SHEONANDAN PASWAN v. STATE OF BIHAR (2)

Citation: [1983] 2 S.C.R. 61

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, BAHARUL ISLAM, R.B. MISRA

Case summary

2 in his own hand that was available to prove the charges; he also urged that in a case where the proof of the offences was primarily based on documentary evidence, the genuineness of which was not in dispute no question of ·political and personal vendetta or unfair and over...

Judgment text

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 befret and independent. B. Special Pilb/ic Prosecutor, appointment of. :. _Appointment ofSpecial Public Prosecutor to conduct the case in question without cancelling the appointment ofan earlier appointee:.. _Competency ofthe latter appointee applying for wilhdrawal of the case, Code ofCriminal 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 ofthe accussd as a result of personal and political vendetta. (b) inexpediency of prosecution for reafon1 of State and Public policy. and (c) adver1e c!!

ects which the continuance 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 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) 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 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 8 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 Special public prosecutor by the previous Government for conducting the saicj case, the State Government (now headed by Respondent No. (2) without cancelling Shri Dutt's appointment as Special Public prosecutor, on 24th February. , 1981 constituted a fresh panel of lawyers for conducting cases pertaining to Vigilance Dopartment and F.

Shri 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 he was further requested to take steps for the withdrawal of the case after he had considered the matter and satisfied himself about it. On 17th June, 1981 Sbri Lalan Prasad Sinha made an application under s. 321 Cr. 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 successful prosecution in the light of the evidence, (b) Implication of the persons as result of political . and personal vendetta, (c) Inexpediency of the prosecution for the r~! l~Q! IS pf the State and public policf 74 SUPRBMB COURT REPORTS (1983] 2 S. C. 1 ~rvisory fun9tion in grantio~ the requisit~ • 76 SUPllllMB COURT RBPOlttS (1983) 2 s. c. a. permission on relevant considerations.

Counsel emphatically denied that either the public prosecutor's decisio11 to withdraw from the prosecution or the special Judge's supervisory function was vitiated by non-application of mind. Lastly it was contended that this Court should not interfere with the impugned orders of the trial Court as well as the High Court in exercise of its powers under Art. 136 of the Constitution and the appeal be dismissed. Having regard to the aforesaid rival contentions' that were urged before us by the learned Attorney General and Council on ·1"eitber side it is clear that principally three questions arise for our -r " determination in this appeal, namely, (! ) what is the true scope and nature of the power under s. 321 of Cr. P. C, 1973? (2) whether , Sbri Lalan Prasad Sinha was competent officer entitled to apply for withdrawal from the prosecution and if so whether be discharged bis executive function independently as a free agent?

And (3) whether the withdrawal from the prosecution of respondents 2, 3 and 4 in ,,. Vigilance P. S. Case No. 9 (2) 78 was unwarranted and unjustified on facts as ·also in law ? In other words, whether the executive function of the Public Prosecutor and or the supervisory function performed by the Court was vitiated on account of e. ,traneous considerations or non application of mind etc deserving interference by this Court ? On the first question s. 321 in terms gives no guidance; it merely says that "the Public Prosecutor in charge of a case may, \vitb the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of tbe offences for which he is tried" and goes on to indicate the results that entail upon such withdrawal, namely, either.

a discharge of the ac:cused if the withdrawal is made before the charge is framed or an acquittal of the accused if it is made after the charge has been framed; in other words, it gives no indication or guideline as to in what circumstances or on what grounds the public Prosecutor may apply for withdrawal from the prosecution nor the considerations on which the Court is to grant its consent and hence the necessity to go to decisions of this Court for ascertaining the true scope and nature of the power contained in it. In this behalf quite a few decisions of this Court both in regard to the earlier provision contained in s. 494 Cr. P. C. 1898 and the present provision contained in s. 321 (both being pubstantially in pari materia) were referred to by Counsel for the SllBONANDAN v. BIHAR (tulzapurkar, J. ) 77 . parties but it is uot necessary to deal with all ·of them and a refe· rence to four decisions, namely, State of Biha; v. Ram Naresh - Pandey,{') State of Orissa v.

Chandrika Mohapatra and Ors. ,{') Ba/want Singh and Ors. v. State of Bihar(') and R. K. Jain v. The State(') having a bearing on· the aspects under consideration will suffice. These decisions, apart from enunciating the principles which would govern the exercise of the power under the section, emphasise the functional dichotomy of the Public Prosecutor (who performs an executive function) and the Court (which performs a supervisory r judicial function) thereunder. . '- In Ram Naresh- Pandey's case (supra) the Court while dealiqg with s. 494 of the old Code observed thus: • "The section is an enabling one and vests in the Public Prosecutor 'the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by bis 0 discharge or acquittal, as the case may be .. ...

There can be no doubt, however, that the resultant order on the granting of the consent, being an order of 'discharge' or 'acquittal', would attract the applicability of correction by the High Court under as. 435, 436 and 439 or 417 of the Code of Criminal Procedure. The function of the Court, therefou, 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 ....... Th_e 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, · therefore, implicit in the exercise of judicial discretion/or granting the consent would normally mean that th,e Court has to satiify itself that the executive function of the Public Prosecutor has not been Improperly exercised, or that it is not an attempt to interfere ·with the no. rmal course ofjustice for illegitimate reasons or purposes ......

. It (s. 494) cannot be taken to place on the Court the ·resppnsibility for a prima facie determination o( a triable _, m fl957) S. C. R. 279 (2) [1977] l S. C. R 335. (3) [1878] 1 S C. R: 604. (4> {t98oJ 3 s. c. R. 982. sUPll~Mll coul!. r KEPotits (1983] 2s. c.... A· issue. For instance the discharge that results therefrom need not always conform to the standard of 'no prima facie case' under ss. 209 (I) and 253 (I) or of 'groundlessness' under ss. 209 (2) and 253 (2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made . " (Emphasis supplied). In Chandrika Mohapatra's case (supra) while setting out the ,,-y. principles that should be kept in mind by the Court at the time of giving consent to withdrawal from the prosecution under s.

494 the Court observed thus : "It will therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He ha~ to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be . able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest df administration of justice and that is the touchstope on ·which the question must be determined whether the rprosecution should be allowed to be withdrawn. " It may be. stated that Criminal Appeal No. 310 of 1975 was one of the appeals decided by the Court in that case.

In that appeal the incident, during the course of which offences under ss. 147, 148 149, 307 and 324 I. P. C. were said to have been committed, had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful ;itmosphere prevailed in the industrial undertaking and in those circumstances the State felt that it would not be conducive to interest of justice to continue the prosecution against the respondents since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking and hence permission to withdraw SH~ONAN! >AN v. BJtlAR (1'ulzapurkar, J. ) 79 was sought and granted.

Upholding the permission the Court· observed thus : "We cannot forget that ultimately every offonce has a social or economic cause behind it and if the state feels that elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution the State should clearly be at liberty to withdraw from the prosecution.

" In Ba/want Singh's case (supra) the independent role of the Public Prosecutor in making an applicatian for withdrawal from the prosecution was emphasised and the Court pointed out that the sole consideration which should guide the Public Prosecutor before he decides to withdraw from the prosecution was tbe larger factor of the administration of justice and not political favours nor party pressures nor the like considerations; nor should be allow himself to be dictated by his administrative superiors to withdraw from prosecution, but that the consideration which should weigh with him must be whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of tho prosecution. The · Court also indicated some instances where withdrawal from prosecution might- be resorted ! O independently II of the merits of the case where the broader cause of pub!

i~ justice would be served : "Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of tbe particular litigation. For instance, communal ! Wds which may have been amicably settled ' shou~d not re·erupt on account of one or two prosecutions p~n~mg. Labour disputes which, might have given rise to ~nmmal cases, when settled, might probably be another mstance where the interests of public justice in the broad connota~ion mai perhaps warrant withdrawal from t:: prosecuti. in. Other instances may also be g·1ven h br·· were pu tc J~st1ce may be served by withdrawal even apart from the merits of the case. " In ~. K. la. in's case (supra) after reviewing the entire case law on the subject this Court enunciated eight propositions as emerging SUPREME COURT li. l! MRts iI983j i s. C. R. from the decided cases (page 996 of the Report), out of which the following six would be material for the purposes of tbe instant case : "I.

The withdrawal from tbe prosecution is an executive function of the Public Prosecutor. 8 2. ·The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 3. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but ·none can compel him to do so. 4. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but no other relevant grounds llS Well in order to further the broad ends of public ju,stice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall Enterprises. S. The Court performs a supervisory function granting its consent to the withdrawal. 6.

The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied· his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in ibis regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosrcution " By way of elaborating proposition No. 4 above, the Court has gone cin to observe thus : "We have referred to the precedents of this Court where it has been said that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. In the past we have often known how expedient and necessary it is in the public interest for SHil6NANDAN v.

BIHAR (Tu/zapurkar, 1) ~I the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. Whenever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of vio. lence, to bring about a peaceful settlemeet of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counterproductive. " Similarly, by way of elaborating proposition No. 6 above the Court bas gone on to observe thus : "We may add it shall be the duty of the Public Prosecutor to inform the Court and·it shall be the duty of the Court to apprise itself of the reasons which prompt 'the Public Prose· cutor to withdraw from the prosecution.

The Court has a · responsibility and a stake in 1he administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of s. 321 Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. " From the aforesaid enunciation of the legal position governing the proper exercise of the power contained in s. 321, three or four things become· amply clear. . Jn the first place though it is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unrevie~able but it is s~bject t~ th. e Court's supervisory function. In fact being an e.

xe~uttve funcllo~ 11 would be subject to a judicial review on certain hm1ted grou. nds l~ke ~ny othe~. executive. action, the authority with whom the d1sc. retton 1s vested must genumely ;iddress itself to the matter before ti, must not act under the dictates of another bod m~st not do what it has been forbidden to do, must act in goo~ faith, must have regard to all relevant considerations and must not , 82 siJPitilME COURT REPORts (198~] 2 s. c. R. be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and not must act ·arbitrarily or capriciously .... These several principles can conveniently be grouped in two main categories ' failure to exercise a discretion, and excess or abu~e of discretionary power. The two classes are not, however, mutually exclusive. " (vide de Smith's judicial Review of Administrative Action 4th Edition pp.

285-86) Secondly, since the trial Court's supervisory function of either granting or refusing to grant the permission is a judicial function the same is liable to correction by the· High Court under its revisional powers both under the old as well as the present Code of Criminal Procedure, and naturally this Court would have at least co-extensive jurisdiction with the High Court in an appeal preferred to it by special leave or upon a certificate by the High Court. I Thirdly, no dichotomy as such between political offences or the like on the one band 'and common law y the Secretary, Go-operation on 16. 12. 1974~ by the Minister for 192 SUPJtEME COU! tT ! tEPOJtTS IJ983J 2 s. c. ~. Co-operative (Shri Umesh Prasad Verma) on 1. 1. 1975 and by the then Chief Minister (Shri A. Gaffoor) on 2. 1. 75. Accordingly, the file was sent to the Law Department which reiterated its earlier adv~ce for launching the prosecution and on the file being received back on 18. 1.

1975, the Secretary Co-operation endorsed the file on 21. 1. 1975 to A. P. P. Shri Grish Narain Sinha for necessary action i. e. to file the prosecution (vide the several notings made in File No. · IX/Legal-9/75-relied upon by the respondents). In other words by • 21. 1. 1975 the stage was set for launching a criminal prosecution against the loanees and the members of the Board of Directors of the Bank with Nawal Kishore Sinha as the principal accused and a complaint petition in that behalf duly. approved by the Law Department and signed ·by Shri~Jagdlsh Narain Verma, District : Co-operative Officer, Patna on 25. 1. 1975 was also ready with the A. P. P. for being filed in the Court. But before the A. P. P. could file the complaint, Respondent No. 2 (Jagan Nath Mishra, Agriculture and Irrigation Minister) wrote a buff-sheet note dated 24. 1. 1975 asking the Secretary, Co-operation to send the concerned file along with Audit Reports to him before the institution of the Criminal case.

Accordingly, after obtaining the approval cf the then Co-operative Minister and the then Chief Minister for sending the file to respondent No. 2, the Secretary recalled the file and other papers from the A. P. P. on 28. 1. 1975 and on 24. 2. 1975 he sent the file to the Law Minister en route the then Chief Minister. It may be stated that under the Notification dated 30th April, :;1974 issued under Art. 166 (3) of the Constitution read with Rule 5 of the Rules of Executive Business of the State of Bihar, the then Chief Minister Shri Abdul Gaffoor was inter alia holding the portfolio of Law also but according to the affidavit of Shri Neclanand Singh dated 19th October, 1982 filed on behalf of Respondent No. I before us Shri A. Gaffoor as per his note dated 29-8-1974 addressed to the Chief Secretary and circulated to various departments had, with a view lo Jessen bis heavy burden, requested Respondent No.

2 (Jagan Nath Mishra) to look after the work of the Law Departmeat and as such endorsing the file on 24. 2. 1975 'to the Law Minister en-route the Chief Minister' would mean that the file must have gone to respondent No. 2 as there was no other person 'holding the Law portfolio excepting the Chief Minister himself under the Notification dated 30th April, 1974. It is claimed by the appellant that Respondent No. 2 sat tight over the file for over two and half months till he became the Chief Minister whereas it is suggested on ~h11lf of the Respondents that though the file was called fof by sllEONANbAN v. BIHAR (tulzapurkar, }) Respondent No. 2 on 24·1·1975 it did hot actually reach him till' middle of May, 1975. However, ignoring the aforesaid controversy, the fact remains that the filing of the complaint got postponed from 24-1-1975 (the date of Buff-sheet order of Respondent No. 2) till middle of ~fay, 1975 and in the meantime on 11. 4. 1975 Respondent No. 2 replaced Shri A.

Gaffoor as the Chief Minister and in the middle of May 1975 as the Chief Minister Respondent No. 2 passed two orders which are very eloquent. On 16-5·1975 in the File No. IX/Legal·9/75 respondent No. 2 wrote out an order in his own hand in Hindi concerning the action to be taken against Nawal Kishore Sinha i. nd oth. ers, the English rendering of which, according to the respondents, runs thus : "Much time has passed. On perusal of the File it appears that there is no allegation of defalcation against the Chairman and the Members of the Board of the Bank. Stern action should be taken for realisation of Joans from the Joanees and if there are difficulties in realisation from the loanees sur-cbarge proceedings should be initiated against the Board of Directors. The normal condition be restored in the Bank after calling the Annual General Meeting and holding the election.

(Sd) 1agan Nath Mishra 16-5-1975 In the margin opposite the above order the seal containing ihe despatch entry originally showed 16-5-1975 as the date on which the file was despatched from the Chief Minister's Secretariat to the Co-operative Department after Respondent No. 2 had made the above order. It is clear that the first part of the above order regarding the criminal involvement is in teeth of the Audit' Reports of the Reserve Bank and the Co-operative Department and contrary to the opinion of the Law Department it. thwarted the crimi~al prosecution against Shri Nawal Kishore St~h~ ~n~ . others, while. under the . latter part it still exposed them to clVll habthty by way of sur-charge proceedings to. be adopted against them in default of · realisations from the Ioanets but as even the loans had . been advanced mostly in ficticious names and were actually utilised by the office-bearers themselves the prospect of civil liability l~omed large before them.

Realising this position Respondent No. 2 irregul~rlyany seal showing inward receipt of there being no endorsement nor T 94 SUPREM~ cuURT l admitted fact that after the ante·dated order was pasted over the first order the despatch date appearing in the margin was required to be and bas been altered to f 4. 5. 1975 by over-writing and if over-writing is required to be done there cannot any bona fide. mistake or slip. The ante-dating in the circumstances would be with oblique intent to nulify any possible action that could have or might have been taken pursu. ant to the first order as stated earlier, that being the most natural consequence flowing from it which in must in law be presumed to have intended. It would, of course, be open to him to rebut the same at the trial but at the moment there is no material on record-by way of rebuttal. In the circumstances it is impossible to accept the paucity of evidence or lack of prospect of sll\:cessful 102 SUP1 EME COUR1 REPORTS [1983] 2 s. c. R.

prosecution as a valid gruund for withdrawal from the prosecution. On the aforesaid undisputed documentary evidence no two views are possible in the absence of any rebuttal material, which, of course, the respondent No. 2 will have the opportunity to place before the Court at the trial. What is more the so-called unfair or over-zealous investigators were miles away when the aforesaid evidence came into existence. As far as Respondent No. 3 (Nawal Kishore Sinha) and Respondent No. 4 (Jiwanand Jha) are concerned it cannot be forgotton thatthey have been arraigned alongwith Respondent No. 2 A. on a charge of criminal conspiracy in pursuance whereof the several offences are said to have been committed by all of them. Further it is obvious that the principal beneficiary of the offence of criminal misconduct said to have been committed by Respondent No. 2 under s. 5 (I) (d) read with s. 5 (2) of Prevention of Corruption Act, 1947 has been Respondent No. 3 and so far as Respondent No.

4 is concerned it cannot be . said that there is no material on record suggesting his complicity. Admittedly, he has been very close to Respondent No. 2 for several years and attending to his affairs-private and party affairs and the allegation against him in the F. l. R. is that he was concerned with the deposit of two amounts of Rs. I0,000 and Rs. 3,000 ·on 27. 12. 1973 and J. 4. 1974 in the Savings Bank Account of Respondent No 2 with the Central Bank of India, Patna Oak Bungalow Branch, which sums, says the prosecution, represented some of the bribe amounts said to have been received by respondent No. 2 and the tangible documentary evidence in proof of the two deposits having been· made in Respondent No. 2's account consists of two pay-in slips of the concerned branch of Central Bank of India.

Whether the two amounts came from the funds of the Patna Urban Co-operative '- Bank or not and whether they were really paid as bribe amounts or not would be aspects that will have to be considered at the trial. However, as pointed out earlier the offence· under s. 5 (I) (d) would even otherwise be complete if pecuniary advantage (by way of scuttling the civil liability of surcharge) was conferred on Nawal Kishore Sinha and others. If Respondent No. 2 has to face the trial then in a case where conspiracy has been charged no withdrawal can be permitted against Respondent No. :; and Respondent No. 4. In arriving at the conclusion that paucity of evidence is not a valid ground for withdrawal from the prosecution in regard to Respondents Nos. 2, 3 and 4. I have deliberately excluded from consideration the \lebatable eviden~e like confessional statelljents of the approver$ SHEONAND! ,N •• BIHAR (Tulzapurkar, J. ) 103 etc.

(credibility and effect whereof would be for the trial cnurt to decide) said to have been collected by the allegedly over-zealous investigating officers after· Respondent No. 2 went out of power in 1977, There is 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. As per the charge·sheet filed against them respondents Nos. 2, 3 and 4 were said to have committed offences under ss. 420/466/417/109/120-B, l. P. C. and under ss. 5 (1) (a), (b) and 5 (l) (d) read withs.

5 (2) of the Corruption of Prevention Act, 1947 and gravaman of the charge against the respondent No 2 was that in his capacity either as a Minister or the Chief Minister of Bihar by corrupt of 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 ip particular, sought to subvert criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others and either obtained for hims. elf or conferred on them pecuniary advantage to the detriment of Patna Co-operative Bank, its Members, depositors and creditors; in other word~. the principal charge. against Respondent No. 2 was in respect of the offence of criminal misconduct under s. 5 (1) (d) read with s. 5 (2) of Prevention of Corruption Act, 1947 and the offence under s. 5 (I) (c) was nowhere mentioned or referred to. The difference between s. 5 (I) (d) (bribery amounting to criminal mis-conduct) and s.

5 (I) (c) (breach of trust amounting to criminal mis-conduct) is substantial, each having different ingredients but in the application for withdrawal filed by Shri Lalan Prasad Sinha on 17th June, 1981 he stated that withdrawal from the prosecution in Vigilance Case No. 9 (2) 78 was _, sought in reopect of several offences including the offence of criminal mis-conduct under s. 5 (I) (c) read withs. 5 (2) of the Prevention of Corruption Act and through out the application there was no reference to the offence of criminal mis-conduct under s. 5 (I) (d) read with s. 5 (2) of tbe said Act. Io other words, an offence under s. 5 (I) (c) read with s. 5 (2) with which Respondent No. 2 had never been charged was mentioned and the offence under s. 5 (I) (d) read with s. 5 (2) with which he was principally charged was completely omiaed. Obviously submissions contained in the application as well as those that were made at the hearing before the Court were in relation to tbe offence of s.

5 (I) (c) and not s. 5 (I) (d). Similarly the learned Special Judge while granting the requisite permission bas also referred to the offence under s. 5 (I) (c) and not s. 5 (I) (d) of the Prevention of Corruption Act in his order and obviously the permission granted must be regarded as having been given in respect of an offence with which Respondent No. 2 bad not been charged, completely ignoring the offence under s. 5 (I) (d) with which he had mainly been charged. This state'. of affairs 8 brings out a clear and glaring non-application of mind both on the part of the Public Prosecutor as also the learned Special Judge while dealing with the issue of withdrawal; in the High Court also there is no improvement in the situation. This must lead to the quashing of the impugned withdrawal from the prosecution. Having regard to the aforesaid . discussion it is clear that the impugned withdrawal was not justified either on merits or ' ' in law ~nd being illegal has to be quashed.

I would, therefore, allow the appeal set aside the withdrawal order and direct that Vigilance P. S. Case No. 9 (2) 78 be proceeded with the d·isposed of in accordance with law. BAHARUL ISLAM, J. This is an appeal by special leave by Shri Sheonandan Paswan, who intervened in an application under Section 321 of the Cod~ of Criminal Procedure, 1973 (hereinafter 'the Code') pending before the Chief Judicial Magistrate-cum- Special Judge, Patna. The material background facts may be narrated thus : 2. The appellant is a member of the Bihar Legislative Assembly and belongs to the Lok Dal Party. Respondent No. 2, Dr. Jagannath Mishra, is currently the Chief Minister of Bihar ; and Respondent No. 4, Sbri Jiwanand Jba at the relevant time was a close associate of Respondeut No. 2. Respondent No. 3, Shri Naval Kisbore Sinha, who started the Patna Urban Cooperative Bank (hereinafter 'the Bank') and became its Chairman, had been colleague of Respondent No. 2 in the Legislative Council of Bihar.

In 1972, respondent No. 2 became Minister for Cooperation and Agriculture. On June 18, 1974, the Sub Divisional Co-operative Audit Officer, Patna, submitted bis audit report of the Bank in respect of the year 1972-73 alleging a number of irregularities in the affairs of the Bank. The report was submitted to the Cooperative Department whereupon the Joint Registrar, Cooperative Audit Department, recommended legal action against the Directors pf the ! lank. The legal assistant of the Department submitted a SHBONANDAN V. BllIAR (Baharul Islam, J. ) 105 draft prosecution report prepared by the Public Prosecutor with a suggestion that the Registrar of the Cooperative Department should obtain the opinion of the Law Department on the draft prosecution report. The Registrar agreed to send the draft prosecution report to the law ·Department but expressed desire that the Minister in charge of the Cooperative Department should see the report.

Accordingly the file was endorsed to the Minister in charge of the Cooperative Department. The then Chief Minister, Shri Abdul Gafoor, signed it by way of agreement with the Registrar to obtain the advice of the Law Department and approved the First Information Report (FIR). The Secretary of the Cooperative Department then requested the Public Prosecutor to amend the draft FIR which was sent to the Law Department for opinion. The Law Department ""• returned the file to the Cooperative Department stating that it had already given its opinion and that it was not its duty to file complaint. The file was then endorsed. to the Additional Public Prosecutor for necessary action. Respondent No. 2 who was the Minister in charge of Irrigation and Agriculture also wanted to see 0 the file along with the audit report before the complaint was actually filed.

The Cooperation Minister endorsed the file to the Chief Minister, Shri Gafoor, with his comments that the file might be sent to the Irrigation Minister. The Secretary, Cooperative, requested the Additional Public Prosecutqr to release the file, with the endorsement, "filing of complaint may await further instructions". The Additional Public Prosecutor sent the file to the Secretary, Co-operative, through a special messanger with a request to return the file after persual by the Chief Minister (Shri Gafoor). The Secretary, Cooperative Department, sent the file to the Minister of Cooperation with his remarks, inter alia, "para 4 :-Law Deptt. have tendered their advice. at page 13/N that criminal case made out against the Secretary and other Directors of the bank should be filed·. " "Para 5 : Chief Minister and Minister (Law) have desired to see the file before complaints are actually lodged".

As a result the file was recalled from the Additional Public Prosecutor, The above movement of the file was between January, 1975 to ,, February 24, 1975. 3. On April 11, 1975, there was a change in the Ministry of nihar. Chief Minister, Abdul Gafoor, was replaced by Respondent No. 2 as Chief Minister and one Dr. Jawahar Hussain became the Minister of Cooperation. On May 16, 1975, the aforesaid file was put up before the Chief Minister, who ordered for taking strict steps for realisation of the loans, failing that for starting surcharge proceedings, and to restore normal conditions in the Bank after convening annual general meeting and holding election. Subsequently, the said order was covered by pasting a piece of paper containing a fresh order to which we shall refer later.

On June 28, 1975 the Minister of Cooperation wrote to the Chief Minister that the buff-sheet of correspondence showed that the former Chief Minister (Shri Gafoor) postponed the filing of the complaint and wanted to see the file ; and as the former Chief Minister had passed the said orders, it was for the new Chief Minister to indicate the next course of action in the case. Respondent No. 2 wrote on the file that discussions had been held and that there was no need to file any case. On August 4, 1976, the Chief Minister ordered for the prosecution of the office bearers and loanees of the bank including its honorary Secretary, Shri K. P. Gupta, Manager, Shri M. A. Haidari (hereinafter 'Haidari') and the loan clerk. 4. There was a mid-term poll to the Lok Sabha in March, 1977. In that poll, the Corlgress (I) Government at the Centre was voted out of power and the Janata Government was installed with Shri Morarji Desai as t.

he Prime Minister iind Chaudhury Charan Singh as the Home Minister. In April following, the Patna Secretariat Non-gazetted Employees' Association submitted a 25 point representation against Respondent No. 2 to the Prime Minister and the Home Minister of the Union Government apprising them of the irregularities of the Bank. In June following, the Congress (I) Government of Bihar headed by Respondent No. 2 was replaced by Janata Government headed by Shri Karpoori Thakur. The said Employees' Association on July 9, 1977 submitted a copy of the representation to the new Chief Minister, Shri Karpoori Thakur, with a request for making an enquiry into the allegations by an Enquiry Commission. The representation was el)dorsed by the State Government to the Inspector General (Vigilance) for a preiiminary probe.. Eventually the preliminary inquiry was entrusted · to the then Joint Secretary, Shri D. N. Sahay. 5. The Union Home Minister, Chaudhury Charan Singh, wrote a D. O.

letter to the Chief Minister of Bihar, Sbri Karpoori SHEONANDAN v. BIHAR (Baharul Islam, J) 107 Thakur, saying that as per Code of Conduct, 1964, the Prime Minister had to look into a complaint against a Chief Minister or an ex-Chief Minister and obtain comments of the Chief Minister in the first instance and then decide the course of action. On 25. 7. 1977, Joint Secretary, Shri D. N. Sahay, ~ubmitted his preliminary report and recommended that the Home Ministry of the J) Gove191nent of India should be informed of the proposed C•>Urse of action and suggested that before ordering detailed inquiry, it was essential to take concurrence of the Union Home Minister. The Chief Minister, however, on 23. 8. 1977, discussed the matter witb the Chief Secretary 'at 20. 08 p. m. ' and ordered full enquiry without the consent of, or intimation to, the Union Home Ministry. On 1. 9. 1977, Joint Secretary, Shri D. N. Sahay, wrote to the Special Secretary regarding the charge No.

8 that related to the Bank that as a Commission of Enquiry had already been· instituted, he doubted the desirability of a vigilance inquiry. The Chief Minister, Shri Karpoori Thakur, opined that the materials collected by the Vigilance Department would be used by the Com'llission. On 20. 9. 1977, the Joint Secretary, Shri D. N. Sahav, again ~eferred to the Conduct Rules of 1964 for Ministers and Chief Ministers and suggested that necessary notes by Chief Minister should be sent to the Union Home Minister for neces>ary orders for inquiry. Then on 17. 10. 1977, Chief Minister, Shri Karpoori Thakur, who had written a D. O. Jetter to the Home Minister, Chaudhury Charan Singh, regarding the allegations with regard to the Bank again suggested that although a Commission of Enquiry had been appointed, the Vigilance inquiry might continue, as the materials collected by vigilance might be used by the Commission. p In October; 1977, Shri S. B. Sahay was posted as D. I. G.

(Vigilance) by the _Chief Minister, Shri Kar,>oori Thakur. On 7. 11. 1977, Shri S. B. Sahay ordered for inquiry on all points without obtaining consent of the Union Home Ministry and without waiting for further orders. In November, 1977, one Shri D. P. Ojha was posted as S. P. , Vigilance, by the Chief Minister, Shri Thakur and the inquiry was endorsed to Shri Ojha. 6. It has been alleged by the respondents that in January, 1978, some Inspectors of the qo Ii~~ R,ashubir Singh, Sharda, 108 SUPRB. llB COURT REPORTS lJ983} 2 S. C. k, Prasad Singh, Ram Dahin Sharma and others were transferred to Vigilance Department and they were responsible for the investigation of the major portions of the c;ise in question, and that 1111 the criminal cases investigated by D. S. Ps. (CID), Bihar, relating to the Bank were transferred tO Vigilance Department and placed under the charge of the Inspector, Shri Raghubir Singh. Haidari, afore- '8 said, who had been an accused of Kadam Kuan P. S.

eve and arrested and who had made a confessional statement was rearrested by the investigating officer, Shri Raghubir Singh on 22. 1. 1978. Haidari made a second confession implicating Respondent No. 2 for the first time. On 26. 1. 1978, A. K. Sinha who was also rearrested x: made a confession. On 28. 1. 1978. D. P. Ojha, aforesaid, submitteq his inquiry report recommending institution of criminal cases against Respondent No. 2 and others. Similar recommendations were also made by Shri S. B. Sahay, aforesaid, and also by the I. G. Vigilance. The file w. as then referred to the Advocate General, Shri K. D. Chatterjee, appointed by the Karpoori Thakur Government. On 31. 1. 1978, the Chief Minister, Shri Thakur, approved it with the direction to band over the file to Shri S. B. Sahay, who in tum, • endorsed it to Shri D. P. Ojha for investigation and institution of the case. On 1. 2. 1978, Shri Ojha directed Shri R. P. Singh, Additional S. P. to institute a case.

After having obtained sanction of the Governor, a criminal case was instituted on 1. 2. 1978 by the Vigilance Police and on 19. 2. 1979 a charge-sheet was submitted against the respondents and others. 7. On 26. 2. 1979, one Shri Awadesh Kumar Datta (hereinafter 'A. K. Datta'), a Senior Advocate of the Patna High Court was appointed Special Public Prosecutor by the Karpoori Thakur Government to conduct the two vigilance cases against Respondent No. 2. . 8. On 21. 11. 1979, the Chief Judicial Magistrate-cum-Special Judge, Patna, took cognizance of the case. ' 9. Shortly thereafter, there was a change of Government in Bihar and Respondent No. 2 became the Chief Minister again. On J0. 6. 1980, the State Government took a policy decision that criminal cases launched "out of political vendetta" in 1978-79 and cases relating to political agitation be withdrawn. 10. On 24. 2. 1981, the Government appointed one Shri Lallan . Prasad Sinha (her~in~fter 'L. P. Sinha') as Sp~cia!

Public Prosecuto~ . __ ,__ SHEONANDAN v. BIHAR (Baharul Islam, J. ) 109 along with three others vide letter No. C. /Mis-8-43 J dated 24. ~. 1981. ... On the following day ·(25. 2. 1981), the Secretary to the Government of Bibar wrote a letter to the District Magistrate informing . him about the policy decision of the Government to withdraw from. prosecution of two vigilance cases including the case in band, namely,_ Vigilance P. S. Case No. 9(2)78. The letter is at page 85 of Vol. I of the Paper Book and reads thus : "Letter No. MW 26-81, J. Government of Bihar, Law (Justice) Department '· From Sbri Ambika Prasad Sinha, . Secretary to Government, Patna. To The District Magistrate, Patna. ,Patna, dated 25th February, 1981. Subject: The withdrawal of Vigilance P. S. Case No. 9(2)78 and Case No. 53(8)78 ii!

connection with Sir, I am directed to say that the State Government have decided to withdraw from prosecution the above-mentioned two criminal cases on tM grounds of inexpediency of prosecution for reasons ofState and public policy, You are, therefore, requested to. direct the public Prosecutor to pray the Court ,after himself considering for the witbdral\lal of the above mentioned two cases for the above reasons under Section 321 of the Code of Criminal Procedure. Please acknowledge receipt of the letter . and also intimate this Department about the result of the action t~ken, Yours faithfully, Sd/• Illegil>I~ l IO SUPIU! UB COURT IU! POl. TS (1983) 2 S. C. ll, , Secretary to Government, Patna. Memo No. MW 26/81, 1056 J. Patna, dated 25th February, 1981. Copy forwarded to Vigilance Department for infor· mation. Sd/- Illegible Secretary to Government, Bihar. Patna". (emphasis added) 11. Accordingly, on 17. 6. 1981, Shri L. P. Sinha filed an appli· cation under section 321 of the Code.

On 20. 6. 1981, the Special Judge passed the impugned order giving his consent to withdraw the case. 12. It may be noted at this stage that before the impugned order was passed, the appellant filed an application under section 302 of the Code and the learned Judge held that the appellant had no locus standi in the matter. The appellant then filed a criminal revision before the High Court and the High Court after hearing the appellant, by its order dated 14. 9. 1981, rejected the revision petition and affirmed the order of withdrawal passed by the Special Judge. 13. Hence this appeal by special leave against the order of the High Court in the criminal revision. 14. Shri Venugopal, learned counsel appearing for the appellant formulated three points before us :. (I) That the permission accorded by the Special Judge to withdraw the case in question was contrar¥ to a series of decisions of this Court and is unsustainable. (2) That Shri L. P.

Sinha who had made the application under section 321 of the Criminal Procedure Code was not the Public Prosecutor in charge of the case. ff (3) That in the facts and circumstances or the case, Shri L. P. Sinha \)Ould q t iind cjid 1101 f1,mction indepen• \lently. SHBONANOAN v. B! RAR (Baharul Islam, J. ) 111 Shri Prasaran, learned Solicitor General, appearing for Respondent No. I, the State of Bihar, on the other hand, submitted, (I) that the institution of the case was the result of political vendetta and the vendetta had vitiated the investigation of the case; (2) that Shri L. P. Sinha was the Public Prosecutor in charge of the case and was competent to make the application under section 32I of the Code and that his appointment cannot be collaterally challenged ; and (3) that the impugned order of the Special Judge was legally valid. '. 15. The first point for decision is whether Shri L. P. Sinha was the Public Prosecutor in charge of the case as required by Section 321 of the Code.

Section 321 of the Code reads (material portion only) : "321. Withdrawal from prosecution-The Public Prosecu· tor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal. - (a) if it is made before a charge bas been framed, the accused shall be discharged in respect of such offence or offences ; (b) if it is made after a charge has been fram~d, or > when under this Code no charge is required, he shall be', acquitted in respect 'of such offence or offences: Provided that ........... . " Three of !

_he essential requirements of section 321 are : (I) that a Public Prosecutor or Assistant Public Prosecutor is the only competent person to withdraw from the prosecution of a person ; (2) that he must be in charge of the case; 112 SUPREME COURT llEPORTS (1983] 2 S. C. R. (3) that the withdrawal is permissible only with the consent of the Court (before which the case is pending). As stated above, Shri A. K. Datta was appointed Special Public Procecutor for conducting the case in question vide order under letter No. C/Special/04/79 which reaCls thus (material portion only): "Letter No. C/Special/04/79 Sion is that Shri L. P. Sinha acted as directed by the Government to make the application for withdrawal and himself did not apply his mind. Section 321 of the Code enables the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the consent of the Court.

The appellant submits, in our opinion correctly, that before an application is made under section 321 of the Code, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to auy outside influence ; and secondly, that the Court before which the case is pending cannot give its consent to withdraw without itself applying its mind to the facts of the case. But it cannot be said that a Public Prosecutor·s action will be illegal if he receives any communication or instruction from the Government. Let us consider the point from the practical point of view. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State (see ss. 24 and 25 Crl. P. C. ), appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and cilent between the Public Prosecutor and the Government.

A Public Prosecutor cannot act without instructions of the Government a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Take an extreme hypothetical case, in which Government is the prosecutor, and in which there is a prima facie case 120 SUPRB/dB COURT REPORTS I1983I 2 S. C. R. against an accused, but the Government feels on the ground of public policy, or on the gro_und of law and order, or on the ground of social harmony, or on the ground of inexpediency of prosecution for reasons of State, the case should not be proceeded with ; the Government will be justified to express its desire to withdraw from the prosecution and instruct the Public Prosecutor to take necessary legal steps to withdraw from the prosecution. Section 321 of the Code 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 Publi_c Prosecutor receives such instruc- ~ [1957] s. c. ~. 297. . SBEONANDAN v. BIBAR (Misra, J. ) 141 ~:. · _. , :·. •:: ;,. , '?. ""' . . : I corresponding s. 494 of the unamended Code, which wa; in p1rl maierfd with the pteserit'section 32l, and observed as follows '. "The magistrate's, functions in· these matters are»not · only supplementary, at a higher level, to . those:ofthe executive but are intended ·.. to prevent abuse. Section 494 ' requiring the consent of the Court for:wrthdrawal by the 8 Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating. to inquiries, and trials by the Court. It cannot be taken to place on the Court the responsibility for a ptima facie determination of a triable issue, for fostance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under ss. 209 (! ) and 253 (I) or of "groundlessness" under ss. 209 (2) and 253 (2). " ...

the function of the Magistratein giving consent. is a judicial one open to correction. ... the application . for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of· tho prosecutions.... If so, it is clear that, what th> Court has to determine, for the·. exercise of its discretion in granting ' I or withholding 'consent' is not a triable issue on judicial evidence. '' • Again in M. N. S. Nair v. P. V. Balkrishnan(') this Court after reviewing various cases from different High Courts laid down the - ' following guidelines : "Though the section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either.

that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances. which it is difficult to predicate as ·they are dependent entirely on' . · the facts q. nti circumst~nces of each case. Nonetheless. it is Ill (1972] . 2 S. C. R. 599. ~- - '' 142 M1PUlll CotJU UPCal~ ! 1913) 2 S. C;J.. the duty of the Court also to ~ in furtherance of juatice that the permission is not sought on grounds extraneOMs to the interest of justice or that offences which are offences • against the State go unpuniahed mf! 'ely because the Governlflent as a matter ofgeneral policy of expediency unconnected with Its duty to prosecute offenders under the law, direct• the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does ao at its behest. " "It appears to us that the wide and general powers whiclt are conferred under Sec.

494 on the Public Prosecutor to withdraw from the prosecution though they arc subject to the permission of the Court have to be exercised by him In relation to the facts and circumstancea of that case in furtherance of, rather than as·a hinderance to the object of the law and Justified on the material in the case which substantiate the grounds alleged, not necessarily from those gathered by the judicial method but on other materials which may not be strictly on legal or admissible evidence. 'The Court also while considering the request to grant permission under the said Section should not do 10 as a necessary formality-the grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice ,II • ard that permission was not being . sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain.

" (Emphasis supplied) The same principle was reiterated again in State ofOris sa v. C. Mohapatra(') iri these words : "The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on rhefacts and circumstances of each case in the light of what is necessary in (I) [1977] 1 S. C. R. 355. s. OMANDAN '· BIB. Ult1 ltBPOltTS (1983] 2 S. C,R. whether this antedating of the latter order as 14th May 1975 by pasting it over the earlier order would amount to criminal misconduct within the meaning of s. 5 (I) (d) of the Prevention of Corruption Act and forgery within the meaning of s. 466 of the Indian Penal Code. Insofar as it is material for the purpose of this case, s. 5 (I) (d) of the Prevention of Corruption Act reads : 8 "5.

(I) A Public servant is said to commit the offience of criminal miscondnct- (a) .... , ........................................ (b) ....................................... . (c) ................ (d) if he, by corrupt or illegal means ·or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniarS ecutor is one, which could 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 his mind ,. ,. 1; . ""''-- SllEONANDAN v. BIHAR (Misra, J) 155 on the relevant materials and bis opinion is not perverse, and which a reasonable man could have arrived at, a roving inquiry into the evidence and materials on the record for the purpose of finding out whether his conclusions were right or wrong would be incompotent. That would virtually convert this Court into an Appellate Court selting on judgment.

Th·e contention raised by the counsel for appellant that the Public Prosecutor Shri Lallan Prasad Sinha was not competent to ·~ apr4' ~" wifhdrawal has . not been accepted by my brothers • r . / Tulzapurkar and Baharul Islam JJ. and I respectfully agree with t. hem. If the Public Prosecutor thought that the c1ntinuance of the prosecution in the circumstances would only end in an exercise in futility, he was fully justified in moving the application for withdrawal. The only question is whether he has applied his mind and he was not actuated by any extraneous consideration or improper motive. It was sought to be argued on behalf of the appellant that the Public Prosecutor has acted at the behest of the Government and be did not apply bis own mind. Reference was made to the letter sent by the Government to the Public Prosecutor.

The letter did not indicate that the Government wants him not to proceed with the case but the letter gave full freedom to the Public Prose· cutor to apply his own mind and to come to'his own conclusion. lo view of the various authorities of 'this Court, consultation with the Government or high officer is not improper. But the Public Prosecutor bas to apply his own mind to the facts and circumstances of the case before coming ·to the conclusion to withdraw from the prosecution. From the materials on the record I am satisfied that the Public Prosecutor bas applied his own mind and came to his own conclusions. The last but not the least in importance was the point raised on behalf of the appellant that the sanction for . prosecution had already been given by the then Chief Minister, Abdul Gafoor and the complaint was going to be filed but it was postponed on account of Respondent No. 2 who by that time overtook as the Chief Minister of Bihar.

The argument is that firstly he tried to delay the ff filing of the complaint ; and secondly that he ordered for not pro. secuting the officers of the bank including Respondent No. 2, Shri Jagan Nath Mishra. It appears from the notes on dates given on behalf of the Respondent that the file went to the Chief Minister, Respondent No. 2 because of an earlier noting dated ! st of January 1975 by Shri Omesh Prasad Verma that the Chief Minister may also like to see. A further noting dated 31st of January 1975 by Shri R. K. Shrivastava in the Ministry of Co-operation was to the following effects : Cl ·- "Chief Minister and Minister of Law have desired to see the file before complaints are actually lodged. As per their directions, the file has been recalled from the Additional Public Prosecutor. Io the circumstances narrated above Minister of Law and Chief Minister would like to accord their approval to the filing of the complaint. " A subsequent note of Shri R. K.

Shrivastava dated 27th of January 1975 is in the following terms : "The Chief Minister bas desired that if the said complaint has not been fiied should await till he is able to see the file. Another buff sheet bas been received from the Minister of Agriculture also. The file may kindly be recalled and filing of complaints may await 1111 further clearance of the C. M. '" It appears that the previous Chief Minister was replaced by that time Dr. J. N. Mishra. It is in these circumstances that the file was sent to Respondent No. 2 in his capacity as Chief Minister in pursuance of the earlier desire of the then Chief Minister, Shri Abdul Gafoor, and passed the following orders : "In order to recover the money from some of the loanees of . the Patna Urban Co-operative Bank criminal cases were instituted against them. Action should be taken immediately for the withdrawal of the cases against those loanees who have cleared the loan in full and proper instalments for payment of loans should !

le fixed against those who want to repay the loan but due to financial incapacity SHEONANDAN v. BIHAR (Misra, J. ) 157 are unable to make payment at a time and thereafter necessary further action should be taken. " Io this state of affairs it cannot be said that Respondent No. 2 was out to obstruct the criminal proceedings. The facts that the prosecution, if ordered, will s. tart after a gap of about eight years cannot be lost sight of. In the view taken by me in the earlier part of. the judgment that no primafacie case in • my opinion has been made out under s. 466 of the Indian Penal Code and s. 5 (1) (d) of the Prevention of Corrupiion Act and the fact that the High Court in revision agreed with the view of the Special Judge giving consent to the withdrawal from the prosecution on the application of the Public Prosecutor under ~s. 321 iCr. P. C. this Court cannot make a fresh appraisal of evidence and come to a different conclusion.

All that this Court has to see is that the Public Prosecutor was not actuated by extraneous or improper considerations while moving the application for withdrawal from the prose· cution. Even if it is possible to have another view different from the one taken by the Public Prosecutor while moving the application for withdrawal from prosecution tbis Court should be reluctant to interfere with the order unless it comes to the conclusion that the Public Prosecutor has not applied his mind to the facts and circumstances of the case, and has simply acted at the behest of the Government or has been actuated by extr! lneous and improper con· siderations. On the facts and circumstances of the case it is not possible for me to bold that the Public Prosecutor was actuated by oblique or improper motive. In view of my finding that the criminal case against Respondent No.

2 and others was instituted on account of personal or political vendetta at the instance of some disgrunted political leaders, that oo prima facie case of forgery or misconduct is made out on the materials on the record, that the Court's jurisdiction in dealing with the application under s. 311 of the Code is only to see whether the Public Prosecutor· had applied for withdrawal in the interest of Public Justiee, or he has done so actuated by improper or oblique motive, that a substantial amount of. Joan has already been realised, that the continuance of the criminal ~case in the circumstances of this case· will be only an exercise in futility at the cost of public money and time, that the trial court as well as the High Court 158 SUPllEME COURT REPORTS (1983] 2 8. C. R.

A· were satisfied with the grouuds for withdrawal taken by the Public Prosecutor, the view taken by the trial court as well as the High Court in my opinion does not suffer from any infirmity and is a just and proper one. For the reasons given above the appeal must fail and it is B a. ~cordingly dismissed. S. R. Appeal allowed• . . l. ' "