VIJAYKUMAR BALDEV MISHRA @SHARMA v. ST ATE OF MAHARASHTRA

Citation: [2007] 7 S.C.R. 601

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

VIJAYKUMAR BALDEV MISHRA @SHARMA v. ST ATE OF MAHARASHTRA.pdf

Judgment text

_--.. VIJAYKUMAR BALDEV MISHRA @SHARMA v. STATE OF MAHARASHTRA MAY 18, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ) ... - -_,c Code of Criminal Procedure, 1973-s. 321-Withdrawal from prosecution by public prosecutor-Consent'of court for withdrawal-Grant of-Application for withdrawal of charges under TADA against accused on recommendations ofReview Committee that case not made out under TADA- Designated Court refusing to grant permission on the ground of certain confessions having been made thereunder-Correctness of-,-Held: Designated Court not correct in expressing its opinion on merit of the matter and the effect ofconfessions made:_lt was not necessary to consider bonafide ofthe public prosecutor~Moreover, bonafide ofpublic prosecutor itself could not automatically lead to grant of consent-Thus, application for withdrawal of ~ charges to be al/owed~Terrorist and Disruptive Activities (Preventi within the confines of Section 321 CrPC. " 15.

In regard to the Courts' function in the matter of grant of consent, while opining that the grant should not be a matter of course, this Court held that even a detailed reasoned order is not necessary to be passed therefor. The Court took into consideration the jurisdiction of the Court under Section 321 of the Criminal Procedure Code vis-a-vis other provisions laid down therein opining : ·H "85. The scope of Section 321 can be tested from another angle and VIJAYKUMAR BALDEV MISHRA@, SHARMA"· STATEOF MAHARASHTRA [SB. SINHA. J. ] 611 that is with reference to Section 320 which deals with "compounding "lo. ~ of offences". Both these sections occur in Chapter 24 under the heading "General Provisions as to Enquiries and Trials". Section 320(1) pertains to compounding of offences, in the table, which are not of a serious nature while Section 320(2) pertains to offences ofa slightly serious in nature but not constituting grave crimes.

The offences in the table under Section 320(1) may be compounded by the persons mentioned in the third column of the table without the permission of ...... the court and those given in the Table II, under Section 320(2) can be -.. ( compounded only with the permission ofthe court. Under sub-section 4(a ), when a person who would otherwise be competent to compound an offence under Section 320, is under the age of 18 years or is an __. .. idiot or a lunatic, any person competent to contract on his behalf may, with the permission ofthe court, compound such offence. Sub-section 4(b) provides that when a person who would otherwise be competent ~ to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, of such person may, with the consent of the court, compound such offence. ~... 86. These two sub-sections use the expression "with the permission -.

\of the court" and "with the consent of the court" which are more or less ejusdem generis. On a fair reading of the abovementioned subsections it can be safely presumed that the sections confer only a supervisory power on the court in the matter of compounding of offences in the manner indicated therein, with this safeguard that the accused does not by unfair or deceitful means, secure a composition of the offence. Viewed thus I do not think that a plea can be successfully put forward that granting permission or giving consent under sub-section (4)(a) or (4)(b) for compounding of an offence, the court is enjoined to make a serious detailed evaluation ofthe evidence ~ or assessment of the case to be satisfied that the case would result in acquittal or conviction. It is necessary to bear in mind that an application for compounding of an offence can be made at any stage.

Since Section 321 finds a place in this chapter immediately after Section 320, one will be justified in saying that it should take its colour from the immediately preceding section and in holding that this section, which is a kindred to Section 320, contemplates consent by the court only in a supervisory manner and not essentially in an ~ adjudicatory manner, the grant of consent not depending up<>n detailed assessment of the weight or volume of evidence to see the l ' degree of success at the end of the trial. All that is necessary for the court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest. It was furthennore held: "90. Section 321 CrPC is virtually a step by way ofcomposition ofthe offence by the State. The State is the master of the litigation in ... , criminal cases. It is useful to remember that by the exercise offunctions . ;-.

under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if /a party is aggrieved by the withdrawal of the prosecution but running ~ the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis. " t- ~··· ,I (See also S. K. Shukla and Others v. State ofUP. and Others, [2006) I SCC 314, Rahul Agarwal v. Rakesh Jain andAnr. , [2005) 2 SCC 377 and K. Anbazhagan v. Superintendent of Police and Others, (2004) 3 sec 767). 16. Noticing that no gt:idelines have been provided for in the matter of grant·or withdrawal of the consent by the·court, the Constitution Bench referred to the ratio of its earlier decision in State ofBihar v. Ram Naresh Pandey, [1957) I SCR 279 wherein it was held: "His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue.

The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by court. It carinot be taken to place on the court the responsibility for a prima I r facie determination of a triable issue. For instance the discharge that j I results therefrom need not always conform to the standard of 'no ' prima facie case' under Sections 209(1) and 253( I) or of 'groundlessness' under Sections 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 VUA\1CUMAR BALDE\' MISHRA@ SHARMA '" STATEOf MAHARASHTRA [MARXANDEY KATJU. J ] 6}3 which the application for consent is made. " 17.

While refusing to grant pennission, the Designated Court, in our opinion, was not correct in expressing its opinion in the _merit of the matter and the effect of confessions made in terms of the provisions of TADA. It was, however, also not necessary to consider as to whether, the action of the public prosecutor as also the State was bonajide or not. Moreover, bonafide on the part of the public prosecutor itself cannot automatically lead to grant ofconsent. There are other circumstances also which are required to be taken into consideration. 18. For the reasons aforementioned, the appeal is allowed. The application filed by the State for withdrawal of the charges under TADA against the appellant shall stand allowed. The learned Designated Judge may now proceed with the matter in accordance with law. MARKANDEY KATJU, J. 1. I have perused the judg.. ient ofmy learned brother Hon 'ble S. B. Sinha, J. in this case.

The facts of the case have been narrated in the judgment of my learned brother and hence I am not repeating the same. I entirely agree with the reasoning and conclusion of my learned brother. 2. However, there is an important constitutional point which though not taken in the Criminal Appeal before us, is ofsuch great importance that I wish to express my opinion on the same. 3. The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "The Act") stated initially in Section 1(4) thereof that the said Act will remain in operation for a period of two years from 24. 5. 1987, but thereafter by amendments from time to time the period of two years was extended to four years, then . six years and lastly for eight years. 4. Thus Section 1(4) of the Act as it stood ultimately read as follows: "It shall remain in force for a period of [eight years]· from the 24th day of May, 1987, but its expiry under.

the operation of this subsection shall not affect_:_ (a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule, or (2007] 7 S. C. R. (b) any right, privilege, obligation or liability acquired, accrued or +--·J incurred under this Act or any rule made thereunder or any order made under any such rule, or (c) any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or of any order made under any such rule, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired. " 5.

There was no further extension of the period for which the Act remained in force, and hence the Act automatically came to an end on 24. 5. 1995. 6. However, Section I(4) of the Act also stated that the expiry of the aforesaid period of the Act would not affect any right or liability incurred when the Act was in force, and legal proceedings can be instituted or continued as if the Act has not expired, provided the act in question was committe. d .. when the Act was in force. It is under this provision that prosecutions under TADA have be1.. n continued although the life of the Act has expired. 7. In my opinion the provision that legal proceedings can be instituted · or continued even after the Act has expired, is clearly violative of Article 14 of the Constitution of India. We may test the constitutional position by taking a hypothetical case.

Supposing a law is made which makes an act committed by a person a crime on one day, but the same law says that the same act will not be a crime ifcommitted on the next day. Surely such a law will be violative ofArticle 14 unless there is very strong and rational basis for such classification and differentiation. 8. From the common sense point o_f view too, it does not stand to reason that a certain act will be treated as a crime ifcommitted within one time period, but it will not be a crime if it is committed thereafter. 9. ' Of course, if there is good rational ground for making such a differentiation, Article 14 may not be violated but then it will be for the State VUAYKUMARBALDEV MISHRA@ SHARMA •·. STATE Of MAHARASHTRA (MARKANDEY KATJU. Jj 615 Authorities to justify such a classification on some reasonable and rational basis, failing which it will clearly violate Article 14 of the Constitution. 10.

In the present case, Section 1(4) of the Act says that the offence created by Section 3 of the Act will be punishable as a crime if the act was committed on or before 24. 5. 1995, but if the same act was committed after 24. 5. 1995, it will not be a crime. To my mind this is ex facie violation ofArticle 14 of the Constitution and hence Section I(4) of Act to the extent it says that acts mentioned in Section 3 committed on or before 24. 5. 1995 can still be . ,;. treated as a crime and punished under the TADA, though the same act committed after 24. 5. 1995 cannot, is in my opinion clearly ultra vires Article 14 and hence is liable to be struck down as unconstitutional. 11.

Since this point has not been raised in the appeal I am not giving any final opinion in the matter, but the point, to my mind, is of such a vital and wide constitutional importance that I thought it fit to express my opinion on the same, so that this opinion can be considered in other cases where prosecutions under TADA are going on or where convictions have been made in relation to the offences under Section 3 alleged to have been committed before 24. 5. 1995. 12. As regards those who have already undergone the entire sentence for which they were convicted under TADA obviously nothing can be done, but regarding those who have undergone only part ofthe sentence or regarding those who are facing prosecution or investigation under TADA such prosecution or investigation are liable to be quashed in view of the opinion expressed above. 13. It is of course made clear that the above opinion has nothing to do with Article 20(1) of the Constitution, which deals with ex post facto laws. 14.

With the above observation the appeal is allowed and the impugned order is set aside. The appellant is directed to be released forthwith unless required in some other case. N. J. Appeal allowed. ·~