# SHEONANDAN PASWAN v. STATE OF BIHAR & OTHERS

- **Citation:** [1983] 2 S.C.R. 61
- **Court:** Supreme Court of India
- **Decided:** 1982-12-16
- **Case number:** Criminal Appeal No. 241 of 1982
- **Bench:** V. D. Tulzapurk~R, Baharul Islam, R. B. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheonandan-paswan-v-state-of-bihar-others-8445
- **Pages:** 98

## Headnote

A. Nol/es Prosequi-Nature and scope of power under section 321 of
the Code of Crlmi11al Procedure, 1973 -
In th• discharge of his
duties, whether a public Prosector, who is always instructed by the
Govtrnment can he said to be fret and independent.
B.
Special Pilb/ic Prosecutor, appointment of.:._Appointment of Special
Public Prosecutor to conduct the case in question without cancelling
the appointment of an earlier appointee:.._Competency of the latter
appointee applying for wilhdrawal of the case, Code of Criminal
Procedure, 1973, S•cti•ns 24 (8) and 321.
C. 'Code of Criminal Procedure. 1973-Section 321- Grounds /or
withdrawal from prosecution-Whether the grounds like (a) imp/i ..
cation of the accussd as a result of personal and political vendetta.
(b) inexpediency of prosecution for reafon1 of State and Public
A
B
c
D
policy. and ( c) adver1e c!!ects which the continuance <?f prosecution
B
will bring on public interest etc. would be .relevant for withdrawing
from the prosecution.
D. Nol/es Prosequi -
Accused charged with offences of ·criminal
misconduct and forgery-Permission to withdraw on an application
made on the ground of lack or prospect of successful prosecution
in the light of the evidence on record-High Court confirming the
said order-Interference by the Supreme Court under Article 136.
After obtaining the requisite sanction from the Gc1vernor on 19th
February, 1979, a chargesheet in Vigilance P. S. case no. 9 (2) 78 was filed by
the State of Bihar against Respondent No 2 (Dr. Jagannath M!Shra), Respondent
no. 3 (Nawal Kishore Sinha), Re•pondent no. 4 (Jiwanand Jha) and three
others {K. P. Gupta since dece!l-sed, M.A. Haidari and A. K, Singh Who later
became approvers) for offences under Sections 4201466/471/109/120-B 1.P.C.
, and under Section 5 (!) (a), 5 (!) (b) and 5 (!) (d) read with Section 5 (2) of the
Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge
against the respondent no. 2, was that all times material he was either a
Minister or the Chief Minister of Bihar and in
'1tha~ capacity by corrupt and
or iHega! means or by otherwise abusing his position as a public servant, be, in
conspiracy with the other accused and with a view to protect Nawal Kisbore
Sinha~ in particular, sought to subVert criminal prosecution and surcharge
'
G
H
A
B
c
D
E
G
B
62
SUPREME COURT REPORTS
(1983] 2 s.c.a,
prccc<dings ataivst Nav.al Ki~tcire SiDba and others, and either obtained for
himself er cor.feritd en tbcm pecuniary advantage to the detriment of Patna.
Urban Cc-operative Bark, its n:crr.bcrs, depositors and creditors and thereby
ccmmittcd the c·ff<nce of criminal misconduct under Section 5 (1) (d) read with
S<cticn S (2) c.f the Prevention of Conuption Act, 1947 and in that process
ccrrrnittrd the otl:cr cff<r::ccs si:ccifird in the charfe-shc:ct, {ncluding the offences
of for[cry 11ndfr srcHcn 4!6 I.P.C. Crgniz2ncc cf the case was taken on 21st
Nc.,tn.ber, 1979 by the learned Chief Judicial Magistratc-cum·Special Judge
(Vigilanct) Pall a, who i~flUCd precess against the accused, but before the trial
ccamel!ctd 1l:e ·Sta1c Gcvcniment, at the instance of Respondent no. 2, who
in 1he n::cavtime had ccme 10 power and had become the Chief Minister; took a
decisicn in February 1981 to witl:ldraw frcm t:he prosecution for reasons of
State and Public Policy. Though initially Shri Awadesh Kumar Dutt, Senior
Advocate Patna High Court, bad been appointed as a Special Public Prosecutor
by lhe previous Go,·ernment for conducting the case, the State Government
(now beaded by Respondent no. 2) without canceIJing Sbri Dutt's appointment
as Special Public Prosecutor, on 24th February 1981 constituted a fresh panel
of lawyers for conducting cases pertaining to Vigilance Department. Sri Lalan
Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted
the said case and was informed of the Government's said decision and on 26th
March, 1981, be was further requested to take steps for withdrawal

## Text

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61
SHEONANDAN PASWAN
v.
STATE OF BIHAR & OTHERS
December 16, 1982
(V. D. TULZAPURK~R, BAHARUL ISLAM AND R. B. MISRA JJ.)
A. Nol/es Prosequi-Nature and scope of power under section 321 of
the Code of Crlmi11al Procedure, 1973 -
In th• discharge of his
duties, whether a public Prosector, who is always instructed by the
Govtrnment can he said to be fret and independent.
B.
Special Pilb/ic Prosecutor, appointment of.:._Appointment of Special
Public Prosecutor to conduct the case in question without cancelling
the appointment of an earlier appointee:.._Competency of the latter
appointee applying for wilhdrawal of the case, Code of Criminal
Procedure, 1973, S•cti•ns 24 (8) and 321.
C. 'Code of Criminal Procedure. 1973-Section 321- Grounds /or
withdrawal from prosecution-Whether the grounds like (a) imp/i ..
cation of the accussd as a result of personal and political vendetta.
(b) inexpediency of prosecution for reafon1 of State and Public
A
B
c
D
policy. and ( c) adver1e c!!ects which the continuance <?f prosecution
B
will bring on public interest etc. would be .relevant for withdrawing
from the prosecution.
D. Nol/es Prosequi -
Accused charged with offences of ·criminal
misconduct and forgery-Permission to withdraw on an application
made on the ground of lack or prospect of successful prosecution
in the light of the evidence on record-High Court confirming the
said order-Interference by the Supreme Court under Article 136.
After obtaining the requisite sanction from the Gc1vernor on 19th
February, 1979, a chargesheet in Vigilance P. S. case no. 9 (2) 78 was filed by
the State of Bihar against Respondent No 2 (Dr. Jagannath M!Shra), Respondent
no. 3 (Nawal Kishore Sinha), Re•pondent no. 4 (Jiwanand Jha) and three
others {K. P. Gupta since dece!l-sed, M.A. Haidari and A. K, Singh Who later
became approvers) for offences under Sections 4201466/471/109/120-B 1.P.C.
, and under Section 5 (!) (a), 5 (!) (b) and 5 (!) (d) read with Section 5 (2) of the
Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge
against the respondent no. 2, was that all times material he was either a
Minister or the Chief Minister of Bihar and in
'1tha~ capacity by corrupt and
or iHega! means or by otherwise abusing his position as a public servant, be, in
conspiracy with the other accused and with a view to protect Nawal Kisbore
Sinha~ in particular, sought to subVert criminal prosecution and surcharge
'
G
H
A
B
c
D
E
G
B
62
SUPREME COURT REPORTS
(1983] 2 s.c.a,
prccc<dings ataivst Nav.al Ki~tcire SiDba and others, and either obtained for
himself er cor.feritd en tbcm pecuniary advantage to the detriment of Patna.
Urban Cc-operative Bark, its n:crr.bcrs, depositors and creditors and thereby
ccmmittcd the c·ff<nce of criminal misconduct under Section 5 (1) (d) read with
S<cticn S (2) c.f the Prevention of Conuption Act, 1947 and in that process
ccrrrnittrd the otl:cr cff<r::ccs si:ccifird in the charfe-shc:ct, {ncluding the offences
of for[cry 11ndfr srcHcn 4!6 I.P.C. Crgniz2ncc cf the case was taken on 21st
Nc.,tn.ber, 1979 by the learned Chief Judicial Magistratc-cum·Special Judge
(Vigilanct) Pall a, who i~flUCd precess against the accused, but before the trial
ccamel!ctd 1l:e ·Sta1c Gcvcniment, at the instance of Respondent no. 2, who
in 1he n::cavtime had ccme 10 power and had become the Chief Minister; took a
decisicn in February 1981 to witl:ldraw frcm t:he prosecution for reasons of
State and Public Policy. Though initially Shri Awadesh Kumar Dutt, Senior
Advocate Patna High Court, bad been appointed as a Special Public Prosecutor
by lhe previous Go,·ernment for conducting the case, the State Government
(now beaded by Respondent no. 2) without canceIJing Sbri Dutt's appointment
as Special Public Prosecutor, on 24th February 1981 constituted a fresh panel
of lawyers for conducting cases pertaining to Vigilance Department. Sri Lalan
Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted
the said case and was informed of the Government's said decision and on 26th
March, 1981, be was further requested to take steps for withdrawal of the case
after he bad conSiclerrd the matler and sath.fied himself about it. On 17th June,
1S8J, Sri La1an Prasad Sinha made an application under Section 321 Crl. P.C.
1973 to the Special Judge seeking permission to withdraw from the prosecution
of Respondent Nos. 2, 3 and 4 in the. case on four grounds: namely, (a) Lack
of prospect of succcssfuprosccution in the lishtin of the evidence, (b) Implication
of the persons as a result of political and personal vendetta, (c) Inexpedieacy
of the prosrcution for the reasons Of the State and Public Policy; and (d) Adverse
tffccts that the continuance of the prosecution will bring on public interest in
the light of the changed situation. The learned Special Judge by bis order
dated 20th June 1981 granted the permission. A Criminal Revision No. 874/81
preferred by the apJ)tlJant against the said order was dismissed in limln~ by the
High Court on 14th Septrm~er, 1981.
H<nce the approval by Special Leave
of the Court.
Allowin1 the Appeal, t~e Court
HELD : (i) Lalan Prasad Sinha was the competent officer entitled to
apply for the withdrawal from the prosecution, there being no in6rmity in his
appointment. [155 B-C]
(ii) He did apply bis mind and came to his owa conclusions before
making the application for the withd1awal from the prosecution. [149 G]
Per mojority (Baharul Islam and Misra JJ, Tulzapurkar J dissenting)
The executive function of the Public Prosecutor and or the supervisory
function of the trial court in iranting its consent to the withdrawal have been
properly performed and not vitiated by reason of any illegality. (l43E-158A 1
SHEONANDAN v. BIHAR
63
Per TUlzapurkar J (Concurring with BaharuI Islam and Misra JJ.)
1:1 Sri Lalan Prasad Sinha was the competent officer entitled to apply
for the withdrawal from the prosecution.
[84 E. 85 F]
2:2
It is true that the appointment of the formăr prosecutor. in the
instant case, made by the previous . government to conduct the case in question
A
had not been cancelled, though in fitness of things it should have been cancelled
B
but ibat did not prevent the new government to make a fresh appointment of a
Public Prosecutor and to put him in charge of the case.
Appointments of
Public Prosecutors generally fall under Section 24 (3) of the Code of Criminal
Procedure, but when the State Government appoints public prosecutors for the
purpose of any case or class of cases. the appointees became Special Public
P rosecutors under Section 24 (8) of the Code. [85 B·D)
1:2 Further it cannot be disputed that the former prosecutor not having
C
appeared before the Special Judge at any stage of the hearing was never incharge of the case not in the actual conduct of the: case; on the other band,
after the allotment of this Case to him, the latter was incbarge of the case and
was actually conducting the case. be having admittedly appeared in the case at
least on four occasions before the Special Judge. [BS D·F]
Stal• of PunJah v. Sur}•et Singh
and Anr.,
[19671
2 s.c.R.
347;
D
M.N.S. Nair v. P.V. Ba/akrishnun and O;s [1972] 2 S.C.R. 599, followed.
1:3
It is true that, in the instant case, the StateĄ;Governmeot bad taken
its own decision to withdraw from the prosecution in the case against the accused
persons and it is also true that the said decision was communicated to the
Public Prosecutor1 but if the letters communicating the decision arc carefully
scrutinised, it will be clear that the State ;Government merely suga;ested him
(which it was entitled to do) to withdraw from the prosecution but at the same
time asked him to consider the matter on his own and after satisfying himself
about it make the necessary application which he did. and there is no material
to doubt the recital that is found in the app1icati0n that be had himself considered
relevant materials connected with the case and bad come to his own conclusions
in that behalf.
[86 D-F]
2.
From the Supreme Court'; enunciation of the legal position governing
the proper exercise of the power contained in Section 3211 three or four things
became clear :
(i)
Though withdrawal from prosecution is an executive function· of
ihe Public Prosecutor for which statutory discretion is vested ąin him, the
discretion is neither absOlutc nor uoreviewablc butĆit is subject to the court's
supervisory function. In fact being an executive function it would be subject
to a judicial review on certain limited grounds like any other executive action;
the authority with whom the discretion is vested 'must genuinely address itself
to the matter before it, must
.
not act under the dictates of another body, must
not do what it has been forbidden to ,do, must act in good faith, must have
regard to all relevant considerations and must oot be swayed by irrelevent
. co11side1atio11s, must not seek to promote purposes alien to the lener or the
spirit of the legislation that gives it power to act arbitrarily or capriciously,"
[81 E·H, 82A)
E
F
G
H
64
SUPREME COURT REPORTS
[19S3] 2 s.c.a.
A
(ii) Since the trial court's supervisory function of either granting or
B
c
D
E
F
G
H
refusing to grant the permission is a judicial function the same is liable to
correction by the High Court under its revisionaJ powers both under the oJd
-and present Code of Criminal Procedure, and naturally the Supreme Court
would have at least coextensive jurisdiction with the High Court ·in an appeal
pr~ferred to it by special leave or upon a certificate by the High Court. [82 B~D]
(iii) No dichotomy as such between political offences or the like on
the one hand and common law crimes on the other could be said to have been
made.by the Supreme Court for purposes of Section 321, for, even in what are
called political offences or the like, committing common law crimes, is implicit,
for the withdrawal from the prosecution of which the power under Section 321
has to be resorted to. But the decisions do Jay down that when common law
crimes are motivated by political ambitions or considerations or they BI'!'
committed during or are followed by mass agitations, communal frenzies,
regioQlll disputes, industrial conflicts, student unrest or like situations involving
emotive issues giving rise to an atmosphere surcharged with violence, the broader
cause of public justice, public order and J;eace may outweigh the public interest
·of administering criminal justice in. a particular litigation and withdrawal from
the prosecution of that litigation would become necessary, a certainty of convic·
tion notwithstanding, and persistence in the prosecution in the name of vindi·
eating the law may prove counter-productive. In other words, in case of such
cqnflict between the two types of public interests, the narrower public interest
should yield to the broader public interest, and, therefore, an onerous duty is
cast upon the court to weigh· and decide which public interest should prevail in
each case while granting or refusing to grant its consent to the withdrawal from
the prosecution.
For, it is not invariably chat whenever crime is politicaUy
motivated or is committed in or is followed by any explosive situation involving
emotive issue that )the prosecution must be withdrawn.
In other words, in
each case of such conflict the court has to weigh and decide judiciously. But
it is obvious that unless the crimes in question arc μr 1e politica1 offences liko
sedition or are motivated by political considerations or are committed during 01
are followed by mass agitations. communal frenzies, regional disputes, industrial
conflicts, student unrest or the like situations involving emotive issues givin1rise to an atmosphere surcharged with violence, no question of serving any
broader cause of public justice, public order or peace would arise and in the
absence thereof the public interest of administering criminal justice in a given
case cannot be permitted to be ·sacrificed, particularly when a highly placed
person is allegedly involved in the crime, as otherwise the common man's faitb
in the rule of Jaw and' democratic values would be shaltered. [82 D-H, 83 ~~DJ
(iv) When paucity of evidence or lack of prospect of successful
prosecution is the ground for withdrawal the court ha1 not merely the power but
·a duty to examine the material on record without which the validity anu
propriety of such gfound cannot be determined. {83 D-E]
·
State of BihDr v. Ram Naresh Pa11dep, [1957] SCR 2?9; Stat~ of Oriss11
v. Chandrika Mohopatra and Ors., [1977) 1 SCR 335; Bal•ant Singh and Or1.
v. State of Bihar, [1978) I SCR 604; R. K. Jal# v. Stat<, [1980] 3 SCR 982;
M.N.S. Nair v. P. V. Ba/akrishnan and Ors, [1972] 2 S.CR 599, referred to.
~--
-.. . "
SHEONANDAN V. BIHAR
65.
3:1 lo the li11ht of the legal principles, it would he clear, that this
.l
Vigilaoco P.S. case 9 (2) (78) being an ordinary criminal case involvin& the
cOmm.ission of common law crimes of bfibery and forgery in ordinary normal
circumstances with self-aggrandisement or favouritism as the motivating forces,
srounds (b), (c) and (d) stated in tho application for withdrawal wero irrelevant
and extraneous to the issue of withdrawal and since admittedly these were the
considerations which unquestionably influenced the decision of the Public
Prosecutor in seeking the withdrawal as well as the decision of the trial court to
B
arant the permission, the impugned withdrawal of Vigilance P.S. case 9 (?.) 78
from the prosecution would stand vitiated in law. [87 H. 88 A, G-H, 89 A-BJ
3:2 Admittedly, the offences of bribery (criminal misconduct) and
forgery which arc said to have beeri committed by Respondent No. 2 in cons·
piracy with the other accused are ordinary common law crimes and were not
committed during nor were they foJlowed by any mass agitation or communa I
frenzy or regional dispute or industrial conflict or student unrest or 'the like
eiplosive situation involving any emotive issue giving rise to any surcharged
atmosphere of violence; further it caanot be di!!puted that these are not per se
political offences nor were they committed out of any political motivation Whatsoever; in fact the motivating force behind them was merely to give protection
to and shield Sri Nawal Kishore Sinha, a close friend, from'criminal as well
as civil liability-a favouritism amounting to criminal miscon:iuct allegedly
indulged in by Respondent No. 2 ·by ·abusing his position as a Minister or Chief
Minister of Bihar. If therefore, the offences did not partake of any political
character nor were committed in nor followed by any _explosive situation
involving emotive issue giving rise to any surcharged atmosphere of violence,
n6 question serving any broader cause of public justice, public order or peace
could arise and in absence thereof the public interest of administering criminal
justice in this particular case could not be permitted to be sacrificed. [88 C-F]
3:3. No
resuJts
of any
election,
howsoever
sweeping, can bo
construed as the pCople's mandate to condone or compound the common law
erimes allegedly committed by those who have been returned to poweri
in fact such in terpretation of the mandate would
be contrary to all
democratic canons. Success at hustings is no licence to sweep all dirt under
the carpet and enjoy the fruits nonchalantly. Therefore, the plea of chanee in
the situation brought about by the elections putting Re!pondent No. 2 in power
as Chief Minister and prosecution against the head of State would have had
adverse effects on public interest including public order and p~1~~ is m1~pL1~ei.
At the worst~ all -that can happen is that Respondent No. 2 will have to step
down and nothing more.
Any fear of destabilisation of the Government is
entirely misPlaced. On the other hand, withdrawal From the prosecution of
such offences would interfere With the , normal course of administration of
criminal justice and since Respondent No. 2 is placed in a high position,
the same is bound to affect the common man's faith in the rule of law
and administration of justice. Further if the proof of the offences said to have
been committed by Respondent No. 2, in conspiracy with the other accused
based on undisputed and genuine documeotary evidence, no question of political
and personal vendetta or unfair and oyerzea-Ious investigation would arise.
[89 D-H, 90 A]
-
c
D
•
r
g
\
B
A
B
c
D
E
F
G
H
66
SUPREME COURT REPuRTS
[ 1983) 2 S.C.R.
3:4 The documentary evidence. comprising the Audit Reports, the
relevant notings in the concerned file and the two orders of the Respondent No. 2,
the genuineness of which cannot be doubted, clearly makes out a prima facie case
against Respondent No. 2 sufficient to put him on trial for the offence of criminal
misconduct under Section S -(1) (d) read with Section S (2) of the Prevention of
Corruption Act, 1947. Similar is the incidental offence of forgery under Section
466 LP.C. for antedating the second order.
The gquestion of 11paucity of
evidence", therefore, does not arise.
The 'trial court failed, therefore, in its
duty lo examine this before permitting the withdrawal from prosecution.
[IOI C-E. H, 102 A]
3:5 Yet another legal infirmity attaching to the executive ,function of
the Public Prosecutor as well as the supervisory judicial function of the trial
court which would vitiate the final order is that while the caarge·sheet is under
sub-clauses (a), (b) and (d) of Section 5 (I) read with Section 5 (2) of the
Prevention of Corruption Act along with other offence~ under the Penal Co de,
in the application for withdrawal and during the submission made before the
Court as well as in the order of the trial Court permitting the withdrawal the
reference is to Sectiun S (I) (c) and not S (l) (d). Obviously the permission
granted must be regarded as having been given in respect of an offence with
which Respondent No. 2 had not been charged, completely ignoring 'the offence
under Section S (I) (d) with which he had been mainly charged. This state of
affairs brings out a clear and glaring noil-application of mind both on the
part of the Public Prosecutor and also the learned special Judge with
the issue of withdrawal; !n the High Court also there is no improvement
in the situation. [103 B, D, E, F, H,· 104 A-CJ
Per Baharul Islam, I.
1:1
In view of the definition of "Public Prosecptor" in Section 2 o:
the Code of Criminal Procedure read with Section 24 (8) of -the Code and
'in the light of the decision o( the Supreme Court in State of Punjab v. Surjeet
Singh [1967] 2. SCR 347, there cannot be any doubt, that Sri L.P. Sinha was a
Public Prosecutor validity appointed under sub·section (8) of Section 24 or
the Code. [115 D·E]
State of Punjab v. Surjeet Singh, [1967] 2 SCR, 347, followed.
1:2 The appointment of Sbri L.P. Sinha cannot be collaterally challenged
particularly in an application under Article 136 of the Constitutioo. Shri A.K.
Dutta, the earlier appointee had at no. point of tirue came ftrward lo make any
grievance at any stage of the case, either at the appointment of Sri L.P. Sinha as
Special Public Prosecutor or in the latt~r'_s conduct of the case; nor Sri L.P. Sinha
y,.hose appointment and right to make an app\icatioo uhd~r Sl!ction 321 of the
Code have been challanged is before the Suprem~ Court. [115 E~GJ
1:3 The appointment of the latter prosecutor without the termination
of the appointment of the earlier one might at best be irregular or improper,
but cannot said to be legally invalid. The doctrine of de facto jurisdiction which
bas been recognised in India win operate in this case. (115 G
4 H, 116 AJ
......
y
.•
..
SHEONANDAN V, BIHAR
67
Gokaraju Rangaraju v. State of Andhra Pradesh, [1981] 3.S.C.R. 474,
A
followed.
Newzealand and Norton v. Shelly Country p. 1886; 118 US 425 quoted
with approval.
1:4 Shri L.P. Sinha was both d~ jur~ and de facto Public Prosecutor in
'B
the case. If be fulfilled -the two conditions as required by Section 321. namely,
(i) that he was the Public Prosecutor; and (ii) was incharge of the case, he was
competent to supply for withdrawal of the case, even if he were appointed for
that purpose only. (118 H, 119 A-C]
2:1
Section 321 enables the Public Prosecutor or Assistant
Public
Prosecetor incharge of a case to withdraw from the prosecution with the consen_t
of the court. Before an application is made under Section 321, the Public
Prosecutor has to apply his mind to the facts of the case indopendently without
bei.;g subject to any out side influence.
But ·it cannot be said that a Public
Prosecutor's action will be illegal if he receives any coinmunication or instruction
from the Government.
Unlike ~the Judge, the Public Prosecutor is not an
absolutely independent officer. He is an appointee of the Government, Central
or State. appointed conducting in Court any prosecution or proceedings on
behalf 'of the Government. A public prosecutor cannot act without instructions
of the Government; a public prosecutor cannot conduct a case absolutely on bis
own, or contrary to the instructions of his client, namely. the Government.
Section 321 does not lay any bar on the public prosecutor to receive any instruction from the Government before he files an application under that Section. If
the pi.lblic prosecutor receives such instructions, he cannot be said to act under
extraneous influence.
On the contrary, the pLJb\ic pro~ecutor carinot file
an application for withdrawal of a case on his own without instruction from
the Government. [I l9:D-H, !20 B·C]
2:2 A mere perusal of the application made by the pO.biic prosecutor
abundantly shows that he did, apply his mind to the facts :or the case; be perused
the case Diary and the relevant materials connected with the case", before he
made lthe application. He did not blindly quote from the Government letter
which contained only one ground, namely, "inexpediency of prosecution fop.
reasons of state and public policy".
A comparison of the contents of this
letter with the contents of the application under s~ction 321 completely neg.uivcs
the contention that he did not himself apply his mind ind;,p~ncl~ritly to th~ fact
of the case.and that he blindly acted on extraneous considerations. [112 F-H] ·
D
'
3:1
The object of Section 321 appJars to be to reserve pow~r to the
Executive Government to withdraw any criminal case on larger grounds of public
G
policy, such as, inexpediency of prosecutious for reasons of State; broader publii~
interest like n1ainteoance of law and order; maintenance of public pea~ and
harmony, social, economic and political; changed ~ocial and political situation;
avoidance of destabilisation of a State Government and the .like. Aad such
powers have been rightly .reserved for the Government; for, who but the
Government is in tbe know of such conditions and situations prevailing in a
ff
State or in the country. The Court is not in a position to know such situations.
(126 D-F]
--
A
c
D
II
'
G
II
68
SUPRBMB COURT REPORTS
(1983) 2 S.C.R.
'
3:2 The withdrawal from the prosecution is an executive function of
the public prosecutor and the ultimate decision to withdraw from the prosecution
is bis; the Government may only suggest to the Public Prosecutor that a
particular case may not be proceeded with, but nobody can compel him to do so;
not merely inadequacy of evidence, but other relevant grounds such as to
fqrther the broad ends of public justice, economic and political; public order and
peace are valid grounds for withdrawal. The exercise of the power to accord
or withdraw consent by the court is discretionary. Of course, it has to exercise
the di$crction judicially, The exercise of the power of the Court ·is judicial to
the extent that the Court in according or refusing consent has to see: (i) whether
the grounds of withdrawal are valid; and (ii) whether )he application is bonafide
and not collusive.
It may be remembered that an order passed by the Court
under Section 321 is not appealable. (128 D-G)
3:3 A mere perusal of the impugned order of the Special Judge granting
permission to withdraw from the prosecution of accused persons, in the case in
question shows that be has applied his mind to the re1evant law. What the
court has to do under section 321 is to see whether the application discloses
ralidgroundsofwithdrawa/-valid as judicially laid down by the Supreme Court.
[128 G-H]
3:4 A criminal proceeding with a prima facie case may also be with·
drawn. Besides, the normal practice of the Supreme Court in a criminal appeal
by Special Leave under Art. 136 of the_Constitution directed against an order of
conviction or acquittal is that it does not peruse the evidence on record aod
appreciate it to find whether findings of facts recorded by the courts below arc
correct or erroneous, far less does it peruse the police diary to see whether ado.
quate n;iaterials were collected by the investigating agency. It accepts the findings
of the Courts below unless it is shown that the findings are the results of a wrong
application of the principles of law and that the impugned order has resulted in
grave miscarriage of justice. [129 A-C]
R.K. lain v.
The State, [1980] 3 S.C.R. 982, followed.
3:5 An order under Section 3U of the Code does not hue the same
status as an order of conviction or acquittal recorded by a Trial Court or
appellate court in a criminal prosecution, in as much as the former has not been
made appealable. An order under Section 321 of the Code bas a narrower
1cope. As an order under Section 321 of the Code is judicial, what the trial
court is expected to do is \ogive reasons for according or refusing its consent to
the withdrawal. The duty of the Court is to see that the grounds or withdrawal
are legally valid and the application made by the public prosecutor is bonafide
and not collusive. 1In revision of an order under Section 321 of the Code, tho
duty of the High Court is to see that the consideration by the trial court
of the application under Section 321 was not misdirected and that the grounds
of withdrawal are legally· valid. In this case the trial court elaborately considered the grounds of withdrawal and found them to be valid and accordingly
accorded its cons~nt for withdrawal. In revision the High Court affirmed the
findings of the trial court. In this appeal by special leave, therefore, there is n•
juatification to disturb the findings of the courts below and peruse the statemeJ11t1
of witneSSf'S recorded or otber materials colle.:ted by the iiJvestigatiog offico.,
durin& the course of investigation. [129 C-H]
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SHBONANDAN V, BIHAI.
69
3:6 A question of fact tilat needs investigation cannot be allowed to be
A
raised for the first time in an appeal by special leave under Article 135 of the
Constitution. In his application before the special Judge the appellant did not
find fault with any of the grounds of withdrawal in the application filed by the
Public Prosecutor under Section 321. There was no mention of any forgery by
antedating or by pasting of any earlier order and thereby making any attempt
at shielding of any culprit. He thus prevented the special Judge and the High
Court from giving any finding an alleged forgery and thereby depriving the
8
Supreme Court also from the benefits of such findings of the courts below.
[131 C-B]
3:7 There is no prima facte case of forgery or criminal m.isconduct made
out on the materials on record. If the Cbief Minister found that his first order
was unwarranted by law, it was but right that he cancelled that order. Pasting
order by a piece of paper containing another order prima facie appears suspicious-:-'
but pasting is the common practice in the Chief Minister's Secretariat. Antodating
eimpliciter is no offence. [132 C, B, F]
3:8 If two interpretations are possible, one indicating criminal intention
and the other innocent, needless to say that the interpretation beneficial to thC
accused must be accepted. [132 OJ
3:9 Remand for trial if made will be a mere exercise in futility and it
will be nothing but an abuse of the Court to remand tbr; case to th~ trial court
in view of t~e following circumStances, namely, (l) the occurrence took place
as early as 1970; it is already more than twelve years; (ii) Respondent .No. 2 is
the Chief Minister in his office. Knowing human nature, as it is, it can hardly
be expected that the witnesses, most of whom are officials, will come forward and
depose against a Chief Minister, and (iii) Even after the assumption ot office by
Respondent No. 2 as the Chief Minister is in the court of Special Judge, tho
prosecution was pCnding on several dates but the Prosecutor, Sri A.K. Dutta,
did not take any interest in the case at all.
It cannot be accepted that a
Public Prosecutor appointed by tho Government in power, will now take
interest and conduct the case so aa to 1ecure conviction or his own Chief
Minister. [136 F-H, 137 A-BJ
Per R.B. Misra J.
1:1 A bare perusal of Section 121 of the Criminal Procedure Code shows
that it dot! not put any embargo or fetter on the power of the Public Prosecutor
to withdraw from prosecuting a particular criminal case pending in anY court.
All that he requires is that he can a·nly do so With tbe consent of the court whero
the case is pending in any court. [1<40 C-D]
1:2 In, this country, the scheme of criminal justice places the prime
responsibility of prosecuting serious offences on the executive auth11rity.
The
investigation, collection of requisite evidence and the prosecution for the offences
with reference to such evidence are the functions of the executive.
The function
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of the court io this respect is a limited one and intended only to prevent the abuse.
Tbelfunction of the court in accordiDJ its consent to withdrawal i•, however,
H
a judicial function.
It, therefore, becomes neceasary for the court
bef~ro
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70
SUPREME COURT REPORTS
[1983) 2 s.c .•.
whom the application for withdrawal is filed by the public prosecutor to apply
its.mind so that the appellate court may examine and be satisfied ihat the court
has not accorded its consent as a matter of course but bas applied its mind 10 the
grounds taken in the applic3.~tion for withdrawal by Public Pros~cutor. [140 E-G]
Stale of Bihar v. Ram Naresh Pond ey, [1957] SCR 297; M.N.S. Nair v.
/'. V. Balakrishnan & Ors., [1972] 2 SCR 599, State of Orissa v. C. Mohapatra,
(1977] I SCR 355; Ba/want Singh v. State of Bihor, [1978] 1 SCR 601; R.K. Jain . ·
v. State, [1980] 3 SCR 982, referred.
2:1
Section 321 is in very wide terms and in view of the decisions of the
Supreme Court, it will not be possible to confine the grounds of withdrawal or
criminal procced:ng only to offences which may be termed as political offences or
offences involving emotive issues.
The only guiding factor which should weigh
with Public Prosecutor while making the appJication for withdraw~! and the court
ascording its permission for withdrawal is to see whether the interest of public
justice is advanced and the application for withdrawal is not moved with oblique
motive unconnected with the vindication of the cause of public justice. [l 45 E~G]
2:2 The Indian Penal Code or the Code of Criminal Procedure does not
make any such distinction between po1itical offences and offences other than
political ones. Even if it is accepted that political offences are unknown to jurisprudence and other Acts do contemplate political offences, the fact remains that
Section 321 Cr. P.C. is not confined only to political offences, but it applies to all
kinds of offences and the application for withdrawal can be made by the Public
Prosecutor on various grounds. (145 H, 146 A~B]
2:3 To say that unless the crime allegedly committed are ptr se political
offences or are motivated by political ambition or consideration or are committed
during mass agitation, communal frenzies, regional disputes, no question of
serving a broader cause of public justice, public order or peace can arise.is to
put limitation on the broad terms of Section 321 of the Code.
(148 F-G]
3:1
The Public Prosecutor may withdraw from the prosecution not only
on the ground of paucity of evidence but oli the other relevant grounds as well
in order to further broad aims of justice, public ord~r and peace.
Broad aim
of public justice will cert8inly include appropriate social, economic and political
. purposes. [143 G-HJ
3:2 An application for withdrawal from the prosecution can be made
on various grounds and it is not COD.fined to political offences.
Therefore, it
cannot be said that the grounds mentioried in the application for withdrawal,
namely:
(i) implication of the accused persons as a result of political and
persona] vendetta,
(ii) inexpediency of the prosecution for the reaS{'IDS of State and Pub1ic
poliCy, and
' •
SHEONANDAN v. BIHAR
71
(iii) adverse effects that the continuance of the prosecution will bring
A
on public interest in the light of the changed situation, are
irrelevant.
are not liable grounds for withdrawal. [145 G-HJ
3:3 Further, the decision of the public prosecutor to withdraw from
the case on the grounds given by him in his application for withdrawal cannot
be said tO be actuated by improper or oblique motive.
He bonafide thought
that in the changed circumstances it would be inexpedient to proceed with the
Case ancl would be a sheer waste of public money and time to drag on with the
case if the chances for conviction are few and far between. In the circumtances,
instead of serving the public cause of justice. it will be to the detriment of
public interest. [149 B-DJ
3:4 The letter sent by the Government to the public prosecutor did not
indicate that the Goverment wants him not to proceed with the case, but the
lettet gave full discretion to the Public Prosecutor, to apply his own mind and
to come to his own conclusion.
Consultation with the Government or high
officer is not improper. But the Public Pro!ecutor has to apply bis own mind
to the facts and circumstance~ of the case b~fore coming to the conclusion to
withdraw from the prosecution. From the materials on the· record, it is clear
that the Public Prosecutor has applied his own mind and came to his own
conclusions. [155 D-F]
3:5 The statlltory responsibility for deciding withdrawal sqtiarely rests
upon the public prosecutor.
It is noo-negotiablel and cannot be bartered
away. The court's duty in dealing with the application under Section 321 is
not to reappraise
the tn1terials which led ithe public prosecutor to request
withdrawal from the prosecution but to consider whether public prosecutor
app1ied his mind as a rree agent uninfluenced by irrelevant and extraneous or
oblique considerations, as the court has a special duty in this regard in as much
as it is the ultimate repository or legislative confidi::nce in granting or withdrawing
its consent to withdrawal from prosecution. (149 D-B]
3:6 If the view of the Public Prosecutor is one, which Clluld in the
circumstances be taken by any reasonable man, the court cannot substitute its own
opinion for that of the Public Prosecutor. If the Public Prosecutor has applied
bis mind <fn the relevant materials and his opinion is not perverse and which a
reasonable man could have arrived at, a roving enquiry into the evidence and
materials on the record for the purpose of fin.ding out whetb~r his conclusions
were right or wrong would be incompetent. [154 H, 155 AJ
In the view takCo that no prima faci~ case has boeo made out under
Section 466 of the Indian Penal Code and Section 5 (I) (d) of the Prevention of
Corruption Act and the fact that the High Court in revision agreed with the
view of 1be Special Judge giving consent to the withdrawal from the prosecution
B
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on the application o' the Public Prosecutor under Section 321 I.P.C. tbi1 Court
H
cannot make, a fresh appraisal of evfdence and come to a different conclusion .
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72
SUPREME COURT REPORTS
[ 1983] 2 s.c.a.
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All that this ~ourt bas to sec ia that the Public Prosecuto• was not actuated
by extraneous or improper consideration• while moving the application for
withdrawal from the prosecution,
E,.ven if it is J?Otsjble to have another view
different from the oD.e taken by the Public Prosecutor while moving the
application for withdrawal from prosecution the Supreme Court should be
reluctant to interfere with the order unless it comet to the conc1usion that the
Public Prosecutor has not applied his mind to the facts and circumstances of
B
the case, and has simply acted at the beheat of the Government or hact been
actuated by extraneous and improper considerations. On the facts and circum~
stances of the case, it is clear that the Public Pro1ecutor was actuated by oblique
or improver motive. [157 B-F]
c
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
241 of 1982.
Appeal by Special leave from the judgment and order dated
the 14th September, 1981 of the Patna High Court in Criminal
Revision No. 874 of 1981.
K.K. Venugopal, S.K. Sinha, S.K. Verma, V.N. Singh, L.K.
Pandey, M.N. Krimanani and V.N. Sinha for the Appellants.
K. Parasaran, Solicitler General, K.P. Verma, P.S. Mishra :and
R.P. Singh for Respondent No. I.
..4.K. Sen, O.P. Malhotra and R.K. Jain for Respondent No. 2.
...
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:
Rajendra Singh, R.P. Singh Ranjit Kumar and S. Goswami,
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for Respondent No 3.
S.N. Kacktr and M.P. Jha for Respondent No. 4.
Jaya Narayan)nd Smt. Nirmala Prasad for Intervenor.
The following Judgments were delivered
TuLZAPURKAR, J.
By this appeal, preferred on the basis of
the special leave granted to him, the appellant is challenging the
G
withdrawal from the prosecution of Respondents Nos. 2, 3 and 4 in
a criminal case under s. 321 of the Criminal Procedure Code, 1973.
After obtaining the requisite sanction from the Governor on
19th February, 1979 a charge-sheet in Vigilance P.S. Case 9 (2)
H
78 was filed by the State of Bihar against Respondent No. 2
(Dr. Jagannath Misra), Respondent No. 3 (Nawal Kishore Sinha) ...
Respondent No. 4 (Jiwanand Jha) and three other (K.P. Gupta, since
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SHEONANDAN v: BIHAR (Tulzapurkar, J.)
73
deceased, N.A. Haidari and A.K. Singh, who later became appro·
vers) for offences under ss. 420/466/471/109/120·B I.P.C. and .under
s. 5(1) (a), 5(1) (b) and 5(1) (d) read with s. 5(2) of the Prevention
of Corruption Act, 1947. Inter alia, the gravamen of the charge
agai11st the ~espondent No. 2 was that at all times material he W.!IS
either a Minister or the Chief Minister of Bihar and in that capacity
by corrupt or illegal means or by otherwise abusing his position as a
public servant, he in conspiracy with the other accused and with a
view to protect Nawal Kishore Sinha in particular, sought to subvert
crimial prosecution and surcharge proceedings against Nawal Kishore
Sinha and others, and either obtained for himself orjconferred on them
pecuniary advantage to the detriment of Patna Urban Cooperative
Bank, its members, depositors and creditors and thereby committed
the offence of criminal mis.conduct under s. 5(1) (d) read with s.5(2)
of the Prevention of Corrution Act, 1947 and in that process commi.
tted the other offences spel-"ified in the charge-sheet, including the
offence of forgery under s.: 466 I.P.C. cognizance of the case was taken
on 21st November, 1979 by the learned Chief Judicial Magistratecum-Special Judge (Vigilance), Patna, who issued process against the
accused but before the trial commenced the State Government, at
the instance of Respondent No. 2, who in the mean time had come
to power and had become the Chief Minister, took a decision in
February 1981 to withdraw from the prosecution . for reasons of
State and Public Policy. Though initially Sbri Awadhesh Kumar
Dutt, Senior Advocate, Patna High Court, bad been appointed as a
Special public prosecutor by the previous Government for conducting the saicj case, the State Government (now headed by Respondent
No.