Chinnappa Reddy, J. - (1.) A cocktail of law and politics, reason and caution extravagance is the only way we can describe the submissions made to us in these two cases. Well known personalities are involved, in one case an Ex-Central Minister, the present Governor of a State and some leading journalists, and in the other, an ex-Central Minister, and a host of Government officials- perhaps that was responsible for the passion and the tension which appeared to characterise and sometime mar the arguments in the two cases.
(2.) We will first take up for consideration Criminal Appeal No. 287 of 1979.
(3.) In exercise of the powers conferred by S. 196 (1) (a) of the Code of Criminal Procedure 1973, and S. 7 of the Explosive Substances Act, 1908, the Government of India by its order dated September 6, 1976 accorded sanction for the prosecution of George Mathew Fernandes alias George Fernandes and 24 others for alleged offences under Ss. 121-A, Indian Penal Code, 120-B, Indian Penal Code read wit Ss. 4, 5 and 6 of Explosive Substances Act, S. 5 (3) (b) and Section 12 of the Indian Explosives Act, 1884. The first paragraph of the order according sanction set out the object of the conspiracy in the following words: "Whereas, it is alleged that after the issue of the proclamation of Emergency on 25th June, 1975 by the President of India in exercise of the powers conferred by clauses (1) of Article 352 of the Constitution, George Mathew Fernandes alias George Fernandes, Chairman of Socialist Party of India and Chairman of All India Railwaymen's Federation sought to arouse resistence against the said emergency by declaring that the said emergency had been "clamped" on the country by the "despotic rule" of Smt. Indira Gandhi, Prime Minister of India and to entertain in idea that a conspiracy be hatched with the help of the persons of his confidence, to over-awe the Government and in pursuance of the conspiracy do such acts which might result in the destruction of public property and vital installations in the country." Thereafter the order set out the various acts committed by the several accused persons in pursuance of the objects of the conspiracy. On September 24, 1976 the Deputy Superintendent of Police, Special Police Establishment, Central Bureau of Investigation, Central Investigation Unit (A), New Delhi, filed a charge sheet in the Court of the Chief Metropolitan Magistrate, Delhi against the said accused persons for the offences mentioned in the order sanctioning the prosecution. Two of the accused persons had been tendered pardon. They had, therefore, to be examined as witnesses in the Court of the Magistrate taking cognizance of the offences notwithstanding the fact that the case was exclusively triable by the Court of Session. The evidence of the approvers was recorded on March 22, 1977 and the case was adjourned to March 26, 1977 for further proceedings. At that stage, on March 26, 1977, N. G. Mathur, Special Public Prosecutor filed an application under Section 321 of the Criminal Procedure Code, 1973, for permission to withdraw from the prosecution, The application was as follows: "It is submitted on behalf of the State as under:- 1. That on 24-9-76 the Special Police Establishment after necessary investigation had filed a charge-sheet in this Hon'ble Court against Shri George Mathew Fernandes and 24 others for offences under Ss. 121-A, I.P.C., 120B I. P. C. r/w. Sections 4, 5 and 6 of the Explosive Substances Act, 1908 and Sections 5 (3) (b) and 12 of the Indian Explosives Act, 1884 as well as the substantive offences. 2. That besides the accused who were sent up for trail two accused namely Shri Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Hon'ble Court and were examined as approver under S. 306 (4), Cr. P. C. 3. That out of 25 accused sent up for trial cited in the charge-sheet, 2 accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Hon'ble Court. 4. That in public interest and changed circumstances, the Central Government has desired to withdraw from the prosecutions of all the accused. 5. It is therefore prayed that this Hon'ble Court may accord consent to withdraw from 26th March, 1977. Sd/- (N. S. Mathur) Special Public Prosecutor for the State, New Delhi". On the same day the learned Chief Metropolitan Magistrate, expressing the opinion that it was "expedient to accord consent to withdraw from the prosecution", granted his consent for withdrawal from the Prosecution.;