Decided on December 16,1982

STATE OF BIHAR Respondents


TULZAPURKAR - (1.) THE Judgments of the court were delivered by
(2.) 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 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 19/02/1979 a charge-sheet in Vigilance P.S. Case No. 9(2)78 was filed by the State of Bihar against respondent 2 (Dr. Jagannath Misra), respondent 3 (Nawal Kishore Sinha) respondent 4 (Jiwanand Jha) and three others (K.P. Gupta, since deceased, M.A. Haidari and A.K. Singh, who later became approvers) for offences under S. 420/466/471/ 109/120-B. Indian Penal Code 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 against respondent 2 was that at all times material he was 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 451 to subvert criminal prosecution and surcharge proceedings against Nawai Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Cooperative Bank. its members, depositors and creditors and thereby committed the offence of criminal misconduct under S. 5(1) (d) read with S. 5(2) of the Prevention of Corruption Act. 1947 and in that process committed the other offences specified in the charge-sheet, including the offence of forgery under S. 466, IPC. Cognizance of the case was taken on 21/11/1979 by. the learned Chief Judicial Magistrate-cum-Special Judge (Vigilance). Patna, who issued process against the accused but before the trial commenced the State government, at the instance of respondent 2, who in the meantime 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 Shri Awadhesh Kumar Datta, Senior Advocate, Patna High court, had been appointed as a Special Public Prosecutor by the previous government for conducting the said case, the State government (now headed by respondent 2) without cancelling Shri Datta's appointment as Special Public Prosecutor, on 24/02/1981 constituted a fresh panel of lawyers for conducting cases pertaining to Vigilance Department and 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 26/03/1981 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 17/06/1981 Shri Lalan Prasad Sinha made an application under .Section 321, CrPC, 1973 to the Special Judge seeking permission to withdraw from the prosecution of respondents 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 a result of political and personal vendetta, (c) inexpediency of the prosecution for the reasons of the State and public policy and (d) adverse effects that the continuance of the prosecution will bring on public interest in the light of the changed situation; and the learned Special Judge by his order dated 20/06/1981 granted the premission. A Criminal Revision (No. 874 of 1981) preferred by the appellam against the said order was dismissed in limine by the High court on September 14. 3981. Tt is this withdrawal from the prosecution permitted by the learned Special Judge and its confirmation by the High court that are being challenged in this appeal. Counsel for the appellant raised three or four contentions in support of the appeal. In the first place he contended that the impugned withdrawal was utterly unjustified on merits and also illegal being contrary to the principles enunciated by this court 452 governing the exercise of the power under S. 321, CrPC. According to him the decisions of this court bearing on the nature and scope of the power under the S. clearly suggest that for purposes of that S. a dichotomy exists between political offences and common law offences and that the considerations of public policy, public interest, reasons of State or political and personal vendetta may become relevant in the case of the former category but are irrelevant while withdrawing from the prosecution of common law offences and since in the instant case the offences with which the accused and particularly respondent 2 had been charged were common law offences, namely, bribery (criminal misconduct) and forgery and not with any political offence the grounds at (b), (c) and (d) mentioned in the application seeking permission for withdrawal were irrelevant and extraneous and since extraneous and nongermane considerations influenced the Public Prosecutor as also the court the withdrawal is vitiated and is bad in law: and as regards ground (a), namely, insufficiency of evidence or lack of prospect of successful prosecution the same was clearly untenable being in .teeth of undisputed and genuine documentary evidence including the orders admittedly passed by respondent 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 overenthusiastic investigation could arise ; therefore, the impugned withdrawal deserved to be quashed. Secondly, counsel contended that Shri Lalan Prasad Sinha was not the competent officer to apply for withdrawal from the prosecution of the case under S. 321, Criminal Procedure Code inasmuch as that Shri A.K. Datta's appointment as Special Public Prosecutor made under S. 24(8), Criminal Procedure Code to conduct this case had not been cancelled and as such the application for permission to withdraw as well as the permission granted thereon were unauthorised, incompetent and illegal. Thirdly, it was urged that on the facts and circumstances of the case Shri Lalan Prasad Sinha did not function independently as a free agent but was influenced and guided by the State government's decision in the matter and as such the withdrawal at the behest of the government was vitiated. Counsel also urged that Shri Lalan Prasad Sinha's decision (if at all it was his own) to withdraw from the prosecution as well as the Special Judge's decision to grant permission were vitiated by non-application of mind.
(3.) ON the other hand, counsel for the respondents refuted all the contentions urged on behalf of the appellant. It was denied that the withdrawal in question was unjustified on merits or illegal or contrary to the principles governing the exercise of the power under S. 321 : on the contrary counsel for the respondents urged that 453 the decisions of this court had clarified the position that under the Code a withdrawal from the prosecution was an executive function of the Public Prosecutor, that the discretion to withdraw from the prosecution was that of the Public Prosecutor and none else and that he could withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace and the broad ends of public justice would include appropriate social, economic and political purposes, and what was more in granting its consent to the withdrawal the court merely performed a supervisory function and in discharging such function the court was not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor had applied his mind as a free agent, uninfluenced by irrelevant or extraneous considerations. It was disputed that the grounds (b), (c) and (d) mentioned in the application seeking permission to withdraw were irrelevant or extraneous or that ground (a) was untenable. According to counsel, in the instant case Sbri Lalan Prasad Sinha. being in charge as well as in the conduct of the case was competent to make the application for withdrawal and he had done so after considering all the relevant factors and circumstances bearing on the issue and satisfying himself about it and not at the behest of the government as contended by the appellant and the learned Special Judge also performed his supervisory function in granting the requisite permission on relevant considerations. Counsel emphatically denied that either the Public Prosecutor's decision 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 Article 136 of the Constitution and the appeal be dismissed. Having regard to the aforesaid rival contentions that were urged betore us by the learned Attorney-General and counsel on cither side it is clear that principally three questions arise for our determination in this appeal, namely, (1) What is the true, scope and nature of the power under S. 321 of CrPC. 1973 ? (2) Whether Shri Lalan Prasad Sinha was competent officer entitled to apply for withdrawal from the prosecution and if so whether he discharged his 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 us 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 extraneous 454 considerations or non-application of mind etc. deserving interference by this court ?;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.