AI Drafter 
TaxTMI 
TaxTMI 
1986 (12) TMI 388
X X X X Extracts X X X X
X X X X Extracts X X X X
....such withdrawal is invalid and must be set aside so that the prosecution can continue against Dr. Jagannath Mishra. 2. The fact-situation out of which this case arises relates to the affairs of a Cooperative Bank called the 'Patna Urban Cooperative Bank' (hereinafter referred to as the 'Co-operative Bank'). The Co-operative bank was registered in May 1970 and it commenced its banking business with Nawal Kishore Sinha as its Chairman, K. P. Gupta as its Honorary Secretary, M. A. Hydari as its Manager and A. K. Singh as a loan clerk. It was not seriously disputed that most of the members of the Co-operative Bank were closely associated with Nawal Kishore Sinha. The object of the Co-operative Bank was to help people financially to set up small industries and businesses and to assist people in ordinary circumstances to carry on their vocation or business. There was a subcommittee formed, called "Loan Sub Committee", consisting of Nawal Kishore Sinha, K. P. Gupta and one Purnendu Narain, an Advocate, to attend to the work of sanctioning and granting of loans. The Chairman, i.e., Nawal Kishore Sinha, was according to the bye-laws the ultimate deciding authority in rega....
X X X X Extracts X X X X
X X X X Extracts X X X X
....perative Bank. The Registrar, Cooperative Societies followed up this action by putting up a note dated 4th November 1974 to the Secretary, Co-operation pointing out that, according to the audit reports, prima facie charges of defalcations, embezzlement of funds, conspiracy, etc., were made out against the officials of the Co-operative Bank and legal action should be taken against them after taking the Opinion of the Public Prosecutor. The Secretary, Co-operation, by his note dated 7th November 1974 sought the opinion of the Law Department in regard to the action to be taken as suggested in the note of the Registrar, Co-operative Societies. The Law Department recorded its opinion in the relevant file on 18th November 1974 that a prima facie case of conspiracy and criminal breach of trust was made out against the loanees and the office bearers of the Cooperative Bank. On the basis of this opinion, a draft complaint was prepared on 16th December 1974 by the Asstt. Public Prosecutor, Patna, for being filed in the Court of the Chief Judicial Magistrate, Patna, and on the same day, an office noting was made on the file suggesting that the advice of the Law Department on the draft complai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Co-operation and he made an endorsement on the file on 31st January 1975 pointing out various instances of criminal conspiracy criminal breach of trust and misappropriation of public funds which had come to light against the Directors of the Co-operative Bank and sent the file to Dr. Jagannath Mishra en route to the Chief Minister since they wanted to see the file before the complaint was actually lodged. It does not appear from the record as to when the file was actually sent to Dr. Jagannath Mishra but in any event the file was in the hands of Dr. Jagannath Mishra on 24th February 1975. The file remained with Dr. Jagannath Mishra for over two and a half months and no endorsement was made by him on that file until the middle of May 1975 with the result that prosecution could not be filed against Naval Kishore Sinha and the other Directors. Meanwhile on 11th April 1975, Shri Abdul Ghafoor was thrown out and in his place Dr. Jagannath Mishra became Chief Minister. Dr. Jagannath Mishra made an Order in his own hand in Hindi in the file on 16th May 1975 regarding the action to be taken against Nawal Kishore Sinha and others and the English translation of this Order ran as follows: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fice of Dr. Jagannath Mishra as claimed by him or it left the office on 16th May 1975 and subsequently came back to the office, it is indisputable that Dr. Jagannath Mishra passed another Order in his own hand on a piece of paper in Hindi under his signature and had it pasted over the earlier order dated 16th May 1975 so as to efface the same completely and this subsequent Order was ante-dated to 14th May 1975. The date of despatch namely, 16th May 1975 in the despatch entry appearing in the margin was also altered to 14th May 1975 by over-writing. The English translation of this second Order addressed to the Minister, Co-operation was in the following term: Please issue order for restoring the normal condition in the Bank after holding Annual General Meeting. May 14, 1974 Sd/- Jagannath Mishra The explanation given on behalf of Dr. Jagannath Misra was that, as Chief Minister, he had authority and power to revise or review his earlier order and that it is the usual practice prevailing at the Patna Secretariat that whenever any order passed earlier is sought to be revised or reviewed by the same officer or Minister, it is done by pasting it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Minister, Co-operation accordingly put up a Note dated 28th June 1975 and sought directions from Dr. Jagannath Misra as to what should be the next course of action in the matter of filing of the complaint. Dr. Jagannath Misra in response to this query passed the following Order in the file on 30th June 1975: "Discussion has been held. There is no need to file the prosecution." This clearly shows that Dr. Jagannath Misra did not want any prosecution to be filed against Nawal Kishore Sinha and others and wanted to protect Nawal Kishore Sinha against any such criminal prosecution. It appears that in July 1975 there were questions and call attention motions in the Bihar Legislative Assembly and in the course of the proceedings, the propriety of not filing prosecution against Nawal Kishore Sinha and others connected with the affairs of the Co-operative Bank, despite the advice of the Law Department, was discussed and the Speaker referred to matter to the Estimates Committee of the House. The next event which happened in chronological sequence was that the annual general meeting of the Co-operative Bank was held and the associates of Nawal Kishore Sinha were elected in November, 197....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y instituted cases. This proposal was approved by the Deputy Inspector General (CID) and it was submitted to the Commissioner of Cooperative Department for obtaining the approval of the Chief Minister, that is, Dr. Jagannath Misra. Since Dr. Jagannath Misra had earlier made an order restricting the filing of criminal cases against some of the office bearers and loanees and excluded Nawal Kishore Sinha from the prosecution, the Superintendent of Police in charge of cooperative vigilance cell categorically stated in his note that the draft first information report against Nawal Kishore Sinha had Been netted by the Deputy Secretary, Intelligence CID, as well as by Inspector General of Police. The Commissioner of Co-operative Department after examining the entire material carefully and obtaining clarifications on certain points put up a lengthy note on 15th January 1977, to the Minister Cooperation in which he specifically placed the proposal of the Superintendent of Police (Cooperative Vigilance Cell) for launching first" information report against Nawal Kishore Sinha for his approval and also suggested that the Hon'ble Minister may obtain, the approval of the Chief Minister. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Chief Minister in the new Government, an inquiry was directed into the allegations regarding irregularities in the affairs of the Co-operative Bank. The inquiry was entrusted to the then Secretary Shri D. N. Sahay. Meanwhile a Commission of Inquiry had already been instituted by the State Government and Shri D. N. Sahay therefore addressed a communication dated 1st September, 1977 to the Special Secretary in regard to the charge relating to the affairs of the Co-operative Bank and he pointed out that since an inquiry had already been instituted, it may not be desirable to proceed with a vigilance inquiry. Shri Karpoori Thakur however directed that the vigilance inquiry might continue as the materials collected as a result of the vigilance inquiry could be made use of by the Commission of Inquiry. The vigilance inquiry was thereafter entrusted to Shri D. P. Ojha who was posted as Superintendent of Police, Vigilance, by Shri Karpoori Thakur and all the cases relating to the affairs of the Co-operative Bank were transferred to the vigilance department. M. A. Hyderi who was already an accused in the previously instituted cases was rearrested in connection with those cases and in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gain became the Chief Minister in June, 1980. Dr. Jagannath Misra after coming back to power constituted a Cabinet Sub-Committee on 15th September, 1980 to consider the expediency of the withdrawal of the prosecution and on 20th February, 1981 the Cabinet sub-Committee recommended that the cases against Dr. Jagannath Misra and others should be withdrawn. This recommendation of the Cabinet sub-Committee was placed before the Cabinet presided over by Dr. Jagannath Misra and it was approved by the Cabinet on 24th February, 1981. On the same day on which the recommendation of the Cabinet sub-Committee was approved, a decision was taken that the two cases against Dr. Jagannath Misra and others should be withdrawn and the State Government cancelled the panel of lawyers which had been constituted by the previous Government for conducting cases ; pertaining to the vigilance department and in its place constituted a new panel consisting of four lawyers including one Lallan Prasad Sinha. The Secretary to the Government of Bihar thereafter addressed a letter dated 25th February, 1981 to the District Magistrate which was in the following terms: Government of Bihar Law (Justice) Departmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vendetta and only to defame the fair image of Dr. J. N. Mishra, who was then the leader of the opposition and one of the acknowledged leaders of the Congress party in the country. The prosecution was not launched in order to advance the interest of public justice. I crave leave to place materials in support of the above submission and conclusion at the time of moving this petition. That it is in public interest that the prosecution, which has no reasonable chance of success and has been launched as a result of political vendetta unconnected with the advancement of the cause of public justice should not proceed further. More so, as the same is directed against the head of the Executive in whom not only the electorate have put their faith and confidence but who has been elected leader of the majority party in the legislature, both events have taken place after the institution of the case.... The application for withdrawal was opposed by Sheonandan Paswan, a member of the Bihar Legislative Assembly and its Deputy Speaker at the material time. The locus standi of Sheonandan Paswan to object to the application for withdrawal was challenged by Shri Lallan Prasad Sinha a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arul Islam and R. B. Misra, JJ. There was a difference of opinion amongst the Judges in regard to the decision of the appeal. Tulzapurjtar, J. took the view that a prima facie case was clearly made out against Dr. Jagannath Misra and others and the ground urged on behalf of the State Government that there was not sufficient evidence which could lead to the conviction of Dr. Jagannath Misra and others, was not well founded. The learned Judge took this view on a detailed consideration of the material which was on record and held that the withdrawal of the prosecution was not justified either on merits or in law and being illegal had to be quashed. Baharul Islam and R. B. Misra, JJ., on the other hand, took the view that the entire investigation was vitiated and no person could be convicted on the basis of evidence procured as a result of such investigation and the withdrawal of the prosecution was, therefore, justified. Having regard to the majority judgment of Baharul Islam and R. B. Misra, JJ. the appeal was dismissed. 11. Sheo Nandan Paswan thereupon filed a Review application before this Court. But on the date when the Review application was filed, Baharul Islam, J. had alread....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by Mr. Nariman on behalf of Dr. Jagannath Misra that the Order made by the Review Bench was not legal and valid since it was a non-speaking order which did not contain any reasons why the order of the original Bench should be reviewed. This contention was of course not strongly pressed by Mr. Nariman but in any event we do not think that it has any substance. It is undoubtedly true that the order of the Review Bench did not in so many terms set aside the order of the Original Bench and used a rather unhappy expression, namely, I...admit the Review Petition". But it is clear that when the Review Bench used the expression "I...admit the Review Petition" it plainly unequivocally meant that it was allowing the Review Petition and setting aside the order of the Original Bench, otherwise it is difficult to understand how it could possibly "direct the rehearing of the appeal". The appeal could be reheard only if the Review Petition was allowed and the order of the Original Bench was set aside and therefore obviously when the Review Bench directed rehearing of the appeal, it must by necessary implication be held to have allowed the Review petition and set aside the Order of the original B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her of binding or of persuasive value, would conceivably in most cases adversely affect the losing party at the rehearing of the case. We are therefore of the view that the Review Bench in the present case could not be faulted for not giving reasons for allowing the Review Petition and directing rehearing of the appeal. It is significant to note that all the three Judges of the Review Bench were unanimous in taking the view that "any decision of the facts and circumstances which...constitute errors apparent on the face of record and my...reasons for the finding that these facts and circumstances constitute errors apparent on the face of record resulting in the success of the Review Petition may have the possibility of prejudicing the appeal which as a result of my decision has to be reheard". This contention of Mr. Nariman must therefore be rejected. 14. The learned Counsel on behalf of Dr. Jagannath Misra also raised another contention of a preliminary nature with a view to displacing the locus standi of Sheonandan Paswan to prefer the present appeal. It was urged that when Shri Lallan Prasad Sinha applied for permission to withdraw the prosecution against Dr. Jagannath Misra a....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., and therefore any person who is interested in cleanliness of public administration and public morality would be entitled to file a complaint, as held by this Court in A. R. Antulay v. R. S. Nayak (supra) and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted. We must therefore reject the contention urged on behalf of Dr. Jagannath Misra that Sheonandan Paswan had no locus standi to oppose the withdrawal of the prosecution. If he was entitled to oppose the withdrawal of the prosecution, it must follow a fortiori that on the turning down of his opposition by the learned Chief Judicial Magistrate he was entitled to prefer a revision application to the High Court and or the High Court rejecting his revision application he had standing to prefer an appeal to this Court. We must, therefore, reject this contention of the learned Counsel appearing on behalf of Dr. Jagannath Misra. 15. There was also one other contention urged on behalf of Dr. Jagannath Misra with a view to bunking an inquiry by this Court into the merits of the appeal. It was argued on behalf of Dr. Jagannath Misra that this was not a fit case in which the Court shoul....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is incorrect, illegal or improper or that the proceedings resulting in the order of discharge suffer from any irregularity. The revisional power exercised by the High Court under Section 397 is couched in words of widest amplitude and in exercise of this power can satisfy itself as to the correctness, legality or propriety of any order passed by the Magistrate or as to the regularity of any proceedings of such Magistrate. When this Court is hearing an appeal against an order made by the High Court in the exercise of its revisional power under Section 397 it is the same revisional power which the Court would be exercising and this Court therefore certainly can interfere with the order made by the Magistrate and confirmed by the High Court if it is satisfied that the order is incorrect, illegal or improper. In fact, in a case like the present where the question is of purity of public administration at a time when moral and ethical values are fast deteriorating and there seems to be a crisis of character in public life,this Court should regard as its bounden duty - a duty owed by it to the society - to examine carefully whenever it is alleged that a prosecution for an offence of corr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herwise on the facts and circumstances of the case it was improper and invalid. It is a well-established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant. It was rightly observed by Krishna Iyer, J. in State of Punjab v. Gurdial Singh [1980]1SCR1071 : If the use of power is for the fulfilment of a legitimate object, the actuation or catalisation by malice is not regicidal". The same principle must obviously apply where a person is opposing withdrawal of prosecution against an accused. His political motivation or vendetta cannot justify grant of consent for withdrawal if otherwise it is not legitimate or justified. 17. It is undoubtedly true that the prosecution against Dr. Jagannath Misra was initiated by the successor Government of Karpoori Thakur after Dr. Jagannath Misra went out of power. But that by itself cannot support the inference that the initiation of the prosecution was actuated by political vendetta or mala fides because it is quite possible that there might be material justify....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t mean that no prosecution should be launched against a former Chief Minister or a person holding high political office under the earlier regime without first setting up a Commission of Enquiry for enquiring into his conduct. There is no provision of law which requires such a course of action to be adopted and it cannot be said that if a prosecution is initiated without an inquiry being held by a Commission of Enquiry set up for that purpose, the prosecution would be bad or that on that ground alone the prosecution could be allowed to be withdrawn. The criminal process in India is quite tardy and slow moving and as it is, it takes considerable time for a prosecution to ultimately come to an end and if a requirement were super-imposed that no prosecution shall be launched against a person holding high political office under an earlier regime without first setting up a Commission of Enquiry and the Commission coming to a prima facie conclusion that such person has committed acts which would constitute offences, the entire criminal process would be reduced to a mockery because the Commission of Enquiry itself might go on for years and after the inquiry is concluded the prosecution wil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt given by the Chief Judicial Magistrate for such withdrawal was within the terms of that section. Section 321 reads as follows: 321. Withdrawal from prosecution - The Public Prosecutor 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 has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required he shall be acquitted in respect of such offence or offences: Provided that where such offence- (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Police Establishment Act, 1946 (25 of 1946), or (iii) involved the misappropriation or destruction of, or damage to, an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hdraw from the prosecution must be a controlled on guided power or else it will fall foul of Article 14 of the Constitution. It is necessary in this context to refer to certain other provisions of the Criminal P.C., 1973, which, though not directly relevant, throw some light on the determination of the question as to what is the extent of the power of the Public Prosecutor to withdraw from the prosecution and how it is controlled and regulated. When a First Information Report relating to the commission of a cognizable offence is lodged in a Police Station under Section 154 or an order is made by a Magistrate directing the police to investigate a non-cognizable case under Section 155, the police is bound to investigate the offence alleged to have been committed. The powers of the police in regard to investigation and the procedure to be followed by them in such investigation are set out in Sections 157 to 172. Section 173, Sub-section (1) casts an obligation on the police to complete the investigation without unnecessary delay and Sub-section (2), Section 173 then proceeds to state that as soon as the investigation is completed, the officer in charge of the Police Station shall forw....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no offence prima facie appears to have been committed though the police might have come to a contrary conclusion, the Magistrate can decline to take cognizance of the offence. The discretion of the police to prosecute is thus 'cabined and confined' and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question. The Legislature has in its wisdom taken the view that it would be safer not to vest absolute discretion to prosecute in the police which is an Executive arm of the Government but to subject it to the control of the judicial organ of the State. 21. The same scheme has been followed by the Legislature while conferring power on the Public Prosecutor to withdraw from the prosecution. This power can be exercised only with the consent of the Court so that the Court can ensure that the power is not abused or misused or exercised in an arbitrary or fanciful manner. Once the char....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t was pointed out by this Court in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan 1972CriLJ301 , "the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice." So also, one of us (Bhagwati, J. as he then was) said in State of Orissa v. C. Mohapatra 1977CriLJ773 - "the ultimate guiding consideration must always be the interest of administration of justice." That is the broad principle under which the Public Prosecutor must bring his case in order to be able to justify his application for withdrawal from the prosecution. What are the different grounds which may possibly come within this principle is a matter which we shall presently discuss but whatever be the grounds on which the application is made it can be sustained only if these grounds are relatable to furtherance of public justice. 23. There was one major question debated before us in regard to the position of the Public Prosecutor in relation to an application for withdrawal from the prosecution and the issue was as to what is the degree of autonomy conferred on the Public Prosecutor vis-a-vis the Government whilst filing an application for wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....72CriLJ301 (supra) we find that there is a para which seems to ' impliedly accept governmental directive in the matter of withdrawal from the prosecution as legitimate and that para reads as follows:- The appellant's Advocate later during the course of the argument conceded that there is no force in the first of his contentions namely that the Public Prosecutor cannot either be asked by the State Government to consider the filing of a petition under Section 494 nor would it be proper for him if he was of the opinion that the prosecution ought not to proceed to get the consent of the Government to the filing of a petition under that section for obtaining permission of the Court to withdraw from the prosecution. This Court also seemed to accept in State of Orissa v. C. Mohapatra 1977CriLJ773 (supra) that the policy decision for withdrawal from the prosecution can be made by the State though the application for withdrawal was to be made by the Public Prosecutor. This is what the Court said in that case: We cannot forget that ultimately every offence has social or economic cause behind it and if the State feels that elimination or eradication of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he action of the District Magistrate in directing the Public Prosecutor to withdraw the prosecution in the case before him and observed in words admitting of no doubt: The jurisprudence of genuflexion is alien to our system and the law expects every repository of power to do his duty by the Constitution and the laws, regardless of commands, directives, threats and temptations. The Code is the master for the criminal process, Any authority who coerces or orders or pressurises a functionary like a public prosecutor, in the exclusive province of his discretion violates the rule of law and any public prosecutor who bends before such command betrays the authority of his office. May be, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the public prosecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of Government, which in the last ana....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her it should be baneful or beneficial to launch or continue prosecutions. If the Government decides that it would be in the interest to withdraw from prosecutions, how is the Government to go about the task ? (emphasis is ours). and proceeded to add that the Public Prosecutor may act on the advice of the Government in applying for withdrawal of the prosecution "where large and sensitive issues of public policy are involved". Chinnappa Reddy, J. speaking on behalf of the Court elaborated this view in the following words: Where large and sensitive issues of public policy are involved he must if he is right minded the Public Prosecutor seek advice and guidance from the policy-makers. His sources of information and resources are of a very limited nature unlike those of the policy makers. If the policy-makers themselves move in the matter in the first instance as indeed it is proper that they should where matters of momentous public policy are involved and if they advice the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arily the responsibility of the Executive. It is the executive which is vested with the power to file a charge-sheet and initiate a prosecution. this power is conferred on the Executive with a view to protecting the society against offenders who disturb the peace and tranquillity of the society by committing offences, of course it is left to the Court to decide whether to take cognizance of the offences set out in the charge-sheet but the filing of the charge-sheet and initiation of the prosecution is solely within the responsibility of the Executive. When the prosecution is initiated by filing a charge-sheet the Public Prosecutor comes into the picture. Of course, even before the charge-sheet is filed, the investigating authorities may seek the advice of the Public Prosecutor in regard to the prosecution of the accused but it is not obligatory on the investigating authorities to do so. The Public Prosecutor comes on the scene as soon as the charge-sheet is filed and he appears and argues the case on behalf of the prosecution. It is the State through the investigating authorities which files a charge-sheet and initiates the prosecution and the Public Prosecutor is essentially couns....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... direction to the Public Prosecutor. The Public Prosecutor would inter alia consider the grounds on which the Government has taken the decision to withdraw from the prosecution and if he is satisfied that these grounds are legitimate, he may file an application for withdrawal from the prosecution. If on the other hand he takes the view that the grounds which have been given by the Government are not legitimate he has two options available to him. He may inform the Government that in his opinion, the grounds which have weighed with the Government are not valid and that he should be relieved from the case and if this request of his is not granted, he may tender his resignation, or else, he may make an application for withdrawal from the prosecution as directed by the Government and at the hearing of the application he may offer his considered view to the Court that the application is not sustainable on the grounds set out by him and leave it to the Court to reject the application. We do not think there is anything wrong in the Public Prosecutor being advised or directed by the Government to file an application for withdrawal from the prosecution and the application for withdrawal mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thdrawal from the prosecution. It was observed by this Court in M. N. Sankaranarayanan v. P. V. Balakrishnan 1972CriLJ301 (supra) that an application for withdrawal from the prosecution may be made on the ground that "it will not be possible to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or in any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.this Court also pointed out in State of Orissa v. C. Mohapatra 1977CriLJ773 (supra) that "it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has 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." It was also emphasised....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the prosecution. The reason is that under S. 228 a charge can be framed by the Court only if the Court is of opinion that there is ground for presuming that the accused has committed an offence and so also under Section 240 the Court can frame a charge only if it is of opinion that there is ground for presuming that the accused has committed an offence. The Court in both these cases applies its mind to the material consisting of the police report and the documents sent with it under Section 173 and comes to a conclusion that a prima facie case has been made out against the accused and the charge should therefore be framed. When the Court has come to this conclusion after full consideration and framed a charge, it is difficult to see how on the same material the Court can be persuaded to hold that there is not sufficient evidence to sustain the prosecution. How can the Public Prosecutor be permitted to make a volte face on the basis of the same material ? That would be mockery of justice and it would shake the confidence of the Court in the purity and integrity of the administration of justice. That is why this Court pointed out in Bansi Lal v. Chandan Lal 1976CriLJ328 that "if t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tuted on police report. Section 239, Criminal P.C., 1973, provides: If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Now when a warrant case instituted on a police report comes before the Court, the Court is required to consider only the police report and the documents sent along with it and the Court may make such examination, if any, of the accused as it thinks necessary and on the basis of such material if the Court, after giving the prosecution and the accused an opportunity of being heard, considers the charge against the accused to be groundless, the Court is bound to discharge the accused. What the Court, therefore, does while exercising its function under Section 239 is to consider the police report and the document sent along with it as also any statement made by the accused if the Court chooses to examine him. A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny the judicial verdict based on assessment and evaluation of the material before the Court will always inspire greater confidence. Since the guiding consideration in all these cases is the imperative of public justice and it is absolutely essential that justice must not only be done but also appear to be done. We would hold that in a warrant case instituted on a police report - which the present case against Dr. Jagannath Misra and others admittedly is - it should not be a legitimate ground for the public prosecutor to urge in support of the application for withdrawal that there is insufficient or no evidence in support of the prosecution. The Court in such a case should be left to deckle under Section 239 whether the accused should be discharged or a charge should be framed against him. 31. We may also reiterate what was pointed out by this Court in State of Orissa v. C. Mohapatra 1977CriLJ773 (supra) that in a given case it may not be "conducive in the interest of justice to continue the prosecution...since the prosecution with the possibility of conviction" may rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere which has been restored. W....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt has to decide whether to grant such consent or not. The function which the Court exercises in arriving at this decision, as pointed out by this Court in State of Bihar v. Ram Naresh 1957CriLJ567 , is a judicial function. The Court has to exercise its judicial discretion with reference to such material as is then available to it and in exercise of this discretion the Court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that the grounds urged in support of the application for withdrawal are legitimate grounds in furtherance of public justice. The discretion has not to be exercised by the Court mechanically and the consent applied for has not to be granted as a matter of formality or for the mere asking. The Court has to consider the material placed before it and satisfy itself that the grant of consent would serve-the interest of justice. That is why this Court in State of Bihar v. Ram Naresh (supra) examined the entire material which was available to it for the purpose of coming to the conclusion that there was no evidence worth the name on the basis of which the prosecution could be sustained against the accused M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....et formula. Every case must depend on its peculiar facts and circumstances because there may be a myriad situation where this question may have to be considered by this Court. The paramount consideration must be the requirement of public justice and some of the grounds which would bring the case within the fabric of public justice have already been discussed by us in the preceding paras and we need not repeat them. The same grounds may be regarded as germane and relevant to the requirement of public justice and if they exist, the Court would be justified in granting consent to withdrawal from the prosecution. 33. If we apply these principles to the facts of the present case, it is clear that the Court of the Chief Judicial Magistrate, Patna, also the High Court were clearly in error in granting consent to the withdrawal from the prosecution against Dr. Jagannath Misra and others. We do not propose to go into the question whether the material available to the Court could be regarded as sufficient for sustaining the prosecution of Mr. Jagannath Misra and others because if we consider this question and make any observations in regard to the sufficiency of the material, such observa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erations are so strong and cogent that consent to withdraw from the prosecution should not have been granted in the present case. 34. It is no doubt true that if there is not sufficient evidence to sustain the prosecution against Dr. Jagannath Misra and the other accused, it would be subjecting them to harassment and inconvenience to require them to appear and argue before the Court for the purpose of securing an Order of discharge under Section 239, but even so we think it would be desirable in the interest of public justice that high political personages accused of offences should face the judicial process and get discharged rather than seem to manoeuvre the judicial system and thus endanger the legitimacy of the political as well as the judicial process. It is possible that in a particular case personal harassment or inconvenience may be caused by non-withdrawal of the prosecution, if the accused is really innocent and is ultimately liable to be discharged, but such harassment or inconvenience must be considered as an inevitable cost of public life, which the repositories of public power should have no hesitation to pay, as justice must not only be done but must also appear t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by this Court earlier. The question is whether this Court on review should interfere with the order permitting the withdrawal of the case. Are there any strong and compelling reasons which require interference with the order permitting withdrawal '.' This is the question which has arisen before us now. 38. Since the orders of the Special Judge, of the High Court and of Bahrul Islam, J. and R. B. Misra, J. are in favour of the accused, I shall not refer to them. I shall refer only to the judgment of Tulzapurkar, J. (See Sheonandan Paswan v. State of Bihar 1983CriLJ348 who has held against the accused to decide whether there are sufficient incriminating circumstances which compel this Court to set aside the order permitting withdrawal of the prosecution. In his judgment at pages 101 to 103 Tulzapurkar, J. summarises the case against Dr. Jagannath Misra thus: It will appear clear from the above discussion that the documentary evidence mentioned above, the genuineness of which cannot be doubted, clearly makes out a prima facie case against Respondent No. 2 sufficient to put him on trial for the offence of criminal misconduct under Section 5(1)(d) read with Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y Respondent No. 2 under Section 5(1)(d) read with Section 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.I.R. is that he was concerned with the deposit of two amounts of Rs. 10,000 and Rs. 3,000 on 27-12-1973 and 1-4-1974 in the Savings Bank Account of Respondent No. 2 with the Central Bank of India, Patna Dak 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 earl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 1-4-1974 respectively in the Savings Bank Account of Respondent No. 2 with the Central Bank of India, Patna Dak 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 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". On this observation, it has to be stated, that it has not been shown by any extract of bank account that the said two sums came from the Patna Urban Co-operative Bank. If that was so there would have been entries in the Bank accounts. Mere crediting of two sums, without any other reliable evidence, in a bank account by a political ally or a friend does not by itself show that the sums were either bribe amounts or any official favour had been shown. This fact by itself is not conclusive about the guilt of the accused. 41. As regards the ante-dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve dealt with the case on merits from the Special Judge onwards, except Tulzapurkar, J., have opined that the permission was properly given for withdrawal. In the circumstances, it is difficult to take a different view in this case. 44. I respectfully agree with the legal position flowing from Section 321 of the CrPC as explained by Krishna Iyer and Chinnappa Reddy, JJ. in respect of cases relating to Bansi Lal and Fernandes in R.K. Jain v. State through Special Police Establishment 1980CriLJ1084 . In that case Chinnappa Reddy, J. has summarised the true legal position thus: 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. 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. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the land the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnest and vigour indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate one to bring about a just one. (See Berger v. United States (1934) 295 US 78. It is a privilege of an accused that he should be prosecuted by a Public Prosecutor in all cases involving heinous charges whenever the State undertakes prosecution. The judgment of a Public Prosecutor under Section 321 of the Criminal P.C., 1973 cannot be lightly interfered with unless the Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide. 6. A person may have been accused of several other misdeeds, he may have been an anathema to a section of the public media or he may be an unreli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....earlier judgment of this Court by this process strikes at the finality of judgments of this Court and would amount to abuse of the power of review vested in this Court, particularly in a criminal case. It may be noted that no other Court in the country has been given the power of review in criminal cases. I am of the view that the majority judgment of Bahrul Islam and R. B. Misra, JJ. should remain undisturbed. This case cannot be converted into an appeal against the earlier decision of this Court. 50. Having considered all aspects of the case, I agree with the decision of Khalid, J. and dismiss the appeal filed against the judgment of the High Court. V. Khalid, J. (On behalf of himself and S. Natarajan, J.) (Majority view) 51. I regret I cannot persuade myself to agree with the Judgment now pronounced by the learned Chief Justice, the last portion of which was received by me on 18-12-1986. It is unfortunate that a discussion could not be held about this case by the Judges who heard this case, after it was reserved for Judgment in September, 1986. It was by a sheer accident that this appeal came before a Constitution Bench. Criminal Appeals Nos. 48 & 49 of 1983 were origin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n these proceedings to express any views on the same. Applying the well-settled principles governing a review petition and giving my very anxious and careful consideration to the facts and circumstances of this case, I have come to the conclusion that the review petition should be admitted and the appeal should be reheard. I have deliberately refrained from stating my reasons and the various grounds which have led me to this conclusion. Any decision of the facts and circumstances which, to my mind, constitute errors apparent on the face of the record and my reasons for the finding that these facts and circumstances constitute errors apparent on the face of the record resulting in the success of the review petition may have the possibility of prejudicing the appeal which as a result of my decision has to be re-heard. In paragraph 15, the learned Judge directed as follows: Accordingly, I further direct that the appeal be re-heard immediately after the decision of Nandani Satpathy case. The other Judges agreed with this. 53. Thus the Bench that heard the review petition did not disclose in the order the reasons why re-hearing of the appeal was ordered nor did i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to re-hear the appeal. That wish has been set aside by the reviewing order nor any error discernible on the face of the record shown, in my considered view, the original order has to stand, which means that the appeal has to be dismissed affirming it. This is the short manner in which this appeal can be dismissed and I do so. However, I do not propose to rest content with this manner of disposal of the appeal. 55. This matter was heard at length. The stand taken by the appellant is that the earlier Judgment has been set aside. Therefore, it is only fair that the facts of the case and the questions of law bearing on them are also considered since the matter has been placed before a bench of five Judges. 56. The appeals referred to this Bench do not raise any questions of constitutional law. There are decisions rendered by Benches of three Judges and two Judges of this Court wherein the scope of Section 321 of Criminal P.C. (S.494 of old Criminal P.C.) has been discussed at length. Two criminal appeals 48 and 49 of 1983 were referred to a Constitution Bench, originally. The Bench that referred these appeals did not doubt the correctness of such earlier Judgments. The referenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hakur. The Employees' Association submitted a copy of their representation to the new Chief Minister on July 9, 1977, requesting him to enquire into the allegations against the second respondent. After a detailed procedure and obtaining requisite sanction from the Governor, a criminal case was instituted by the Vigilance against the second respondent and others. On 19-2-1979, a charge-sheet was filed. 59. The charge-sheet filed by the State of Bihar against the respondents on 19th February, 1979, was for offences under Sections 420/466/471/109/120-B, of I.P.C. and under Sections 5(1)(a). 5(a)(b) & 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The charge against the second respondent was that he, who at all material times, was either a Minister or the Chief Minister of Bihar abusing his position as a public servant, in conspiracy with the other accused, sought to interfere with the criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others with a view to obtain to himself and to the other respondents pecuniary advantage to the detriment of Patna Urban Co-operative Bank. The Chief Judicial Magistrate took cognizance of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this reason. 62. I will dispose of question No. 4 first. It is not necessary to consider in detail the question whether Shri Sinha was competent to make the application for withdrawal. The contention is that Shri Sinha's appointment is bad since the earlier appointment of Shri Datta had not been set aside. This case was pressed before the three Judges who heard the appeal first and is repeated before us also. All the three Judges who gave the judgment in the case of Sheonandan Paswan v. State of Bihar 1983CriLJ348 have declined to accept the plea that Shri Sinha was not a competent public prosecutor since Shri Datt's appointment had not been cancelled. I adopt the reasons given in the judgment and reject the plea repeated before us. 63. The real question that has to be answered in this case is whether the executive function of the public prosecutor in applying for, and the supervisory functions of the Court in granting consent to, the withdrawal have been properly performed or not. The four remaining points enumerated above virtually revolve around this question. 64. Section 321 needs three requisites to make an order under it valid : (1) the application should be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecial Judge. In his order giving consent he has expressly stated that he perused the relevant records of the case before granting consent. This statement was not challenged in the revision petition before the High Court. It has, therefore, to be assumed that the Magistrate perused the relevant records before passing the order. We must give due credence to this statement by the Magistrate. There is no other allegation against the Special Judge. Thus the function of the Special Judge was also performed in conformity with the Section. The matter was taken in revision before the High Court. The High Court dismissed the revision and while doing so exercised its power properly because the materials before the Court would justify only an order of dismissal and not an order ordering re-trial. 67. Section 321 gives the public prosecutor, the power for withdrawal of any case at any stage before judgment is pronounced. This pre-supposes the fact that the entire evidence may have been adduced in the case, before the application is made. When an application under Section 321, Cr. P.C, is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... upon the charge. This was Section 333, Cr. P.C. The discretion of the Advocate General under this Section was absolute. It was not subject to any control. When the Advocate General informs the High Court that he does not propose to proceed with the prosecution, the Court has no alternative but to stay all proceedings and to act in accordance with that section. That section has now been deleted from the Code. Public Prosecutors are lesser mortals and therefore the discretion given to them by Section 321 is less plenary and is made subject to one limitation and that is the consent of the Court before which the prosecution is pending. Section 333, which was deleted consequent on the discontinuance of original criminal trials in the High Court, has still a bearing, while considering the scope of Section 321 corresponding to Section 494 of the earlier Code and a comparative study of the two sections and their scope will be appropriate. Both the Sections pertain to withdrawal of prosecutions though at different level. A harmonious view should, in my view, prevail in the reading of the two sections. Section 333 does not give any discretion or choice to the High Court when a motion is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed to be framed. It clothes the public prosecutor to withdraw from the prosecution of any person, accused of an offence both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is "at any time before the judgment is pronounced. 70. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The 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 implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy 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 normal course of justice for illegitimate reasons or purposes. 71. The Court's function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of cours....
X X X X Extracts X X X X
X X X X Extracts X X X X
....scharged, a power to discharge him but the power is fettered by an obligation to record his reasons for doing so. If reasons are not recorded in an order of discharge that would be violative of the mandate of the Section. Section 245(2) enables the Magistrate to discharge an accused "at any previous stage" of the case also if he considers that the charge against an accused is groundless. Sub-section (1) deals with a stage when all evidences referred to in Section 244 are taken. Section 244 deals with evidence in any warrant case instituted otherwise than on a police report. It is when all such evidence has been taken that the Magistrate can discharge the accused under Section 245(1), while Section 245(2) deals with the case in which the evidence referred to in Section 244 has not been taken. Here again the order of discharge by Magistrate has to be supported with reasons for discharge. Section 245(2) reads as follows: Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. An order of discharge under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....page of proceeding is made after the evidence of the principal witness has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. This section deals with the stopping of proceedings at any stage without pronouncing any judgment and acquitting or discharging the accused as the case may be, but the section mandates the Magistrate to record his reasons for doing so. The Magistrate cannot stop proceedings under this section without recording his reasons. Even in a Sessions case the Sessions Court cannot exercise its powers of discharge under Section 227 without recording reasons therefor. Section 227 is in the following terms: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. It is thus clear that the scheme of the above Sections differ from Section 321. The scope of Section 321 can be tested f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....indred 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 upon a detailed assessment of the weight or volume of evidence to see the 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. I referred to these sections only by way of illustration to emphasise the distinction between Section 321 and other sections of the Code dealing with orders withdrawing criminal cases or discharging or stopping proceedings. My purpose in referring to the above sections is only to show that Section 321, in view of the wide language it uses, enables the public prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insist upon a reasoned order by the Magistrate while giving consent. All that is necessary to satis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions 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. 75. Since Section 321 does not give any guideline regarding the grounds on which a withdrawal application can be made, such guidelines have to be ascertained with reference to decided cases under this section as well as its predecessor Section 494. I do not propose to consider all the authorities cited before me for the reason that this Court had occasion to consider the question in all its aspects in some of its decisions. Suffice it to say that in the judgments rendered by various High Courts, public policy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rposes.... 76. I will now briefly refer to some other cases cited to understand how courts considered the scope of Section 321 depending upon the facts of each case. In the case of Bansi Lal v. Chandan Lal 1976CriLJ328 ,this Court followed its earlier decision reported in 1972CriLJ301 which in turn followed 1957CriLJ567 and declined consent when withdrawal as sought on the ground that the prosecution did not want to produce evidence and continue the criminal matter against the accused. The Sessions Judge gave his consent as it appeared to him "futile to refuse permission to the State to withdraw prosecution". This consent was set aside because reluctance to produce evidence was held to be not sufficient ground for withdrawal. In State of Orissa v. Chandrika Mohapatra 1977CriLJ773 , the application for withdrawal was made on two grounds: (i) that it was considered inexpedient to proceed with the case; (ii) that the evidence collected during investigation was meagre and no useful purpose would be served by proceeding with the case against the accused. The Magistrate gave consent holding that compelling the State to go on with the prosecution would involve unnecessary expendi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ane, and (2) whether actual decision was taken by the public prosecutor or he only obeyed the orders dictated to him by others. In Rajendra Kumar Jain v. State 1980CriLJ1084, this Court had to deal with two sets of cases - one relating to the Baroda Dynamite case and the other the Bhiwani Temple Demolition case. In that case,this Court summarised eight propositions which are given in the judgment rendered by Tulzapurkar, J. in Sheonandan Paswan v. State of Bihar 1983CriLJ348 .this Court -observed that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution, though that is a traditional ground for withdrawal. Political purposes and political vendetta afford sufficient ground for withdrawal. 77. All the above decisions have followed the reasoning of Ram Naresh Pandey's case 1957CriLJ567) and the principles settled in that decision were not doubted. It is in the light of these decisions that the case on hand has to be considered. I find that the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Courts below. This question of fact has now been sought to be brought to the notice of this Court during the course of argument by learned Counsel of the appellant in this appeal. A question of fact that needs investigation cannot be allowed to be raised for the first time in an appeal by Special Leave under Article 136 of the Constitution. I respectfully agree with this approach. 79. We have a few documents on which reliance has been placed by counsel on both sides in furtherance of their submissions. Prior to March, 1977, there were only three important documents relating to the misdeeds in Patna Urban Co-operative Bank: (a) Report of the Reserve Bank of India; (b) Audit report of the Special Divisional Co-operative Audit Officer; and (c) The report of the Estimates Committee of the Bihar Legislative Assembly. In none of the three reports has the second respondent been named either as a conspirator in any offence or as an offender in relation to the affairs of the bank. These three documents, therefore, will not help the appellant to press a case against the second respondent before a Criminal Court. The Accusation again....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice of the Chief Minister nor that any one had secured any benefit by this overwriting. When Shri Rajendra Singh, one of the learned Counsel asserted that the file had not left the Chief Minister's office, that assertion was not met by any one on the appellant's side. There is no evidence as to when the date was changed and as to whether this change of date had extended any benefit on the third respondent, N. K. Sinha. That being so, this factual aspect also need not detain me. On these materials, one fails to understand how an offence under Section 466 could be made out. Taking the entire evidence against the appellant it cannot be held that he has committed forgery under Section 463 or an offence under Section 466. Even though there is over-writing or pasting or interpolation or change of digits, there is no evidence at all to show that this paper went out of the Chief Minister's office or that any one was unduly favoured or that any one secured undue advantage by use of such over-writing. 82. The appellant is admittedly a political rival of respondent No. 2. There is no love lost between them. It is at the instance of such a highly interested person that this Cour....