Holding

The applications under Section 321 were defective; the public prosecutor had not applied his mind independently or in good faith, and the courts’ consent was therefore invalid.

Summary

The Supreme Court examined applications filed by the Special Public Prosecutor (SPP) under Section 321 of the Criminal Procedure Code to withdraw TADA charges against accused linked to the forest brigand Veerappan, whose kidnapping of actor Rajkumar prompted the Karnataka government to concede to his demands. The SPP’s applications lacked any material showing independent consideration, were driven by a desire to facilitate bail for the accused, and were not made in good faith or in the public interest. The designated courts had granted consent and bail without satisfying the statutory requirements, effectively aiding the accused. The Court held that a public prosecutor must independently assess all relevant material, be satisfied in good faith that withdrawal serves public interest, and the court must give informed consent after verifying this. Consequently, the orders granting consent and bail, as well as related Tamil Nadu orders under the National Security Act, were set aside.

Issues considered

Whether the Special Public Prosecutor’s application under Section 321 CrPC complied with the statutory requirement of independent, good‑faith consideration of material and public interest.
Whether the designated court’s consent to withdrawal of TADA charges was valid in the absence of disclosed material and proper judicial scrutiny.
Whether a State Government can direct a public prosecutor to withdraw prosecution for political or security considerations.
Whether withdrawal of TADA charges to facilitate bail is permissible under Section 321.
Whether the revocation of National Security Act detentions in the same context was lawful.

Legislation cited

Subjects

Section 321 CrPCpublic prosecutorwithdrawal from prosecutionTADApublic interestgood faithjudicial consentbailVeerappan kidnappingNational Security Actmisuse of prosecutorial discretion

Judgment

A ABDUL KARIM
v.
STATE OF KARNATAKA AND ORS.

B
NOVEMBER 7, 2000

[S.P. BHARUCHA, D.P. MOHAPATRA AND Y.K. SABHARWAL, JJ.]
-
Code of Criminal Procedure, 1973:

Section 321-Prosecution-Withdrawal from-Application of mind-
C By court-Before grant of consent-Application of Public Prosecutor (PP)-
Requirements of-Popular film actor kidnapped by Veerappan and h~s
associates-State Government in panic yielding to Veerappan 's demands to
withdraw TADA charges against his associates in jail facing charges under
various penal statutes so as to facilitate their release-Demand also included·
D release of some of Veerappan 's associates detained under National Security
Act (NSA) for the release of the film actor-Accordingly, PP moved an
application under S.321 for withdrawal of TADA charges-State Government
also revoked detention order under NSA in respect of 4 detenues-No material
to show PP applied his mind in good faith and in public interest-Court
granted consent for withdrawal of TADA charges-Accused persons thereafter
E granted bail-Validity of-Held: PP must independently apply his mind to
all the relevant material and, in good faith, to be satisfied that public interest
will be served by his withdrawal from prosecution-This is despite any order
or direction to the PP-PP must set out the materials considered by him
briefly, but concisely, in his application or affidav_it or place it before the
court-Court's power is supervisory but grant of consent is not a matter of
F course-Court has to give an informed consent-It must be satisfied that the
PP has considered the material and, in good faith, reached the conclusion
that withdrawal from prosecution is in public interest-Court must consider
whether grant of consent may thwart or stifle the course of law or result in
manifest injustice-Upon such considerations only court has to accord
G informed consent for withdrawal from prosecution-On facts, order ofconsent
does not meet requirements of S.321 and is bad in law-No materials, on the
basis of which PP applied his mind in good faith; and in public interest,
placed before court-Affidavit of PP shows complicity with ·the accused
persons to secure their release on bail-Hence, bail order cancelled-Conduct
of State Government and PP deprecated.
H 382
ABDUL KARIM v. STATE OF KARNATAKA 383
The border between the States of Karnataka and ramil Nadu runs A
through mountainous forest and ori this forestland, half in Karnataka and
·half in Tamil Nadu, a man named Veerappan, a dreaded criminal, has held
sway for more than 10 years. He was alleged to have poached elephants and
smuggled out ivory and sandalwood in a very big way. He was alleged to be
guilty of the most heinous crimes, including the murder of 119 persons, B
including Police and Forest Officers and kidnapping. Despite various attempts
over a number of years Veerappan could not be apprehended. Cases were
filed against Veerappan and his associa,es under Terrorist and Disruptive
Activities Act (TADA) and other penal provisions, i.e. Indian Penal Code
(IPC), Arms Act and Explosive Substances Act. On 30.7.2000 Veerapp~n
abducted Rajkumar, a popular film actor, from his farmhouse along with C
three others. In order to release Rajkumar, Veerappan demanded withdrawal
of charges under the TADA Act framed against some of his associates who
were in judicial custody and withdrawal of detention order passed under the
National Security Act against some of his other associates and their release.
The State Government accepted these demands.
D
The arrangement was that once TADA charges were withdrawn, the
accused in judicial custody would move bail applications in cases of offences
under IPC and other penal enactments. The Public Prosecutor would concede
and would not oppose the grant of bail. The court would grant the bail and,
thus, accused would come out from judicial custody. Accordingly, the Special
Public Prosecutor filed application under Section 321 of the Code of Criminal E
Procedure, 1973 seeking consent of the Designated Court at Mysore to
withdraw the TADA charges. The application was made when the trial of the
cases to which it related was in progress and evidence of 51 witnesses had
been recoi:ded.

The Special Public Prosecutor submitted that the trial regarding other
F
offences were being continued and the charges under the Arms Act and
Explosive Substances Act, to certain extent covered the provisions of Sections
3 and 4 of the TADA. Therefore, no injustice would be caused if the prosecutor
withdrew the charges for the offence~ punishable under Sections 3, 4 and
5 of the TADA Act. It was also submitted by the Special Public Prosecutor G
that as a matter of policy, since the Central Govemmenfhad already.withdrawn
the Central enactment no purpose would be served immediately by the
prosecution for the offence punishable under Sections 3, 4 and 5 of the
TADA Act.

The appellant opposed the Special Public Prosecutor's application. The H
384 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A appellant's son was a Sub-Inspector of Police and was allegedly killed by
Veerappan and his associates. The appellant's statement of opposition referred
to the abduction of Rajkumar and alleged that, consequent thereupon, the
Government of Kamataka had yielded to the demands of Veerappan and had
issued notifications that it would withdraw all cases against Veerappan and
his associates, and this had been widely publicized by the media. The statement
B of opposition submitted that no cogent reasons had been given for the decision
to drop the TADA cases.

The Special Public Prosecutor rejoined to the statement of opposition
by contending that all cases against Veerappan and his associates were not
C being withdrawn, and they would be prosecuted. The Special Public Prosecutor,
therefore, denied the submission in the statement of opposition that the
Government of the State of Karnataka had yielded to the blackmail by
Veerappan.

The Special Designated Judge, Mysore designated for the trial ofT ADA
D offences stated in his order dated 19.8.2000 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, sub-served the administration of justice and
E the permission had not been sought covertly with an ulterior purpose
unconnected with the vindication of law, which the executive organs were in
duty-bound to further and maintain." The Special Judge observed that the
cases against the accused for other offences would be proceeded with.
Accordingly, the Judge allowed the application, according consent to
withdrawal of the charges relating to offences punishable under the TADA
F Act against the accused. He ordered, "the accused i~ custody and on bail, ~
facing trial for offences under TADA Act stand acquitted/discharged as the
case may be." He transferred the cases to the court of the Principal District
and Sessions Judge, Mysore for disposal in accordance with law of all charges
other than under the TADA Act.
G
The accused who were in custody and were discharged by the Special
Court in' respect of the TADA charges against them immediately filed an
application for bail before the Court of District and Sessions Judge, Mysore.
On 28.8.2000, the Judge noted in his order that the counsel for the present
appellant had informed him that the appellant had filed a petition for special
H leave to appeal against the order on the Special Public Prosecutor's
..
ABDUL KARIM v. STATE OF KARNATAKA 385
application which was to be taken up for hearing on the next day and that A
the counsel had prayed that orders on the bail petition should not be
pronounced until thereafter. But keeping in view "the urgency of the matter"
...... and the change in the circumstances in view of the fact that the Designated
Court had permitted the State to withdraw the TADA charges, the Judge held
that no prima facie case was made out against the accused for the said offence B
and, therefore, having regard to the facts and circumstances, the social status
of the accused and other relevant factors, the Judge allowed the bail petition.
The accused were directed to be released on bail, on each of them executing
a bond for Rs. 10,000 with one surety for the like sum or, in the alternative,
on each furnishing cash security of Rs. 20,000, on the conditions that they
would appear before the court regularly as and when required, and that they C
would not tamper with the prosecution witnesses and they would not commit
any other offence.

On 14.8.2000 the Government of the State of Tamil Nadu issued a
Government Order directing that charges against one R in respect of two
cases registered against him under the provisions of the TADA Act be D
withdrawn "in the public interest". The Inspector General of Police
Intelligence, Chennai was directed to take necessary action accordingly. On
16.8.2000 the Special Public Prosecutor before the Designated Court at
Chennai made two applications under the provisions of Section 321 of the
Code of Criminal Procedure, 1973 stating that R was charged before the E
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, and that the Special Public Prosecutor was
satisfied that under the new change of circumstances and also in the public
interest the charges under the TADA Act be withdrawn. The court granted
permission to withdraw the TADA cases against the accused. F

The Government of the State of Tamil Nadu also passed an order
revoking the detention of four detenues under the National Security Act in
public interest in view of the tense situation prevailing due to the kidnapping
of Rajkumar and therebeing an apprehension that in case any harm was G
caused to him, there might be a backlash on Tamils in Karnataka.

The order dated 19.8.2000 on the Special Public Prosecutor's
application was impugned in the appeal before this Court. The Government
order of the State of Tamil Nadu dated 14.8.2000 and the order of the
Designated Court, Chennai were also challenged in the two Public Interest H
386 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A Petitions filed before this Court. The revoking of the detention of the four
detenues was also challenged in Public Interest Petition before this Court.

Allowing the appeals and the writ petitions, the Court

HELD : (Per Bharucha, J. for himself, and Mohapatra, J)
B
1.1. Though the Government may have ordered, directed or asked a
Public prosecutor to withdraw from prosecution, it is for the Public Prosecutor
to apply his mind to all the relevant material and, in good faith, to be satisfied ·
thereon that the public interest will be served. by his withdrawal from the
C pr.osecution. In turn, the court has to be satisfied, after considering all that
material, that the Public Prosecutor has applied his mind independently
thereto, that the Public Prosecutor, acting in good faith, is of the opinion that
his withdrawal from the prosecution is in the public interest, and that such
withdrawal will not stifle or th"'.art the process of law or cause manifest
injustice. (406-G-HJ
D
1.2.An application under Section 321 of the Code of Criminal Procedure
must aver that the Public Prosecutor is, in good faith, satisfied, on
consideration of all relevant material, that his withdrawal from the prosecution
is in the public interest and it will not stifle or thwart the process of law or ·
E cause injustice. The material that the Public Prosecutor has considered must
be set out, briefly btit concisely, in the application or in an affidavit annexed
to the application or, in a given case, placed before the court, with its
permission, in a sealed envelope. The court has to give an informed consent.
It must be satisfied that this material can reasonably lead to the conclusion
that the withdrawal of the Public Prosecutor from the prosecution will serve
F the public interest; but it is not for the court to weigh the material. The court
must be satisfied that the Public Prosecutor has considered the material and,
in good faith, reached the conclusion that his withdrawal from the prosecution
will serve the public interest. The court must also consider whether the
grant of consent may thwart or stifle the course of law or result in manifest
G injustice. If, upon such consideration, the court accords consent, it must
make such order on the applicat•on as will indicate to a higher court that it
has done all that the law requires it to do before granting consent. (407-A-D)

Sheonandan Paswan v. State of Bihar, (19871 1 SCC 288, relied on.

H 2. The application made by the Special Public Prosecutor before the
ABDUL KARIM v. STATE OF KARNATAKA 387
Designated Court at Mysore under Section 321 Cr. P.C. did not state why A
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 Judge presiding over the
Designated Court could conclude that the Special Public Prosecutor had
applied his mind to the relevant material and exercised discretion in good B
faith and that the withdrawal would not stifle or thwart the course of the law
and cause manifest injustice. The order of the Judge did not note that the
statement of opposition also said that, consequent upon the abduction of
Rajkumar the State of Karnataka had yielded to the demands made by
Veerappan and had issued notifications that it would withdraw all cases against C
Veerappan and his associates. No query in this regard was made by the Judge
with the Special Public Prosecu!or. The Judge said that he was satisfied on
the material placed before him that grant of permission to withdraw sub-
served the administration of justice and it had not been sought covertly, but
he did not state what those materials were. No materials were placed before
the Judge upon the basis of which he could have been satisfied that the D
Special Public Prosecutor had applied his mind thereto and had reached, in
good faith, the conclusion that the withdrawal he sought was necessary for
the reasons he pleaded. The Judge placed on record, as he called it, the
decision of this Court in the case of Sheonandan Paswan, but he did not
appreciate what it required of a Public Prosecutor and of a court as regards E
Section 321, and he did not follow it. The order granting consent on the
Special Public Prosecutor's application, therefore, does not nieet the
requirements of Section 321 and is bad in law. (407-E-H; 408-A-D)

- 3. As regards to the decision of the Government of the State of
Karnataka in view of its apprehension of the unrest that would follow if any F
harm were to come to Rajkumar, that it was better to yield to Veerappan's
demand and to withdraw the TADA charges against Veerappan and his
... associates, including the accused-respondents, the Special Public Prosecutor
should have considered and answered the following questions for himself
before he decided to exercise his discretion in favour of such withdrawal G
from prosecution of the '.f ADA charges:- (410-F-G)

(a) Was there material to show that the police and intelligence
authorities and the State Government had a reasonable apprehension
of such civil disturbances as would justify the dropping of charges
against Veerappan and others accused of TADA offences and the H
388 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A release on bail of those in custody in respect of the other offences
they were charged with? (410.:.H]

(b) What was the assessment of the police and intelligence authorities
and of the State Government of the risk of leaving Veerappan free to
commit crimes in future, and how did it weigh against the risk to
Rajkumar's life and the likely consequent civil disturbances?
(411-A-B]

(c) What was the likely effect on the morale of the law enforcement
agencies? (411-B]

C (d) What was the likelihood of reprisals against the many witnesses
who had already deposed against the accused-respondents? (411-C]

(e) Was there any material to suggest that Veerappan would release
Rajkumar when some ofVeerappan's demands were not to be met at
all? (411-C]
D (t) When the demand was to release innocent persons languishing in
Karnataka jails, was there any material to suggest that Veerappan
would be satisfied with the release of only the accused-respondents?
(411-D)

(g) In any event, was there any material to suggest that after the
E accused-respondents had secured their discharge from the TADA
charges and bail on the other charges, Veerappan would release
Rajkumar? (411-E)

(h) Given that the Governments of the State of Karnataka, and Tamil
Nadu had not for 10 years apprehended Veerappan and brought him
F
to justice, was this a ploy adopted by them to keep Veerappan out of
the clutches of the law? (411-F)

G
4. The affidavit of the Special Public Prosecutor reveals that he w.as
"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. 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
H TADA charges. Acting upon information, which he could not verify, the Special
ABDUL KARIM v. STATE OF KARNATAKA 389
Public Prosecutor could not be satisfied that such withdrawal was in the A
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 Govern~ent of the State of Karnataka. He,
therefore, did not follow the requirement of the law that he be satisfied and
the consent he sought under Section 321 cannot, therefore, be granted. B
(413-F-H; 414-A)

5.1. The affidavit of the Special Public Prosecutor speaks of"withdrawal
of the TADA charges which would enable the accused to file necessary bail
applications and their consequent release on bail.......... ". It is, thus, clear that
what was envisaged by the Government of the State of Karnataka and the C
Special Public Prosecutor was a package, which comprised of the withdrawal
of the TADA charges against the accused-respondents and their release on
bail on the applications filed by them. This indicates complicity with the
accused-respondents. Stress was laid by the Special Public Prosecutor in his
application under Section 321 on the fact that the prosecutions against the
acc1,1sed-respondents on charges other than under the TADA Act would D
continue, and this was noted in the order of the Designated Court. The
Designated Court was not told either in the application or thereafter that the
Government of the State of Karnataka and the Special Public Prosecutor had
in mind that the accused-respondents would file bail applications subsequent
to the order under Section 321, which would not be opposed. There can, in E
the circumstances, be little doubt that after their release on bail the accused-
respondents were not expected to attend the court to answer the remaining
charges against them and that the stress laid as aforesaid was intended to
mislead the Designated Court. The conduct of the Government of the State
of Karnataka and the Special Public Prosecutor in this behalf is deprecated.
It is appropriate, in the facts and circumstances, to set aside the orders F
granting bail to the accused-respondents. (414-B-E)

5.2. Having set aside the order under Section 321 passed by the
Designated Court at Chennai in the matter of R, the Government of the State
of Tamil Nadu cannot comply with Veerappan's demand to release the five G
prisoners from its jails. It is appropriate in the circumstances to set aside
the orders of the Government of the State of Tamil Nadu under the National
Security Act releasing the other four persons from detention. (414-G)

6. There is no material on record that could give rise to a reasonable
apprehension of such civil disturbances as justifies the decision to drop TADA H
390 SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R.

A 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 enforcing agencies were considered before it was decided
-=3 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,
C whether or not Rajkumar was released in exchange. While it cannot be
asserted that conceding to Veerappan's demands was a ploy of the Government
of the State of Karnataka to keep him out of the clutches of the law, it acted
in panic and haste and without thinking things through in doing so. That this
is so, is clear from the fact that the demands were conceded overnight and
also from the fact that the Government of the State of Karnataka did not
D ascertain the legal position that it was not for it but for the court to decide
upon the release of persons facing criminal prosecution~. (415-A-DJ

7. What causes the gravest disquiet is that when, not so very long back,
as the record shows, his gang had been considerably reduced, Veerappan was
E not pursued and apprehended and now, as the statements in the affidavit filed
on behalf of the State of Tamil Nadu show, Veerappan is operating in the
forest that has been his hideout for 10 years or more along with secessionist
Tamil elements. It is certain that Veerappan will continue with his life of
crime and very likely that those crimes will have anti-national objectives.
(415-E-FJ
F
8. It would have been prudent in the circumstances, to post round the
clock at Rajkumar's farmhouse one or two policemen who could inform their
local station house of his arrival there and thus ensure his safety. (415-GJ

9.1. The order under appeal, dated 19.8.2000, is set aside. The order
G dated 28.8.2000 passed by the Principal District and Sessions Judge, Mysore
granting bail to the accused-respondents is also set aside. (416-CJ

9.2. Further, the order of the Designated Court at Chennai dated
16.8.2000 is set aside. The orders of the Government of the State of Tamil
Nadu passed on 14.8.2000 under the National Security Act in respect of the
H four detenues revoking the orders of their detention under the National
ABDUL KARIM v. ST ATE OF KARNAT AKA 391
Security Act are also set aside. (416-D] A
Per Sabharwal, J (supplementing)
1. The Public Prosecutor has to be straight, forthright and honest and
has to admit the arrangement and inform the court that the real arrangement
is to ultimately facilitate the release of these accused from judicial custody B
by not opposing the bail applications after the withdrawal of TADA charges.
It is well established that the real purpose for withdrawal of TADA charges .
was to facilitate the grant of bail to the accused. In such circumstances why
the camouflage. In fact, it is a deceit. These are the questions for which th¢re
is no plausible answer. No court of law can be a party to such a camouflage
and deceit in judicial proceedings. The answer to these basic questions cannot C
be that the Judge knew about it from the very nature of the case. Under these
circumstances, it cannot be said that the application was made in good faith.
[418-H; 419-A-CJ

2.1. 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 D
has to be based on the material provided by the State. 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. The E
court has to see that the application is made in good faith, in the interest
of public policy and justice and not thwart or stifle the process of law or
suffers from such improprieties or illegalities as to cause manifest injustice
if consent is given. [419-C-D-E]

Sheonandan Paswan v. State of Bihar, [1,987] 1 SCC 288, relied on. F
~.2. True, the power of the court under Section 321 is supervisory but
that does not mean that while exercising that power, the consent has to be
granted on. mere asking. The court has to examine that all relevant aspects
have been taken into consideration by the Public Prosecutor and/or by the
Government in exercise of its executive function. (419-F] G
3. Besides the eight questions noticed in the main judgment, the question
and aspect of association of Veerappan with those having secessionist
aspirations were also not considered. Further, though it may have been
considered as to what happened immediately after the abduction ofRajkumar,
but what does not seem to have been considered is that those were spontaneous H
392 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A outbursts and the authorities may have been taken unaware but what would
be the ground realities when the law enforcing agencies have sufficient time
to prepare for any apprehended contingency. (419-G-H]

4. The application and order under Section 321 is a result of panic
reaction by overzealous person without proper understanding of the problems
B and consideration of the relevant material, though they may not have any
personal motive. It does not appear that .anybody considered that if
democratically elected governments give an impression to the citizens of this
country of being lawbreakers, it would breed contempt for law; it would invite
citizens to become a law onto themselves. It may lead to anarchy. The
C Governments have to consider and balance the choice between maintenance
of law and order and anarchy. It does not appear that anyone considered this
aspect. It yielded to the pressure tactics of those who according to the
Government are out to terrorise the Police force and to overawe the elected
Governments. It does not appear that anyone considered that with their action
people may lose faith in the democratic process, when they see public authority
D flouted and the helplessness of the Government The aspect of paralysing and
discrediting the democratic authority has to be taken into consideration. It
is the executive function to decide in public interest to withdraw from
prosecution as claimed. But it is also for the Government to maintain its
existence. Self-preservation is the most pervasive aspect of sovereignty. To
E preserve its independence and territories is the highest duty of every nation
and to attain these ends nearly all other considerations are to be subordinated.
Of course, it is for the State to consider these aspects and take a conscious
decision. In the present case, without consideration of these aspects the
decision was taken to withdraw the TADA charges. It is evident from the
material now placed on reQ>rd before this Court that Veerappan was acting
F in consultation with secessionist organisations/groups, which had the object
of liberation of Tamils from India. There is no serious challenge to this
aspect. None of the aforesaid aspects were considered by the Government or the
Public Prosecutors before having recourse to Section 321 Cr.P.C. (420-B-F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
G 741-743 of2000.

From the Judgment and Order dated I 9.8.2000 of the Special Court
Judge at Mysore (Designed under TADA Act ) in Special Case Nos. 3/98, 11/
97 and 44 of I 994.
H WITH
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 393
Writ Petition (Crl.) Nos. 271, 273, 283-315, 317-342, 343-372, 373-402 of A
2000.

Soli J. Sorabjee, Attorney General, Harish N. Salve, Solicitor General,
K.N. Raval, Additional Solicitor General, K. Parasaran, V.R. Reddy, Gopal
Subramaniam, Ms. Indira Jaising, Chava Badri Nath Babu, S. Umesh, S.K.
Manjunath, Amarendra Sharan, Dr. B.L. Wadehra-in-person in W.P. No. 273/ B
2000, Adarsh Ganesh-in-person in W.P. No. 271/2000, R.C. Kaushik, Laxmi
Narayan, Ms. Renu George,, A.N. Jayaram, General for Kamataka, Mohan
Shankargowda, A.P. Joshi, Sanjay R. Hegde, Satya Mitra, Ms. Niti Dikshit,
Samrat Nigam, Alok Sinha, Sanjeev Puri, N. Ganpathy, V.G. Pragasam, Anip
Sachthey, Jaideep Gupta, B.K. Prasad, Sanjoy Ghosh, Ms. Manjula Gupta, C
Girish Ananthamurthy, Venugopal, T.N. Rao, S.N. Bhat, N.P.S. Panwar, D.P.
Chaturvedi, A.T.M. Sampath, V. Balaji, N.P. Midha, Ms. Anitha Sh<moy,
Ravikesh Sinha, D.K. Garg, K. Kiran, Bharat Sangal and Bhim Singh for the
appearing parties.

The Judgment of the Court was delivered by D
BHARUCHA, J. The border between the States ofKamataka and Tamil
Nadu runs through mountainous forest. On about 16,000 acres of this·
forestland, half in Kamataka and half in Tamil Nadu, a man named Veerappan
has held sway for more than IO years. He is alleged to have poached elephants
and smuggled out ivory and sandalwood in a very big way. He is alleged to E
be guilty of the most heinous crimes, including the murder of 119 persons,
among them Police and Forest Officers, and kidnapping. Task forces set up
by the States of Kamataka and Tamil Nadu for the purpose have been unable
to apprehend him and bring him to justice for 10 years.

On the night of 30th July, 2000, between 20.45 and 21. l 0 hours, Veerappan F
abducted· from Gajanoor a film actor named Rajkumar, who is very popular in
Kamataka, and three others, namely, Govindraj, who is a son-in-law ofRajkumar,
Nagesh, who is a relative ofRajkumar, 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. G
Gajanoor is a town in Tamil Nadu close to the border with Kamataka.

On 8th July, 1999 the Director General of Police of the State ofKamataka
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 H
394 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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
B to the visit ofRajkumar to Gajanoor on 28th July, 2000, and they had not learnt
of it until after the kidnap.

~At the time of the kidnapping, Veerappan handed over to Rajkumar's
wife an audio cassette to be delivered to the Chief Minister of the State of
C Kamataka. The audio cassette required that he send an emissary to Veerappan.
On 31st July, 2000 the Chief Ministers of the States of Karnataka and Tamil
Niwu met in Chennai and decided to send as an emissary one Gopal, he
having served as an emissary when, on 12th, July, 1997, Veerappan had
kidnapped nine Forest Officers of the State onq.amataka and he had obtained
. their release thereafter. On 1st August, 2000 Gopal left on his first mission to
D meet Veerappan in the forest along with two members of his staff and a
videographer. On 5th August, 2000 Gopal sent an audio cassettee to Chennai
which, in the voices of Veerappan and an associate, set out ten demands for
the release ofRajkumar. On the next day, that is, 6th August, 2000, the Chief
Ministers of the States of Karnataka and Tamil Nadu met in Chennai to
discuss the demands and their responses were made public at a press
E conference held on that very day.
The ten demands and the responses thereto, as released to the Press,
are as follows :

"DEMAND:
F 1. Permanent solution for the Cauvery water issue and
implementation of the interim orders of the Cauvery Tribunal.

RESPONSE:
For implementation of the interim orders, the Cauvery River Water ·
Authority has been set up und~r the chairmanship of the Prime
G Minister.

DEMAND:
2. Adequate compensation for Tamil victims of 1991 riots.

RESPONSE:
H Kamataka has constituted Cauvery Riots Relief Authority as directed
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 395
by the Supreme Court. About l 0,000 claims have been received. The A
time limit for completion of the work has been extended up to 31.5.2001.

DEMAND:
3. Karnataka Government should accept Tamil as additional
language of administration.
B
RESPONSE:
As per the G.0.1. instructions, Karnataka has issued orders on 20.5.99
that where linguistic minorities constitute more than 15 percent of the
population, Government notices, orders and rules shall be issued in
the language of the minorities as well.
c
DEMAND:
4. Unveiling of Tiruvalluvar statue at Bangalore. ·
RESPONSE:·
Statues of Tiruvalluvar and Sarvajna will be installed and unveiled at D
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 E
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. F
DEMAND:
6. Innocent persons languishing in Karnataka Jails should be
released.
RESPONSE:
G
TADA charges will be dropped immediately facilitating release of the
prisoners.

DEMAND:

7. Compensation for the families of nine Dalits killed in Karnataka. H
396 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A RESPONSE:

Will be considered favourably afterc-coilecting .particulars.

DEMAND:
8. Minimum procurement price of Rs. 15 per kg. for tea leaves
B 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.
c '
DEMAND:
9. Five persons now in Tamil Nadu prisons should be released.
RESPONSE:
D Will be considered favourably.
DEMAND:
IO. Minimum daily wage of Rs. 150 for Coffee and Tea Estate Workers
in Tamil Nadu and Karnataka.
RESPONSE:
E
Estate workers in Tamil Nadu get a minimum wage of Rs. 74.62 inclusive·
of various allowances the wages add upto Rs. 139 per day. Further
increase through negotiations would also be considered." · ·

On I Ith August, 2000 Gopal returned to Chennai with a written message
F and a video cassette that contained an elaboration of two earlier demands and
two new demands. The elaboration related to the release of prisoners in the
State of Kamataka, which was reiterated, and the payment of compensation
based on the Sathasivam Commission Report. The new demands and the
responses thereto were as follows:
G "DEMAND:

I. Tamil should be the compulsory medium of instruction till Standard
IO inTamil Nadu. Tamil should be declared official language.
RESPONSE:
H The Government move to make Tamil the medium of instruction till
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.) 397
Standard 5 has been stayed by the High Court and an appeal has been A
preferred in the Supreme Court.

DEMAND:
2. Compensation of Rs. l 0 lakhs each for innocent rape victims of
Vachathi and Chinnampathi in Tamil Nadu.
B
RESPONSE:

Compensation has already been paid on rates detennined by Court/
Commission".

On 10th August, 2000 an application was filed by the Special Public C
Prosecutor under the provisions of Section 321 of the Criminal Procedure
Code in fourteen cases (Special Case Nos. 44/94, 63/94, 66/94, 67 /94, 119/95,
11/97, 12/97, 13/97, 14/97, 3/98, 19/98, 20/98, 21/98 and 79/99) being heard by
the Designated Court at Mysore. The cases were filed under the provisions
of the Terrorist and Disruptive Activities Act and other penal enactments
against Veerappan and a large number of his alleged associates. The D
application needs to be reproduced in extenso:

"It is submitted by the Special Public Prosecutor as follows :

A charge sheet has been filed against the accused for the offences
punishable U/sec.143, 147, 148, 341, 342, 1208, 326, 307, 302, 396 R/w E
149 IPC. And U/sec. 3, 4 and 5 of the Indian Explosives Act, and
U/sec.3 and 25 of the Arms Act, and also for the offences pun.LJ/sec.
3, 4 and 5 of the TADA Act, alleging that on the afternoon of 14-8-
92 Veerappan along with his associates attacked the then Supt. of
Police, Mysore District, Sri. Harikrishna, and the then S.I. of Police of F
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 wireless set belonging
to police Department. G
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 H
398 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 horde! area and among the people living in the
border area and to maintain peace among the public at general and
B inhabitants of the particular village, the Prosecutor has decided to
withdraw from the prosecution the charges under the offences of the
provision punishable un~er Sec. 3,4 and 5 of the TADA.

It is submitted further by the Prosecutor that the trial regarding
other offences are being continued and the charges under the Arms
c Act and Explosive Substances Act, to certain extent cover the
provisions of Sec. 3 and 4 of the TADA.Therefore, no injustice would
be caused if the prosecutor withdraws the charges for the offences
punishable U/sec. 3,4 and 5 of the TADA Act.

It is further submitted by the Prosecutor that as a matter of policy,
D since the Central Government has already withdrawn Central enactment,
no purpose would be served immediately the prosecution for the
offences punishable U/sec. 3,4 ·and 5 of the TADA Act.

It is submitted by the Prosecutor that in the larger interest of the
State and in order to avoid any unpleasant situation in the border
E area, it is necessary to ~ithdraw from prosecution of the charges
under Section 3,4 and 5 of the TADA Act.

It is submitted by the Prosecutor that no injustice would be
caused to the State by withdrawing from the prosecution, the offences
0
punishable under Sections 3, 4 and 5 of the TADA Act.
F
Therefore, it is submitted by the Prosecutor that the Hon'ble
Court be pleased to accord consent to the prosecutor to withdraw the
charges for the offences punishable U/s 3,4, and 5 of the TADA Act,
against the accused and the case may be withdrawn from the
G Designated Court and be transferred to the regular Sessions Court for
the continu.ance of the trial for the other offences in the interest of
justice."

The appellant in Criminal Appeal Nos. 741-743/2000 before us opposed
the Special Public Prosecutor's application. He is the father ofShakeel Ahmed
H who, as the appHcation recites, had, allegedly, been killed by Veerappan and
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.) 399

his associates. The appellant's sta~ment of opposition referred to the abduction A
of Rajkumar and alleged that, consequent thereupon, the Government of the
State of Karnataka had yielded to the demands of Veerappan and had issued
notifications that it would withdraw all cases against Veerappan and his
associates, and this had been widely publicised by the media. The statement
of opposition submitted that no cogent reasons had been given for the
decision to drop the TADA cases. It submitted that it was the duty of the B
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 C
submission in the statement of opposition that the Government of the State
of Karnataka had yieldeCJ to blackmail by Veerappan ..

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 5.~ witnesses
had been recorded. The trial had been going on until 30th July, 2000, on the D
night of which Rajkumar was abducted.

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 E
appeals. He set out in paragraphs 2 to 6 The details of the cases before him,
thus:

"2. The Special Cases in Nos .44/199<l, l l/1997 and 3/1998 arise out
of a charge sheet in Crime No. 70/1992 of Ramapura Police Station
against Veerappan and others for offences under Sections 143, 147, F
148, 34 l, 342, 120-B, 326, 307, 302, 396 r/w 149of1.P.C., Sections 3, 4
and 5 of Indian Explosives Act, Sections 3 and 25 of the Arms Act
and also under Sections 3, 4 and 5 of the Terrorist and Disruptive
Activities Act, alleging that on the afternoon of 14-8-1992, Veerappan
and Associates had attacked the then Superintendent of Police, G
Mysore, Sri Harikrishna and the then Sub-Inspector of Police Sri
Shakeel Ahamed and other Police Personnel, who had been to nab
Veerappan and in the encounter, six Police Personnel were killed and
many of them were injured and vehicles were damaged and the weapons
and wireless set belonging to the Police Department were taken away.
The charge sheet had beei:i laid against 168 persons, of them 30 H
400 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A accused are in custody and 45 are oJlllbail and rest of them are shown
as absconding.

3. The Specia1·case Nos. 63/1994, 13/1997 and 20/1998 arise out of a
charge sheet filed in Crime No. 41/1992 of Ramapura Police Station
against Veerappan and 162 others alleging that on the night of 19/20-
B 5-1992, the accused had attacked Ramapura Police Station and caused
death of five Police Personnel and caused injuries to other Police
staff, thereby the accused are said to have committed offences
punishable u/ss. 302, 307, 324, 326, 396 r/w 149 I.P.C., Sections 3 and
25 of Indian Arms Act, Sections 3, 4 and 5 of the Terrorist and
Disruptive Activities Act. Of the said accused, 46 accused are on bail
c and 30 accused are in custody and rest of them have been shown to
be absconding.

4. The Special Case Nos. 66/1994, 14/1997 and 21/1998 arise out of a
charge sheet submitted by M.M. Hills Police -in Cr.No. 12/1993 alleging
that the accused had attacked Police Personnel on 24-5-1993 near
D
Rangaswamy Voddu on M.M. Hills - Talabetta Road, near 18/28 S :
Curve and in the attack the Superintendent of Police Sri Gopal Hosur
and his driver Ravi were injured and six Police Personnel were killed
and four Police Personnel were injured and thereby the accused are
said to have committed offences punishable under Sections 143, 148,
E 1208, 341, 353, 395, 302, 109, 114 r/w 149 IPC, Sections 3, 4 and 5 of
Indian Explosives Act, Sections 3 and 25 of Indian Arms Act and also
UIS 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.
F
5. The Special Cases Nos. 67/1994, 12il 997 and 19/1998 arise out of
a chargesheet submitted by M.M. 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
G
of Palar and thereby the accused are said to have committed offences
punishable u/s 143, 147, 148, 341, 342, 1208, 324, 326, 307, 302 and 396
r/w 149 of IPC, Sections 3 and 25 of the Arms Act, Sections 3, 4 and
5 of Indian Explosives Substances Act and also Sections 3, 4 and 5
of Terrorist and Disruptive Activities Act. Of the 143 accused persons,
H 17 accused are on bail, 33 accused are in custody and rest of them
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 401

are shown to be absconding. A
6. The Special Cases in Nos. 119/J 995 and 79/J 999 arise out of a
charge sheet submitted by Ramapura Police in Cr. No. 5/1994 against
l 7 accused persons alleging that on 17-1-1994 at Changadi Forest, th~
accused had attacked staff of the Special Task Force and informants
of the Police and Forest Department and killing one police personnel B
and one Gunman and thereby the accused are said to have committed
offences under Sections 143, 147, 148, 326, 307, 302 r/w 149 IPC,
Sections 3 and 25 of the Indian Arms Act and also Sections 3,4 and
5 of Terrorist and Disruptive Activities Act.".

The learned Judge then nofod that the trial had begun and many material
c
witnesses had been examined. He referred to the pleadings in the application
before him and the arguments of the Special Public Prosecutor; among them,
"There is no terrorist activity in the area. The instant application has been
filed with an intention to maintain peace and tranquility. He has not been
directed by the State. It is the act of the Public Prosecutor only." The learned D
Judge opin!!d that the present appellant could not be said to be an aggrieved
party who could be permitted to raise objections to the application. He then
dealt with precedents relevant to the application and concluded that his
power was limited. It was only a supervisory power over the action of the
Special Public Prosecutor. The function of the court was to prevent abuse. E
Its duty was to see, in furtherance of justice, that the permission was not
sought on grounds extraneous to the interest of justice. Permission to withdraw
could only be granted if the court was satisfied on the materials placed before
it that its grant subserved the administration of justice and it was not being
sought covertly, with an ulterior purpose unconnected with the vindication
of the law, which the executive organs were duty-bound to further and F
maintain. The learned Judge stated that it was seen from the material on
record that terrorist activity had not been noticed recently in the area. The
learned Judge did not accept the contention of the Special Public Prosecutor
that, since the TADA Act had been withdrawn, the permission should be
granted. The learned Judge noted that it had been mentioned ip the statement G
of objections that Rajkumar had been abducted by the prime accused before
him; as such, he said that he would have to take notice of this aspect. He
mentioned that the trial of one of the special cases involved in the application
had been posted for hearing on 30th July, 2000 but, on account 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 H
-
402 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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
B 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
C 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 punishable under the TADA
Act against the accused. He ordered, "The accused in custody and on bail,
facing trial for offences under TADA Act stand acquitted/discharged as the
D case may be." He transferred the cases to the court of the Principal District
and Sessions Judge, Mysore for disposal in accordance with law of all
charges other than under the TADA. Act.

The accused who were in custody and were discharged by the Special
Court in respect of the TADA charges against them immediately filed an
E application for bail before the Court of District and Sessions Judge, Mysore.
On 28th August, 2000, the learned Judge, now as Principal District and
Sessions Judge, noted in his order that learned counsel for the present
appellant had informed hi!Il that the appellant had filed a petition for special
leave to appeal against the order on the Special Public Prosecutor's application
which was to be taken up for hearing on the next day and that learned counsel
F had prayed that orders on the bail petition should. not be pronounced until
thereafter. The Special Public Prosecutor had submitted in reply that the
special leave petition related only to the withdrawal of charges under the
TADA Act and the passing 1of orders on the bail petitions would not be
affected thereby. The learned Judge found that no order of stay had been
G passed by this Court, and, th1efore, he overruled the prayer and passed
orders on the bail petitions. In e course thereof, the learned Judge referred
to "the urgency of the matter". I e learned Judge found force in the contention
on behalf of the accused that there had been a change in the circumstances
in view of the fact that the Designated Court had permitted the State to
withdraw the TADA charges agaipst them. Having carefully.gone through the·
H material on record and the nature ot:the accusations made against the accused
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 403

and the evidence projected, it was the learned Judge's opinion that "there is A
no p1 ima facie case made out against the accused for the said offence.
Having regard to the facts and circumstances, the social status of the accused
and other relevant factors, the Court is of the opinion that the bail petition
will have to be allowed on the following terms in the ends of justice." The
accused were directed to be released on bail on each of them executing a
bond for Rs. 10,000 with one surety for the like sum or, in the alternative, on B
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.
c
The order dated 19th August, 2000 on the Special Public Prosecutor's
application is impugned in the appeals before us.

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 D
TADA (Preve11;tion) Act be withdrawn "in the public interest". The Inspector
Genera.I 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 E
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 applications added, "It is further submitted that after perusal of
records I am satisfied that under the new change of circumstances and also
in the Public Interest I hereby request this Hon'ble Court to permit me to F
withdraw the charges under Section 3(1), 3(3), 4(1) & 5 of Tamil Nadu Terrorist
& Disruptive Activities Preventive Act, 1987 against the accused Venkatesan
@ Radio Venkatesan and thus render justice". A copy of the Government
Order of 14th August, 2000 was submitted with the applications. On 16th
August, 2000, the Designated Court? Chennai passed an order on the G
applications. It noted, "The Government have passed an order stating that
the TADA offences against the accused Venkatesan @ Radio Venkatesan is
withdrawn in the pµblic interest. There is no mention in the Government Order
for withdrawal of cases against the said accused under IPC Offences and
other laws". The court referred to the applications before it and the provisions
of Section 321 which permitted withdrawal from prosecution of one or more H
404 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

·A offences when the accused was charged with more than one offence. It then
stated, "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. 50193 and Cr. No. 346/93. As
this appl,ication has been filed by. the learned Special Public Prosecutor on the
basis of the Government Order referred above, permission is granted to
B withdraw the TADA case against the accused Venkatesan @ Radio Venkatesan
and he has been discharged from ·the various offences of the TADA Act".
The applications were allowed accordingly.

Insofar as four detenus under the National Security Act were concerned,
C the Government of the State of Tamil Nadu passed orders on 14th August,
2000. As an example, that relating to Sathyamoorthy is reproduced below :

"Kannada film actor Dr. Rajkumar and few others were kidnapped
_by sandalwood brigand Veerappan and his men" in the night of30.7.2000.
He has made I 0 demands to release them from hostage. One of the
D demands is to release 5 prisoners from the various prisons in Tamil
Nadu. Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, is
one among the NSA detenus mentioned above. A tense situation is
prevailing due to the kidnapping of Kannada filmactor Dr. Rajkumar.
There is an apprehension that in case any harm is caused to him, there
may be a backlash on Tamils in Karnataka. In order to avoid such a
E 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.
F 2. NOW THEREFORE in exercise of the powers conferred by
clause (a) of sub section (l) 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 @ Kandasarny @
G Neelan, s/o Thiru Nataraja Muthiraiyar, in the proceedings first read
above and direct that the said Thiru Sathyamoorthy @ Sathya @
Kandasarny @ Neelan, be released from detention under the said Act
forthwith. This order applies only in respect of detention under National
Security Act".

H The aforesaid orders of the Government of the State of Tamil Nadu and
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 405
the order of the Designated Court, Chennai are challenged in the two public A
interest petitions before us.

In the appeals aforementioned, this Court passed an order on 29th
August, 2000 clirecting that none of the accused respondents therein should
be released, on bail or otherwise, pending further orders. Observing the spirit
of this order, those who are the beneficiaries of the aforesaid orders of the B
Government and the Designated Court of the State of Tamil Nadu have also
not been released.

Section 321 of the Criminal Procedure Code reads thus :

"321. Withdrawal from prosecution - The Public Prosecutor or C
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
D
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;
E
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 Act, F
0
1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of, or damage to,
any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central
Government while acting or purporting to act in the discharge G
of his official duty,

and the Prosecutor in charge of the case has not been appointed by
the Central Government, he shall not, unless he has been permitted
by the Central Government to do so, move the Court for its consent
to withdraw from the prosecution and the Court shall, before according H
406 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A consent, direct the Prosecutor to produce before it the permission
granted by the Central Government to withdraw from the prosecution".

The law as it stands today in relation to the applications under Section
321 is laid down by the majority judgment delivered by Khalid, J. in the
..
Constitution Bench decision of this Court in Sheonandan Paswan v. State of
B Bihar & Ors., [ 1987) l sec 288. It is held therein that ~hen an application
under Section 321 is made, it is not necessary for the court to assess the
evidence to discover whether the case would end in conviction or acquittal.
What the court has 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
C 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 or decline
D consent. The section should not be construed to mean that the court has to
give a detailed reasoned orqer 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
E in a supervisory and not an adjudicatory manner. What the court must ensure
is that the application for withdrawal has been properly made, after independent
consideration by the Public Prosecutor and in furtherance of the public
interest. Section 321 enables the Public Prosecutor to withdraw from the
prosecution of any accused. The discretion exercisable under Section 321 is
fettered only by a consent from the court on a consideration of the material
F before it. What is necessary to satisfy the section is to see that the Public
Prosecutor has acted in good faith and the exercise of discretion by him 'is proper.

The law, therefore, is that though the Government may have ordered,
directed or asked a Public Prosecutor to withdraw from a prosecution, it is for
G the Public Prosecutor to apply his mind to all the relevant material and, in
good faith, to be satisfied thereon that the public interest will be served by
his withdrawal from the prosecution. In turn, the court has to be satisfied,
after considering all that material, that the Public Prosecutor has applied his
mind independently thereto, that the Public Prosecutor, acting in good faith,
is of the opinion that his withdrawal from the prosecution is in the public
H interest, and that such withdrawal will not stifle or thwart the process of law
ABDUL KARIM v. ST A TE OF KARN AT AKA [BHARUCHA, J .] 407

or cause manifest injustice. A
It mu~t follow that the application under Section 32 l must aver that the
Public Prosecutor is, in good faith, satisfied, on consideration of all relevant
material, that his withdrawal from the prosecution is in the public interest and
it will not stifle or thwart the process of law or cause injustice. The material
that the Public Prosecutor has considered must be set out, briefly but concisely, B
in the application or in an affidavit annexed to the application or, in a given
case, placed before the court, with its permission, in a sealed envelope. The
court has to give an informed consent. It must be satisfied that this material
can reasonably lead to the conclusion that the withdrawal of the Public
Prosecutor from the prosecution will serve the public interest; but it is not C
for the court to weigh the material. The court must be satisfied that the Public
Prosecutor has considered the material and, in good faith, reached the
conclusion that his withdrawal from the prosecution will serve the public
interest. The court must also consider whether the grant of consent may
thwart or stifle the course of law or result in manifest injustice. If, upon such
consideration, the court accords consent, it must make such order on the D
application as will indicate to a higher court that it has done all that the law
requires it to do before granting consent.

The applications under Section 32 l made by the Special Public Prosecutor
before the Designated Court at Mysore submitted that the Special Public E
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 F
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 Designated Court could conclude that the Special G
Public Prosecutor had applied his mind to the relevant material and exercised
discretion in good faith and that the withdrawal would not stifle or thwart the
course of the law and cause manifest injustice.' The order of the learned Judge
noted that the statement of opposition filed by the present appellant averred .
that Rajkumar had been abducted by Veerappan and it said that he would
have to take notice of this aspect. The order did not note that the statement H
408 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A of opposition also said that, consequent upon such abduction, the State of
Karnataka had yielded to the demands made by Veerappan and had issued
notifications that it would withdraw all cases. against Veerappan and his
associates. No query in this regard was made by the learned Judge with the
Special Public Prosecutor. The learned Judge said that he was satisfied on the
material placed before him that the grant of permission to withdraw subserved
B the administration of justice and it .had not been sought covertly, but he did
not state what those materials were. It is not the case of anybody that any
materials were placed before the learned Judge upon the basis of which he
could have been satisfied that the Special Public Prosecutor had applied his
mind thereto and had reached, in good faith, the conclusion that the withdrawal
C he sought was necessary for the reasons he pleaded. The learned Judge
placed on record, as he called it, the decision of this Court in the case of
Sheonandan Paswan, referred to above, but he did not appreciate what it
required of a Public Prosecutor and of a court in regard of Section 321, and
he did not follow it. The or~er granting consent on the Special Public
Prosecutor's application, therefore, does not meet the requirements of Section
D 321 and is bad in law.

The applications under Section 321 filed before the Designated Court
at Chennai sought consent to the withdrawal from the TADA prosecution
against Venkatesan @ Radio Venkatesan after "perusal of records'' by the
E Special Public Prosecutor, and they submitted that "under the new change of
circumstances and also in the public interest the permission was sought."
What the record was that the Special Public Prosecutor had perused was not
set out nor was it annexed nor a summary thereof recited. What the changed
circumstances were was not set out. The order on the applications was
founded only upon the relevant Government Order, thus: "So far as this case
F 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. 346193. 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
G accused Venkatesan@ Radio Venkatesan ......"The order, therefore, was not
passed after meeting the requirements of Section 321, and it is bad in law.

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 know ledge of the Special
H Public Prosecutor on the date on which he made the application before the
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 409

Designated Court at Mysore. In this behalf, two affidavits, both dated 19th A
October, 2000, were filed. One affidavit is made by the Minister of Law and
Parliamentary Affairs of the State of Kamataka and the other by the Special
Public Prosecutor.

The affidavit of the Minister of Law states:
B
I. xxxxxxx.
2. That I have been party to most of the decisions which have
been taken in this matter, which has culminated in the issuance
of the Government order dated 8th August, 2000 requesting the
Special Public Prosecutor, in charge of the TADA cases pending C
before the Designated Court at Mysore against Veerappan and
his associates, to withdraw the charges under TADA.
3. I also held a meeting with the Special Public Prosecutor in
charge of the cases, on the 5th August, 2000 in my office in
Vidhan Sabha, Bangalore. The discussions held during the
meeting and the persons present have already been stated in the D
affidavit of Shri Ashwini Kumar Joshi which I confirm.

4. Prior to this meeting, the problems arising out of the abduction
of Dr. Rajkumar, the options available to the State Government
to deal with this crisis and the responses of the Government E
publicly announced to Veerappan's demands, have all been
discussed at various levels including in informal meetings held
between me, the Home Minister and the Chief Minister as well
as the Cabinet meetings which have been held frequently during
the period 1st August to 8th August, 2000.

5. I submit that one option, which the Government had always
F
considered relates to the use of force for the release of Dr.
Rajkumar. While considering this option and evaluation of the
risk factors, as advised by the senior officials at the level of
Home Secretary, and the Chief Secretary as well as our own
experience in the past were also considered. After detailed G
discussions on more than one occasion, the option of use of
force in the present circumstances and as at present advised
was ruled out in favour of acceding to some of his demands.

6. The demands made by Veerappan were discussed informally at
various levels of the Secretaries, at the level of the Ministers and H
410 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.
,,
A also infonnally in the Cabinet.
7. I submit that the Government made public its response to
Veerappan's demands in which it indicated, inter alia, that einly
TADA charges (and not all cases) against the 51 accused would
be withdrawn.
B 8. I s.µbmit that the matter of withdrawal of TADA charges had
been infonnally discussed in the Cabinet on 3rd August and the
final decision taken between 4-5th August, 2000 between myself,
the Home Minister and the Chief Minister of Karnataka.
9. I respectfully state that it was after considering the options and
c the likely repercussions in future of succumbing to his demands
(i.e. the signals &,ent 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 hann were to be caused
tc Dr. Rajkumar, that this decision to withdraw TADA charges
D were taken.
IO. xxxxxxx
11. xxxxxxx.
12. In the infonnal Cabinet meeting held on 3rd August, 2000, the
Cabinet had authorized the Chief Minister, the Home Minister
E·
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."

The decision of the Government of the State of Karnataka, therefore,
F 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 ttijs context, the Special Public
Prosecutor should have considered and answered the following questions for
himself before he decided to exercise his discretion in favour of such withdrawal
G from prosecution of the TADA charges.

l. Was there material to show that the police and intelligence
authorities and the State Government had a reasonable
apprehension of such civil disturbances as would justify the
dropping of charges against Veerappan and others accused of
H TADA offences and the release on bail of those in custody in

.-'!....~--

I
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 411
respect of the other offences they were charged with? A
2. What was the assessment of the police and intelligence authorities
and of the State Government of the risk of leaving Veerappan
free to commit crimes in future, and how did it weigh against the
risk to Rajkumar's life and the likely consequent civil
disturbances? B
3. What was the likely effect on the morale of the law enforcement
agencies?
4. What was the likelihood of reprisals against the many witnesses
who had already deposed against the accused respondents?
5. Was there any material to suggest that Veerappan would release
c
Rajkumar when some of Veerappan's demands were not to be
met at all?
6. When the demand was to release innocent persons languishing
in Karnataka jails, was there any material to suggest that
D
Veerappan would be satisfied with the release of only the accused
respondents?
7. In any event, was there any material to suggest that after the
accused respondents had secured their discharge from the TADA
charges and bail on the other charges Veerappan would release
Rajkumar?
E
8. Given that the Governments of the States of Kamataka and Tamil
Nadu had not for I 0 years apprehended Veerappan and brought
him to justice, was this a ploy adopted by them to keep Veerappan
out of the clutches of the law?
F
Th7 affidavit of the Special Public Prosecutor states:

6.
. .
On 5th August, 2000, I was called by the Office of the Hon'ble
Law Minister for a meeting in his chamber in Vidhan Soudha,
Bangalore.
G
7. When I went to the meeting, the Special Secretary (Law) and the
Director of Prosecutions as well as the Additional Director General
of Police (Intelligence) were present. We discussed the matter
relating to withdrawal of TADA charges against these 51 accused
at considerable length for over 2 hours. ln the course of the
discussion, I recall that I was informed, inter a/ia, that the H
412 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A negotiations had reached 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 linguis~ic
communities in the State. I was informed that· apprehending
B 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
c being construed by the people as an issue between two
communities. The character of the incident showed that these
people were re~dY. 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
D 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 that the Cabinet
had also informally discussed this matter in its urgent meeting
held on 3.8.2000 and that a decision had' been taken to take
E appropriate steps and on that basis the Government would
formally request me to take appropriate steps to withdraw the
TADA charges.
9. On 8th August, 2000, the G.O. issued by the Government along
with its covering letter was duly forwarded to me through the
F Law Department. A copy of the said G.O. and the connected
documents are collectively annexed hereto and marked as
Annexure A.
IO. Based on my understanding of the situation, which in tum, was
based on the aforesaid material, and the information which had
G been given to me which· I believed to be true, I decided that it
would be in the interest of public peace and maintenance of law
a!ld order in the State to withdraw the charges against the 51
TADA detenus.
11. I respectfully submit that the information which had been provided
H to me by the Additional Director ~eneral of Police (Intelligence),
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 413
the Hon'ble Law Minister and others present in the meeting as A
well as my own knowledge of local events (being a resident of
Mysore for 27 years and having witnessed the problems which
had resulted after the Cauvery riots), I felt there was substance
in the Government's request that any such step which could
secure the release of Dr. Rajkumar would be a step to protect
public peace. I felt that if withdrawal of the TADA charges B
which would enable the accused to file necessary bail applications
and their consequent release on bail could preserve amity
between the two communities, it would outweigh the likely
problems which would arise on the release of these 5 I. In arriving
at this d~ision that I was influenced by the fact that the 73 co- C
accused who had already been enlarged on bail (by the Court)
had complied with the bail conditions which suggested that they
had not gone back to their old ways. There were 12 women, 3
old persons of 70 years age and 3 persons aged between 55-60
amongst the TADA accused. I also considered the fact that they D
had been in the jail for six to seven years. •
12. xxx xxx xxx
13. xxx xxx xxx
14. I was also informed in the course of the afqresaid meetings that
in other districts also some incidents have been reported. I E
believed the statement as I had no reason to doubt its credibility.
1 have subsequently ascertained the particulars of the cases
which are hereto annexed and marked as Annexure C."

The affidavit of the Special Public Prosecutor reveals that he was
"informed" that the Government of the State of Karnataka had intelligence F
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 G
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 H
414 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A instructions of the Government of the State of Karnataka. He, therefore, did
not follow the requirement of the law that he be satisfied and the consent he
sought under Section 321 cannot be granted by this Court .

.The affidavit of the Special Public Prosecutor speaks of"withdrawal of
the TADA charges which would enable the accused to file necessary bail
B applications and their consequent release on bail ................................ ". It is,
thus, clear that what was envisaged by the Government of the State of
Karnataka and the Special Public Prosecutor was a package which comprised
of the withdrawal of the TADA charges against the accused respondents and
their release on bail on applications filed by them. This indicates complicity
C with the accused respondents. It will have been noticed that stress was laid
•
by the Special Public Prosecutor in his application under Section 321 on the
fact that the prosecutions against the accused respondents on charges other
than under the TADA Act would continue, and this was noted in the order
of the Designated Court. The Designated Court was not told either in the
application or thereafter that the Government of the State of Karnataka and
D the Special Public Prosecutor had in mind that the accused respondents
would file bail applications subsequent to the order under Section 321 which
would not be opposed. There can, in the circumstances, be little do~bt that
after their release on bail the accused respondents were not expected to
attend the court to answer the remaining charges against them and that the
E stress laid as aforesaid was intended to mislead the Designated Court. We
deprecate the conduct of the Government of the State of Karnataka and the
Special Public Prosecutor in this behalf. We deem it appropriate, in the facts
and circumstances, to set aside the orders granting bail to the accused
respondents.

F Having set aside the order under Section. 321 passed by the Designated
Court at Chennai in the matter of Radio Venkatesan, the Government of the
State of Tamil Nadu cannot comply with Veerappan's demand to release the
five prisoners from its jails. It is appropriate in the circumstances to set aside
the orders of the Government of the State of Tamil Nadu under the National
G Security Act releasing the other four persons from detention.

The questions that we have posed above were put to learned counsel
for the State of Kamataka in the context of the State Government's decision
to concede to the demand of Veerappan that prisoners in Kamataka jails
should be released. The answers do not satisfy us. We do not find on the
H record, including that placed before us in sealed covers, material that could
ABDUL KARIM v. STATE OF KARNATAKA [BHARUCHA, J.] 415

give rise to a reasonable apprehension of such civil disturbances as justifies A
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 B
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 C
detained further, whether or not Rajkumar was released in exchange. While we
cannot assert that conceding to Veerappan's demands was a ploy of the
Government of the State of Karnataka to keep him out of the clutches of the
law, we do find that it acted in panic and haste and without thinking things
r through in doing so. That this is so is clear from the fact that the demands
were conceded overnight and also from the fact that the Government of the D
State of Karnataka did not ascertain the legal position that it was not for it
but for the court to decide upon the release of persons facing criminal
prosecutions.

What causes us the gravest disquiet is that when, not so very long
back, as the record shows, his gang had been considerably reduced, Veerappan E
was not pursued and apprehended and now, as the statements in the affidavit
filed on behalf of the State of Tamil Nadu show, Veerappan is operating in the
forest that has been his hideout for IO years or more along with secessionist
Tamil elements. It seems to us certain that Veerappan will continue with his
life of crime and very likely that those crimes will have anti national objectives. F
The Government of the State of Tamil Nadu had been apprised that
Rajkumar faced the risk of being kidnapped by Veerappan when he visited his
farmhouse at Gajanoor. It knew that Rajkumar was unlikely to give advance
intimation of his visits: he had visited Gajanoor for the house-warming ceremony
of his new farmhouse in June, 2000 without prior notice. To put it mildly, it G
·,•,-l)uld have been prudent, in the circumstances, to post round the clock at
Rajkumar's farmhouse in Gajanoor one or two policemen who could inform
their local station house of his arrival there and thus ensure his safety.

The locus standi of the present appellant has not been contested
before this Court. Had it not been for his appeal, a miscarriage of justice H
416 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A would have become a fait accompli.
The accused respondents may have individual grounds for challenging
the continued prosecution of the TADA charges against them or for bail.
They shall be free to adopt proceedings in that regard, if so advised. Such
proceedings shall be decided on their merits and nothing that we have said
B in this judgment shall stand in the way.

The appeals are allowed and the order under appeal, dated 19th August,
2000, is set aside. The order dated 28th August, 2000 passed by the Principal
Distl'ict and Sessions Judge, Mysore granting bail to the accused respondents
is also set aside.
c
Further, 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
D the National Security Act are also set aside. The writ petitions are made
. absolute accordingly.

Y.K. SABHARWAL, J. I have gone through the ~laborate 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
E do not meet the requirements of Section 321 of the Code of Criminal Procedure
(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
32 I 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
F with decision arrived at by Justice Bharucha and Justice Mohapatra.

The facts in detail have been set out in the judgment of Justice Bharucha
and it is unnecessary to repeat them except to briefly notice the broad
admitted and/or well established facts for appreciating the points involved.
G They are as under :

(A) Veerappan is a dreaded crimin~I and despite various attempts
over a number _of years could not be apprehended.
(B) Veerappan and his associates are alleged to be responsible for
killing of a large number of people (over 100) including Police
H personnel, Forest personnel and others besides being responsible
ABDUL KARIM v. STATE OF KARNATAKA [Y.K. SABHARWAL, J.] 417

for causing injuries to a large number of people and loss of A
property to the tune of crores of rupees.
(C) Veerappan and his gang members hatched a conspiracy to kill
Superintendent of Police, Mysore District, Shri Harikrishna and
Sub-Inspector of Police of MM Hills Shri Shakeel Ahmed and
other Police personnel who had been to nab Veerappan with a B
view to terrorise the Police force and to put fear of death into
the minds of Policemen who were perfonning duty in attempting
to arrest the wanted persons. Various charges relating to murder,
ambush, attempt to overawe the Government ofKarnataka, killing
of elephants, smuggling of Sandal wood etc. from the forest,
possession of arms and ammunition, opening of fire on task c
force personnel, have been framed against accused who are said
to be the associates of Veerappan. Cases filed. against them are
under the provisions of Terrorist and Disruptive Activities Act
(TADA) and other penal provisions, i.e., Indian Penal Code,
Arms Act and Explosive Substances Act. D
(D) from their source infonnation police authorities had learnt that
Veerappan intended to.kidnap Rajkumar during his visit to his
farmhouse in Gajanoor. More than a year back, Director General
of Police of the State of Karnataka had infonned the Inspector
General of Police of the State of Tamil Nadu requesting for E
adequate security arrangements being made for Rajkumar
whenever he visited the said farm house.
(E) Rajkumar is a very popular film actor of Kamataka. In case any
harm is caused to Rajkumar, there may be backlash on Tamils in
Kamataka and it may lead to problems between the two linguistic
F
communities in the States. The people may indulge in acts of
violence.
(F) On 30th July, 2000, Veerappan abducted Rajkumar from his farm
house along with three others. As of today, Rajkumar and one
Nagesh are still in Veerappan's custody.
G
(G) No Police protection or security was provided when Rajkumar
visited the fann 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 H
418 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A 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
B 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,
c accused will come out from judicial custody and, thus, this
demand of Veerappan would be met.

Keeping in view the aforesaid facts, let me now revert to application
filed under Section 321 Cr.P.C.

D The application filed under Section 321 has been reproduced in extenso
in the judgment of Justice Bharucha. The application makes no reference
whatsoever to any such arrangement as mentioned at {I) above. The main
ground stated in the application is that in order to restore the peace and
normalcy in the border area and among the people living in the border area
E and to maintain peace among the public at general and inhabitants of the
particular village, the Prosecutor has decided to withdraw from the prosecution
the accused charged of the offences punishable under Sections 3, 4 and 5 of
the TADA. Abdul Karim, father of Shakeel Ahmed, opposed the application
on various grounds, inter alia, stating in the objection petition that if the
cases against the hardcore criminals are withdrawn or if they are released on
F bail that may expose the families of the victims to terror unleashed by the
TADA detenus, who may unleash terror and jeopardize public order and
cause detriment to the general public interest. In reply to the said objections,
instead of admitting that TADA charges are being withdrawn to facilitate
grant of bail, the stand taken by the Public Prosecutor, inter alia, is that
G Veerappan and his associates will not be let out freely as they will be facing
prosecution for other offences and, therefore, the submission that the State
Government has yielded to blackmail tactics of outlaw Veerappan is not
correct.

The Public Prosecutor has to be straight, forthright and honest and has
H to admit the arrangement and inform the court that the real arrangement is to
ABDUL KARIM v. STATE OF KARNATAKA [Y.K. SABHARWAL, J.] 419

ultimately facilitate the release of these accused from judicial custody by not A
opposing the bail applications after the withdrawal of TADA charges. The
arrangement as set out above has neither been disputed nor is it capable of
being disputed. It is well established that real purpose for withdrawal of
TADA charges was to facilitate the grant of bail to the accused. In such
circumstances, why the camouflage? Why it is not so stated in the application B
filed under Section 321? In fact, it is a deceit. These are the questions for
which there is no plausible answer. No court of law can be a party to such
a camouflage and deceit in judicial proceedings. The answer to these basic
questions cannot be that the judge knew about it from the very nature of the
case. Under these circumstances, it cannot be said that the application was
made in good faith. c
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 Paswan v. State of D
Bihar & Ors., [ 1987] I SCC 288. 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 E
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.

True, the power of the court under Section 321 is supervisory but that F
,,.- does not mean that while exercising that power, the consent has to be granted
on mere asking. The court has to examine that all relevant aspects have been
taken into consideration by the Public Prosecutor and/or by the Government
in exercise of its executive function.
',
Besides the eight questions noticed in the main judgment, the question G
and aspect of association of Veerappan with those having secessionist
aspirations were also not considered. Further though it may have been
considered as to what happened on 1st August, immediately after the abduction
of Rajkumar, but what does not seem to have been considered is that those
were spontaneous outburst and the authorities may have been taken unaware
but what would be the ground realities when the law enforcing agencies have H
420 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A sufficient time to prepare for any apprehended contingency.
The application and order under Section 321 is a result of panic reaction
by overzealous persons without proper understanding of the problem and
consideration of the relevant material, though they may not have any personal
motive. It does not appear that anybody considered that if democratically
B elected governments give an impression to the citizens of this country of
being lawbreakers, would it not breed contempt for law; would it not invite
citizens to become a law onto themselves. It may lead to anarchy. The
Governments have to consider and balance the choice between maintenance
of law and order and a_narchy. It does not appear that anyone considered this
C aspect. It yielded to the pressure tactics of those who according to the
Government are out to terrorise the Police force and to overawe the elected
Governments. It does not appear that anyone considered that with their
action people may lose faith in the democratic process, when they see public
authority flouted and the helplessness of the Government. The aspect of
paralysing and discrediting the democratic authority had to be taken into
D consideration. It is the executive function to decide in public interest to
withdraw from prosecution as claimed. But it is also for the Government to
maintain its existence. The self-preservation is the most pervasive aspect of
sovereignty. To preserve its independence and territories is the highest duty
of every· nation and to attain these ends nearly all other considerations are
E to be subordinated. Of course, it is for the State to consider these aspects
and take a conscious decision. In the present case, without consideration of
these aspects the decision was taken to withdraw the TADA charges. It is
evident from material now placed on record before this Court that Veerappan .
was acting in consultation with secessionist organisations/groups which had
the object of liberation of Tamil from India. There is no serious.challenge to
F this aspect. None of the aforesaid aspects were considered by the Government
or the Public Prosecutors before having recourse to Section 321 Cr.P.C.

With these additional reasons, I am in complete respectful agreement
with th~ conclusion and opinion of my senior colleague Hon'ble Mr.Justice
;

S.P. Bnarucha. '
G
V.S.S. Appeals and Petitions allowed.