BAIRAM MURALIDHARversusSTATE OF ANDHRA PRADESH

                        [2014] 8 S.C.R. 328


A                     BAIRAM MURALIDHAR
                                  V.
                  STATE OF ANDHRA PRADESH
                (Criminal Appeal No. 1587 of 2014)
                           JULY 31, 2014.
B
     [DIPAK MISRA AND PINAKI CHANDRA GHOSE, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:

C       s. 321 - Withdrawal from prosecution - Duty of Public
  Prosecutor - Case alleging offences punishable under
  Prevention of Corruption Act registered against a Sub-
  lnspGctor of Police investigating a case - State Government
  issuing a G. 0. to withdraw the case - Application u/s 321 by
  Public Prosecutor for withdrawal of the case - Rejected by
D trial court holding that Public Prosecutor did not apply his
  independent mind - High Court concurred with the view of trial
  court - Held: Public Prosecutor cannot act like post office on
  behalf of State Government - He is required to act in good
  faith, peruse the materials on record, satisfy himself and form
E an independent opinion that withdrawal of the case would
  really subserve public interest at large - An order of
  Government in this regard is not binding on Public Prosecutor
  - It is the obligation of Public Prosecutor to state in brief what
  material he has considered.\ In the instant case, Public-
F Prosecutor has been totally guided by order of Government
  and has not applied his mind to the facts of the case - Trial
  court as well as High Court has observed that it is a case
  under Prevention of Corruption Act - They have taken note
  of the fact that State Government had already granted
G sanction - It is a/so noticeable that Anti Corruption Bureau
  has found that there was no justification of withdrawal of the
  prosecution - A case under Prevention of Corruption Act has
  its own gravity - Regard being had to the gravity of the

H                                328
   BAIRAM MURALIDHAR v. STATE OF ANDHRA                    329
                 PRADESH
offence and the impact on public life apart from the nature of A
application filed by Public Prosecutor, the view expressed by
trial court as well as High Court cannot be found fault with.

     s. 321 - Withdrawal from prosecution - Duty of court -
Held: Court while giving consent uls 321 is required to
                                                                   8
exercise its judicial discretion which is not to be exercised in
a mechanical manner - Court cannot give such consent on
a mere asking - It is expected of the court to consider the
material on record to see that the application has been filed
in good faith and to serve the public interest and such            C
withdrawal would advance the cause of justice.

     The appellant, a Sub-Inspector of Police and
Investigating Officer in a case registered for offence
punishable uls 366(A), IPC, was, as a result of a trap laid,
arrayed as an accused of offences punishable ulss 7 and D
13 (1) (d) rlw s. 13 (2) of the Prevention of Corruption Act,
1988 on the allegations that he demanded and accepted
illegal gratification from the father of the accused in the
case uls 366(A), IPC (complainant in the instant case) for
not implicating him in the said kidnapping case and also E
to file the charge-sheet against his son by reducing the
gravity of the charge. When the case came up for hearing
on the charge, the Public Prosecutor filed an application
u/s 321, Cr.P.C. to withdraw the case against the accused-
appellant on the ground that the State Government had F
issued G.O. dated 23.4.2009 to withdraw the prosecution
against the accused officer. The trial court rejected the
application holding that the Public Prosecutor did not
apply his independent mind except filing the petition with
copy of the G.O. and that there were no sufficient G
grounds or circumstances for the court to accept
withdrawal of the case against the accused-officer. The
High Court also dismissed the petition u/s 482 Cr.P.C.
filed by the appellant, holding that the Public Prosecutor
had not given any valid reason for withdrawal of the case,
which did not warrant withdrawal u/s 321 of the Code.         H
    330     SUPREME COURT REPORTS               [2014] 8 S.C.R.

A         Dismissing the appeal, the Court

       HELD: 1.1. The Public Prosecutor cannot act like the
  posf office on behalf of the State Government. He is
  required to act in good faith, peruse the materials on
  record, satisfy himself and form an independent opinion
8
  that the withdrawal of the case would really subserve the
  public interest at large. It is the obligation of the public
  prosecutor to state in brief what material he has
  considered. An order of the Government on the Public
C Prosecutor in this regard is not binding. He cannot remain
  oblivious to his lawful obligations under the Code of
  Criminal Procedure. He is required to constantly
  remember his duty to the court as well as his duty to the
  collective. The court, as has been held in Abdul Karim's
  case*, is required to give an informed consent. It is
D obligatory on the part of the court to satisfy itself that from
  the material it can reasonably be held that the withdrawal
  of the prosecution would serve the public interest. U is
  not within the domain of the court to weigh the material.
  However, it is necessary on the part of the court to see
E whether the grant of consent would thwart or stifle the
  course of law or cause manifest injustice. A court while
  giving consent u/s 321 of the Code is required to exercise
  its judicial discretion which is not to be exercised in a
  mechanical manner. The court cannot give such consent
F on a mere asking. It is expected of the court to consider
  the material on record to see that the application has
  been filed in good faith and it is in the interest of public
  interest and justice. Another aspect the court is obliged
  to see whether such withdrawal would advance the
G cause of justice. It requires exercise of careful and
  concerned discretion because certain crimes are against
  the State and the society, as the collective demands
  justice to be done. That maintains the law and order
  situation in the society. [paras 17-18] [347-F-H; 348-A-E]
H
   BAIRAM MURALIDHAR v. STATE OF ANDHRA                331
                 PRADESH
     *Abdul Karim etc. etc. v. State of Kamataka and others   A
etc. 2000 (4) Suppl. SCR 382 = 2000 (8) sec 710 - relied
on.
     1.2. In the instant case, the State Government by G.O.
Ms. No. 268 dated 23rd May, 2009 enumerated certain
                                                              B
aspects. The Public Prosecutor in his application for
withdrawal of the prosecution has referred to the G. 0.
and sought permission of the court. What the Public
Prosecutor has stated is that he has perused the G.O., the
material evidences available on record and has applied
his mind independently and satisfied that it was a fit case   c
for withdrawal. The application filed by the Public
Prosecutor would show that he had mechanically stated
about the conditions-precedent. It cannot be construed
that he has really perused the materials and applied his
independent mind solely because he has so stated. The         D
application must indicate perusal of the materials by
stating what are the materials he has perused, may be in
brief, and whether such withdrawal of the prosecution
would serve public interest and how he has formed his
independent opinion. The Public Prosecutor has been           E
totally guided by the order of the Government and has
not applied his mind to the facts of the case. The trial
court as well as the High Court has observed that it is a
case under the Prevention of Corruption Act. They have
taken note of the fact that the State Government had          F
already granted sanction. It is also noticeable that the
Anti Corruption Bureau has found that there was no
justification of withdrawal of the prosecution. [paras 17-
18] [347-8, D-F; 348-F-H; 349-A]
     1.3. A case under the Prevention of Corruption Act       G
has its own gravity. In the case at hand, regard being had
to the gravity of the offence and the impact on public life
apart from the nature of application filed by the Public
Prosecutor, this Court is of the considered opinion that
the view expressed by the trial court as well as the High     H
    332    SUPREME COURT REPORTS              [2014] 8 S.C.R.


A Court cannot be found fault with. There is no ground to
  show that such withdrawal would advance the cause of
  justice and serve the public interest. That apart, there was
  no independent application of mind on the part of the
  Public Prosecutor, possibly thinking that the court would
B pass an order on a mere asking. The view expressed in
  Name Dasarath's case** is not applicable to the case at
  hand as the two-Judge Bench therein has opined that the
  law laid down in Sheo Nandan Paswan's case has not
  been correctly appreciated by the trial court and the High
c Court. This Court finds that Sheo Nandan Paswan's case
  and the later decisions have laid do.wn the principles
  pertaining to the duty of the Public Prosecutor and the
  role of the court and the view expressed by the trial court
  and the High Court is absolutely impregnable and,
  therefore, the decision in Name Dasarath is
0
  distinguishable on facts. [para 21] [351-C-G]

         **N.:1me Dasarath v. State of Andhra Pradesh Criminal
    Appeal No. 299 of--ZOt4 decided on 30.1.2014 -
    distinguished.
E
         Sheo Nandan Paswan v. State of Bihar and others 1987
    (1) SCR 702 = 1987 (1) SCC 288 - followed.

       State of Bihar v. Ram Naresh Pandey 1957
  SCR 279 =AIR 1957 SC 389; R.M. Tewari, Advocate v. State
F (NCT of Delhi) and others 1996 (2) SCR 898 = 1996
  (2) SCC 610; Rahu/ Agarwal v. Rakesh Jain and another
  2005 (1) SCR 521 = 2005 (2) SCC 377; State of Orissa v.
  Chandrika Mahapatra 1977(1) SCR 335 = 1976 (4) SCC 250;
  Niranjan Hemchandra Sashittal and another v. State of
G Maharashtra 2013 (4) SCR 767 = 2013 (4) SCC 642; Dr.
  Subramanian Swamy v. Director, Central Bureau of
  Investigation & Anr. 2014 AIR 2140 - relied on.

      Bansi Lal v. Chandan Lal 1976 AIR 370, Ba/want Singh
H v. State of Bihar (1978) 1 SCR 604, Subhash Chander v.
   BAIRAM MURALIDHAR v. STATE OF ANDHRA               333
                 PRADESH
State (1980) 2 SCR 44; Rajendra Kumar Jain v. State 1980 A
(3) SCR 982 =AIR 1980 SC 1510 - referrdd to.
                    Case Law Reference :
    Criminal Appeal No.           distinguished para 9
    299 of 2014                                               B

    decided on 30.1.2014
    1987 (1) SCR 702              followed       para 9
    1976 AIR 370                  referred to    para 12      c
    (1978) 1 SCR 604              referred "to   para 12
    (1980) 2 SCR 44               referred to    para 12
    1980 (3) SCR 982.             relied on      para 12
                                                              D
    1957 SCR 279                  relied on      para 12
    1996 (2) SCR 898              relied on      para 13
    2000 (4) Suppl. SCR 382       relied on      para 14
    2000 (8) SCG 710              relied on      para 14      E

    2005 (1) SCR 521              relied on      para 16
    1977 (1) SCR 335              relied on      para 16
    2013 (4) SCR 767              relied on      para 19      F
    2014 AIR 2140                 relied on      para 20
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1587 of 2014.
                                                              G
    From the· Judgment and Order dated 08.12.2011 of the
High Court of Judicature of Andhra Pradesh at Hyderabad in
Criminal Petition No.1125 of 2010.

    Madhurima Tatia; Sridhar Reddy, V.N. Raghup~thy for the
Appellant.                                                    H
    334      SUPREME COURT REPORTS                 [2014) 8 S.C.R.


A       ATM Rangaramanujam, D. Mahesh Babu, Suchitra
    Hrangkhawl, Amjid MaqbooJ, Amit K Nain, Aditya Jain,
    Ramakrishna Rao, P V Bhaskar Reddy for the Respondent.

          The Judgment of the Court was delivered by
B         DIPAK MISRA, J. 1. Leave granted.

         2. In this appeal, by special leave, the assail is to the
    defensibility of the order dated 8.12.2011 passed by the High
    Court of Judicature of Andhra Pradesh at Hyderabad in Criminal
c   Petition No. 1125 of 2010 whereby the learned Single Judge
    has concurred with the view expressed by the Principal Special
    Judge for SPE and ACB Cases, City Civil Court, Hyderbad in
    Crl. P No. 994 of 2009 in C.C. No. 24 of 2007, whereunder the
    learn'ed trial Judge had declined to grant permission to withdraw
D   the case pending against the accused-appellant in exercise of
    the power under Section 321 of the Code of Criminal Procedure
    (for short "the Code").

        3. The expose' of facts are the appellant was arrayed as
  an accused for offences punishable under section 7 and 13 (1)
E (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for
  brevity 'the Act'). As per the prosecution case the son of one
  Ranga Dharma Goud fell in love with his neighbour's daughter
  and both of them eloped on 25.01.2006. The neighbour,
  Radhakrishna Murthy, lodged an FIR at Kamareddy Town
F Police Station which was registered as Criminal Case No. 21/
  2006 under Section- 366(A) of the Indian Penal Code (IPC).
  Sub-Inspector of the Police Station took up the investigation and
  arrested the son of the Ranga Dharma Goud who suffered
  judicial custody. When all these things happened Ranga
G Dharma Goud who was working as a Driver in Dubai came to
  India and he was asked to come to the Police Station on
  22.04.2006 and again on 26.04.2006 on which dates the
  investigating officer demanded a sum ot Rs.6000/- to be paid
  for not implicating him in the said kidnapping case and also to
H file the charge-sheet against his son by reducing the gravity of
   BAIRAM MURALIDHAR v. STATE OF ANDHRA                     335
          PRADESH [DIPAK MISRA, J.]
the charge. As Ranga Dharma Gaud expressed his inability to A
pay the amount the investigating officer reduced the demand
to Rs.5000/-. Expressing his unwillingness to pay, he
approached the DSP, ADB, Nizamabad Range, who after due
verifications, registered a case in Cr. No. 4/ACB/NZB/2006 on
4.5.2006 under Section 7 & 13 (1) (d) r/w Section 13 (2) of the B
Act. On the basis of the registration of the FIR the trap was laid
and eventually charge-sheet was placed against the accused
officer before the competent Court.

     4. When the case came up for hearing on charge the
public prosecutor filed a petition on 22.06.2009 to withdraw the    C
case against the accused officer on the ground that the
Government of A.P. had issued G.P. Ms. No. 268 of Home
(SC.A) Department, dated 23.05.2009, to withdraw the
prosecution against the accused officer. The learned trial Judge
referred to the copy of the G.O. Ms. No. 268 that was annexed       D
to the petition of the Special Public Prosecutor wherein it was
mentioned that on the due examination the Government had
found regard being had to the good work of the accused in the
anti~extremist field and other meritorious service his case be
placed before the Administrative Tribunal for disciplinary          E
proceedings after withdrawal of the prosecution pending in the
court of Special Judge. The learned trial Judge referred to
various authorities, adverted to the role and duty of the public
prosecutor and the role of the Court under Section 321 of the
Code, and further taking note of the nature of the case and grant   F
of sanction by the State Government to prosecute the case
opined that the public prosecutor really had not applied his
independent mind except filing the petition with copy of G.O.
Ms. issued by State Government; that there were no sufficient
ground or circumstances for the Court to accept the withdrawal      G
of the prosecution case against the officer; and that there was
no justification to allow such an application regard being had
to the offences against the accused persons, and accordingly,
dismissed the petition.

    5. As the permission was not granted by the learned trial H
    336      SUPREME COURT REPORTS                [2014] 8 S.C.R.


A   Judge the appellant invoked the jurisdiction of the High Court
    under Section 482 of the Code before the High Court and the
    learned Single Judge after adverting to the facts and the
    reasons ascribed by the learned trial Judge came to hold that
    the order passed by the learned trial Judge was absolutely
B   impeccable inasmuch as the public prosecutor had actually not
    given any valid reason for withdrawal of the case and further,
    the case, in the obtaining factual matrix, did not warrant
    withdrawal under Section 321 of the Code.

         6. We have heard Ms. Madhurima Tatia, learned counsel
C   for the petitioner and Mr. ATM Rangaramanujam, learned
    senior counsel for the State.

         7. The seminal question that arises for consideration is
    whether in the obtaining factual score the Court was justified
D   to decline permission under Section 321 of the Code for
    withdrawal of the case. To appreciate the controversy in proper
    perspective, it is condign to refer the Government order
    whereby a decision has been taken to withdraw the case. The
    relevant part of it reads as follows:-
E
          "2. In the reference third read above. Sri. Bairam
          Muralidhar, Sub-Inspector of Police, has submitted a
          representation wherein he has stated that a trap was laid
          on him on 5.5.2006 by the Deputy Superintendent of
          Police, Anti Corruption Bureau, Nizamabad Range,
F         Nizamabad, along with his staff on a false and frivolous
          complaint lodged by the complainant by name Sri. Ranga
          Dharma Goud of Kamareddy, Nizamabad District.
          Actually, a case in Cr No. 21/2006 u/S.366 (A) Indian
          Penal Code was registered in Town Police Station of
G         Kamareddy on 01.02.2006 against Naresh Goud, son the
          of complainant. A charge sheet was also filed by him in
          the Court of Judicial First Class Magistrate, Kamareddy,
          against Naresh Goud on 20.03.2006 itself, and the same
          was numbered vide PRC No. 27/2006. Thus, there was
H         no official favour that was to be done to the complainant
BAIRAM MURALIDHAR v. STATE OF ANDHRA                    337
       PRADESH [DIPAK MISRA, J.]
or his son in this case as alleged. The complainant himself A
persuaded him to accept the bribe. When he refused to
accept, the complainant forcibly thrusted some currency
notes into his left side shirt pocket. When he resisted the
said acts of the complainant for the unprecedented act, the
Anti-Corruption Bureau, officials rushed to the spot and B
conducted trap proceedings on him without heeding to his
requests. He further informed that he is discharging his
legitimate duties and his case was considered for
Accelerated Promotion from Sub-Inspector of Police for his
contribution in the anti extremist work. His services were c
recognized by way of awarding Police Katina Seva
Pathakam in 2005 and his name was also recommended
for Prestigious Indian Police Medal for Gallantry for the-
year 2003. Hence, keeping in view his previous record, he
requested the Government to consider his request for 0
withdrawal of prosecution and also to reinstate into
service.

 3. In the reference fourth read above, the Director General,
 Anti-Corruption Bureau, Andhra Pradesh, Hyderabad,
.while rebutting the contentions of the Accused Officer has     E
 stated that there are no merits in the application filed by
 the applicant and it is not maintainable and as such
 requested the Government to dismiss the application filed
 by the Accused Officer Sri. B. Muralidhar, Sub-Inspector
 of Police.                                                     F

4. Government have examined the matter in detail, keeping
in view of his good work in the anti-extremist field and
other meritorious service and order that the case of Sri.
Bairam Muralidhar, Sub-Inspector of Police, Kamareddy           G
Town Police Station, Nizamabad, be placed before the
Tribunal for Disciplinary Proceedings, duly withdrawing the
prosecution in C.C. No. 24/2007 .... "

8. The application for withdrawal that was filed by the
                                                                H
    338       SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A   learned Public Prosecutor deserves to be referred to. After
    narrating the factual matrix about the case, while seeking
    withdrawal the following grounds were put forth:

          "It is further submitted that as the matter stood thus, the
          Government has reviewed the case and decided to modify
B
          the orders issued in G.O. Ms. No.06, .Home (SC-A)
          Department, dt. 10.01.2007 and placed the respondent/
          accused officer on his defense before Tribunal for
          disciplinary proceedings and issued G.O. Ms. No. 268,
          home (SC-A) Department, dated 23.5.2009, the said G.O.
c         is filed along with the petition for consideration.

          I respectfully submit that on perusal of the Government
          order and the material evidences available on record and
          on application of the mind independently and for the
D         reasons accorded by the Government I am satisfied that
          the case is fit for withdrawal from prosecution in
          accordance with the settled principles of law as laid down
          by the Honourable Supreme Court of India.

          Therefore, under the above said circumstances it is prayed
E
          that this Honourable Court may be pleased to permit me
          to withdraw the case of the prosecution against the
          respondent/accused officer Sri. Bairam Murlidhar and the
          same may be treated as withdrawn and the respondent/
          accused officer may be discharged in the interest of justice
F         and equity."

       9. The learned counsel for the petitioner submitted that in
  a similar case in Name Dasarath v. State of Andhra Pradesh
  in Criminal Appeal No. 299 of 2014 decided on 30th January
G 2014, this Court has after reproducing paragraphs 69, 70 and
  71 of the Constitution Bench decision in Sheo Nandan Paswan
  v. State of Bihar and others 1 has quashed the prosecution and
  remanded the matter. The operative part of the said order
  reads as follows:-
H   1.   AIR 1.987 SC 877.
     BAIRAM MURALIDHAR v. STATE OF ANDHRA                    339
            PRADESH [DIPAK MISRA, J.]
      "We accordingly allow the appeal, set aside the order of A
      the Trial Court and the impugned order of the High Court
      and remand the matter to the Trial Court for fresh
      consideration of the petition for withdrawal of prosecution
      against the appellant under Section 321 Cr.P.C. in the light
      of the judgments of this Court and in particular the majo.rity B
      judgments of the Constitution Bench of this Court in Sheo
      Nandan Paswan v. State of Bihar and others quoted
      above."

       10. In the said case, as we notice, an application was
  preferred for withdrawal of the case where charge-sheet had C
i already been filed under Section 13 (2) r/w Section 13(1)(e) of
  the Act and the Principal Special Judge for SPE & ACB had
  declined to grant the prayer and the High Court had refused to
  entertain the criminal revision. This Court observed that the trial
  Court as well as the High Court has not correctly appreciated D
  the law laid down in Sheo Nandan Paswan's case and
  accordingly passed the order which we have reproduced
  herein before.

       11. We have already referred to the facts of the case,        E
 reproduced the Government order and the application filed by
 the public prosecutor. Before we express our opinion with
 regard to legal sustainability of the order passed by the learned
 trial Judge, we think it apposite to refer to certain authorities
 pertaining to the role of the Public Prosecutor and the duty of     F
 the Court as envisaged under section 321 of the Code. The
 Constitution Bench in Sheo Nandan Paswan's case referred
 to Section 333 of the old Code and taking note of the language
 employed under Section 321 of the present Code opined thus:-

      "69. A harmonious view should, in my view, prevail in the      G
      reading of the two sections. Section 333 does not give any
      discretion or choice to the High Court when a motion is
      made under it. Such being the case, Section 321 must
     .also be construed as conferring powers within
      circumscribed limits to the court to refuse to grant           H
    340       SUPREME COURT REPORTS                    (2014] 8 S.C.R.


A         permission to the Public Prosecutor to withdraw the
          prosecution. If such a harmonious view is not taken it would
          then lead to the anomalous position that while under
          Section 333, a High Court has to yield helplessly to the
          representation of the Advocate-General and stop the
B         proceedings and discharge or acquit the accused, the
          subordinate courts when moved under Section 321 CrPC
          would have a power to refuse to give consent for
          withdrawal of the prosecution if it is of opinion that the case
          did not suffer from paucity of evidence. The legislature
c         would not have intended to confer greater powers on the
          subordinate courts than on the High Court in the exercise
          of powers under Section 494 of the old Code and Section
          333 respectively. It would, therefore, be just and
          reasonable to hold that while conferring powers upon the
D         subordinate courts under Section 494 to give consent to
          a Public Prosecutor withdrawing the prosecution, the
          legislature had only intended that the courts should perform
          a supervisory function and not an adjudicatory function in
          the legal sense of the term.
E                Section 321 reads as follows:

                 "321. Withdrawal from prosecution.- The Public
                 Prosecutor or Assistant Public Prosecutor in charge
                 of a case may, with the consent of the court at any
F                time before !he 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,
G                the accused shall be discharged in respect of such
                 offence or offences;                ·

                 (b) if it is made after a charge has been framed,
                 or when under this Code no charge is required, he
H
BAIRAM MURALIDHAR v. STATE OF ANDHRA                      341
       PRADESH [DIPAK MISRA, J.]
       shall be acquitted in respect of such offence or           A
       offences. (Proviso omitted)"

This section enables the Public Prosecutor, in charge of
the case to withdraw from the prosecution of any person
at any time before the judgment is pronounced, but this
                                                                  8
application for withdrawal has to get the consent of the
court and if the court gives consent for such withdrawal the
accused will be discharged if no charge has been framed
or acquitted if charge has been framed or where no such
charge is required to be framed. It clothes the Public
Prosecutor to withdraw from the prosecution of any person,        C
accused of an offence both when no evidence is taken or
even if entire evidence has been taken. The outer limit for
the exercise of this power is "at any time before the
judgment is pronounced".
                                                                  D
70. The section gives no indication as to the grounds on
which the Public Prosecutor may make the application, or
the considerations on which the court is to grant its consent.
The initiative is that of the Public Prosecutor and what the
court has to do is only to give its consent and not to            E
determine any matter judicially. The judicial function implicit
in the exercise of the judicial discretion for granting the
consent would normally mean that the court has to satisfy
itself that the executive function of the Public Prosecutor
has not been improperly exercised, or that it is not an           F
attempt to interfere with the normal course of justice for
illegitimate reasons or purposes.

71. The court's function is to give consent. This section
does not obligate the court to record reasons before
consent is given. However, I should not be taken to hold          G
that consent of the court is a matter of course. When the
Public Prosecutor makes the application for withdrawal
after taking into consideration all the materials before him,
the court exercises its judicial discretion by considering
such materials and on such consideration, either gives            H
    342        SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A          consent or declines consent. The section should not be
           construed to mean that the court has to give a detailed
           reasoned order when it gives consent. If on a reading of
           the order giving consent, a higher court is satisfied that
           such consent was given on an overall consideration of the
s          materials available, the order giving consent has
           necessarily to be upheld."

         12. In the said case, the larger Bench referred the
    decisions in Bansi Lal v. Chandan La/2, Ba/want Singh v. State
    of Bihar3, Subhash Chander v. State 4 , Rajendra Kumar Jain
C   v. State 5 , and the principles stated in State of Bihar v. Ram
    Naresh Pandey6 and eventually came to hold as follows:-

           "All the above decisions have followed the reasoning of
           Ram Naresh Pandey's case and the principle settled in that
D          decision were not doubted.

           It is in the light of these decisions that the case on hand
           has to be considered. I find the application for withdrawal
           by the Public Prosecutor has been made in good faith after
           careful consideration of the materials placed before him
E
           and the order of consent given by the Magistrate was also
           after due consideration of various details, as indicated
           above. It would be improper for this Court, keeping in view
           the scheme of S. 321, to embark upon a detailed enquiry
           into the facts and evidence of the case or to direct retrial
F          for that would be destructive of the object and intent of the
           Section. "

           13. In R. M. Tewari, Advocate v. State 7 (NCT of Delhi) and

G   2.    AIR 1976 SC 370.
    3.    (1978) 1 SCR 604.
    4.    (1980) 2 SCR 44.
    5.    AiR 1980 SC 1510.
    6.    AIR 1957 SC 389.
H   7.    (1996) 2 sec 610.
     BAIRAM MURALIDHAR v. STATE OF ANDHRA                      343
            PRADESH [DIPAK MISRA, J.]
others this Court while dealing with justifiability of withdrawal      A
from the prosecution the Court referred· to the Section 321 of
the Code and the principle that has been stated in Sheonandan
Paswan (Supra) and opined that:-.

     "7. It is, therefore, clear that the Designated Court was right   B
     in taking the view that withdrawal from prosecution is not
     to be permitted mechanically by the court on an application
     for that purpose made by the public prosecutor. It is equally
     clear that the public prosecutor also has not to act
     mechanically in the discharge of his statutory function           C
     under Section 321 CrPC on such a recommendation
     being made by    .I
                         the Review Committee; and that it is the
     duty of the p·ublic prosecutor to satisfy himself that it is a
     fit case for- withdrawal from prosecution before he seeks
     the consent of the court for that purpose.
                                                                       D
     8. It appears that in these matters, the public prosecutor
     did not fully appreciate the requirements of Section 321
     CrPC and made the applications for withdrawal from
     prosecution onlY. on the basis of the recommendations of
     the Review Committee. It was necessary for the public             E
     prosecutor to satisfy himself in each case that the case is
     fit for withdrawal from prosecution in accordance with the
     settled principles indicated in the decisions of this Court
     and then to satisfy the Designated Court of the existence
     of a ground which permits withdrawal from prosecution             F
     under Section 321 CrPC."

     14. A three-Judge Bench in Abdul Karim etc. etc. v. State
of Karnataka and others etc8 . referred to the Constitution
Bench judgment in Sheonandan Paswan case and Bharucha,
J (as his Lordship then was) speaking for himself and D.P.             G
Mohapatra, J. observed thus:-

     "19. The law, therefore, is that though the Government may
     have ordered, directed or asked a Public Prosecutor to
8.   AIR 2001 SC 116.                                                  H
    344       SUPREME COURT REPORTS                    (2014) 8 S.C.R.


A         withdraw from a 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 prosecution. In turn, the
          court has to be satisfied, after considering all that material,
B         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 thwart the process of law or
c         cause manifest injustice.

          20. It must follow that the application under Section 321
          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
D         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, in the
          application or in an affidavit annexed to the application or,
          in a given case, placed before the court, with its
E         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 for the court to weigh the
F         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
G         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 application as will indicate to a:
          higher court that it has done all that the law requires it to
          do before granting consent."
H                                                 (Emphasis supplied)
         BAIRAM MURALI DHAR v. STATE OF ANDHRA                    345
                PRADESH [DIPAK MISRA, J.]

        15. Y.K. Sabharwal, J (as his Lordship then was) in his           A
    concurring opinion elaborating further on fundamental
    parameters which are to be the laser bE!am for exercise of
    power under Section 321 of the Code opined that:-

         "42. The satisfaction for moving an application under            8
         Section 321 CrPC 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          C
         Bihar. This decision holds that grant o.f 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 ~onsidering such material and on such              D
         consideration either gives consent or declines consent. It
         also lays down that the court has to see that. the application
         is made in good faith, in the interest of public policy and
         justice and not to thwart or stifle the process of law or
         suffers from such improprieties or illegalities as to cause      E
         manifest injustice if consent is given.

         43. True, the power of the court under Section 321 is
         supervisory but that does not mean that while exercising
         that power, the consent has to be granted on mere asking.        F
         The court has to ex~mine that all relevant aspects have
         been taken into consideration by the Public Prosecutor
         and/or by the Government in exercise of its executive
         function."

                                                 [Underlining is ours]    G

        16. In Rahul Agarwal v. Rakesh Jain and another'I the
    Court was dealing with what should be the lawful consideration
I

    9.   c2oos) 2 sec 377.                                                H
    346      SUPREME COURT REPORTS                    [2014] 8 S.C.R.


A while dealing with an application for withdrawal under Section
  321 of the Code. The Court referred to the decisions in Ram
  Naresh Pandey (supra), State of Orissa v. Chandrika
  Mohapatra 10, Ba/want Singh v. State of Bihar (supra) and the
  authority in Abdul Karim (supra) wherein the earlier decision
B of the Constitution Bench in Sheonandan Paswan was
  appreciated and after reproducing few passages from Abdul
  Karim (supra) ruled that:-

          "10. From these decisions as well as other decisions on
c         the same question, the law is very clear that the withdrawal
          of prosecution can be allowed only in the interest of justice.
          Even if the Government directs the Public Prosecutor to
          withdraw the prosecution and an application is filed to that
          effect, the court must consider all relevant circumstances
          and find out whether the withdrawal of prosecution would
D
          advance the cause of justice. If the case is likely to end in
          an acquittal and the continuance of the case is only
          causing severe harassment to the accused, the court may
          permit withdrawal of the prosecution. If the withdrawal of
          prosecution is likely to bury the dispute and bring about
E         harmony between the parties and it would be in the best
          interest of justice, the court may allow the withdrawal of
          prosecution. The discretion under Section 321. Code of
          Criminal Procedure is to be carefully exercised by the court
          having due regard to all the relevant facts and shall not be
F         exercised to stifle the prosecution which is being done at
          the instance of the aggrieved parties or the State for
          redressing their grievance. Every crime is an offence
          against the society and if the accused committed an
          offence. society demands that he should be punished.
G          Punishing the person who perpetrated the crime is an
          essential requirement for the maintenance of law and order
          and peace in the society. Therefore, the with_drawal of the


H   10. (1976) 4 sec 2so.
     BAIRAM MURALIDHAR v. STATE OF ANOHRA                   347
            PRADESH [DIPAK MISRA, J.]
      prosecution shall be permitted only when valicireasons are   A
      made out for the same."

                                             (Emphasis added]
       17. The obtaining fact situation has to be tested on the
  anvil of aforesaid enunciation of law. As is demonstrable, the B
  State Government vide G.O. Ms. No. 268 dated 23rd May, 2009
  enumerated certain aspects which are reproduced
  hereinbefore. The reproduction part requires slight clarification.
  In the order passed by the State Government,-the third
  reference refers to the representation of Shri B. Muralidhar, C
  Sub-Inspector of Police, Kamareddy Town P.S. dated 5.8.2007
  and the fourth reference refers to the communication from the
  Director General, Anti Corruption Bureau, Andhra Pradesh,
· Hyderabad dated 12.10.2007. Thereafter, the State
  Government has given its opinion why the case required to be o
  withdrawn. The learned public prosecutor in his application for
  withdrawal of the prosecution has referred to the Government
  order and sought permission of the Court. What the public
  prosecutor has stated is that he has perused the Government
  order, the material evidences available on record and has E
  applied his mind independently and satisfied that it was a fit
  case for withdrawal.
      18. The central question is whether the public prosecutor
 has really applied his mind to all the relevant materials on
 record and satisfied himself that the withdrawal from the F
 prosecution would subserve the cause of public interest or not.
 Be it stated, it is the obligation of the public prosecutor to state
 what material he has considered. Lt has to be set out in brief.
 The Court as has been held in Abdul Karim's case, is required
 to give an informed consent. It is obligatory on the part of the G
 Court to satisfy itself that from the material it can reasonably
 be held that the withdrawal of the prosecution would serve the
 public interest. It is not within the domain of the Court to weigh
 the material. However; it is necessary on the part of the Court
 to see whether the grant of consent would thwart or stifle the H
    348      SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A course of law or cause manifest injustice. A Court while giving
  consent under Section 321 of the Code is required to exercise
  its judicial discretion, and judicial discretion, as settled in law,
  is not to be exercised in a mechanical manner. The Court
  cannot give such consent on a mere asking. It is expected of
8 the Court to consider the material on record to see that the
  application had been filed in good faith and it is in the interest
  of public interest and justice. Another aspect the Court is
  obliged to see whether such withdrawal would advance the
  cause of justice. It requires exercise of careful and concerned
C discretion because certain crimes are against the State and
  the society as a collective demands justice to be done. That
  maintains the law and order situation in the society. The public
  prosecutor cannot act like the post office on behalf of the State
  Government. He is required to act in good faith, peruse the
  materials on record and form an independent opinion that the
0
  withdrawal of the case would really subserve the public interest
  at large. An order of the Government on the public prosecutor
  in this regard is not binding. He cannot remain oblivious to his
  lawful obligations under the Code. He is required to constantly
  remember his duty to the Court as well as his duty to the
E collective. In the case at hand, as the application filed by the
  public prosecutor would show that he had mechanically stated
  about the conditions-precedent. It cannot be construed that he
  has really perused the materials and applied his independent
  mind solely because he has so stated. The application must
F indicate perusal of the materials by stating what are the
  materials he has perused, may be in brief, and whether such
  withdrawal of the prosecution would serve public interest and
  how he has formed his independent opinion. As we perceive,
  the learned public prosecutor has been totally guided by the
G order of the Government and really not applied his mind to the
  facts of the case. The learned trial Judge as well as the High
  Court has observed that it is a case under the Prevention of
  Corruption Act. They have taken note of the fact that the State
  Government had already granted sanction. It is also noticeable
H
      BAIRAM MLJgALIDHAR v. STATE OF ANDHRA                            349
             PRADESH [DIPAK MISRA, J.]
that the Anti Corruption Bureau has found there was no                       A
justification of withdrawal of the prosecution.
     19. A case under the Prevention of Corruption Act has
its own gravity. In Niranjan Hemchandra Sashittal and another
v. State of Maharashtra 11 while declining to quash the
                                                                             B
proceeding under the Act on the ground of delayed trial, the
Court observed thus:
      "In the case at hand, the appellant has been charge-
      sheeted under the Prevention of Corruption Act, 1988 for
      disproportionate assets. The said Act has a purpose to                 c
      serve. Parliament intended to eradicate corruption and
      provide deterrent punishment when criminal culpability is
      proven. The intendment of the legislature has an immense
      social relevance. In the present day scenario, porruption
      has been treated to have the potentiality of corroding the
                                                                             D
      marrows of the economy. There are cases where the
      amount is small and in certain cases, it is extremely high.
      The gravity of the offence in such a case, in our
      considered opinion, is not to be adjudged on the bedrock
      of the quantum of bribe. An attitude to abuse the official
                                                                             E
      position to extend favour in lieu of benefit is a crime
      against the collective and an anathema to the basic tenets
      of democracy, for it erodes the faith of the people in the
      system. It creates an incurable concavity in the Rule of
      Law. Be it noted, system of good governance is founded
      on collective faith in the institutions. If corrosions are             F
      allowed to continue by giving allowance to quash the
      proceedings in corruption cases solely because of .delay
      without scrutinising other relevant factors, a time may
      come when the unscrupulous people would foster and
      garner the tendency to pave the path of anarchism."                    G
    20. Recently, in Or. Subramanian Swamy v. Director,
Central Bureau of Investigation & Anr.12 , the Constitution
11.   (2013) 4 sec 642.
12. Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014.    H
    350      SUPREME COURT REPORTS                    [2014] 8 S.C.R.


A   Bench while declaring Section 6A of the Delhi Special Police
    Establishment Act, 1946, which was inserted by Act 45 of 2003
    as unconstitutional has opined that:-
          "lt seems to us that clas~ification which is made in Section
          6-A on the basis of status in the Government service is not
B         permissible under Article 14 as it defeats the purpose of
          finding prima faice truth into the allegations of graft, which
          amount to an offence under the PC Act, 1988. Can there
          be sound differentiation between corrupt public servants
          based on their status? Surely not, because irrespective of
c         their status or position, corrupt public servants are
          corrupters of public power. The corrupt public servants,
          whether high or low, are birds of the same feather and
          must be confronted with the process of investigation and
          inquiry equally. Based on the position or status in service,
D         no distinction can be made between public servants
          against whom there are allegations amounting to an
          offence under the PC Act, 1988."
          And thereafter, the larger Bench further ruled:
                                                                  •
          "Corruption is an enemy of the nation and tracking down
E         corrupt public servants and punishing such persons is a
          necessary mandate of the PC Act, 1988. It is difficult to
          justify the classification which has been made in Section
          6-A because the goal of law in the PC Act, 1988 is to meet
          corruption cases with a very strong hand and all public
F         servants are warned through such a legislative measure
          that corrupt public servants have to face very serious
          consequences."
          And again, the larger Bench observed:
          "70. Office of public power cannot be the workshop of
G         personal gain. The probity in public life is of great
           importance. How can two public servants against whom
          there are allegations of corruption of graft or bribe taking
          or criminal misconduct under the PC Act, 1988 can be
           made to be treated differently because one happens to be
H         a junior officer and the other, a senior decision maker.
   BAIRAM MURALIDHAR v. STATE OF ANDHRA                  351
          PRADESH [DIPAK MISRA, J.]
    71. Corruption is an enemy of nation and tracking down A
    corrupt public servant, howsoever high he may be, and
    punishing such person is a necessary mandate under the
    PC Act, 1988. The status or position of public servant
    does not qualify such public servant from exemption from
    equal treatment. The decision making power does not B
    segregate corrupt officers into tWo classes as they are
    common crime doers and have to be track,ed down by the
    same process of inquiry and investigation!"
    · 21. We have referred to these authorities only to show that
in the case at hand, regard being had to the gravity of the C
offence and the impact on public life apart from the nature of
application filed by the public prosecutor, we are of the
considered opinion that view expressed by the learned trial
Judge as well as the High Court cannot be found fault with. We
say so as we are inclined to think that there is no ground to D
show that such withdrawal would advance the cause of justice
and serve the public interest. That apart, there was no
independent application of mind on the part of the learned public
prosecutor, possibly thinking that the Court would pass an order
on a mere asking. The view expressed in Name Dasarath's E
case (supra) is not applicable to the case at hand as the tWo-
Judge Bench therein has opined that the law laid down in Sheo
Nandan Paswan's case has not been correctly appreciated by
the learned trial Judge and the High Court. We have referred
to the said authority and the later decisions which are on the F
basis of Sheo Nandan Paswan's case have laid down the
principles pertaining to the duty of the public prosecutor and
the role of the Court and we find the view expressed by the trial
Court and the High Court is absolutely impregnable and,
therefore, the decision in Name Dasarath (supra) is G
distinguishable on facts.
    22. In the result, the criminal appeal, being sans
substratum, is dismissed.
Rajendra Prasad                              Appeal dismissed.
                                                                 H