMINAL APPELLATE JURISDICTION : Crimina~ Appeal No. 287 of
1979.
Appeal by special leave from the Judgment ,11ond
Order dated
12-10-1967 of the Delhi High Court in Criminal Revision No. 117 of
1977.
WITH
JI
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.
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R. K. JAIN V. STATE
987
AND
CRIMINAL MISCELLANEOUS PETITION No. 3890: of 1979.
J.-
· 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, 197 5.
Lal Narain Sinha Att. Genl., M. K. Banerjee, Addi. Sol. Ge~!. Miss
A. Subhashini and R. B. Datar for the Petitioner in Cr!. Misc. Petition No. 3 890 /79.
U. D. Gour Adv. Genl. Haryana and M. N. Shroff for the Respondent in Cr!. Misc. Petition No. 3890/1979.
P. H. Parekh, Hemani Sharma, Rajan Karanjawala and C. B.
Singh for the Petitioner in SLP 3115/79.
M. C. Bhandare, Mrs. Sunanda Bhandare and T. Sridharan for
· Respo'ndent 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 311.5/79.
Lal Narain Sinha, Att. Genl., Miss A. Subhashini and R. B. Datar
for Respondent No. 30 m SLP 3115/79.
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Ram Panjwani, Raj Panjwani, Vijay Panjwani and S. K. Bagga,
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for the Petitioner in Cr!. A. 287 /79.
Lal Narain Sinha Att. Genl. and M. K. Banerjee Addi. Sol. Genl.
and Miss. A. Subhashini for Respondent No. 1 in Cr!. A. 297 /79.
Ram lethmalani, Mrs. Sushma Swaraj, A. K. Pande
and Mrs,
Hemanlika Wahl for RespO!!ldent No. 2 in Cr!. A 297 /79.
V. M. Tarkunde, T. U. M_ehta, P. H. Parekh and Mi.is Vii1eeta
Caprihan for Respondent N:o. 5 in Cr!. A. No. 297 of 1979.
Ram lethmalani and Ranjan Dwivedl for Respondent Nos. 2, 11,
12, and 13 in Crl. 1A. 287 /79.
Ram lethmalani, A. G. Noorani, Miss Rani Jethmalani and Mrs.
Kamini laiswal for Respondent Nos. 3·, 15 and 16 in Crl. A. 287 /79.
Ram lethmalani and A. G. Noorani and Miss Rani,Jethmalaiii for
Respondent No. 21 in Cr!. A. 287 /79.
Sushi! Chandra Bhatnagar in persolli (Respondent No. 14. in Cr! .
A. 287 /79).
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988
SUPREME COURT REPORTS
(1980]. 3 S.C.R.
The Judgment of the Court was delivered by
CmNNAPPA REDDY, J.-A cocktail of law and politics, reason and
extravagance is the only way we can describe the S1Jbmissions made
to us in these two cases. Well known personalities are involved, ~
one case an Ex-Central Minister, the present Governor of a State _and
some leading journalists, and in the othet 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 bys. 196(1) (a) of the Code
of Criminal Procedure 1973, and s. 7 of the Explosive Substances
Act, 1908, the Govermnent 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 Snbstances Act, and S. 5 (3) (b) and
S. 12 of the Indian Explosives Act, 1884. The first paragraph of
the order according sanction set ont 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 fndia 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 resistence
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 a'nd 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-
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R· K.·JAIN v. STATE (Chinnappa Reddy, J.)
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 mentiOIJled in the order sanctioning . the prose- ·
cution. Two of the accused persons
had been tendered pardon.
They had, therefore, to be examined as witnesses in the ~urt of the
Magistrate taking cognivmce of the offences iiotwijhftiihding 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, oil 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
shee~ in
this Hon'ble Court against Shri George Mathew Fernandes
and 24 others for offences 11/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.
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 o'ut 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 arid 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.
Sdb-
(N.· S. Mathur)
Special Public Prosecutor
for the State, New Delhi".
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SUPl,{EME COURT REPORTS
[1980] 3 s.c.R.
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On the same day the learned Chief Metropolitan Magistrate,
expressing the opinion that it was "expedient to accord consent to
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withdraw from the prosecution", granted his coll8ent for withdrawal
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from the prosecution.
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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 trie& ;were exclusively triable by a Court of Session
and, therefore, the Committing Magistrate had no jurisdiction to give
consent to the Public Prosecl!tor 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 eApedient 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 all;o 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 preposal. 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 Gover·
nor of a State. Shri Panjwani in his reply submitted !!rut 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
that the case was withdrawn in order .that Shri George Fernandes
could ,be appointed as a Minister in th~ Central Cabinet.
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991
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S. 321 of'the Criminal Procedure Code of 1973 which corresponds
A
to s. 494 of *1e Code- of Criminal Procedure of 1898 is as fo'llows :
"Wi\hdrawal from prosecution.
321.1 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 tlje prosecution of any person either generally or in
respect 1of 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 off-
'
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1 ence or offences;
(b) : if it is made after a charge has been framed, or
1 when under this Code no charge is
required, he
'shall be acquitted in respect of such offence or off-
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1 ences".
We have pot extracted the proviso as it is not necessary for the
purpoSt?s of these cases.
i
Under s. 494 of the Criminal Procedure Code 1898, it was held
by this Coj\rt 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
exclusively1 triable by the Court of Session.
But, it was contended
that after the enactment of the Criminal Procedure Code of 1973, the
situation ~ad changed since bnder the new Code the Court of the Committing Magistrate had no judicial function to perform in relation to the
case whic~ he was required to commit to the Court of Session.
Tile ,Subnlission was that the Court contemplated by s. 494 was the
Court capable of pronouncing a judgment, ending the proceeding by
an order pf 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 ace.used it was not the Court
which c~bld grant its consent to withdraw from the prosecution. In
the first place there is no warrant for thinking that only the Court
competeijt to discharge or acquit the accused under some other provision o~ the Code can exercise the power under s. 321
Criminal
Procedurte Code. The power conferred by s. 321 is itself a special
power crnferred on the Court ,before whom a prosecution is pending
and the 1exercise of the power is not made dependent upon the power
(!) \1957] SCR 279 .
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SUPREME COURT REPORTS
(1980] 3 S.C.lt.
of the Court to acquit or discharge the accused under some other provision of the Code.
'The power to discharge or acquit the accused undec
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 cmpmitted to a Court of Session. That
was th~ view expressed in the State· of Bihar v. Ram Naresh Pandey,
(supra) where the Court observed :
v1n 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".
In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under tke
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 11ppears 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 prirna-facie discloseo 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. Venkatari:rmana v. Mudem Sanjeeva Ragudu & Ors,,(1)
that the court of the Committing Magistrate is noti 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 t1te 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, aud Sessions Judges, in the Union Territory of Delhi.
(!) [1976] Andhra Law Times Reports 317.
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R· K. JAIN v. STATE (Chinnappa Reddy, !.)
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 Pro5e~utor in the Union Te~ritory of Delhi.. The
High Court' has also pointed out on a scrutiny of the proceedings of
the Magistrate that it ~as Shri N. S. Mathur who was incharge of the
case practically throughout.
The second and third submissions of Shri Panjwani ,may be considzred together. Decisions of this Court have made c:ear 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 tho Public
Prosecutor ihe 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 exercis"d only with q:ference 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
exercise of the judicial
discretion for granting the consent would normally mean
that the Court has to satisfy itself t]Jat the executive func-
. tiori of the Public Prosecutor has not been. improperly ~xer
cised, 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 Prose-
'cutor (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 tlie 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 Cou;,try t]Je scheme of
the administration of Criminal Justice places the prime responsibility
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of prosecuting serious offences on the executive authorities. The investigation, including collection of tb,e. requisite evidence, and
the
prosecution for the offence with reference to such evidence were the
functions of the executive, and i'n that particular segment the power
,,.l._
of the Magistrate was limited and intended only to prevent abuse.
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In M. N. Sankaranarayanan Nair v. P: v. Balakrishnan &
Ors.( 1)
the Court while reiterating decision that the Court granting permission for withdrawal should satisfy itself that the exec.utive
. 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
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and general powers conferred on the Public Prosecutor to withdraw
from the proS"ecution have to be exercised by him "in furtherance of,
raL'ler than as a hindrance to the object of the law" and that the
Court while considering the request to grant permissioru should not
do so as "a necessary formality-the grant of it for the mere asking".
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In State of Orissti v. Chandrika Mahapatra & Ors. (2 ) the Court
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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 DI)! 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 rok
of the Pnblic 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 nOlr 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
(!) [19721 2 SCR 599.
(2) [19771 1 SCR 335 at 340.
(3) [1978] 1 SCR 604 at 605
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R. K. JAIN v. STATE (Chinnappa Reddy, !.)
995
the legal justice of the particular litigation.
For instance,
communal feuds which may have been
ainicably
settled
should not re-erupt on account of one or two prosecutions
pending. Labour disputes which, might have 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 cir 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".
Howe.ver, it was indicated : .
"Maybe,' Government or the District
Magistrate will
consider that a prosec!'tion or class of prosecutions deserves to be withdrawn on grounds of policy or reaso·ns 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 con- .
siderations of promotion of long-lasting security in a locality, cf order in a disorderly situation or harmony in a faction milieu, or .halting a false and vexatious prosecution ·m
a court, persuades the Executive, pro bona publico, . sacrifice a ponding case for a wider benefit, is not ruled out
although the power must be •pariugly exercised and the statu- ·
tory agency to be satisfied is the public prosecutor, not the
District Magistrate. or Minister.
The
concurrence of the
(I) AIR 1980 SC 423.
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court is necessary. The subsequent discovery of a hoax behind the prosecution or false baiis 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 11 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
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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 disD
cretion 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
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merely on the ground of paucity of evidence but on other relevant
grounds as well in order to futther the broad ends of public justice,
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public order and peace.