# SHEO NANDAN PASWAN v. STATE OF BIHAR & ORS - **Citation:** [1987] 1 S.C.R. 702 - **Court:** Supreme Court of India - **Decided:** 1986-12-20 - **Case number:** Criminal Appeal A No. 241 of 1982 - **Bench:** P.N. Bhagwati C.J, E.S. Venkataramiah, V. Khalid, G.L. Oza, S. Natarajan - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheo-nandan-paswan-v-state-of-bihar-ors-9493 - **Pages:** 96 ## Headnote • Review of judgments or orders by the Supreme Court-Constitution of India, 1950, Article 137 read with Rule I of order XL of the Supreme Court Rules, 1966--Nature of the power of Review by the c Supreme Court-Whether the Supreme Court could interfere with the granting consent orders for "Nolles Prosequi" against the accused, when the orders of the Special Judge, of the High Court in Revision, and of the majority of the Judges of the S~preme Court in an appeal by special leave, were in favour of the accused. 0 Review order is to the effect "the review petition should be admitted and the appeal should be reheard immediately after the decision of Nandini Satpathi's case Cr/. Appeals 48 and 49 referred to a Constitution Bench"-Meaning and consequ.ence of the order admitting the Review Petition-Whether the judgment sought to be reviewed was set aside or not. E Code of Criminal Procedure, 1973, .section 321-Withdrawal from the Prosecution-Scope and construction of the provisions of the section as to the power of the Public Prosecutor to withdraw and the power.to grant consent to·such withdrawal by the Magistrate-Whether on the face of the record, there was any error apparent-Whether the principle of administrative law be invoked for construing the F section. Locus' standi of a complainant in a criminal proceedings to file a revision before the High Court and an appeal by special leave before the Supreme Court under Article 136 of the Constitution, against an order G granting consent to withdraw the criminal case. "Discharge" of an accused, consequent to the consent passed by the Magistrate under section 321 and "Discharge" of an accused made under section 227 or 239 of the Code of <;riminal Procedure. Under Article 137 of the Constitution of lndia The Supreme H Court shall have power to review any judgment pronounced or order .702 + + )-- , . \ ' ·+ -+ -f .. SHEONANDANPASWANv.STATEOFBIHAR 703 made by it, subject to the provisions of any law made by Parliament or A any rules made under Article 145. The Supreme Court, in exercise of the powers conferred by Article 145 of the Constitution and all other powers enabling it and with the approval of the President made the "Snpreme Court'Rules 1966". Under Rule 1 of Order XL thereof, the "Court may review its judgment or order but no application for review will be entertained • . . . . . in a criminal proceeding except on the B ground of an error apparent on the face of the record." Patna Urban Cooperative Banks was registered in May 1970 :ind it commenced its banking business ·with Nawal Kishore Sinha as its Chairman, K.P. Gupta as its Honorary Secretary, M.A. Hydary as Manl'ger and A.K. Singh as loan clerk. Dr. Jagannath Misra who was c then a Member of the Legislative Council was closely associated with Nawal Kishore Sinha and helped the Cooperative Bank and Nawal Kishore Sinha in !fiverse ways in connection with the affairs of the Bank and assisted in mobilisation of the resources for the Bank. There were some irregularities in the affairs of the Bank. The then Chief Miliister Slu- view to obtain to himself and to the other respondents pecuniary c advantage to the detriment of Patna Urban Cooperative Bank. The Chief Judicial Magistrate took cognizance of the case on 29. 7. 1979. + There was a change of ministry in Bihar in June 1980 and the second respondent became the Chief Minister again. A policy decision D was taken on I0.6.1980, that criminal cases launched out of political vendetta and cases relating to political agitation be withdrawn. On 24.2.1981 the Government appointed Shri L.P. Sinha as a Special Public prosecutor. On 25.2.1981, the secretary to the Government of Bihar wrote a letter to the District Magistrate informing him of the policy decision taken by the Government to withdraw from prosecution + E of two vigilance cases including the case with which the Court is concerned. He was requested to take steps for the withdrawal of the case. On 17th June, 1981, Shri Sinha made an application under s.321 ot'the Cr.P.C. to the Special Judge seeking permission to withdraw from the • prosecution of respondent Nos. 2, 3 and 4 on four grounds; (a) Lack of prospect of successful prosecution in the light of the evidence, (h) ImpliF cation of the persons as a result of political and personal vendetta; (c) Inexpediency of the prosecution for the reasons of the State and public !I policy and (d) Adverse effects that the continuance of the prosecution '· will bring on public interest in the light of the changed situation. The learned Special Judge gave consent sought, by his order dated 20th June, 198t: The appellant, therenpon, filed a criminal Revision A11pli· G cation No. 874/81 against the order permitting withdrawal of the ]pro- ~ • secution. The said application was dismissed in ii mine by the High Court by an order dated 14.9.1981. The appellant therefore prefe.red ,. Crl. Appeal No. 241/82 by special leave to this Court. In two well reaso"ned concurring judgments, Babarul Islam J and R.B. Misra J. dismissed the appeal by their judgments dated December 16, 1982 and H by an equally reasoned judgment, Tulzapurkar J. dissented from the SHEO NANDAN PASWAN v. STATE OF BIHAR 705 7 main judgement and allowed· the appeal. (See Sheonandan Paswan v. A State of Bihar & Ors.,[(1983) 2 SCR 61] Baharul Islam J. demited office .on 13. 1.1983. An application was filed on 17.1.1983 to review the judgmenf under Article 137 of the Constitution read with Order XI of the Supreme Court Rules. On 22.8.1983, the matter was heard in open -+ court by a Bench consisting of Tulzapurkar J., A.N. Sen J. and R.B. Misra J, and·A.N. Sen J. passed an order admitting the Review Petition B without disclosing any reason therefor and directed the rehearing of the petition immediately after the decision in Mohd. Mumtaz v. Smt. Nandini Satpathy [1983] 4 SCC 104, which was referred already to a. - Constitutional Bench of five Judges. Hence the rehearing of the case to _.( review the two concurrent judgments. c -+ Dismissing the appeal, in accordance with the opinion of the majority, the Court, (Per Venkataramiah J.) (Majority view) Held: I. I Merely because a court discharges or acquits an accused arraigned before it, the court cannot be considered to have compromised with the crime. True, corruption, particularly at high places D should be put down with a heavy hand. But, the passion to do so should not overtake reason. The Court always acts on the material before it and if it finds that the material is not sufficient to connect the accused -~- with the crime, it has to discharge or acquit him, as the case may be, notwithstanding the fact that the crime complained of is a grave one. Similarly if the case has been withdrawn by. the Public Prosecutor for E good reason with the consent of the Court, Supreme Court should be slow to interfere with the order of withdrawal. In either case, where the -" Special Judge had rejected the application for withdrawal and the High Court had affirmed that order, and where the special judge had permitted the withdrawal but the High Court had reversed that order, the Supreme. Court may not have interfered with the orders of the High F /i. Court under Article 136 of the Constitution. But this is a case where the , ' Special Judge had permitted the withdrawal of the prosecution, and the said order of withdrawal has been affirmed by the High Court as well as by the majority judgment pronounced by Supreme Court earlier. Interference by the Supreme Court on review must only be on strong and compelling reasons. [766D-H] G 1.2 When the earlier decisions of the Supreme Court are allowed to remain_ in tact, there is no justification to reverse the majority judgments ofBaharul Islam and R.B. Misra JJ., reported in [1983] 2 SCR 61 by which the appeal had already. been dismis5"d. The reversal of the earlier judgment of Supreme Court by the process of Review strikes at H 706 SUPREME COURT REPORTS I 1987] I s.c. R. A the finality of judgments of Supreme Court and would amount to the abuse of the power of review vested in Supreme Court, particularly in a crimfual case. This case which .was admitted solely on the ground that Nandini Satpathy's case had been subsequently referred to a larger Bench to review the earlier decision cannot be converted into an appeal against the earlier decision of Supreme Court. [774A-C] B c D R. K. Jain etc. v. State through Special Police Establishment and .Ors. etc ... [1980] 3 SCR 982 and State of Bihar v. Ram Naresh Pandey, [1957] SCR 279, referred to. 2.1 Section 321 of the ·code of Criminal Ptocedure cannot be construed in the light of the principles of Administrative law. The legal position expounded by the Supreme Court in R. K. Jain's case and in Ram Naresh Pandey's, case is correct. If any change in the law is needed it is for Parliament to. make necessary amendments to section 321 of the Code of the Criminal Procedure, 1973, which has remained so despite the judgment of the Supreme Court in Pandey's case rendered in 1957. [7730-E] 2.2 The judgment of a Public Prosecutor under section 321 of the Code of Criminal Procedure, 1973 cannot be lightly interfered with unless the Court comes to the conclusion that he has not applied his + + mind or that his decision is not bona fide. A person may have been ,.4.- E accused of several other misdeeds, he may have been an anthema to a section of the public media or he may be an unreliable politician. But these circumstances should not enter into the decision of the Court while dealing with a criminal charge against him which must be based only on relevant material. [77J.B-C] F 2.3 In the circumstances of this case, it cannot be said that the Public Prosecutor had not applied his mind to the case or had conducted himself in an improper way. If in the light of the material before him the Public Prosecutor has taken the view that there was no prospect of securing a conviction of the accused it cannot be said that his view is an unreasonable one. The Public Prosecutor is not a Persecutor. He is the G representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the land, the two fold aim of which is that guilt shall not escape or H innocence suffer. He may prosecute with earnest and vigour indeed, he ')-: . I - SHEO NANDAN PAS WAN v. ST A TE OF BI HAR 707 . ,r· shoold do so. But while he may strike hard blows, be is not at liberty to A strike foul ones. It is as much bis duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate one to bring about a just one. [ 772E-H] · Berger v. United States, 295 US 78, quoted with approval. B -+· 2.4 Further the questions involved in ·this case are: whether Dr. J agannath Misra has been a privy to the misdeeds committed in the Patna Urban Co-operative Banki whether he and his co-accused should • .... be prosecuted for the offences of conspiracy, bribery etc., alid whether A the Public Prosecutor bad grievously erred in applying for the with·. drawal of the case. All the other Judges who have dealt with the case on c -+ merits from the Special Judge onwards, except Tulzapurkar J. have opined that the permission was properly given for withdrawal. In the circumstances, it is difficult to take a different view. [770G-H; 771A-B] The three circumstances put up against the accused in this case are (i) that Jiwauand Jha had credited Rs. 10,000 and Rs. JOOo, on D 27.12.1973 and on 1.4.1974 respectively in the Savings Bank account of Dr. Jagannath Misra; (ii) that there was ante-dating of the order passed by Dr. Jagannath Misra on 14.5.1975; and (iii) that there was a second --+- confessional statement of Hydary which supported the prosecution. As regards the two items of bribe, it has not been shown by any extract of bank account that the said two sums came from the Patna Urban CoE operative Bank •. If that was so there would have been entries in the Bank accounts. Mere crediting of the two sums, without any' other reliable evidence, in a bank account by a political ally or· a friend does not by itself show that the sums were either' bribe amounts or any official favour had been shown •. This fact by itself is not conclusive F . about the guilt of the accused. The passing of the two orders one on )'\ 15.6.1975 on the note sheet and ttie other on buff paper which is dated 14.5.1975 cannot be faulted on account of the explanation that it was . the practice in the Bihar Secretariat that whenever an ordir is changed it is done by writing the later order on a buff'sheet and pasting it on the earlier order. It is not also shown.by the prosecution that any action had G been taken pursuant to the order dated 16.5.1975 by any of the departmental authorities. If any action had been taken it would have been a matter of record readily available for production. No such record is produced before Supreme Court. Hence it is a mere surmise to say that any such action was sought to be nullified, particularly when there was no acceptable evidence at all on the communical.ion of the order dated H 16.5.1975 to any departmental authorities. [769F-G; 770D-G] A B c 708 SUPREME COUR;I' REPORTS [ 1987] 1 S. C.R. Per Khalid J. (on behaH of himself and on behaH of S. Natarajan J.) 1.1 Admitting a review petition is not the Same thing as setting aside the order sought to be reviewed. Order 47, Rule l C.P.C. deals with review in civil matters. Article 137 of the Constitution is a special power with the Supreme Court to review any jndgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record. In this case, one of the Judges who was a party to the order to review (R.B. Misra J) had earlier dismissed the appeal with convicting reasons. H the judgment was set aside by the order passed in the review petitioo, the learned Jndge would definitely have given his oWll reasons for doing so by a separate order. This has not been done. All that the order says is that the review petition had been admitted. The direction to re-hear the appeal, therefore can only be to ascertain reasons to see whether the judgment need be set aside. [776C-G] D 2.1 There is no error apparent on the face of the record in the judgment reported as Sheonandan Paswan v. State of Bihar & Ors., [1983] 2 SCR 61. [776~-H] 2.2 All the three judges who gave the earlier judgment in this case bave correctly declined to accept the plea that Shri Sinha was not a competent Public Prosecutor since Dalt's appointment has not been ,,+· E cancelled. (7868-C] 3.1 Section 321 needs three requisite t~ make an order under it valid; (I) The application should be filed by a public prosecutor or Assistant Public Prosecutor who is competent to make an applkation for withdrawal; (2) be must be in charge of the case; (3) the application F should get the consent of the court before which the case is pending. All the three requisites are satisfied here. [780D-E] '- .r' 3.2 In the absence of any allegation of mala fide against the public prosecutor or of bias against the Special Judge the Public PrOSt,.,utor should normally be credited with fairness in exercise of his power under G s.321. Equally, in the absence of a challenge iii the revision petition before the High Court to the order of the Special Judge giving consent, it has to be assumed that he has perused the relevant records before passing the consent order; [781C-E] 3.3 Section 321 gives the public prosecutor the power for wilhH drawal of any case at any stage before judgment is pronounced. This .... - SHEONANDANPASWAN v. STATEOFBIHAR 709 )--· pre-supi)oses the fact that the entire evidence may have been adduced in A the case, before the application is made. When· an application under - s.321 Cr. P.C. is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the court when it exercises its limited power of giving consent under s.321 bas to assess the evidence and find out -+ . wh,etber the case would end in acquittal or conviction, .would be to B re-write s.321 Cr.P.C. and would be to concede to the court a powe~ which the scheme ofs.321 does not contemplate. [78lF-H] 3.4 The acquittal or discharge order under s.321 are not the same as the nornlal final orders in criminal cases. The conclusion will not be ~- backed by a detailed discussion of the evidence in the case of acquittal or absence of prima facie case or groundlessness in the case of discharge. --4All that the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to tb~art or stifle the process of law. The court, after considering these facets of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice·if consent is given. On a reading of the application for withdrawal, the order of consent and the other attendant circumstances, it must be held that the application for withdrawal and the order giving consent were proper and strictly within the confines of section 321 Cr.P.C. [781H; 782A-C] 3.5 While construing s.321, ii is necessary to bear in mind the wide phraseology used in it, the scheme behind it and its field of opera· lion. True, it does not give any guideline regarding the grounds on which an application for -withdrawal can be made. But since ii was enacted with a specific purpose, it would be doing violence to its language and contents by importing into the section words which are not there or by restricting its operation by fellers in the form of condi· --·{lions and provisos. [ 782C· D] I \ . / 3.6 While conferring powers upon the Subordinate courts under s.321 of the Code, the Legislature had only intended that the court should perform a supervisory function and not an adjudicatory function in the legal sense of ihe term. Section 321 clothes the public. prosecutor to withdraw from the prosecution of any person, atcused of an offence both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is "at any tinie before the judgment is pronounced". The initiative is that of the Public Prosecutor and what the court ha8 to do only to give its consent and not to determine any matter judicially. The Judicial function implicit in the I c 0 E F G 710 SUPREME COURT REPORTS [1987] I S.C.R. A exercise of the judicial discretion for granting the consent would nor- · -n on merits or on facts and evidence of a case which has to go back to the courts below will seriously prejudice the party affected. and it should be the policy of the court not to tread upon this prohibited ground and invite unsavory but justifiable criticism. Supreme Court cannot assess the evidence to find out whether there is a case for acquittal or conviction and cannot con- ...l, vert itself into a trial court. !\or can this court order a retrial and . examination of hundred witnesses to find out whether the case would end in acquittal or conviction. [789D-G] , ... -;1·· I ' / ' SHEO NANDAN PAS WAN v. STATE OF BIHAR 711 3.9 Section 321 Crl. P.C. is virtually a step by way of composition A of he offence by the State. The State is the master of the litigation in criminal cases. By the exer.cise of functions u_nder s.32 l the accountability of the concerned person or persons does not disappear. A privaCe complaint can still be filed if a party is aggrieved hy the withdrawal of the prosecution hut running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis. [789G-H; 790A] B 3. IO When the Magistrate states in his order that he has considered the materials, it is not proper for the court not to accept that statement. The proper thing to do is to hold that Magistrate gave consent on objective consideration of the relevant aspects of the case .. It would be acting against the mandate s.321 to find fault with the MagisC Irate in such cases, unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith, in the interest of public policy and justice and not to thwart or strifle the process of law. The application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the ·materials placed before him and the order of consent given by the Magistrate was D also after the consideration of various datails as indicated above. It would be improper for the Court, keeping in view the scheme of s.32!, to embark upon a detailed inquiry into the facts and evidence of the case or to direct re-trial fro that would be destructive of the object and intent of the section. [792C-E; 793B-D]-' · E State "of Bihar· v. Ram Naresh Pandey, [1957] SCR 279; M.N. Sankaranarayanan Nair v. P. V. Balakrishnan & Ors., [1972]2 SCR 599; Bansi Lal v. Chandan Lal, AIR 1976 AC 370; State. of Orissa v. Chandrika Mahapatra & Ors., [1977] l SCR 335; Ba/want Singh v. State of Bihar, [1978] I SCR 604; Subhash Chander v. State, [1980] 2 SCR 44 and Rajendra kumar Jain v. State, [1980] 3 SCR 982, referred F lo. 4.1 In this case the Supreme Court is called upon only to consider the ambit and scope ofs.321 Cr!. P.C. and not the truth or otherwise of the allegations against the respondent No. 2. The appellant is ad~ittedly ' a political rival of respondent No.2. There is no love lost between them. G It is at the instance of such a highly interested person that the Court is called upon to direct re-trial of the case, setting aside the con.en! given by the Special Judge. The second respondent is a leader of a political party. He was a rival to the Chief Minister who followed him after the 1977 al the time of institution of the case. 0 ln ·1977 0 when the second respondent was the Chief Minister, a warrant of arrest was issued· H 712 SUPREME COURT REPORTS [1987] l S.C.R. A against Shri Karpoori Thakur for his arrest and detention. It has been suggested that Shri Thakur _had grudge against the second respondent. Viewed against this background, and on the unsatisfactory factual details of the case, accepting the appeal and ordering retrial would not advance either the interests of justice or public interest. [7%8-E] B 4.2 There were two coufessional statements ofHaidari in this case one on 4.!l.!976 and another on 24.1.1978. In the former he did not implicate respondent No.2 hut he did it in the next one. The second statement at best is the confessional statement of a co-accused which normally will not inspire confidence, in any court. It is also a statement ol an accomplice turned approver and hence Of a very little evidentiary C value. When Supreme Court exercises its jurisdiction while considering an order giving consent on an application under s.321, consistent with the declared policy of the court not to embark upon evidence, request for an order for retrial on this legally weak and infirm evidence should be rejected. [795A-E] D 4.3 As to the accusation of forgery, taking the entire evidence against the appellant it cannot be held that he has committed forgery under s.463 or an offence under s.466. Even though there is overwriting or pasting or interpolation or change of digits, there is no evidence at all to show that this paper went out of the Chief Minister's + office or that any one was unduly favoured or that any one secured -4-- E undue advantage by use ofsuch overwriting. [7%A-B] Per Bhagwati (on behalf of himself and G.L. Oza J .) (Minority view). (Per contra) l. l The Review Bench did exercise the power of review and set F aside the order made by the Original Bench. When the Review Bench used the expression "I ...... : admit the Review" and directed rehearing of the appeal, it must hy necessary implication be held to have allowed the Review Petition and set aside the order of the Original Bench. The true meaning and effect of the order of the Review Bench cannot be allowed to be obfuscated by a slight ineptness of the language G used by the Review, Bench. The substance of the order must always be looked in to its apparent form. [737F-H] H 1.2 There can be no doubt that the Review Bench was not legally bound to give reasons for the order made by it. The apex Court being the final court against which there is no further appeal, it is not under any legal compulsion to give reasons for an order made by it. But ' ')-:- \ ' ... - SHEO NANDAN PASWAN v. STATE OF BlHAR 713 )~ merely because there may be no legal compulsion on the apex court to A give reasons. It does not follow that the apex court may dispose of cases without giving any reasons at all. It would be eminently just and desirable on the part of the apex court to give reasons for the orders made by it. But when the apex court disposes of a Review Petition by allowing it and setting aside the order sought to be reviewed on the ground of an -+· error apparent on the face of record, it would be desirable for the apex B I court not to give reasons for allowing the Review Petition. Where the apex court holds that there is an error apparent on the face of the record and the order sought to be reviewed must therefore be set aside and the case must be reheard, it ·would 'considerably prejudice the losing - party if the apex court were to give reasons for taking this view. If the --< Review Bench of the Court were required to give reasons, the Review c Bench would have to discuss the case fully and elaborately and expose -+ what according to it constitutes an error in the reasoning of the Origir.al Bench and this would inevitably result in pre-judgment of the case and prejudice is reheating. A reasoned order allowing a Review Petition and setting aside the order sought to be reviewed would, even before the rehearing of the case, dictate te direction of the rehearing and such D direction, whether of'binding or of (l!'rsuasive value, would conceivably in most cases adversely affect the losing party at the rehearing of the case. Therefore, the Review Bench, in the present case, could not be faulted for not giving reasons for allowing the Review Petition and .. .}. . directing rehearing of the appeal. [ 73SB-G I E 2. It is now well settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding - initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any'· citizen to set the machinery of the criminal law in motion for the F 7\ purpose of bringing the offender to book. Locus standi of the complain- ' ant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn can oppose such G withdrawal cannot oppose such withdrawal. If he can be a complainant I or initiator of criminal prosecution, he should equally be entitled to -f oppose prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist H 71.+ SUPREME COURT REPORTS [1987] I S.C.R. A withdrawal of such prosecution, if initiated. Here in the present. case, the offences charged against Dr. Jagannath Misra and others are -""'( offences of corruption, criminal breach of trust etc. and therefore any person who is interested in cleanlhiess of public administration and public morality would be entitled to file a complaint; eqaully he would be entitled to oppose the withdraw.al of such prosecution, if it is already B instituted. [739C-H; 740A] + R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 500, referred to 3.1. It is undoubtedly true that the effect of withdrawal of lhe prosecu- -- lion against Dr. Jagannath Misra was that he stood discharged in respect > c the offences for which he was sought to be prosecuted but it was not an order of discharge which was challanged by Sheonandan Paswan in the --!-· revision application filed by him before the High Court but it was an order granting consent for withdrawal of the prosecution that was assailed by him. [740E-G] D 3.2 The analogy of an order of discharge made under section 227 or section 239 of the Code of Criminal Procedure is not apposite because there the Sessions Judge or the Magistrate, as the case may be, considers the entire material before him and then comes to the conclusion that there is not sufficient ground or proceeding against the accused or that the charge against the accused is groundless. But, here, .... E when the Magistrate makes an order granting consent to withdrawal of the prosecution under s.321, it is a totally different judicial exercise which he performs and it would not therefore be right to say that if the High Court sets aside the order of th~ Magistrate granting consent to withdrawal from the prosecutor, the High Court would be really setting aside an order of discharge made by the Magistrate. What the High F Court would be doing would be no more than holding that the with- · drawal from the prosecution should proceed against the accused and )-cultimately if there is not sufficient evidence or the charges are ground- , ' less, the accused may still be discharged. Even the order of discharge ' ' can be discharged by the High Court in. revision if the High Court is satisfied that the order passed by the Magistrate is incorrect, illegal or J improper or that the proceedings resulting in the order of discharge suffer from any irregularity. [740F-H; 741A-C] 3.3 The revisional power exercised by the High Court under ..... s.397 is couched in words of widest amplitude and in exercise of this power can satisfy itself as to the correctness, legality propriety of any H order passed by the Magistrate or as to the regularity of any proceedings of such Magistrate. When the Supreme Court is hearing an appeal SHEO NANDAN PAS WAN v. S) A TE OF B!HAR 715 +.- against an order made by tbe High Court in tbe exercise ofits revisional A power under s.397 it is the same revisional power wbicb the Supreme Court would be exercising aud tbe Supreme Court, therefore, certainly can interfere with the order made by the Magistrate aud confirmed by the Higb Court if it is satisfied that the. order is incorrect, illegal or improper. In fact, in a case like the present where the question is of -+- purity and public administration at a time when moral and ethical B values are fast deteriorating and there seems to be a crises of character in public life, the Supreme Court should regard as its bounden duty-a duty owed by it to the society·t!J examine carefully whenever it is alleged that a pr11secution for an offence of corruption or criminal ~ breach of trust by a person holding high public office. has been wrongly withdrawn and it should not matter at all as to how many judges in the C High Court or the lower court have been party to the granting of such ~ . consent for withdrawal. The mathematics of numbers cannot, therfore, be invoked for the purpose of persuading the court not to exercise its discretion under Article 136 of the Constitution. [741C-H] · 4.1 It is a well-established proposition· of law that a criminal pro· D secution, if otherwise justifiable aud based upon adequate evidence does not become vitiated on account of ma la fides or political vendetta of the first informant or the complainant. [7420-E] '~.. State of Punjab v. Gurdial Singh, [!980] ! SCR !076, referred to. 4.2 The fact that the prosecution against Dr. Jagannath Misra was initiated by the successor Government of Karpoori Thakur after · ....._ tbe former went out of power, by itself cannot support the inference that the initiation of the posecution was actuated by political vendetta or mala /ides because it is quite possible that there might be material E , justifying the initiation of prosecution against Dr: J agaunath Misra and F -;-1 the successor Government might have legitimately felt that there was a / 1 case for initiation of prosecution and that is why the prosecution might have been initiated. Therefore, the prosecution cannot be said to be vitiated on that account. [742G·H; 743A] Krishna Ballabha ·Sahay and Ors. v. Commissio!' of Enquiry, G [1%9] I SCR 387 aud P. V. Jagannatha. Rao v. State of Orissa, [!%8] f. 3 SCR 789, referred to. 5.1 There is no provision of law which requires that no prosecution should be launched against a former Chief Minister or a person holding bigb political o~ce under the earlier regime without first set· H A B c D E F G H 716 SUPREME COURT REPORTS [1987] l S.C.R. ting up a Commission of Enquiry for enquiring into his conduct. It ... cannot be said that if a prosecution is initiated without an inquiry being held by a Commission of Enquiry set up for that purpose, the prosecution would be had or that on that ground alone the prosecution could be allowed to be withdrawn. [743G-H; 744A] 5.2 In view of the tardy and slow moving criminal process in India causing inordinate delay and availability of adequate protection . under different existing laws to the accused, it would be perfecUy legitimate for the successor government to initiate a prosecution of a former Chief Minister or a person who has held high political office under the earlier regime withont first having an enquiry made by a Commission of Enquiry, provided of course, the investigation is fair and objective and there is sufficient material to initiate such prosecution. [744A-D] 6. No unfettered or unrestricted power is conferred on the Public Prosecutor/ Assistant Public Prosecutor under section 321 of the Code to apply for withdrawal from the Prosecution, but the said powef' must be a controlled or guided power or else it will fall foul of Article 14 of the Constitution. Section 321 is more or less similar to the powers of the police under s.173 of the Code of Criminal Procedure. [746F-HI The police has no absolute or unfettered discretion whether to prosecute an accused or not to prosecute him. In fact, in the constitutional scheme, conferment of such absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The MagisIrate is therefore given the power to structure and control the discretion of the police. The discretion of the police to prosecute is thus "combined and confined" and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question.