TaxTMI 
TaxTMI 
2000 (11) TMI 1257
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.... popular in Karnataka, and three others, namely, Govindraj, who is a son-in-law of Rajkumar, Nagesh, who is a relative of Rajkumar, and Nagappa, who is an Assistant Film Director. As of today, Rajkumar and Nagesh remain in Veerappan's custody. Nagappa is said to have escaped and Govindraj was released by Veerappan. Gajanoor is a town in Tamil Nadu close to the border with Karnataka. 3. On 8th July, 1999 the Director General of Police of the State of Karnataka had informed the Inspector General of Police of the State of Tamil Nadu that it had been reliably learnt that Veerappan intended to kidnap Rajkumar during the latter's visit to his farmhouse in Gajanoor and had requested adequate security arrangements for Rajkumar whenever he visited Gajanoor. The record before us reveals that Rajkumar did not want police protection and considered the presence of the police a problem. He had visited Gajanoor on 22nd June, 2000, but no information in this behalf had been intimated to the police authorities at Gajanoor; however, they had come to know of his presence and had made security arrangements. No information had been received in regard to the visit of Rajkumar to Gajanoor on 2....
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....nstalled and unveiled at Bangalore and Chennai respectively with the participation of both the Chief Ministers. DEMAND: 5. Vacation of stay issued by High Court against Justice Sathasivam Commission to enquire into the atrocities by the Task Forces of the Two States. Compensation for victims and punishment for those held guilty by the Commission. RESPONSE: Karnataka Government will take steps to have the stay vacated. DEMAND: 6. Innocent persons languishing in Karnataka Jails should be released. RESPONSE: TADA charges will be dropped immediately facilitating release of the prisoners. DEMAND: 7. Compensation for the families of nine Digits killed in Karnataka. RESPONSE: Will be considered favourably after collecting particulars. DEMAND: 8. Minimum procurement price of Rs. 15/- per kg. for tea leaves grown in the Nilgiris. RESPONSE: A series of steps taken by the Central and the State Governments has already brought about substantial increase in the price of tea leaves from Rs. 4.50 to Rs. 9.50. DEMAND: 9. Five persons now i....
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....nd 5 of the TADA Act, alleging that on the afternoon of 14-8-92 Veerappan along with his associates attracted the then Supt. of Police, Mysore District, Sri. Harikrishna, and the then S.I. of Police of M.M. Hills, Sri, Shakeel Ahamed and other police personnel who had been to nab Veerappan on the information furnished by the informant Kamala Naika, who also died in the incident, and also had resulted killing of six police personnel and injuring others and damaging the vehicles and also removing of the weapons and wire-less set belonging to police Department. There are in all 166 accused persons and out of which 30 accused are in custody and 48 accused are on bail. It is submitted by the Prosecutor that the accused who are on bail have not repeated the offences and they have also not involved themselves in any similar offences and terrorist activity have not been noticed recently in the area. It is submitted by the Prosecutor that in order to restore the peace and normalcy in the border area and among the people living in the border area and to maintain peace among the public at general and inhabitants of the particular village, the Prosecutor has decided ....
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....submitted that it was the duty of the Special Public Prosecutor to inform the court of the reasons prompting him to withdraw the prosecution and of the court to apprise itself of these reasons. The Special Public Prosecutor rejoined to the statement of opposition by contending that all cases against Veerappan and his associates were not being withdrawn, and they would be prosecuted. He, therefore, denied the submission in the statement of opposition that the Government of the State of Karnataka had yielded to blackmail by Veerappan. 9. The Special Public Prosecutor's application was made when the trial of the cases to which it related was in progress and the evidence of 51 witnesses had been recorded. The trial had been going on until 30th July, 2000, on the night of which Rajkumar was abducted. 10. The Principal District and Sessions judge, Mysore, was the Special Judge designated for the trial of TADA offences. (He is now referred to as "the learned Judge") on 19th August, 2000 the learned Judge passed on the Special Public Prosecutor's application the order that is impugned in these appeals, he set out in paragraphs 2 to 6 the details of the cases before him, thus:....
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....nd 25 of Indian Arms Act and also Under Section 3, 4 and 5 of the Terrorist and Disruptive Activities Act. The chargesheet has been submitted against 98 accused persons. Of them, 7 accused are on bail, 26 accused are in custody and others are shown to be absconding. 5. The Special Cases Nos. 67/1994, 12/ 1997 and 19/1998 arise out of a chargesheet submitted by MM, Hills Police against 143 accused persons alleging that on 9-4-1993 at Sorekayee Madu the accused had attacked and killed 22 persons belonging to both Police and Forest Department and their informants by planting bombs in the forest area of Palar and thereby the accused are said to have committed offences punishable Under Section 143, 147, 148, 341, 342, 120B, 324, 326, 307, 302 and 396 r/w 149 of IPC, Sections 3 and 25 of the Arms Act, 3, 4 and 5 of Indian Explosives Substances Act and also 3, 4 and 5 of Terrorist and Disruptive Activities Act. Of the 143 accused persons, 17 accused are on bail, 33 accused are in custody and rest of them are shown to be absconding. 6. The Special Cases in Nos. 119/1995 and 79/1999 arise out of a charge sheet submitted by Ramapura Police in Cr. No. 5/1994 against 17 accus....
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....ount of the changed situation, he had felt "that there was a likelihood of danger to the person of accused, who are in custody, if they are insisted to be produced before the court on the said hearing dates." The learned judge stated that he was satisfied that the Special Public Prosecutor had applied his mind in filing the application. In view of the grounds and circumstances mentioned by the Special Public Prosecutor, he was satisfied, on the materials placed before him, "that the grant of permission to withdraw subserves the administration of justice and the permission had not been sought covertly with a ulterior purpose unconnected with the vindication of law, which the executive organs are in duty-bound to further and maintain". The learned Judge observed that things could have been viewed from a different angle altogether if the Special Public Prosecutor had sought for blanket withdrawal of the cases against the accused; but this was not the situation in the case on hand for the case against the accused for other offences would be proceeded with. Accordingly, the learned Judge allowed the application, according consent to withdrawal of the charges relating to offences punisha....
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....on each furnishing cash security of Rs. 20,000, on the conditions that they would appear before the court regularly, as and when required, they would not tamper with the prosecution witnesses and they would not commit any other offence. 12. The order dated 19th August, 2000 on the Special Public Prosecutor's application is impugned in the appeals before us. 13. On 14th August, 2000 the Government of the State of Tamil Nadu issued a Government Order directing that charges against one Radio Venkatesan in respect of two cases registered against him under the provisions of the TADA (Prevention) Act be withdrawn "in the public interest". The Inspector General of Police Intelligence, Chennai was directed to take necessary action accordingly. On 16th August, 2000 the Special Public Prosecutor before the Designated Court (TADA Act) at Chennai made two applications to that court under the provisions of Section 321 of the Criminal Procedure Code. They stated that Radio Venkatesan was charged before the Designated Court in cases arising under the TADA Act, the Explosive Substances Act, the Indian Penal Code and the Arms Act and the cases were pending for framing charges. The applica....
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....used to him, there may be a backlash on Tamils in Karnataka. In order to avoid such a situation and in the public interest, the Government have decided to revoke the order of detention passed by the Collector and District Magistrate, Erode District, in his proceedings first read above, under N.S.A. against Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan and to release him from detention under N.S.A. 2. NOW THEREFORE in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 14 of the National Security Act, 1980, the Governor of Tamil Nadu hereby revokes the order of detention made by the District Collector and District Magistrate, Erode District, against Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, s/o Thiru Nataraja Muthiraiyar, in the proceedings first read above and direct that the said Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, be released from detention under the said Act forthwith. This order applies only in respect of detention under National Security Act. 15. The aforesaid orders of the Government of the State of Tamil Nadu and the order of the Designated Court, Chennai are challenged in the two public interest petitions befo....
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....ade, it is not necessary for the court to asses the evidence to discover whether the case would end in conviction or acquittal. What the court had to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent of decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an over all consideration of the material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the c....
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....se of law or result in manifest injustice. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent. 21. The applications Under Section 321 made by the Special Public Prosecutor before the Designated Court at Mysore submitted that the Special Public Prosecutor had decided to withdraw from prosecution the charges under the T.A.D.A. Act "in order to restore the peace and normalcy in the border area and among the people living in the border area and to maintain peace among the public at general and inhabitants of the particular village" and that such withdrawal from prosecution was necessary "in the larger interest of the State and in order to avoid any unpleasant situation in the border area". The applications did not state why the Special Public Prosecutor apprehended a disturbance of the peace and normalcy of "the border area" or the "particular village", nor was any material in this behalf, or a summary thereof, set out. There was, therefore, no basis laid in the applications upon which the learned Judge presiding over the Desi....
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....n was founded only upon the relevant Government Order, thus: "So far as this case is concerned the Government have passed order to withdraw the TADA case alone as against the accused Venkatesan @ Radio Venkatesan, who is involved in Cr.No. 50/93 and Cr. No. 346/ 93. As this application has been filed by the learned Special Public Prosecutor on the basis of the Government Order referred above. Permission is granted to withdraw the TADA case against the accused Venkatesan @ Radio Venkatesan...." The order, therefore, was not passed after meeting the requirements of Section 321, and it is bad in law. 23. It was submitted by the learned Solicitor General, appearing for the State of Karnataka, that we, sitting in appeal, should consider the grant of consent Under Section 321 based upon the state of knowledge of the Special Public Prosecutor on the date on which he made the application before the Designated Court at Mysore. In this behalf, two affidavits, both dated 19th October, 2000, were filed. One affidavit is made by the Minister of Law and Parliamentary Affairs of the State of Karnataka and the other by the Special Public Prosecutor. 24. The affidavit of the Minister for Law ....
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.... 9. I respectfully state that it was after considering the options and the likely repercussions in future of succumbing to his demands (i.e. the signals sent by agreeing to such demands, and the fact that it may encourage further such acts) and after weighing it against the problems apprehended if any harm were to be caused to Dr. Rajkumar, that this decision to withdraw TADA charges were taken. 10. xxxxxx 11. xxxxxx. 12. In the informal Cabinet meeting held on 3rd August, 2000, the Cabinet had authorized the Chief Minister, the Home Minister and myself as well as the Chief Secretary to take a final decision in this matter and pursuant to this, we took a final decision between 4-5th August, 2000. 25. The decision of the Government of the State of Karnataka, therefore, was that, in view of its apprehension of the unrest that would follow if any harm were to come to Rajkumar, it was better to yield to Veerappan's demand and to withdraw the TADA charges against Veerappan and his associates, including the accused respondents. In this context, the Special Public Prosecutor should have considered and answered the following questions for himself ....
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....eached a point where it was felt that withdrawal of TADA charges against these 51 accused would secure the release of Dr. Rajkumar, I was informed that the Government had intelligence reports and that if any harm were to be caused to Dr. Rajkumar, it would lead to problems between the two linguistic communities in the State. I was informed that apprehending trouble, schools and colleges had been declared closed immediately in the whole State and they were closed upto 5th August, 2000. I was informed of the incidents, which had occurred in Bangalore City on 31st July, 2000 as an aftermath of this incident of kidnapping also showed that the abduction was being constructed by the people as an issue between two communities. The character of the incident showed that these people were ready to indulge in acts of violence. I was also informed that acting on intelligence reports, the Government had taken steps to arrange for deployment of Central Forces, such as the Rapid Action Force, Armed Reserve Police, and Para Military Force from the neighbouring States and some steps had already been taken and others were likely to be taken. 8. I was informed by the Hon'ble Law Minister....
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....uently ascertained the particulars of the cases which are hereto annexed and marked as Annexure C. 27. The affidavit of the Special Public Prosecutor reveals that he was "informed" that the Government of the State of Karnataka had intelligence reports that if any harm were to be caused to Rajkumar, it would lead to problems between two linguistic communities. Clearly, he was not shown the intelligence reports. Throughout the affidavit the phrase "I was informed" recurs. There is no statement therein which shows that the Special Public Prosecutor had the opportunity of assessing the situation for himself by reading primary material and deciding upon the basis thereof, whether he should exercise his discretion in favour of the withdrawal of TADA charges. Acting upon information, which he could not verify, the Special Public Prosecutor could not be satisfied that such withdrawal was in the public interest and that it would not thwart or stifle the process of the law or cause manifest injustice. The Special Public Prosecutor, in fact, acted only upon the instructions of the Government of the State of Karnataka. He, therefore, did not follow the requirement of the law that he be sati....
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....s should be released. The answers do not satisfy us. We do not find on the record, including that placed before us in sealed covers, material that could give rise to a reasonable apprehension of such civil disturbances as justifies the decision to drop TADA charges against Veerappan and his associates, including the accused respondents, and to release the latter on bail. There is nothing on the record which suggests that the possibility of reprisals against the witnesses who have already deposed against the accused respondents or the effect on the morale of the law enforcement agencies were considered before it was decided to release the accused respondents. There is also nothing to suggest that there was reason to proceed upon the basis that Veerappan would release Rajkumar when his demands were not being met in full. The Government of the State of Karnataka would appear to be unaware that once the accused respondents were discharged from TADA charges, the deal was done; and that when they were released on bail they could not be detained further, whether or not Rajkumar was released in exchange. While we cannot assert that conceding to Veerappan's demands was a poly of the Gov....
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....ther, the order of the Designated Court at Chennai dated 16th August, 2000 is set aside. The orders of the Government of the State of Tamil Nadu passed on 14th August, 2000 under the National Security Act in respect of Sathyamoorthy and three others revoking the orders of their detention under the National Security Act are also set aside. The writ petitions are made absolute accordingly. Y.K. Sabharwal, J. 37. I have gone through the elaborate and learned judgment prepared by my brother Justice S.P. Bharucha. I respectfully agree that the orders granting consent on the special Public Prosecutor's Applications do not meet the requirements of Section 321 of the CrPC (for short, 'Cr.P.C.') and the orders are bad in law. The questions raised in these matters have wide ranging repercussions regarding the scope of Section 321 Cr.P.C. and what is required to be considered by the Public Prosecutor before consent of court is sought Under Section 321 to withdraw from the prosecution of any person. I record these additional reasons for concurring with decision arrived at by Justice Bharucha and Justice Mohapatra. 38. The facts in detail have been set out in the judgment o....
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....pan's custody. (G) No Police protection or security was provided when Rajkumar visited the farm house. (H) Soon after the abduction of Rajkumar and others, the two State Governments decided to accept the demands of Veerappan to release those in respect of whom TADA charges and detention orders under the National Security Act have been withdrawn. The decision was taken in the meeting held on 4/5th August, 2000 between the Chief Ministers of the two States. (I) Applications Under Section 321 Cr.P.C. seeking consent of court to withdraw TADA charges were filed to facilitate ultimately the release of accused persons from judicial custody so as to meet Veerappan's demand. The arrangement was that once TADA charges are withdrawn, the accused in judicial custody will move bail applications in cases of offences under IPC and other penal enactments. The Public Prosecutor will concede and will not oppose the grant of bail. The court will grant the bail and, thus, accused will come out from judicial custody and, thus, this demand of Veerappan would be met. 39. Keeping in view the aforesaid facts, let me now revert to application filed Under Section 321 Cr....
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....annot be said that the application was made in good faith. 42. The satisfaction for moving an application Under Section 321 Cr.P.C. has to be of the Public Prosecutor which in the nature of the case in hand has to be based on the material provided by the State. The nature of the power to be exercised by the Court while deciding application Under Section 321 is delineated by the decision of this Court in Sheonandan Paswas v. State of Bihar and Ors. 1987CriLJ793 . This decision holds that grant of consent by the court is not a matter of course and when such an application is filed by the Public Prosecutor after taking into consideration the material before him, the court exercises its judicial discretion by considering such material and on such consideration either gives consent or declines consent. It also lays down that the court has to see that the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. 43. True, the power of the Court Under Section 321 is supervisory but that does not mean that while ex....