Holding

The Court held that Section 321 CrPC permits withdrawal of prosecution when the public prosecutor, acting independently and in good faith, obtains the magistrate's consent, and that the court need not re‑examine the evidence; therefore, the consent order was valid and the appeal was dismissed.

Summary

The Supreme Court examined the validity of a consent order under Section 321 of the Code of Criminal Procedure, 1973, which allowed the withdrawal of prosecution against Dr. Jagannath Misra and others. The Court considered whether the public prosecutor acted independently, whether the magistrate properly exercised its supervisory role, and whether the grounds for withdrawal (lack of evidence, political vendetta, public policy) satisfied the requirement of public justice. It held that Section 321 does not compel the court to re‑examine the evidence and that the public prosecutor’s application, made in good faith and with the magistrate’s consent, was within the statutory scope. Consequently, the appeal was dismissed.

Issues considered

Whether the Supreme Court can interfere with a consent order for withdrawal of prosecution under Section 321 CrPC when earlier judgments favored the accused.
Whether admission of a review petition under Article 137 amounts to setting aside the original order.
The scope and nature of the Supreme Court's power of review under Article 137 of the Constitution.
The degree of autonomy of the public prosecutor in applying for withdrawal of prosecution and the role of government direction.
Whether Section 321 CrPC requires the court to assess the evidence or may be exercised on broader public‑justice considerations.
The locus standi of a complainant to oppose the withdrawal of a criminal prosecution.
Whether the grounds cited for withdrawal (lack of prospect of conviction, political vendetta, public policy) are sufficient under Section 321.
Whether the magistrate should have considered the case under Section 239 instead of granting withdrawal.

Legislation cited

Code of Criminal Procedure, 1973s. 203, s. 227, s. 239, s. 245, s. 257, s. 258, s. 321, s. 397
Constitution of Indias. Article 136, s. Article 137
Prevention of Corruption Act, 1947s. 5(1)(a), s. 5(1)(b), s. 5(1)(d), s. 5(2)

Subjects

Section 321withdrawal of prosecutionpublic prosecutorreview petitionArticle 137locus standipublic justicecriminal procedurenolle prosequipolitical vendetta

Judgment

A SHEO NANDAN PASWAN
v.
STATE OF BIHAR & ORS.

DECEMBER 20, 1986

B [P.N. BHAGWATI C.J., E.S. VENKATARAMIAH,
V. KHALID, G.L. OZA AND S. NATARAJAN; JJ.]

• Review of judgments or orders by the Supreme Court-Consti- +
tution of India, 1950, Article 137 read with Rule I of order XL of the
Supreme Court Rules, 1966--Nature of the power of Review by the
c Supreme Court-Whether the Supreme Court could interfere with the
granting consent orders for "Nolles Prosequi" against the accused, when
the orders of the Special Judge, of the High Court in Revision, and of
the majority of the Judges of the S~preme Court in an appeal by special
leave, were in favour of the accused. +
0 Review order is to the effect "the review petition should be admit-
ted and the appeal should be reheard immediately after the decision of
Nandini Satpathi's case Cr/. Appeals 48 and 49 referred to a Constitu-
tion Bench"-Meaning and consequ.ence of the order admitting the
Review Petition-Whether the judgment sought to be reviewed was set
aside or not.
E Code of Criminal Procedure, 1973, .section 321-Withdrawal
from the Prosecution-Scope and construction of the provisions of the
section as to the power of the Public Prosecutor to withdraw and the
power.to grant consent to·such withdrawal by the Magistrate-Whether
on the face of the record, there was any error apparent-Whether
the principle of administrative law be invoked for construing the
F section.

Locus' standi of a complainant in a criminal proceedings to file a
)--\
, .'
revision before the High Court and an appeal by special leave before the
Supreme Court under Article 136 of the Constitution, against an order
G granting consent to withdraw the criminal case.

"Discharge" of an accused, consequent to the consent passed by
the Magistrate under section 321 and "Discharge" of an accused made
under section 227 or 239 of the Code of <;riminal Procedure.
Under Article 137 of the Constitution of lndia The Supreme
H Court shall have power to review any judgment pronounced or order

.702
SHEONANDANPASWANv.STATEOFBIHAR 703

made by it, subject to the provisions of any law made by Parliament or A
any rules made under Article 145. The Supreme Court, in exercise of
the powers conferred by Article 145 of the Constitution and all other
powers enabling it and with the approval of the President made the
"Snpreme Court'Rules 1966". Under Rule 1 of Order XL thereof, the
"Court may review its judgment or order but no application for review
·+ will be entertained • . . . . . in a criminal proceeding except on the B
ground of an error apparent on the face of the record."

Patna Urban Cooperative Banks was registered in May 1970 :ind
it commenced its banking business ·with Nawal Kishore Sinha as its
Chairman, K.P. Gupta as its Honorary Secretary, M.A. Hydary as
Manl'ger and A.K. Singh as loan clerk. Dr. Jagannath Misra who was c
then a Member of the Legislative Council was closely associated with
-+ Nawal Kishore Sinha and helped the Cooperative Bank and Nawal
Kishore Sinha in !fiverse ways in connection with the affairs of the Bank
and assisted in mobilisation of the resources for the Bank. There were
some irregularities in the affairs of the Bank. The then Chief Miliister
Slu<i Abdul Ghafoor ordered the prosecution of the officers and staff of D
the Bank including it• Honorary Secretary Shri'K.P. Gupta, Ma.nager,
M-.A. Haidary 'and the loan clerk. However, this was not done. On
11.4.1975 Shri Abdul Ghafoor was replaced by Dr. Jagannath Misra
as Chief Minister. On May 16, 1975 he passed an order that oniy stern
-f . action should be taken for realisation of loans since on the perusal of the ·
file it appeared there was no allegation of defalcation against the E
Chairman and members of the Board. This date is alleged to have been
later changed to May 14, 1975 by a fresh order. As per the revised order
directions for restoration of normalcy and holding of Annual General
Meeting "of the bank was made. On 15.4.1976 the Reserve Bank cancel- ·
led the banking licence issued to the Banli. and a liquidator was
appointed. Consequent to the report of the Estimates Committee and F
the debate in the Assembly, Dr. Jagannath Misra directed, on 4.8.76
the prosecution against those involved in the defalcation. Thus 23 crimi-
nal cases were filed against the office he!lrers and loanees but Nawal
Kishore Sinha was excluded from being arraigned as. an accused. In
June 1977 there was a clwige of Ministry at the Centre. lo June 1977
the Government headed by Dr. Jagannath Misra was replaced by the G
Government headed by Sri Kar.,._.; Thakur. ·

.As a sequel to the memorandums submitted by the Patna Sec-
retariat Non-gazetted EmplOyees' Association to the new Chief Minister
Oil 9. 7 .1977 requesting him to enquire into allegationS against Dr.
Jagannath Misra, after a detailed procedure and obtaining requisite H
704 SUPREME COURT REPORTS [1987] l S.C.R.

A sanction of the Governor, a criminal case was instituted by the vigilance ~
Department against Dr. Jagannath Misra and others.

The charge sheet ftled by the State of Bihar against the respon·
dents on 19th February, 1979, was for offences under sections 420/466/
471/109/120-B of Indian Penal Code and under Sections 5(1) (a), 5(a)
B (b) & 5(1) (d) read with Section 5(2) of the Prevention of Corruption
Act, 1947. The charge against Dr. Jagannath Misra was that he, who +
at .all material times, was either a Minister or the Chief Minister of
Ribar abusing his position as a Public servant, in conspiracy with the
other accused, sought to interfere with the criminal prosecution and
surcharge proceedings against Nawal Kishore Sinha and others with a
view to obtain to himself and to the other respondents pecuniary
c advantage >-
to the detriment of Patna Urban Cooperative Bank. The
Chief Judicial Magistrate took cognizance of the case on 29. 7. 1979. +
There was a change of ministry in Bihar in June 1980 and the
second respondent became the Chief Minister again. A policy decision
D was taken on I0.6.1980, that criminal cases launched out of political
vendetta and cases relating to political agitation be withdrawn. On
24.2.1981 the Government appointed Shri L.P. Sinha as a Special
Public prosecutor. On 25.2.1981, the secretary to the Government of
Bihar wrote a letter to the District Magistrate informing him of the
policy decision taken by the Government to withdraw from prosecution
E of two vigilance cases including the case with which the Court is con-
+
cerned. He was requested to take steps for the withdrawal of the case.
On 17th June, 1981, Shri Sinha made an application under s.321 ot'the
Cr.P.C. to the Special Judge seeking permission to withdraw from the •
prosecution of respondent Nos. 2, 3 and 4 on four grounds; (a) Lack of
prospect of successful prosecution in the light of the evidence, (h) Impli-
F cation of the persons as a result of political and personal vendetta; (c)
Inexpediency of the prosecution for the reasons of the State and public
policy and (d) Adverse effects that the continuance of the prosecution !I'·
will bring on public interest in the light of the changed situation. The
learned Special Judge gave consent sought, by his order dated 20th
June, 198t: The appellant, therenpon, filed a criminal Revision A11pli·
G cation No. 874/81 against the order permitting withdrawal of the ]pro-
•
~

secution. The said application was dismissed in iimine by the High
Court by an order dated 14.9.1981. The appellant therefore prefe.red
Crl. Appeal No. 241/82 by special leave to this Court. In two well
,.
reaso"ned concurring judgments, Babarul Islam J and R.B. Misra J.
dismissed the appeal by their judgments dated December 16, 1982 and
H by an equally reasoned judgment, Tulzapurkar J. dissented from the
SHEO NANDAN PASWAN v. STATE OF BIHAR 705

7 main judgement and allowed· the appeal. (See Sheonandan Paswan v. A
State of Bihar & Ors.,[(1983) 2 SCR 61] Baharul Islam J. demited office
.on 13. 1.1983. An application was filed on 17.1.1983 to review the judg-
menf under Article 137 of the Constitution read with Order XI of the
Supreme Court Rules. On 22.8.1983, the matter was heard in open
court by a Bench consisting of Tulzapurkar J., A.N. Sen J. and R.B.
-+ Misra J, and·A.N. Sen J. passed an order admitting the Review Petition B
without disclosing any reason therefor and directed the rehearing of the
petition immediately after the decision in Mohd. Mumtaz v. Smt.
Nandini Satpathy [1983] 4 SCC 104, which was referred already to a.

- _.( Constitutional Bench of five Judges. Hence the rehearing of the case to
review the two concurrent judgments.
c
Dismissing the appeal, in accordance with the opinion of the
-+ majority, the Court, (Per Venkataramiah J.) (Majority view)

Held: I. I Merely because a court discharges or acquits an accu-
sed arraigned before it, the court cannot be considered to have compro-
mised with the crime. True, corruption, particularly at high places D
should be put down with a heavy hand. But, the passion to do so should
not overtake reason. The Court always acts on the material before it
and if it finds that the material is not sufficient to connect the accused
with the crime, it has to discharge or acquit him, as the case may be,
-~- notwithstanding the fact that the crime complained of is a grave one.
Similarly if the case has been withdrawn by. the Public Prosecutor for E
good reason with the consent of the Court, Supreme Court should be
slow to interfere with the order of withdrawal. In either case, where the
-" Special Judge had rejected the application for withdrawal and the High
Court had affirmed that order, and where the special judge had permit-
ted the withdrawal but the High Court had reversed that order, the
Supreme. Court may not have interfered with the orders of the High F
/i. Court under Article 136 of the Constitution. But this is a case where the
,
' Special Judge had permitted the withdrawal of the prosecution, and the
said order of withdrawal has been affirmed by the High Court as well as
by the majority judgment pronounced by Supreme Court earlier.
Interference by the Supreme Court on review must only be on strong
and compelling reasons. [766D-H] G

1.2 When the earlier decisions of the Supreme Court are allowed
to remain_ in tact, there is no justification to reverse the majority judg-
ments ofBaharul Islam and R.B. Misra JJ., reported in [1983] 2 SCR 61
by which the appeal had already. been dismis5"d. The reversal of the
earlier judgment of Supreme Court by the process of Review strikes at H
706 SUPREME COURT REPORTS I 1987] I s.c. R.
A the finality of judgments of Supreme Court and would amount to the
abuse of the power of review vested in Supreme Court, particularly in a
crimfual case. This case which .was admitted solely on the ground that
Nandini Satpathy's case had been subsequently referred to a larger
Bench to review the earlier decision cannot be converted into an appeal
against the earlier decision of Supreme Court. [774A-C]
B
R. K. Jain etc. v. State through Special Police Establishment and +
.Ors. etc ... [1980] 3 SCR 982 and State of Bihar v. Ram Naresh Pandey,
[1957] SCR 279, referred to.

c
2.1 Section 321 of the ·code of Criminal Ptocedure cannot be
construed in the light of the principles of Administrative law. The legal
-
position expounded by the Supreme Court in R. K. Jain's case and in
Ram Naresh Pandey's, case is correct. If any change in the law is
needed it is for Parliament to. make necessary amendments to section
+
321 of the Code of the Criminal Procedure, 1973, which has remained
so despite the judgment of the Supreme Court in Pandey's case
D rendered in 1957. [7730-E]

2.2 The judgment of a Public Prosecutor under section 321 of the
Code of Criminal Procedure, 1973 cannot be lightly interfered with
unless the Court comes to the conclusion that he has not applied his
mind or that his decision is not bona fide. A person may have been ,.4.-
E accused of several other misdeeds, he may have been an anthema to a
section of the public media or he may be an unreliable politician. But
these circumstances should not enter into the decision of the Court while
dealing with a criminal charge against him which must be based only on
relevant material. [77J.B-C]

F 2.3 In the circumstances of this case, it cannot be said that the
Public Prosecutor had not applied his mind to the case or had conducted ')-:
himself in an improper way. If in the light of the material before him . I
the Public Prosecutor has taken the view that there was no prospect of
securing a conviction of the accused it cannot be said that his view is an
unreasonable one. The Public Prosecutor is not a Persecutor. He is the
G representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all, and whose interest, therefore, in a crimi-
nal prosecution is not that it shall win a case, but that justice shall be
done. As such he is in a peculiar and very definite sense the servant of
the land, the two fold aim of which is that guilt shall not escape or
H innocence suffer. He may prosecute with earnest and vigour indeed, he
SHEO NANDAN PAS WAN v. ST A TE OF BI HAR
. 707

,r· shoold do so. But while he may strike hard blows, be is not at liberty to A
strike foul ones. It is as much bis duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use every
legitimate one to bring about a just one. [772E-H] ·

Berger v. United States, 295 US 78, quoted with approval.
-+· 2.4 Further the questions involved in ·this case are: whether Dr.
B

Jagannath Misra has been a privy to the misdeeds committed in the
Patna Urban Co-operative Banki whether he and his co-accused should •
.... be prosecuted for the offences of conspiracy, bribery etc., alid whether
the Public Prosecutor bad grievously erred in applying for the with·.
A
drawal of the case. All the other Judges who have dealt with the case on c
merits from the Special Judge onwards, except Tulzapurkar J. have
-+ opined that the permission was properly given for withdrawal. In the
circumstances, it is difficult to take a different view. [770G-H; 771A-B]

The three circumstances put up against the accused in this case
are (i) that Jiwauand Jha had credited Rs. 10,000 and Rs. JOOo, on D
27.12.1973 and on 1.4.1974 respectively in the Savings Bank account of
Dr. Jagannath Misra; (ii) that there was ante-dating of the order passed
by Dr. Jagannath Misra on 14.5.1975; and (iii) that there was a second
confessional statement of Hydary which supported the prosecution. As
--+- regards the two items of bribe, it has not been shown by any extract of
bank account that the said two sums came from the Patna Urban Co- E
operative Bank •. If that was so there would have been entries in the
Bank accounts. Mere crediting of the two sums, without any' other
reliable evidence, in a bank account by a political ally or· a friend does
not by itself show that the sums were either' bribe amounts or any
official favour had been shown •. This fact by itself is not conclusive
. about the guilt of the accused. The passing of the two orders one on F
)'\ 15.6.1975 on the note sheet and ttie other on buff paper which is dated
14.5.1975 cannot be faulted on account of the explanation that it was
. the practice in the Bihar Secretariat that whenever an ordir is changed
it is done by writing the later order on a buff'sheet and pasting it on the
earlier order. It is not also shown.by the prosecution that any action had
been taken pursuant to the order dated 16.5.1975 by any of the depart- G
mental authorities. If any action had been taken it would have been a
matter of record readily available for production. No such record is
produced before Supreme Court. Hence it is a mere surmise to say that
any such action was sought to be nullified, particularly when there was
no acceptable evidence at all on the communical.ion of the order dated
16.5.1975 to any departmental authorities. [769F-G; 770D-G] H
708 SUPREME COUR;I' REPORTS [ 1987] 1 S. C.R.

Per Khalid J. (on behaH of himself and on behaH of S. Natarajan
A
J.)
1.1 Admitting a review petition is not the Same thing as setting
aside the order sought to be reviewed. Order 47, Rule l C.P.C. deals
with review in civil matters. Article 137 of the Constitution is a special
B power with the Supreme Court to review any jndgment pronounced or
order made by it. An order passed in a criminal case can be reviewed
and set aside only if there are errors apparent on the record. In this
case, one of the Judges who was a party to the order to review (R.B.
Misra J) had earlier dismissed the appeal with convicting reasons. H the
judgment was set aside by the order passed in the review petitioo, the
....
learned Jndge would definitely have given his oWll reasons for doing so
c by a separate order. This has not been done. All that the order says is
that the review petition had been admitted. The direction to re-hear the
appeal, therefore can only be to ascertain reasons to see whether the
judgment need be set aside. [776C-G]

D 2.1 There is no error apparent on the face of the record in the
judgment reported as Sheonandan Paswan v. State of Bihar & Ors.,
[1983] 2 SCR 61. [776~-H]
2.2 All the three judges who gave the earlier judgment in this
case bave correctly declined to accept the plea that Shri Sinha was not a
competent Public Prosecutor since Dalt's appointment has not been ,,+·
E cancelled. (7868-C]

3.1 Section 321 needs three requisite t~ make an order under it
valid; (I) The application should be filed by a public prosecutor or
Assistant Public Prosecutor who is competent to make an applkation
for withdrawal; (2) be must be in charge of the case; (3) the application
F should get the consent of the court before which the case is pending. All
the three requisites are satisfied here. [780D-E] '-
.r'
3.2 In the absence of any allegation of mala fide against the public
prosecutor or of bias against the Special Judge the Public PrOSt,.,utor
should normally be credited with fairness in exercise of his power under
G s.321. Equally, in the absence of a challenge iii the revision petition
before the High Court to the order of the Special Judge giving consent,
it has to be assumed that he has perused the relevant records before
passing the consent order; [781C-E]

3.3 Section 321 gives the public prosecutor the power for wilh-
H drawal of any case at any stage before judgment is pronounced. This
SHEONANDANPASWAN v. STATEOFBIHAR 709

)--· pre-supi)oses the fact that the entire evidence may have been adduced in A
the case, before the application is made. When· an application under
- s.321 Cr. P.C. is made, it is not necessary for the court to assess the
evidence to discover whether the case would end in conviction or acquit-
tal. To contend that the court when it exercises its limited power of
giving consent under s.321 bas to assess the evidence and find out
-+ . wh,etber the case would end in acquittal or conviction, .would be to B
re-write s.321 Cr.P.C. and would be to concede to the court a powe~
which the scheme ofs.321 does not contemplate. [78lF-H]

- 3.4 The acquittal or discharge order under s.321 are not the same
as the nornlal final orders in criminal cases. The conclusion will not be
~- backed by a detailed discussion of the evidence in the case of acquittal or c
absence of prima facie case or groundlessness in the case of discharge.
--4- All that 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 tb~art or
stifle the process of law. The court, after considering these facets of the
case, will have to see whether the application suffers from such im-
proprieties or illegalities as to cause manifest injustice·if consent is 0
given. On a reading of the application for withdrawal, the order of
consent and the other attendant circumstances, it must be held that the
application for withdrawal and the order giving consent were proper
and strictly within the confines of section 321 Cr.P.C. [781H; 782A-C]

3.5 While construing s.321, ii is necessary to bear in mind the E
wide phraseology used in it, the scheme behind it and its field of opera·
lion. True, it does not give any guideline regarding the grounds on
which an application for -withdrawal can be made. But since ii was
enacted with a specific purpose, it would be doing violence to its
language and contents by importing into the section words which are
not there or by restricting its operation by fellers in the form of condi· F
--·{lions and provisos. [782C· D]
I \ .
/
3.6 While conferring powers upon the Subordinate courts under
s.321 of the Code, the Legislature had only intended that the court
should perform a supervisory function and not an adjudicatory func-
tion in the legal sense of ihe term. Section 321 clothes the public. pro- G
secutor to withdraw from the prosecution of any person, atcused 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 tinie
before the judgment is pronounced". The initiative is that of the Public
Prosecutor and what the court ha8 to do only to give its consent and not
to determine any matter judicially. The Judicial function implicit in the

I
710 SUPREME COURT REPORTS [1987] I S.C.R.

A exercise of the judicial discretion for granting the consent would nor- · -<t
mally mean that the court has to satisfy itself that the executive function
of the Public Prosecutor has not been improperly exercised, or that it is
not an attempt to interfere with the normal course of justice for illegiti-
mate reasons or purposes. [484A·B; C-D]

B 3,-7 The courts'· function is to give consent. It is not obligatory on --+-
the part of the court to record reasons before consent is given. How-
ever, consent of the court is not a matter of course. When the Public
Prosecutor makes the application for withdrawal after taking into con-
sideration all the materials before him, the Court exercises its judicial
discretion by considering such materials and on such consideration ·)-
c either gives consent or declines 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 materials available, the order giving ~
consent has necessarily to be upheld. [484D-G]

3.8 The order under section 321 is not appealable but only revis-
D able under section 397 of the Code of Criminal Procedure. While con-
sidering the legality, propriety or the correctness of a finding or a
conclusion, normally, the revising court does not dwell at length into
the facts and evidence of the case. The Court, in revision, considers the
materials only to satisfy itself about the correctness, le·gality and pro-
priety of the findings, sentence or order and refrains from substituting
E an order passed under s.397 appeal comes to the Supreme Court by
special leave under Article 136 of the Constitution of India. [7898-C]

It has been the ·declared policy of the Supreme Court not to ,
embark upon a roving enquiry into the facts and evidence of cases like
this or even an order against discharge. The Supreme Court will not
F allow itself to be converted into a court of facts and evidence. The
Supreme Court seldom goes into evidence and facts. That is as it should r
be. Any departure from this salutary self imposed restraint is not a \
healthy practice. As an apex Court, any observati!>n on merits or on
facts and evidence of a case which has to go back to the courts below will
seriously prejudice the party affected. and it should be the policy of the
G court not to tread upon this prohibited ground and invite unsavory but
justifiable criticism. Supreme Court cannot assess the evidence to find
out whether there is a case for acquittal or conviction and cannot con- ...l,
vert itself into a trial court. !\or can this court order a retrial and .
examination of hundred witnesses to find out whether the case would
end in acquittal or conviction. [789D-G]
H
SHEO NANDAN PAS WAN v. STATE OF BIHAR 711

3.9 Section 321 Crl. P.C. is virtually a step by way of composition A
of he offence by the State. The State is the master of the litigation in
criminal cases. By the exer.cise of functions u_nder s.32 l the accountabi-
lity of the concerned person or persons does not disappear. A privaCe
complaint can still be filed if a party is aggrieved hy the withdrawal of
the prosecution hut running the possible risk of a suit of malicious
prosecution if the complaint is bereft of any basis. [789G-H; 790A] B

3. IO When the Magistrate states in his order that he has con-
sidered the materials, it is not proper for the court not to accept that
... statement. The proper thing to do is to hold that Magistrate gave con-
sent on objective consideration of the relevant aspects of the case .. It
would be acting against the mandate s.321 to find fault with the Magis- C
Irate in such cases, unless the order discloses that the Magistrate has
failed to consider whether the application is made in good faith, in the
interest of public policy and justice and not to thwart or strifle the
process of law. The application for withdrawal by the Public Prosecutor
has been made in good faith after careful consideration of the ·materials
placed before him and the order of consent given by the Magistrate was D
also after the consideration of various datails as indicated above. It
would be improper for the Court, keeping in view the scheme of s.32!,
to embark upon a detailed inquiry into the facts and evidence of the case
or to direct re-trial fro that would be destructive of the object and
intent of the section. [792C-E; 793B-D]-' ·
E
State "of Bihar· v. Ram Naresh Pandey, [1957] SCR 279; M.N.
Sankaranarayanan Nair v. P. V. Balakrishnan & Ors., [1972]2 SCR
599; Bansi Lal v. Chandan Lal, AIR 1976 AC 370; State. of Orissa v.
Chandrika Mahapatra & Ors., [1977] l SCR 335; Ba/want Singh v.
State of Bihar, [1978] I SCR 604; Subhash Chander v. State, [1980] 2
SCR 44 and Rajendra kumar Jain v. State, [1980] 3 SCR 982, referred F
-;1··
I ' lo.
/ '
4.1 In this case the Supreme Court is called upon only to consider
the ambit and scope ofs.321 Cr!. P.C. and not the truth or otherwise of
the allegations against the respondent No. 2. The appellant is ad~ittedly '
a political rival of respondent No.2. There is no love lost between them. G
It is at the instance of such a highly interested person that the Court is
called upon to direct re-trial of the case, setting aside the con.en! given
by the Special Judge. The second respondent is a leader of a political
party. He was a rival to the Chief Minister who followed him after the
0

1977 al the time of institution of the case. ln ·1977 0 when the second
respondent was the Chief Minister, a warrant of arrest was issued· H
712 SUPREME COURT REPORTS [1987] l S.C.R.

A against Shri Karpoori Thakur for his arrest and detention. It has been
suggested that Shri Thakur _had grudge against the second respondent.
Viewed against this background, and on the unsatisfactory factual de-
tails of the case, accepting the appeal and ordering retrial would not
advance either the interests of justice or public interest. [7%8-E]

B 4.2 There were two coufessional statements ofHaidari in this case
one on 4.!l.!976 and another on 24.1.1978. In the former he did not
+
implicate respondent No.2 hut he did it in the next one. The second
statement at best is the confessional statement of a co-accused which

C
normally will not inspire confidence, in any court. It is also a statement
ol an accomplice turned approver and hence Of a very little evidentiary
value. When Supreme Court exercises its jurisdiction while considering
-
an order giving consent on an application under s.321, consistent with
the declared policy of the court not to embark upon evidence, request
for an order for retrial on this legally weak and infirm evidence should
be rejected. [795A-E]

D 4.3 As to the accusation of forgery, taking the entire evidence
against the appellant it cannot be held that he has committed forgery
under s.463 or an offence under s.466. Even though there is over-
writing or pasting or interpolation or change of digits, there is no evi-
dence at all to show that this paper went out of the Chief Minister's
office or that any one was unduly favoured or that any one secured -4--
E undue advantage by use ofsuch overwriting. [7%A-B]

Per Bhagwati (on behalf of himself and G.L. Oza J .) (Minority
view). (Per contra)

l. l The Review Bench did exercise the power of review and set
F aside the order made by the Original Bench. When the Review Bench
used the expression "I ...... : admit the Review" and directed rehear- ')-:-
\
ing of the appeal, it must hy necessary implication be held to have
allowed the Review Petition and set aside the order of the Original
Bench. The true meaning and effect of the order of the Review Bench
cannot be allowed to be obfuscated by a slight ineptness of the language
G used by the Review, Bench. The substance of the order must always be
looked in to its apparent form. [737F-H]

1.2 There can be no doubt that the Review Bench was not legally
... '

bound to give reasons for the order made by it. The apex Court being
the final court against which there is no further appeal, it is not under
H any legal compulsion to give reasons for an order made by it. But '
SHEO NANDAN PASWAN v. STATE OF BlHAR 713

)~ merely because there may be no legal compulsion on the apex court to A
give reasons. It does not follow that the apex court may dispose of cases
without giving any reasons at all. It would be eminently just and desir-
able on the part of the apex court to give reasons for the orders made by
it. But when the apex court disposes of a Review Petition by allowing it
and setting aside the order sought to be reviewed on the ground of an
error apparent on the face of record, it would be desirable for the apex B
-+· I
court not to give reasons for allowing the Review Petition. Where the
apex court holds that there is an error apparent on the face of the

-
record and the order sought to be reviewed must therefore be set aside and
the case must be reheard, it ·would 'considerably prejudice the losing
party if the apex court were to give reasons for taking this view. If the
--< Review Bench of the Court were required to give reasons, the Review c
Bench would have to discuss the case fully and elaborately and expose
-+ what according to it constitutes an error in the reasoning of the Origir.al
Bench and this would inevitably result in pre-judgment of the case and
prejudice is reheating. A reasoned order allowing a Review Petition
and setting aside the order sought to be reviewed would, even before the
rehearing of the case, dictate te direction of the rehearing and such D
direction, whether of'binding or of (l!'rsuasive value, would conceivably
in most cases adversely affect the losing party at the rehearing of the
case. Therefore, the Review Bench, in the present case, could not be
faulted for not giving reasons for allowing the Review Petition and
.. .}. . directing rehearing of the appeal. [73SB-G I
E
2. It is now well settled law that a criminal proceeding is not a
proceeding for vindication of a private grievance but it is a proceeding
- initiated for the purpose of punishment to the offender in the interest of
the society. It is for maintaining stability and orderliness in the society
that certain acts are constituted offences and the right is given to any'·
citizen to set the machinery of the criminal law in motion for the F
7\ purpose of bringing the offender to book. Locus standi of the complain-
ant is a concept foreign to criminal jurisprudence. Now if any citizen
' can lodge a first information report or file a complaint and set the
machinery of the criminal law in motion and his locus standi to do so
cannot be questioned, a citizen who finds that a prosecution for an
offence against the society is being wrongly withdrawn can oppose such G
withdrawal cannot oppose such withdrawal. If he can be a complainant
I
or initiator of criminal prosecution, he should equally be entitled to
-f oppose prosecution which has already been initiated at his instance. If
the offence for which a prosecution is being launched is an offence
against the society and not merely an individual wrong, any member of
the society must have locus to initiate a prosecution as also to resist H
71.+ SUPREME COURT REPORTS [1987] I S.C.R.

withdrawal of such prosecution, if initiated. Here in the present. case, -""'(
A
the offences charged against Dr. Jagannath Misra and others are
offences of corruption, criminal breach of trust etc. and therefore any
person who is interested in cleanlhiess of public administration and
public morality would be entitled to file a complaint; eqaully he would
be entitled to oppose the withdraw.al of such prosecution, if it is already
B instituted. [739C-H; 740A]
+
R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 500, referred to 3.1.

c
It is undoubtedly true that the effect of withdrawal of lhe prosecu-
lion against Dr. Jagannath Misra was that he stood discharged in respect
the offences for which he was sought to be prosecuted but it was not an > --
order of discharge which was challanged by Sheonandan Paswan in the
revision application filed by him before the High Court but it was an --!-·
order granting consent for withdrawal of the prosecution that was
assailed by him. [740E-G]

D 3.2 The analogy of an order of discharge made under section 227
or section 239 of the Code of Criminal Procedure is not apposite
because there the Sessions Judge or the Magistrate, as the case may be,
considers the entire material before him and then comes to the conclu-
sion that there is not sufficient ground or proceeding against the
accused or that the charge against the accused is groundless. But, here,
when the Magistrate makes an order granting consent to withdrawal of
....
E
the prosecution under s.321, it is a totally different judicial exercise
which he performs and it would not therefore be right to say that if the
High Court sets aside the order of th~ Magistrate granting consent to
withdrawal from the prosecutor, the High Court would be really setting
aside an order of discharge made by the Magistrate. What the High
F Court would be doing would be no more than holding that the with- ·
drawal from the prosecution should proceed against the accused and
)-c-
ultimately if there is not sufficient evidence or the charges are ground-
less, the accused may still be discharged. Even the order of discharge ',
'
'
can be discharged by the High Court in. revision if the High Court is
satisfied that the order passed by the Magistrate is incorrect, illegal or
J improper or that the proceedings resulting in the order of discharge
suffer from any irregularity. [740F-H; 741A-C]
3.3 The revisional power exercised by the High Court under
s.397 is couched in words of widest amplitude and in exercise of this
.....
power can satisfy itself as to the correctness, legality propriety of any
order passed by the Magistrate or as to the regularity of any proceed-
H ings of such Magistrate. When the Supreme Court is hearing an appeal
SHEO NANDAN PAS WAN v. S) ATE OF B!HAR 715

+.- against an order made by tbe High Court in tbe exercise ofits revisional A
power under s.397 it is the same revisional power wbicb the Supreme
Court would be exercising aud tbe Supreme Court, therefore, certainly
can interfere with the order made by the Magistrate aud confirmed by
the Higb Court if it is satisfied that the. order is incorrect, illegal or

-+- improper. In fact, in a case like the present where the question is of
purity and public administration at a time when moral and ethical B
values are fast deteriorating and there seems to be a crises of character
in public life, the Supreme Court should regard as its bounden duty-a
duty owed by it to the society·t!J examine carefully whenever it is
alleged that a pr11secution for an offence of corruption or criminal
~ breach of trust by a person holding high public office. has been wrongly
withdrawn and it should not matter at all as to how many judges in the C
High Court or the lower court have been party to the granting of such
~ . consent for withdrawal. The mathematics of numbers cannot, therfore,
be invoked for the purpose of persuading the court not to exercise its
discretion under Article 136 of the Constitution. [741C-H]

·4.1 It is a well-established proposition· of law that a criminal pro· D
secution, if otherwise justifiable aud based upon adequate evidence does
not become vitiated on account of ma la fides or political vendetta of the
first informant or the complainant. [7420-E]

'~.. State of Punjab v. Gurdial Singh, [!980] ! SCR !076, referred to.
E
4.2 The fact that the prosecution against Dr. Jagannath Misra
was initiated by the successor Government of Karpoori Thakur after ·
....._ tbe former went out of power, by itself cannot support the inference
that the initiation of the posecution was actuated by political vendetta or
mala /ides because it is quite possible that there might be material
, justifying the initiation of prosecution against Dr: J agaunath Misra and F
-;-1 the successor Government might have legitimately felt that there was a
/ 1 case for initiation of prosecution and that is why the prosecution might
have been initiated. Therefore, the prosecution cannot be said to be
vitiated on that account. [742G·H; 743A]

Krishna Ballabha ·Sahay and Ors. v. Commissio!' of Enquiry, G
[1%9] I SCR 387 aud P. V. Jagannatha. Rao v. State of Orissa, [!%8]
f. 3 SCR 789, referred to.

5.1 There is no provision of law which requires that no prosecu-
tion should be launched against a former Chief Minister or a person
holding bigb political o~ce under the earlier regime without first set· H
716 SUPREME COURT REPORTS [1987] l S.C.R.

ting up a Commission of Enquiry for enquiring into his conduct. It ...
A
cannot be said that if a prosecution is initiated without an inquiry being
held by a Commission of Enquiry set up for that purpose, the prosecu-
tion would be had or that on that ground alone the prosecution could be
allowed to be withdrawn. [743G-H; 744A]

B 5.2 In view of the tardy and slow moving criminal process in ___.....
India causing inordinate delay and availability of adequate protection .
under different existing laws to the accused, it would be perfecUy legiti-
mate for the successor government to initiate a prosecution of a former
Chief Minister or a person who has held high political office under the
earlier regime withont first having an enquiry made by a Commission of )..
Enquiry, provided of course, the investigation is fair and objective and
c there is sufficient material to initiate such prosecution. [744A-D]
~
6. No unfettered or unrestricted power is conferred on the Public
Prosecutor/Assistant Public Prosecutor under section 321 of the Code to
apply for withdrawal from the Prosecution, but the said powef' must be
D a controlled or guided power or else it will fall foul of Article 14 of the
Constitution. Section 321 is more or less similar to the powers of the
police under s.173 of the Code of Criminal Procedure. [746F-HI

The police has no absolute or unfettered discretion whether to
prosecute an accused or not to prosecute him. In fact, in the constitu- .,4..
E tional scheme, conferment of such absolute and uncanalised discretion
would be violative of the equality clause of the Constitution. The Magis-
Irate is therefore given the power to structure and control the discretion
of the police. The discretion of the police to prosecute is thus "combined
and confined" and, subject to appeal or revision, and the Magistrate is
made the final arbiter on this question. The Legislature has in its
F wisdom taken the view it would be safer not to vest absolute discretion
to prosecute in the police which is an Executive arm of the go\·ernment '
but to subject it to the control of the judicial organ of the State. The 7'
same scheme has been followed by the Lesiglature while conferring
power on the Public Prosecutor to withdraw from the prosecution. This
power can be exercised only with the consent of the court so that the
G court can ensure that the power is not abused or misused or exercised in
an arbitrary or fanciful manner. Once the charge-sheet is filed and the
prosecution is initiated, it is not left to the sweet-will of the State or the ~
Public Prosecutor to withdraw from the prosecution. Once the pro-
secution is launched, its relentless course cannot be halted excep• on
sound considerations ger.nane to public justice. The Public Prosecutor.
H cannot therefore withdraw from the prosecution unless the Court
SHEO NANDAN PASWAN v. STATEOFBIHAR 717

>--· before· which the prosecution is pending gives its consent.for such with- A
drawal. This is a provision calculated to ensure non-arbitrariness on the
part ofthe Public Prosecutor and compliance with the equality clause of
the Constitution. [748D'H]

H.S. Bains v. State, AIR 1980SC 1883; Subhash Chander v. State
4 & Ors., [1980] 2 SCR 44; M.N. Sankaranarayanan Nair v. P.N. B
Balakrishnan & Ors., [1972] 2 SCR 599; and State of Orissa v.
C. Mahapatra, [1977] 1SCR385, referrOd to.

- 7. I The position in law in regard to the degree of autonomy en-
joyed by the Public Prosecutor vis-a-vis the government in filling an
application for withdrawal of the prosecution is rather confused. Now C
there can be no doubt that prosecution of an offender who is alleged to
have committed an offence is primarily the responsibility of the Execu-
tive. It is the Executive which is vested with the power to file a charge-
sheet and initiate a prosecution. This power is conferred on the Execu-
tive with a view to protecting the society against offenders who disturb
the peace and tranquility of the society by committing offences. Of D
course it is left to the court to decide whether to take cognizance of the
offences set out in the charge-sheet but the filing of the charge-sheet and
initiation of the prosecution is .solely within the respo}lsibility of the
Executive. It is the State through the investigating authorities which
-,.I..· files· a charge-sheet and initiate the prosecution and the Public Pro-
secutor is essentially counsel for the State for conducting the prosecu- E
lion on behalf of the State. The Public Prosecutor is an officer of the
court, as indeed every advocate practising before the court is, and he
owes an obligation to the_ court to be fair and just: he must not introduce
any person interest in the prosecution nor must he be anxious to secure
conviction at any cost. He must present the case on behalf of the pro-
secution fairly and objectively. He is bound to assist the court with his F

/ r \
fairly considered view and the fair exercise of his intention. But at the
same time he conducts the prosecution on behalf of the Central Govern-
ment or the State Government, as the case may be, and he is an advo-
cate acting on behalf on the Central Government or the State Govern-
ment which has launched the prosecution. There is nothing wrong if the
government takes a decision to withdraw from the prosecution and G
communicate such direction to the Public Prosecutor. The Public Pro-
secutor, would, inter alia, consider the grounds on which the govern-
ment has taken the decision to withdraw from the prosecution and if he
is satisfied that those grounds are legitimate, .he may file an application
for withdrawal from the prosecution. If on the other hand he takes the
view that the grounds which have been given by the government are not H
718 SUPREME COURT REPORTS [!987] lS.C.R.

legitimate he has two options available to him. He may inform the
A
government that in his opinion, the grounds which have weighed with
the government are not valid and that he should be relieved from the
case and if this request of his is not granted he may tender his resigna·
lion or else, he may make an application for withdrawal from the pro-
secution as directed hy the government and at the hearing of the appli-
B cation he may offer his considered view to the court that the application
is not sustainable on g~ounds set out by him and leave it to the court to
reject the application. There is nothing wrong in the Public Prosecutor
being advised or directed by the government to file an application for
withdrawal from the prosecution and the applicaiion for withdrawal
made by him pursuant to such direction or advice is not necessarily
vitiated. The Public Prosecutor· can of course come to his own indepen-
-
c dent decision that the prosecution should be withdrawn but ordinarily if
he is wise and sensible person he will not apply for withdrawal without +
consulting the government because it is the government which· has
launched the prosecution and is prosecuting the accused. Theoretically
of course, he can make an application for withdrawal from the prosecu-
D tion without consulting the government and he cannot be accused of any
illegality for doing so and the court may give its consent for such with-
drawal but in that event the Public Prosecutor would render the risk of
incurring the displeasure of the Government which has appointed him.
If the Public Prosecutor seeks the permission of the government for
withdrawal from the prosecution and the government grants such pers-
E mission to him and on the basis of such permission he applies for with-
drawal the application cannot be said to be vitiated. The proviso to
s.321 in fact contemplates in so many--terms that in-certain categories of
offences the Public Prosecutor appointed by the State Government can-
not move the court for its consent to withdraw from the prosecution
without the permission of the Central Government. There is no danger
F of abuse or misuse of power by the Government inherent in this process
because there are two principal safeguards against any such abuse or J-\
misuse of power by the government: one is that an application must be
based on grounds which advance public justice and the other is that there can
be no withdrawal without the consent of the Court. [755C-H; 756A-H; 751A-F]

G State of Bihar v. Ram Naresh Pandey, [1957] SCR 279; Ba/want
Singh v. State of Bihar, [1978] I SCR 604; M.N. Sankaranarayanan
Nair v. P. V. Balakrishnan & Ors ... [1972] 2 SCR 599; State ofOrissa, v.
C. Mahapatra, [1977] I SCR 335 and R. K. Jain v. State, [1980] 3 SCR
982, referred to.

H 7_.2 The Public Prosecutor cannot maintain an application· for
SHEO NANDAN PASWAN '·STATE OF BIHAR 719

withdrawal from the prosecution on the ground that the government A
does not want to produce evidence and proceed with .the prosecution
against the accused or that the government considers that it is not
expedient to proceed with the prosecution. The Public Prosecutor has to
make out some ground which would advance or further the cause of
public justice. If the Public Prosecutor is able to show that he may not
be able to produce sufficient evidence to sustain the charge, an applica- 8
tion for withdrawal from the prosecution may be legitimately made by.
him. [758H; 759A-B] .

7 .3 However, where a charge has been.framed by the court either
under s.228 or s.240 of the Code of Criminal- Procedure, 1973 it would
not be open to the Public Prosecutor to apply for withdrawal from the C
prosecution on the ground of insufficiency of evidence in support of the
prosecution. The reason is that in both these cases the Court applies its
mind to the material consisting of the police report and the documents
sent with it under s.173 and comes to a conclusion that a prima fade
case has been made out against the accused and the charge should
therefore be framed. When the court has come to this conclusion after D
full consideration and framed a charge, the court cannot be persuaded
on the same material to hold that there is not sufficient evidence to
sustain the prosecution. The Public Prosecutor cannot be permitted to
make a volte face on the basis of the same material. To do_ so would be
·~ mockery of justice and it would shake the confidence of the court in the
purity and integrity of the administration of justice. It is, therefore, E
clear that though the prosecution can be withdrawn at any stage, even
after the framing of the charge, it would not be competent lo the Public
~ Prosecutor once the charge is framed, to apply for withdrawal of the
prosecution on the ground that the same material which was before the
court when it framed the charge is not sufficient to sustain the prosecu·
lion. Of course, if some material has subsequently come to light which F
j·rthrows doubt on the veracity ·of the prosecution case the Public Pro-
_,· secutor can certainly apply for withdrawal on the ground that the pro-
secution is not well-f'!unded. It may also happen in the meanwhile a key
witness may have died or some important evidence may have become
unavailable or some such thing may have happened in that event, the
Public Prosecutor may legitimately feel that it will not be possible to G
sustain the prosecution in the absence of such evidence and he may
f ,apply for withdrawal from the prosecution. But on the same material
withouf anything more, the Public Prosecutor cannot apply for with-
drawal from the prosecution after the charge is framed. To allow him to
do so would impair the faith of the people in the purity and integrity of
H.
the judicial process. [759C-H; 760A-E]
720 SUPREME COURT REPORTS [1987] l S.C.R.

Bansi Lal v. Chandi Lal, AIR 1976 SC 370, referred to.
A
7 .4 Further while exercising its function under s:239 is to con-
sider the police report and· the document sent along with it as also any
statement made by the accused if the court chooses to examine him. And
if the court finds that there is no prima facie case against the accused
B the court discharges him. But that is precisely what the court is called
upon to do when an application for withdrawal from the prosecution is
+
made by the public prosecutor on the ground that there is insufficient or
no evidence to support the prosecution. There also the court would have
to consider the material placed before it on behalf of the prosecution for
the purpose of deciding whether the ground urged by the public pro- ).
secutor for withdrawal of the prosecution is justified or not and this
-
c material would be the same as the material before the court while
discharging its function under s.239. If the court while considering an --t
application for withdrawal on the ground of insufficiency or. absence of
evidence to support the prosecution has to scrutinise the material for
the purpose of deciding whether there is in fact insufficient evidence or
D no evidence at all in support of the prosecution, the court might as well
engage itself in this exercise while considering under s.239 whether the
accused shall be discharged or a charge shall be framed against him. It
is an identical exercise which the court will be performing whether the
court acts under s.239 or under s.321. If that be so, in a warrant case
instituted on a police report the public prosecutor should not be entitled
E to make an application for withdrawal from the prosecution on the
ground that there is insufficient or no evidence in support of the pro-
secution. The court will have consider the same issue under s.239 and it
will most certainly further or advance the case of public justice if the
court examines the issue under s.239 and gives its reasons for discharg-
ing the accused after a judicial consideration of the material before it,
F rather than allow the prosecution to be withdrawn by the Public Pro-
secutor. When the prosecution is allowed to be withdrawn there is ·)-;·
always an uneasy feeling in the public mind that the case has not been
allowed to be agitated before the court and the court has not given a
judicial verdict. But if on the other hand, the court examines the mate-
rial and discharges the accused under s.239 it will always carry greater
G conviction with the people because instead of the prosecution being
withdrawn and taken out of the ken of judicial scrutiny the judicial
verdict based on assessment and evaluation of the material before the
court will always inspire greater confidence. Since the guiding consi-
deration in all these cases is the imperative of public justice and it is
absolutely essential that justice must not only be done but also appear to
H be done. Hence in a warrant case instituted on a police report-which the
SHEO NANDAN PAS WAN,._ STATE OF BIHAR 721
.,-,, .
present case again~! Dr. Jagannath Misra and others admittedly is-it A
should not be a legitimate ground for the public prosecutor to urge in
support of the application for withdrawal that there is insufficient or no
evidence in support of the prosecution. The court in such a case should
be left to decide under s.239 whether the accused should he discharged
or a charge should be framed against him. [761A-H; 762A-B]
B
7.S Ultimately every offence has a social or economic cause be-
hind it and if the State feels that the elimination or eradication of the
social or economic cause of the crime would be better S.rved by not
~ proceeding with the prosecution·, the State should clearly be at liberty to
. ..( withdraw from the prosecution. Though in this area no hard and fast
rule can be laid down nor can any categories of cases be defined in which · C
an application for withdrawal of the prosecution could legitimately be
~ made. It must ultimately depend on the facts and circumstances of each
case in the light of what is necessary in order to promote the ends of
justice. [762C-D; H; 763A-B]

7 .6 The Court, while considering whether to grant consent or D
not, must not accept the ipse dixit of the public prosecutor and content
itself by merely examining whether the public prosecutor has applied an
independent mind but the court .must satisfy itself not only that· the
l grounds are germane or relevant to advancement of public justice b_ut
· ~ also whether the grounds in fact are satisfactorily established. The ulti-
mate test which must be applied by the court in order to determine the E
validity of the grounds in a particular case is that the requirement of
public justice outweighs the legal justice of that' case so that withdrawal
'°' from the prosecution could be permitted in the larger interest of public
justice. The imperative of public justice provides the only relevant con-
sideration for determining whether consent should be granted or not. It
, ·is not possible to provide an exclusive definition of what may be re- F
·;{ garded as falling within the imperative of public justice in a strait-
. ' jacket formnla. Every case must depend on its peculiar facts and
circumstances because there may be a myriad situation where this ques-
tion may have.to be considered by the Court. [763G-H; 764A-D]

8. Applying these principles to the facts of the present case, it is G
clear, that the conrt of the Chief Judicial Magistrate Patna as also the
·f High Court were clearly in error in granting consent to the withdrawal
from the prosecution against Dr. Jagannath Misra and others. There
are two very strong and cogent reasons why consen! to the withdrawal
of the prosecution most be refused. In the first place, the learned Chief
Judicial Magistrate could have considered under s.239 whether the H
722 SUPREME COURT REPORTS [1987] l S.C.R.

A material placed before him was sufficient to make out a prima facie case ~
against Dr. Jagannath Misra and the other accused so that if the learned
Chief Judicial Magistrate came to the conclusion on the hasis of such
material that the charge against Dr. Jagannath Misra and the other
accused was groundless, he would be bound to discharge them for
reasons to be recorded by him in writing. There is no reason why in
B
these circumstances the public prosecutor should be allowed to with- -+·
draw from the prosecution under s.321. The same exercise could be
performed by the learned Chief Judicial Magistrate by acting under
s;239. Moreover, in the present case, the decision to withdraw from the
prosecution was taken by the Cahinet at a meeting held on 24th
February 1981 and this meeting was presided over by Dr. Jagannath )-
...
c Misra himself. It may be that Shri Lallan Prasad Sinha did not im-
plicitly obey the decision of the Cahinet and applied his independent
mind to the question whether the prosecution should be withdrawn or -t
not but even so, it would seriously undermine the confidence of the
people in the administration of justice if a decision to withdraw the
prosecution against him is taken by the accused himself and pursuant to
D
this decision the Special Public Prosecutor who was appointed by the
State Government of which the accused is Chief Minister, applies for
withdrawal from the prosecution. It is an elementary principle that
justice must not only done but must also appear to be done. It would be
subversive of all principles of justice that the accused should take a
decision to withdraw the prosecution against himself and then the Spe- A.-
E
cial Public Prosecutor appointed in effect and 'Substance by him makes
an application for withdrawal from the.prosecution. [764E-H; 765A-E]

8.2 It is no doubt true thal if titere is not sufficient evidence to -~

sustain°the prosecution against Dr. Jagannatb Misra and the other
accused, it would be subjecting them to harassment and inconvenience
F to require them to appear and argue before the Court for the purpose of

desirable in the interest of public justice that high political personages. ~
securing an order of discharge under s.239, but even so it would be

accused of offences should face the judicial process and get discharged,
rather than seem to manoeuvre the judicial system and thus endanger
the legitimacy of the political as well as the judicial process. It is possi-
G hie that in a particular case personal harassment or inconvenience may
be caused by non withdrawal of the prosecution, if the accused is really
innocent and is ultimatley liable to be discharged, but such harassment .Jr
or inconvenience must be considered as an inevitable cost of public life,
which the repositories of public power should have no hesitation to pay, as
justice must not only be done but must alsoappeartobedone. [765E-H; 766A]
H
SHEO NANDAN PASWAN v. STATE OF BIHAR [BHAGWATI,J.] 723

~-· CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 241 of 1982 .
. From the Judgment and Order dated 14.9.81 of the Patna High
Court in Cr!. Revision No. 874/81.

--.i Dr. L.M. Singhvi, S.K. Sinha, S.K. Verma, A.M. Singhvi, S. B
Singh, C. Mukhopadhya and R. Tyagi for the Appellants.

Dr. Y.S. Chitale, F.S. Nariman, S.N. Kacker, Rajinder Singh,

- .-..(
D. Goburdhan, D. Chandrachud, L.R. Singh, Gopal Singh, M.P. Jha,
R.K. Jain, Ranjit Kumar and B.P. Singh for the Respondents .

The following Judgments were delivered:
c
~
BHAGWATI, CJ. This case has had a chequered history and it
is necessary to state the facts in some detail in order to appreciate the
questions which arise for determination before us. The principal actor
in the drama in this case is Dr. J~gannath Misra, one time Chief D
Minister of the State of Biliar. The main controversy around· which all
·questions revolve is whether the prosec9tion launched against Dr.
Jagannath Misra at a time when he was not in power has been rightly
allowed to be withdrawn by the Chief Judicial Magistrate or whether
~ such withdrawal is invalid and must be set aside so that the prosecution
can continue against Dr. Jagannath Misra. E

The fact-situation out of which this case arises relates to the
affairs of a cooperative Bank called the 'Patna Urban Cooperative
Bank' (hereinafter referred to as the 'Cooperative Bank'). The
Cooperative Bank was registered in May 1970 and it commenced its
banking business with Nawal Kishore Sinha as its Chairman, K.P. F
~··
Gupta as its Honorary Secretary, M.A. Hyderi as its Manager and
/ I ' A.K. Singh as a loan clerk. It was not seriously disputed that most of
the members of the Cooperative Bank were closely associated with
Nawal Kishore Sinh~. The object of the Cooperative Bank was to help
people financially to set up small industries and businesses and to assist
people in ordinary circumstances to cariy on their vocation or busi- G
ness. There was a sub-Committee formed, called "Loan Sub Commit-
tee", consisting of Nawal Kishore Sinha, K.P. Gupta and one
Pumendu Narain, an Advocate, to attend to the work of sanctioning
and granting of loans. The Chairman, i.e., Nawal Kishore Sinha, was,
according to the bye-laws, the ultimate deciding authority in regard to
all the functions of the Cooperative Bank and the Honorary Secre- H
•
''
724 SUPREME COURT REPORTS [1987] l S.C.R.

A tary i.e. K.P. Gupta along with the Chairman had to exercise
supervisory control over all the· activities of the Cooperative Bank,
while .the Manager, i.e. M. A. Hyderi, was concerned only with its
day-to-day working. Dr. Jagannath Misra who was then a Member of
the Legislative Council was closely associated with Naw al Kishore
Sinha and he helped the Cooperative Bank and Nawal Kishore Sinha
B in diverse ways in connection with the affairs of the Cooperative Bank
and also assisted in mobilisation of resources for the Cooperative
Bank. Sometime in 1974 separate audits into the functioning of the
Cooperative Bank were carried out by the Reserve Bank of India as
well as the Cooperative Department of the State of Bihar for the years
1972-73 and 1973-74 and as a result of these audits, there came to light
C a large number of irregularities such as non-maintenance of cash books
-
in a proper manner and grant of overdraft facilities without current
account as also illegal practices and acts of defalcation anct' malversa-
tion of funds of the Cooperative Bank. The audit reports disclosed that
huge amounts running into lakhs of rupees had been squandered away
by giving loans to non-members, giving loans even without applica-
D lions, agreements or promissory notes, giving loans without hypothe-
cation or security, giving short-term loans instead ·of releasing cash
from sale proceeds of hypothecated goods, giving loans to the same
persons in different names and giving kians to fictitious persons and
non-existing firms or industries. There were instances where loans had
been granted on the security of Gandhi Maidan and Patna Railway
E Station. The audit team of the Reserve Bank in its Report came to the
conclusion that Nawal Kishore Sinha and others were responsible for
'bad loans' to the tune of Rs. 12 lakhs and misappropriation and
embezzlement of funds to the extent of Rs.25 lakhs.

On the basis of these audit reports, the Registrar Cooperative
F Societies, at the instance of the Reserve Bank, made an order on 10th
July 1974 superseding the management of the Cooperative Bank, re- )\
moving Naval Kishore Sinha and other Directors on the Board from
their office as Chairman and Directors and appointing an officer of the
Cooperative Department as Special Officer to. look-after the affairs of
the Cooperative Bank. The Registrar, Cooperative Societies followed
G up this action by putting up a note dated 4th November 1974 to the
Secretary, Cooperation pointing out that, according to the audit re-
ports, prima facie charges of defalcations, embezzlement of funds,
conspiracy etc. were made out against the officials of the Cooperative
Bank and legal action should be taken against them after taking the
opinion of the Public Prosecutor. The Secretary, Cooperation by his
H note dated 7th November 1974 sought the opinion of the Law Depart-
SHEO NANDAN PASWAN v. STATEOFBIHAR IBHAGWATI,J.] 725

.r ment in regard to the action to be take~ as suggested in the note of the i; A
Registrar, Cooperative Societies. The Law Department recorded its
opinion in the relevant file on i8th November 1974 that a prima facie
case of conspiracy and criminal breach of trust was made out against
the loanees and the office bearers of the Cooperative Bank. On the
basis of this opinion, a draft complaint was prepared on 16th
-+ December 1974 by the Asstt. Public Prosecutor, Patna for being filed B
in the court of the Chief Judicial Magistrate, Patna and on the same
day, an office noting was made on the· file suggesting that the advice of
the Law Department on the draft complaint be obtained. This course
of action was approved by the Secretary, Cooperation and the Minister
for Cooperation also approved of it on 1st January 1975 and it also
· ...( received the approval of the then Chief Minister, Shri Abdul Ghafoor C
on 2nd January 1975. The file was then sent back to the Law.Depart-
-'t ment and the Law Department again reiterated its earlier advice for
launching the prosecution and on the file being received b~ck on 17th
January· 1975, the Secretary Cooperation, endorsed the file on 2 Jst
January J975to the Additional Public Prosecutor, Shri Girish Narain
Sinha, for necessary action, that is, to file the prosecution. Thus, by D
2 [st January 1975 a firm decision was taken to launch a criminal pro-
secution- against the loanees and the members of the Board of
Directors of the Cooperative Bank including the Chairman Na val
Kishore Sinha and a complaint in that behalf duly approved by the
;; Law Department and signed by Shri Jagdish Narain Verma, Di~trict
Cooperative Officer, Patna on 25th January 1975 was ready with the E
Addi. Public Prosecutor, for being filed in the court of the Chief
Judicial Magistrate. But before the Additional Public prosecutor could
file the complaint, Dr. Jagannath Misra who was then Minister
~i.ti:harge of Agriculture and Irrigation wrote a buff-sheet note dated
24ih.January 1975 asking the Secretary Cooperation to send the con-
c~me'd,file along with the audit reports to him before instituting the F
.,.<criminal case. It may be pointed out that under the Notification dated
1 '30th April 1974 issued under Article 166(3) of the Constitution read

with Rule 5 of the Rules of Executive Business of the State of Bihar,
the then Chief Minister Shri Abdul Ghafoor, was holding inter a/ia the
portfolio of Law but, according to the affidavit of Shri Neelanand
Singh dated 19th October 1982 filed on behalf of respondent No: I in G
this Court, Shri Abdul Ghafoor had, with a view to lessen his heavy
·j . burden, requested Dr. Jagannath Misra to look after the work of the
Law Department. Since Dr. Jagannath Misra asked for the
concerned file, Shri Abdul Ghafoor, on a reference made to him di-
rected on 27th January 1975 that the file may be sent to Dr. Jagannath
Misra. The Secretary, Cooperation accordingly recalled the comp- H
726 SUPREME COURT REPORTS (1987) l S.C.R.

·A laint and other papers from the Additional Public Prosecutor on. 28th
January 1975. The file was then placed before R.K. Srivastava, Minis-
ter of Cooperation and he made an endorsement on t!ie file on 31st
January 1975 pointing out various instances of critr;,.d conspiracy
criminal breach of trust and misappropriation of pubuc funds which
had come to light against the Directors of the Cooperative Bank and
B sent the file to Dr. Jagannath Misra route to the Chief Minister
since they 'wanted to see the file before the complaint was actually
·lodged. It does not appear from the record as to when the file was
actually sent to Dr. Jagannath Misra but in any event the file was in
the h·ands of Dr. Jagannath Misra on 24th February 1975. The file_
remained with Dr. Jagannath Misra for over two and a half months
C · and no endorsement was made by him on that file until the middle of · -
May 1975 with the result that prosecution could not be filed _against
Naval Kishore. Sinha and the other Directors. Meanwhile on I Ith
April 1975, Shri Abdul Ghafoor was thrown out and in his place. Dr.
Jagannath Misra became Chief Minister. Dr. Jagannath Misra made
an Order in his own hand in Hindi in the file on 16th May 1975 regard-
D . ing the action to be taken against Nawal Kishore Sinha and others and
the English translation of this Order ran as follows: .

"Much time has passed. On perusal of the File it appears
·· that there is no allegation of defalcation against the
Chairman and the Members of the Board of the Bank.
E Stem action should be taken for realisation of loans from
·the loanees and if there are difficulties in realisation from
the loariees surcharge proceedings should be initiated
against the Board of Directors. The normal condition be
resorted in the Bank after calling the Annual General
Meeting and holding the election.~
'-. F
Sd/-
May 16, 1975 .Jagannath Misra.

In the margin opposite ' to this Order, the seal co_ntaining the
0
/de_spatch entry originally showed )\fay 16, 1975 as the date on which
_G · the file was despatched from the Chief Minister's secretariat to the
Cooperative Department after Dr. Jagannath Misra had made the
·Order. It is obvious from the first part of the Order that Dr:Jagannath
.____ ·. · Misra did not want any Criminal prosecution to be launched against
Nawal Kishore Sinha and the other Members of the Board of the
Cooperaiive Bank and that is why he observed that there was no
H allegation of defalcation against the Chairman and the Members of the.
SHEONANDAN PASWAN v. STATE OFBIHAR (BHAGWATl.J.( 727

t Board though that was not correct. The object of making this observa- A
tion clearly was to pre-empt the filing of any criminal prosecution
against Nawal Kishore Sinha and the other members·of the Board. The
second part of the Order provided that if there was any difficulty in
realisation of the loans from the loanees, surcharge proceedings
should be initiated against the Chairman and other members of the
~ Board and since the loans advaneed by the Cooperative Bank were B
mostly in fictitious names and in any event it was impossible to recover
them. It was clear that, on the basis of this part of the Order, surcharge
proceedings would have to be adopted against the Chairman and other
Directors of the Cooperative Bank. Now, according to the despatch
• entry as originally made, the file containing this Order must have left
.-.(
the office of Dr. Jagannath Misra on 16th May 1975, though the case
of Dr. Jagannath Misra is that it never left his offifce. If the file left
c
~ the office of Dr. Jagannath Misra on 16th May· 1975, it dqes not
appear from the record as to when it came back, because there is no
endorsement or seal showing inward receipt of the file by the Sec-
retariat of Dr. Jagannath Misra. But whether the file remained in
the office of Dr. Jagannath Misra as claimed by him or it left the D
office on 16th May 1975 and subsequenily came back to the office, it is
indisputable that Dr. Jagannath Misra passed another Order in his
own hand on a piece of paper in Hindi under his signature and had it
pasted over the earlier order dated 16th May 1975 so as to efface the
j same completely and this.subsequent Order was ante-dated to 14th
May 1975. The date of despatch namely, 16th May 1975 in the des- E
patch entry appearing in the margin was also altered to 14th May 1975
by over-writing. The English translation of this second Order addres-
• sed to the Minister, Cooperation was in the following terms:

"Please issue order for restoring the normal condition in
the Bank after·holding Annual General Meeting". F
.....-1
r" Sd/-
May 14, 1975 Jagannath Misra"

The explanation given on behalf of Dr. Jagannath Misra was that, as
Chief Minister, he had authority and power to revise or review his G
earlier order and that it is the usual practice prevailing ·at the Patna
Secretariat that whenever any order passed earlier is sought to be re-
vised or reviewed by the same officer or Minister, it is done by pasting
it over by a piece of paper containing the revised order. But even with
this explanation, the admitted position that emerges is that the first
Order dated 16th May 1975 made by Dr. Jagannath Misra in !"is own. H

,
728 SUPREME COURT REPORTS [1987] 1 S.C.R.

A
handwriting in the file was obliterated by the second Order made by ~
him subsequent to 16th May 1975 but ante-dated to 14th May"l975 and
the date '16th May 1975' in the despatch entry was also changed to
14th May 1975 by overwriting. The effect of this action on the part of
Dr. Jagannath Misra was that even the direction to adopt surcharge
proceedings against the Chairman and Board of Directors in default of
B realisation of the loans from the loanees, was wiped out and the only
direction whicn remained was that norman condition in the Coopera- -+--
tive Bank should be restored by calling the Annual General Meeting
and holding the election. Thus, not only no approval was given by Dr.
Jagannath Misra to the filing of the prosecution against the Chairman
and members of the Board of Directors but no directon was given even )-
.,.
in regard to the adoption of surcharge proceedings against them.
c There can ·be no doubt that Dr. Jagannath Misra as Chief Minister had
the authority and power to revise the earlier Order dated 16th May ~
1975 and he could have easily done so, but instead, he ante-dated the
second Order to 14th May 1975 and pasted it over the earlier Order
dated to 16th May 1975 so as to efface it altogether and also altered
D the date of the despatch entry to 14th May 1975. The contention was
that this was deliberately done _by Dr. Jagannath Misra with- the
fraudulent intent to override the effect of the earlier Order dated 16th
May 1975 and protect Nawal Kishore Sinha from civil liability arising
from initiation of surcharge proceedings. This contention was disputed
on behalf of Dr. Jagannath Misra and it was said that this was an ,)---
E innocent act in accordance with the practice of the Patna secretariat
and the ante-dating was not mala fide but simply a result of bona fide
error. This is a matter which would have to be gone into by the Court if
the withdrawal of the prosecution is set aside and the prosecution is
directed to be continued against Dr. Jaganna_th Misra.

F So far as the filing of the prosecution against N aw al Kish re
Sinha and the other members of the Board of Directors was con-
cemed, it appears that the Cooperative Department wanted to go ~
ahead with it and the Minister, Cooperation accordingly put up a Note
dated 28th June 1975 and sought directions from Dr. Jagannath Misra
as to what should be the next course of action in the matter of filing of
G the complaint. Dr. Jagannath Misra in response to this query· passed
the following Order in the file on 30th June 1975: "Discussion has
been held. There is no need to file .the prosecution." This clearly -
shows that Dr. Jagannath Misra did not want any prosecution to be ~
filed against Nawal Kishore Sinha and others and wanted to protect
Nawal Kishore Sinha against any such criminal prosecution. It appears
H that in July 1975 there were questions and call attention motions in the
SHEONANDAN PASWAN v. STATEOFBIHAR [BHAGWATl,J.l 729
'
~- Bihar legislative Assembly and in the course of the proceedings, the A
propriety of not filing prosecution against Nawal Kishore Sinha and
others connected with the affairs of the Cooperative Bank, despite the
advice of the Law Department, was discussed and the Speaker refer.
red the matter to the Estimates Committee of the House. The next
_.,._ event which happened in chronological sequence was that, the annual
general meeting of the Cooperative Bank was held and the associates B
of Nawal Kishore Sinha were elected in November, 1975, the manage-
ment of the Cooperative Bank was handed over to the elected
directors. But, on 15th April, 1976 the Reserve Bank of India cancel-
... led the banking licence of the Cooperative Bank and on 19th April,
1976 the Cooperative Bank was ordered to be liquidated and T. Nand
-../
' Kumar, an !AS officer, was appointed liquidator of the Cooperative c
Bank.
-~

The Estimates Committee to which the matter had been referred
by the -Speaker submitted its report in June, 1976 recommending pr-0-
secution of Nawal Kishore Sinha and others and this led to a debate in
the Bihar Legislative Assembly in July 1976, the upshot of which was D
that the-Gov_emment was forced to agree to launch prosecution against
the culprits. Dr. Jagannath Misra accordingly passed an order on 4th
August 1976 directing launching of prosecution against those involved
in the sordid affairs of the Cooperative Bank but even there, he
--1- directed that th!' prosecution be launched_ against some of the office
bearers and loanees including K.P. Gupta, M.A. Hyderi and A.K. E
Singh but not against Nawal Kishore Sinha. Thus, 23 criminal cases

. were filed against these office bearers and loanees but Nawal Kishore
Sinha. was excluded from being arraigned as an accused in these cases .
This order made by Dr. Jagannath Misra affords the clearest indica-
tion that, even w;th all the furore which had arisen on account of
non-prosecution of Naw'at Kishore Sinha and others. Dr. Jagannath F
----\ "Misra persisted in his attempt to shield Nawal Kishore Sinha from
/ ' prosecution. T. Nand Kumar, liquidator of the Cooperative Bank
however addressed a communication to the Registrar Cooperative
Societies suggesting that besides the other office bearers, Nawa!
Kishore Sinha also deserved to be prosecuted .for the offences of
embezzlemeni, forgery, cheating etc. but the maiter was kept pending G
for the report of the Superintendent of the Police (Cooperative Vigi-
-i lance Cell). The Superintendent of Police (Cooperative Vigilance
Cell) after collecting the necessary evidence got it examined by the
Deputy Secretary, Law, and on the basis of the opinion given by the
Law Department that a criminal case was fully made out against Nawal
Kishore Sinha. He proposed on the file on 8th October, 1976 that a H
730 SUPREME COURT REPORTS [1987] 1 S.C.R.

A fresh criminal case as per draft first information report, should be filed
against Nawal Kishore Sinha and he should also be made co-accused in
the previously instituted cases. This proposal was approved by the
*
Deputy Inspector General (CID) and it was submitted to the Commis-
sioner of Cooperative Department for obtaining the approval of the
Chief Minister, that is, Dr. Jagannath Misra. Since Dr. Jagannath
B Misra had earlier made an order restricting the filing of criminal cases
.,.__
against some of the office bearers.and loanees and excluded Nawal
Kishore Sinha from the prosecution, the Superintendent of Police in
charge of cooperative vigilance cell categorically stated in his note that

c
the draft first information report against Nawal Kishore Sinha had
been vetted by the Deputy Secretary, Intelligence CID, as well as by
Inspector General of Police. The Commissioner of Cooperative
'y -
Department after examining the entire material carefully and obtain-
ing clarifications on certain points put up a lengthy note on 15th --+
January, 1977, to the Minister Cooperation in which he specifically
placed the proposal of the Superintendent of Police (Cooperative Vigi-
lance Cell) for launching first information report against Nawal
D Kishore Sinha for his approval and also suggested that the Hon 'ble
Minister may obtain the approval of the Chief Minister. The Minister
Cooperation in his turn endorsed the file on 20th January, 1977 to the
Chief Minister for approval. The file was received in the secretari.at of
the Chief Minister on 30th March, 1977 and Dr. Jagannath Misra as
Chief Minister instead of clearly and specifically approving the pro- ~
E posal or even indicating his mind either way, merely marked the file to
'LG. of Police' on 9th April, 1977. It is difficult to understand this
endorsement made by Dr. J agannath Misra because the draft first
information report had already been vetted and approved by the Ins-
pector General of Police and there was no point in referring the matter
back to the Inspector General of Police. If Dr. Jagannath Misra was
F merely approving the action proposed to be taken he would have
either made an endorsement of approval or put his signatures or ini-
tials without saying anything more but instead he marked the file to
-~
~1.G. of Police'. There is considerable force in the submission n1ade oil
bahalf of the appellant that the object of making this endorsement was
merely to put off the matter. Soon thereafter however on 30th April,
G 1977 the Government of Dr. Jagannath Misra went out of power and
President's Rule was imposed in the State of Bihar. The file containing
the proposal for prosecution of Nawal Kishore Sinha then went to the
~
Advisor (Cooperation) under the President's Rule and he approved
the proposal on 15th May, 1977 and the then Governor, Shri Jagan-
oath Kaushal, gave his approval to the proposal on 16th May, 1977
H with the result that a criminal case ultimately came to be filed against
SHEONANDAN PASWAN v. STATE OFBIHAR (BHAGWATl,J.] 731

;>-· Nawal Kishore Sinha on 30th May. 1977. It is obvious from this narra- A
tion of facts that Dr. Jagannath Misra, whilst he was in power, made
determined effort to protect Nawal Kishore Sinha against any criminal
prosecution even though the filing of criminal prosecution was advised
by the Reserve Bank of India and the Cooperative Department, proposed
by the investigating authoritie~, recommended by the Estimates Com-
-----6. mittee and strongly supported by the Law Department. But ultimately B
a criminal prosecution was launched against Nawal kishore Sinha after
Dr. Jagannath Misra went out of power.

· Sometime in May. 1977 as a result of fresh elections to the State
Legislature, a new Government came to power in the State of Bihar
and at the instance of Shri Karpoori Thakur who'became the Chief C
Minister in the new Government, an inquiry was directed into the
~ allegations regarding irregularities in the affairs of the Cooperative
Bank. The inquiry was entrusted to the then Secretary· Shri D.N.
Sahay. Meanwhile a .Commission of Inquiry had already been insti-
tuted by the State Government and Shri D.N. Sahay therefore addres-
sed a communication dated !st September, 1977 to the Special Secret- D
ary in regard to the charge relating to the affairs of the Cooperative
Bank and he pointed out that since an thquiry had already been
instituted, it may not be desirable to proceed with a vigilance inquiry.
Shri Karpoori Thakur however directed that the vigilance inquiry
._J
7·- might continue as the materials collected as a result of the vigilance
inquiry could be made use of by the Commission of Inquiry. The E

.
vigilance inquiry was thereafter entrusted to Shri D.P. Ojha who was
I posted as Superintendent of Police, Vigilance, by Shri Karpoori
Thakur and all the cases relating to the affairs of the Cooperative Bank
were transferred to the vigilance department. M.A. Hyderi who was
already an acctised in the previously instituted cases was rearrested in
connection with those cases and in the course of the fresh investigation F
started by the vigilance department, M.A. Hyderi made a second con-
fessional statement on 24th January, 1978 which implicated Dr. Jagan-
nath Misra which sought to support the case that Dr. Jagannath Misra
had been helping Nawal Kishore Sinha by abusing his office and for
making illegal gains for himself. It may be noted that M.A. Hyderi had
earlier made a confessional statement on 3/4th November, 1976 in G
which he had not implicated Dr. Jagannath Misra but in the second
confessional statement recorded on 24th January, 1978 he clearly and
unequivocally implicated Dr. Jagannath Misra. On 28th January, 1978·
A.K. Singh also made a confessional statement supporting the con-
fessional statement of M.A. Hyderi. Immediately after recording
these confessional statements Shri D .P. Ojha ·submitted his inquiry report H
732 SUPREME COURT REPORTS [1987] 1 S.C.R.

A recon mending institution of criminal cases against Dr. Jagannath
Misra and others. This recommendation was supported by the Deputy
Inspector General of Police (Vigilance) as also by the Inspector Gen-
*
eral of Police (Vigilance). The file was then referred to the Advocate
General, Shri K.D. Chatterjee, and the recommendation to institute
prosecution against Dr. Jagannath Misra and others was approved by
B
the Advocate General who opined that there was sufficient material ~
for the prosecution of Dr. Jagannath Misra and others. The file was
then placed before the Chief Minister, Karpoori Thakur, on 31st

-
January, 1978 and it was approved by him on the same day and a
direction was given to investigate the case against Dr. Jagannath Misra
y
and others and to institute prosecution against them. The police in the
c vigilance department- thereafter filed Vjgilance P.S. Case No. 9(2)78
and carried out further investigation and ultimately as a result of such
investigation, two charge sheets were filed against Dr. Jagannath
Misra and others on 21st February, 1979. '"'
One, A.K. Datta, a senior advocate of the Patna High Court was
D
appointed Special Public Prosecutor by the State Government on
26th February, 1979 to conduct these two vigilance cases against Dr.
Jagannath Misra and others and on 21st November, 1979, the Chief
Judicial Magistrate-cum-Special Judge, Patna took cogqizance of these
'
two cases. But before these two cases could proceed further there was
a change of Government in the State of Bihar and Dr. Jagannath Misra ~
E
once again became the Chief Minister in June, 1980. Dr. Jagannath
Misra after coming back to power constituted a Cabinet sub-
Committee on 15th September, 1980 to consider the expediency of the
withdrawal of the prosecution and on 20th February, 1981 the Cabinet .
'
sub-Committee recommended that the cases against Dr. Jagannath
Misra and others should be withdrawn. This recommendation of the
F Cabinet sub-Committee was placed before the Cabinet presided over
by Dr. Jagannath Misra and it was approved by the Cabinet on 24th ),_
February, 198]. On the same day on which the recommendation of the ,' '
Cabinet sub-Committee was approved, a decision was taken that the
two cases against Dr. Jagannath Misra and others should be withdrawn
and the State Government cancelled the panel of lawyers which had
c been constituted by the previous Government for conducting cases
pertaining to the vigilance department and in its place constituted a
new panel consisting of four lawyers including one Lallan Prasad ~
Sinha. The Secretary to the Government of Bihar thereafter addressed
a letter dated 25th February, 1981 to the District Magistrate which was
in the following terms:-
H
·· SHEONANDAN PASWAN v. STATEOFBIHAR (BHAGWATI,J.l 733

" Government of Bihar A
Law (Justice) Department

From: Shri Ambika Prasad Sinha
Secretary to Government,
Bihar, Patna -
B
To: The District Magistrate
Patna.

-y Subject:
Patna, Dated 25th Feb. 1981.

In connection with the withdrawal of Vigilance P.S. Case No. 9(2)78 c
-\-·
and P.S. cas~ No. 53(8)78.

Sir,
D
I am directed to say that the State Government have
decided to withdraw from prosecution the above men-
tioned two criminal cases on the ground of inexpediency of
prosecution for reasons of State and public policy.
-
j.
You are, therefore, requested to direct the public
E
prosecutor to pray the Court after himself considering for
the withdrawal of the above mentioned two cases for the
above reasons under section 321 of the Code of Criminal
Procedure.

Please acknowledge receipt of the letter and also
F
initimate this department about the result of the action
-:' taken.

Yours faithfully,
• sd. Illegible
S~cretary to Govt. Patna.
G

__, Memo No. MW 26/81, 1056 J.
Patna, dated 25th February, 198 J

Copy forwarded to Vigilance Department for informa-
tion..''
H
734 SUPREME COURT REPORTS [ 1987] 1 S.C. R.'

Shri Lallan Prasad Sinha thereupon filed an application in the
A
Court of the Chief Judicial Magistrate on 16th June, 1981 praying for
permission to withdraw from the prosecution of Dr. Jagannath Misra
*
and others under Vigilance P.C. Case No. 9(2)78. There were four
grounds stated in the application for permission to withdraw from the
prosecution and they may be stated as follows in the language of the
B application itself:-
~
(I) Lack of prospect of successful prosecution in the light of
evidence,

c
(2) the implication of the persons as a result of political and
personal vendetta, r -
(3) inexpediency of the prosecution for the .reasons of the
State and public policy, and ....f·
(4) the adverse effects that the continuation of the prosecu-
lion will bring on public interest in the light of the changed
situation.
D
The application after setting out these grounds proceeded to elaborate
them in the following words:-

" ..... That I have therefore gone through the case diary
and the relevant materials connected with the case and
E
have come to the conclusion that in the circumstances pre-
vailing at the time of institution of the case and the investi-
gation thereof, it appears that the case was instituted on the
ground of political vendetta and only to defame the fair
image of Dr. J .N. Mishra, who was then the leader of the
opposition and one of the acknowledged leaders of the
F
Congress party in the country. The prosecution was not
launched in order to advance the interest of public justice. I
crave leave to place materials in support of the above sub-
mission and conclusion at the time of moving this petition.

That it is in public interest that the prosecutor which
G
has no reasonable chance of success and has been launched
as a result of political vendetta unconnected with the
advancement of the cause of public justice should not pro-
ceed further. More so, as the same is directed against the
head of the Executive in whom not only the electorate have
put their faith and confidence but who has been elected
H
SHEONANDANPASWAN v. STATEOFBIHAR [BHAGWATI, l.l. 735

leader of the majority party in the legislature, both events A
have taken place after the institution of the case ...... "

.The application for withdrawal was opposed by Sheonandan Paswan, a
member of the Bihar Legislative Assembly and its Deputy Speaker at
the material time. The locus standi of Sheonandan Paswan to object to
~- the application for withdrawal was challenged by Shri Lallan Prasad B
Sinha and this challange was upheld by the learned Chief Judicial
Magistrate and it was held that Sheonandan Paswan had no locus
standi to oppose the application for withdrawal. The learned Chief

- Judicial Magistrate then considered the application for withdrawal
-.( on merits and passed an order dated 28th June, 1981 in which, af,ter
reciting the rival contentions urged before him, held that "it is a fit C
_,.. case in which prayer of the learned Special Public Prosecutor to with-
draw should be allowed and it is therefore allowed" and Dr. Jagannath
Misra and other acclised persons were ordered to be discharged. It will
thus be seen that no reasons at all were given by the learned Chief .
Judicial Magistrate in his order for giving his consent to the withdrawal
of the prosecution against Dr. Jagannath Misra and others. It does not D
appear from the order as to which ground or grounds appealed to the
learned Chief Judicial Magistrate for giving his consent to the
withdrawal.

+. · Sheonandan Paswan thereupon filed Criminal Revision Applica-
tion No. 874 of 1981 against the order of the learned Chief Judicial E
Magistrate permitting withdrawal of the prosecution but this applica-
tion was dismissed in limine by the High Court by an order dated 14th
• September 1981. The High Court observed that the learned Chief
Judicial Magistrate having considered the grounds urged by Lallan
Prasad Sinha for withdrawal of the prosecution "was satisfied that
, permission should be accorded to the special public prosecutor to ·with-· F
-;\ draw the prosecution" and there was, therefore, no illegality in the
·' ·Order passed by the learned Chief Judicial Magistrate. The High
Court did not even consider for itself whether the grounds .cin which
withdrawal of the prosecution was sought were justified or not. The
High Court seem to proceed on the basis that if the learned Chief
Judicial Magistrate was satisfied that permission should be accorded G
for withdrawal of the prosecution, that was enough and it was not
-j necessary for the High Court to examine the validity of the grounds
urged for such withdrawal. This view taken by the High Court was, as
we shall presently point out, wholly erroneous.

Since the High Court rejected the Revision Application in H
736 SUPREME COURT REPORTS [1987] 1 S.C.R.
.
A Jimine, Sheo Nandan Paswan filed the present"appeal after obtaining
special leave from this Court. The appeal was heard by a Bench of *
three Judges consisting of Tulzapurkar, Baharul Islam and R.B.
Misra, JJ. There was a difference of opinion amongst the Judges in
regard to the decision of the appeal. Tulzapurkar, J. took the view that
a prima facie case was clearly made out against Dr. Jagannath Misra
B and others and the ground urged on behalf of the State Government ~
that there was not sufficient evidence which. could lead to the convic-
tion of Dr. Jagannath Misra and others, was not well founded. The
learned Judge took this view on a detailed consideration of the mate-
rial which was on record and held that the withdrawal of the prosecu-
tion was not justified either on merits or in law and being illegal had to -=
be quashed. Bahaiullslam and R.B. Misra, JJ., on the other hand,
y
c took the view that t_he entire investigation was vitiated and no person
could be convicted on the basis of evidence procured as a result of such -+
investigation and the withdrawal of the prosecution was, therefore,
justified. Having regard to the majority judgment of Baharul Islam
and R.B. Misra, JJ., the appeal was dismissed.
D
Sheo Nandan Paswan thereupon filed a Review application be-
fore this Court. But on the date when the Review application w,as
filed, Baharul Islam, J. had already resigned his office as a Judge of
this Court. Now, under the Rules of this Court the Review application
had to be heard by the same Bench but since Baharul Islam, J. had \-
E ·ceased to be a Judge, A.N. Sen, J. was asked to join Tulzapurkar and
R.B. Misra, JJ. and thus the Bench consisting of Tulzapurkar, A.N.
Sen and R. B. Misra, JJ. heard the Review application. The judgment
of the Review Bench was delivered by A.N. Sen, J on 22nd August •
1983 and after setting out the rival arguments the learned Judge
observed:
F
"Applying the well-settled principles governing a review )-,.
petition and giving my very anxious and careful considera- ' '
tion to the facts and circumstances of this case, I have come
to the conclusion that the review petition should be admit-
ted and the appeal should be re-heard. I have deliberately
G refrained from stating my reasons and the various grounds
which have led me to this conclusion. Any decision of the
facts and circumstances which, to my mind, constitute ~
errors apparent on the face of the record and my reasons
for the finding that these facts and circumstances constitue
errors apparent on the face of the record resulting in the
H success of the review petition, may have the possibility of
\
SHEONANDANPASWAN '· STATEOFBIHAR [BHAGWATI,J.] 737

pr~judicing the appeal which as a result of my decision has A
to be re-heard."
•J
and in the result the learned Judge passed an order admitting the
review petition and directing re-hearing of the appeal. But since prior
to the date· of this judgment 'the case of Mohd. Mumtaz v. Smt.
,t Nandini Satpathy, [!983] 4 SCC 104 had already been referred to a B
Bench of five Judges, the learned Judge directed that the present
appeal should be re-heard immediately after Nandini Satpathy's case.
That is how the present appeal has now come.before this Bench of five

- --{
Judges.

There was one contention of a preliminary nature advanced by c
Mr. Narimim on behalf of Dr.Jagannath Misra and that contention was
~ that on a ·proper reading of the order on the Review Petiti?n made by
A.N. Sen, J. it was clear that the Review Bench did not exercise the
power of review and set aside the order made by the Original Bench.
The argument was that the order made by the Original Bench stood
unquashed and unreserved and it was therefore not competent to the D
Constitution Bench to rehear the ·appeal on merits as if the order of the
Original Bench did not exist. It was also urged by Mr. Nariman on
behalf of Dr. Jagannath Misra that the order made by the Review
Bench was not legal and valid since it was a non-speaking order which
-t did not contain any reasons why the order of the Original Bench ·should
be reviewed. This contention was of course not stongly pressed by Mr. E
Nariman but in any event we do not think that it has any substance. It
is undoubtedly true that the order of the Review Bench did not in so
many terms set aside the order of the Original Bench and used a rather
unhappy expression, namely, "I ...... admit the Review Petition''.
But it is clear that when the Review Bench used the expression "I
..... admit the Review Petition" it plainly unequivocally meant that it ·F
.,..( was allowing the Review .Petition and setting aside the order of the
I \
Original Bench, otherwise it is difficult to understand. how it could
possibly "direct the rehearing of the appeal". The appeal could be
reheard only if the R.eview Petition was allowed and the order of the
Original Bench was set aside and therefore obviously when the Review
Bench directed rehearing of the appeal, it must by necessary_implica- G
tion be held to have allowed the Review Petition and set aside the
Order of the Ori_ginal Bench. We cannot allow the true meaning and
-I effeC: of the order of the Review Bench to be obfuscated by a slight
ineptness of the language used by the Review Bench. We must look at_
the substance of the Order rather than its apparent form. We must
therefore proceed on the basis that the Order of the Original Bench H
738 SUPREME COURT REPORTS [1987] l S.C.R.

A was set aside and rehearing of the appeal directed by the Review ~
Bench.

We must concede that no reasons appear to have been given by
the Review Bench for allowing the Review petition and directing re·
hearing of the appeal. The question is: does this introduce any in-
B firmity in the Order of the Review Bench. There can be no doubt that
the Review Bench was not legally bound to give reasons for the Order
made by it. The apex court being the final court agaiqst which there is
no further appeal, it is not under any legal compulsion to give reasons
for an order made by it. It is not uncommon to find the Supreme Court
of the United States allowing a writ of certiorari without giving any
reasons. But merely because there may be no legal compulsion on the
c apex court to give reasons, it does not follow that the apex court may
dispose of cases without giving any reasons at all. It would be emi· >f
nently just and desirable on the part of the apex court to give reasons
for the orders made by it: But when the apex court disposes of a •
Review Petition by allowing it and setting aside the order sought to be
D reviewed on the ground of an error apparent on the face of record, it
would be desirable for the apex court not to give reasons for allowing
the Review Petition. Where the apex court holds that there is an error
apparent on the face of the record and the order sought to be reviewed
must therefore be set aside and the case must be reheard, it would
considerably prejudice the losing party if the apex court were to give
E reasons for taking this view. If the Review Bench of the apex court
were required to give reasons, the Review Bench wou.ld have to dis· .
, cuss the case fully and elaborately and expose what according to· it
constitutes an error in the reasoning of the Original Bench and this
would inevitably result in pre-judgment of the case and prejudice its
rehearing. A reasoned order allowing a Review Petition and setting
F aside the order sought to be reviewed would, even before the rehear-
ing of the case, dictate the direction of the rehearing and such direc-
tion, whether of binding or of persuasive value, would conceivably in
most cases adversely affect the losing party at the rehearing of the
case. We are therefore of the view that the Review Bench in the
present case could not be faulted for not giving reasons for allowing
G the Review Petition and directing rehearing of the appeal. It is signifi-
cant to note that all the three Judges of the Review Bench were unani-
mous in taking the view that "any decision of the facts and circumst-
ances which ..... constitute errors apparent on the face of record and
my ..... reasons for the finding that these facts and circumstances
constitute errors apparent on the face of record resulting in the suc-
H cess of the Review Petition, may have the possibility of prejudicing the
""' SHEO NANDANPASWAN v. STATE OFBIHAR [BHAGWATl,J.] 739

~ appeal which as a result of my decision has to be reheard". This A
contention of Mr. Nariman must therefore be rejected.

The learned counsel on behalf of Dr. Jagannath Misra also raised
another contention of a preliminary nature with a view to displacing
the locus standi of Sheonandan Paswan to prefer the present appeal. It
--,l was urged that when Shri Lallan Prasad Sinha applied for permission B
to withdraw the prosecution against Dr. Jagannath Misra and others,
Sheonandan Paswan had no locus to oppose the withdrawal since it was
a matter entirely between the Public Prosecutor and the Chief Judicial
. Magistrate and no other person had a right to intervene and oppose
-..
·y the withdrawal, and since Sheonandan Paswan had no standing to
oppose the withdrawal, he was not entitled to.prefer an appeal against c
the order of the learned Chief Judicial Magistrate and the High Court
+- granting permission for withdrawal. We do not think there is any force
in this contention. It is·now settled law that a criminal proceeding is
not a proceeding for vindication of a private grievance but it is a
proceeding initiated for the purpose of punishment to the offender in
the interest of the society. It is for maintaining stability and orderliness D
in the society that certain acts are constituted offences and the right is
given to any citizen to set the machinery of the criminal law in rnotion
.for the purpose of bringing the offender to book. It is for this reason
that in R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 500 this Court
i- pointed out that "punishment of the offender in the interests of the
society being one of the objects behind penal statute enacted for larger E
goods of society, the right to initiate proceedings cannot be whittled

- down, circumscribed of fettered by putting it into a strait jacket formula
of locus standi". This Court observed that locus standi of the complain-
ant is a concept foreign to criminal jurisprudence. Now if any citizen
can lodge a first information report or file a complaint and set the
machinery of the criminal law in motion and his locl,lS standi to do so F
,.
-~ cannot be questioned, we do not see why a citizen who finds that a
I \
prosecution for an offence against the society is being wrongly with-
drawn, cannot oppose such withdrawal. If he can be a complainant or
initiator of criminal prosecution, he should.equally be entitled to op-
pose withdrawal of the criminal prosecution which has already been
initiated .at his instance. H the offence for which a prosecution is being G
launched is an offence against the society and not merely an individual
~I wrong, any member of the. society must have locus to initiate a pro-
seeution as also to resist withdrawal of such prosecution, if initiated.
Here in the present case, the offences charged against Dr. Jagannath
Misra and others are offences of corruption, criminal breach of trust etc.
and therefore any person who is interested in cleanliness of"public H
..
740 SUPREME COURT REPORTS [1987] 1 S.C.R.
,.
A
administration and public morality would be entitled to file a comp-
laint, as held by this Court in R.S. Nayak v. A.R. Antulay (supra) and
equally he would be entitled to oppose the withdrawal of such prosecu-
*
tion if it is already instituted. We must therefore reject the contention
urged on behalf of Dr. Jagannath Misra that Sheonandan Paswan had
no locus standi to oppose the withdrawal of the prosecution. If he was
entitled to oppose the withdrawal of the prosecution, it must follow a
B
fortiori that on the turning down of his opposition by the learned Chief
Jr-
Judicial Magistrate he was e_ntitled to prefer a revision application to
the High Court.and on the High Court rejecting his revision applica-
lion he had standing to prefer an appeal to this Court. We must there-
..,,:__"'
fore reject this contention of the learned counsel appearing on behalf
of Dr. J agannath Misra. 1
c
There was also one other contention urged on behalf of Dr. 'f
Jagannath Misra with a view to bunking an inquiry by this Court into
the merits of the appeal. It was argued on behalf of Dr. Jagannath
Misra that this was not a fit case in which the Court should interfere in
D the exercise of its extraordinary jurisdiction under Article 136 of the
Constitution since the permission granted by the learned Chief Judicial
Magistrate for withdrawal of the prosecution had resulted in discharge
of Dr. Jagannath Misra in respect of the offences for which he was
charge-sheeted and this order of discharge was upheld by the High
Court in revision and finally by two out of three Judges of this Court ).-
E and it would be unfair and unjust to reverse the order of discharge and
direct a retrial of Dr. Jagannath Misra. We have considered this argu-
men! but it does not appeal to us. We fail to see any logic behind it. It is
undoubtedly true that the effect of the withdrawal of the prosecution
against Dr. Jagannath Misra was that he stood discharged in respect of
the offences for which he was sought to be prosecuted but it was not an
F order of discharge which was challenged by Sheonandan Paswan in the

"
revision application filed by him before the High Court but it was an
order granting consent for withdrawal of the prosecution that that assa-
iled by him. The analogy of an order of discharge made under section
227 or section 239 of the Code of Criminal Procedure is not apposite.
because there the Sessions Judge or the Magistrate, as the case may be,
.G considers the entire material before him and then comes to the conclu-
sion that there is not sufficient ground for proceeding against the ac-
cused or that the charge against the accused is groundless. But here
when the Magistrate makes an order granting consent to withdrawal of
the prosecution under section 321, it is a totally different judicial exer-
cise which he performs and it would not therefore be right to say that if
H the High Court sets aside the order of the Magistrate granting consent
SHEONAND;'-N PASWAN v. STATEOFBIHAR [BHAGWATI,J.J 741

fr to withdrawal from the prosecution, the High 'Court would be really A
setting aside an order of discharge made by the Magistrate. What the
High Court would be doing would be no more than holding that the
withdrawal from the prosecution was incorrect or improper and that
the prosecution should proceed against the accused and ultimately if
there is not sufficient evidence -or the charges are groundless, the
·--.l accused may still be discharged. Moreover it may be pointed out that B
• even an order of discharge made by the Magistrate can be set aside by
the High Court in revision if the·High Court is satisfied that the order
passed by the Magistrate is incorrect, illegal or improper or that the

- proceedings resulting in the order of discharge suffer from any irregu-
larity. lbe revisional power exercised by the High Court under section
i" 397 is couched in words of widest amplitude 3!1.d in exercise of this c
power can satisfy itself as to the correctness, legality or propriety or
~ any order passed by the Magistrate or as to the regularity of any
proceedings of such Magistrate. When this Court is hearing an appeal
against an order made by the High Court in the exercise of its revisional
power under section 397 it is the same revisional power which this
Court would be exercising and this Court therefore certainly can in- D
terfere with the order made· by the Magistrate and confirmed by the
High Court if it is satisfied that the order is incorrect, illegal or impro-
per. In fact, in a case like the present where the question is of purity of
public administration at a time when moral and ethical values are fast
-,I.. deteriorating and there seems t<> be a crisis of character in public life, E
this Court should regard as its bounden duty-a duty owed by it to the
society-to examine carefully whenever it is alleged that a prosecution
for an offence of corruption or criminal breach of trust by a person
holding high public office has been wrongly withdrawn and it should
• not matter at all as to how many Judges in the High Court or the lower
court have been party to the granting of such consent for withdrawal.
Here in the present case, it is no doubt true that the order granting F
_,,,(-consent for withdrawal of the prosecution was made by the learned
,· -'i Chief Judicial Magistrate and it was upheld by the High Court and two
out of three Judges of the bench of this Court which initially heard the ,
appeal agreed with the view taken by the High Court but we cannot
overlook the fact that according to the Review Bench which also con-
sisted of three Judges, there was an error apparent on the face of the G
record in the judgment of the earlier Bench. The mathematics of num-
bers cannot therefore be invoked for the purpose of persuading this
-1 Court not to exercise its. discretion under Article 136 of the
Constitution.

It was then contended on behalf of Dr. Jagannath Misra that H
742 SUPREME COURT REPORTS [1987] l S.C.R.

A Sheonandan Paswan was Minister in the cabinet of Karpoori Thakur
and continued to be a member of the political PartY opposed to Dr.
Jagannath Misra and he was therefore actuated by political motivation
in opposing the withdrawal of prosecution against Dr. Jagannath
Misra and in prefering a revision application to the High Court and an
appeal to this Court. This contention is also without substance and
B · does not command itself to us. We may concede for the purpose of
argument that Sheonandan Paswan opposed the withdrawal of the
prosecution against Dr. Jagannath Misra because he had a political
score to settle with Dr. Jagannath Misra and he was motivated by a.
political vendetta. But that is no reason why tbis Court should sustain
an order made by the. learned Cheif
.
Judicial Magistrate granting con- ~
sent for withdrawal of the prosecution
c to be improper and unjustified. The question if otherwise the order appears r
is even if no one had
opposed the withdrawal of the prosecution, would the learned Chief
Judicial Magistrate and the High Court have been justified in· granting
consent to the withdrawal of the prosecution and thai would depend
essentially on the facts and particulars of the case placed before the
D Court. The political motivation or vendetta of Sheonandan Paswan
could not posssibly be a valid ground for granting consent for with-
drawal of the prosecution if otherwise on the facts and circumstances
of the case it was improper and invalid. It is a well-established proposi-
tion of law that a criminal prosecution, if otherwise justifiable and
based upon adequate evidence does not beeome vitiated on account of
E ma/a fides: or political vendetta of the first informant or the ·complain-
ant. It was rightly observed by Krishna Iyer, J. in State of Punjab v.
Gurdial Singh, [ 1980] 1 SCR 1076. "If the use of power is for the
fulfilment of a legitimate object, the actuation or catalisation by malice
is not legiciable." The same principle must obviously apply where a
person is opposing withdrawal of prosecution against an accused. His
F political motivation or vendetta cannot justify grant of consent for
withdrawal if otherwise it is not legitimate or justified.
~.
It is undoubtedly true that the prosecution against Dr. Jagannath
Misra · was initiated by the successor Government of Karpoori
Thakur after Dr. Jagannath Misra went out of power. But that by itself
G cannot support the inference that the initiation of the prosecution was
actuated by political vendetta or mala fides because it is quite possible
that there might be material justifying the initiation of prosecution
against Dr. Jagannath Misra and the successor Government might
have legitimately felt that there .was a case for initiation of prosecution
and that is why the prosecution might have been initiated. There
H would be nothing wrong on the part of the successor Government in

•
SHEONANDANPASWANv.STATEOFBIHAR[BHAGW.-'\TI,J.l 743.

"1t- doing so and the prosecution cannot be said to be vitiated on that A
account. This is precisely what Hidayatullah, J. speaking for the Con-
stitution Bench pointed out in Krishna Ba//abha Sahay and others v.
Commission of Enquiry, (1969] I SCR 387:- '

"The contention that the power cannot be exercised by the
succeding ministry has ,been answered already by this B
Court in two Cases. The earlier of the two has been refer-
red to by the High Court already. The more recent case is
Shri P. V. Jagannath Rao & Ors. v. State of Orissa, [1968] 3
SCR 789. It hardly needs any authority to state that the
inquiry will be ordered not by the Minister against .himself
but by some one else. When a Minister goes out of office,
its successor may consider any glaring charges and may, if C
justified, order an inquiry. Otherwise, each Ministry will
become a law unto itself and the corrupt conduct of its
Ministers will remain beyond scrutiny."

'fhese observations afford a complete answer to the contention u ged D
·on behalf of Dr. J agannath Misra that this Court should not interfere
with the withdrawal of the prosecution because the successor Govern-
ment of Karpoori Thakur or Sheonandan Paswan was actuated by
political motivation or vendetta.

The learned counsel on behalf-of Dr. Jagannah Misra also con- .E
tended that the prosecution should not have been initiated against Dr.
Jagannath Misr!' without a prior inquiry made through a Commission
- of Enquiry set up for that purpose. The argument was that both
prudence and propriety requires the setting up of a Commission· of
Enquiry prior to initiation of the proseciition because an inquiry made
..- through the Commission !Jf Enquiry would act as a filter for politically F
-1li motivated or mala. fide prosecution. This argument is also, in our
~-opinion, without any force and cannot be sustained. It is undoubtedly
true that in the past there have been cases where a successor Govern-
ment has set up a Commission of Enquiry to enquire into the conduct
of former Chief Minister and other persons connected with the
administration during the regime of the former Chief Minister but that G
does not mean that no prosecution should be launched against a
.--f former Chief Minister or a person holding high political office under
the earlier regime without first setting up a Commission of Enquiry for
enquiring into his conduct. There is no provision of law which requires
such a course of action to be adopted and it cannot be said that if a
prosecution is initiated without an inquiry being held by a Commis- H
744 SUPREME COURT REPORTS [!987] l S.C.R.

A sion of Enquiry set up for that purpose, the prosecution would be bad ~
or that on that ground alone the prosecution could be allowed to be
withdrawn. The criminal process in India is quite tardy and slow
moving and as it is, it takes considerable time for a prosecntion to
ultimately come to an end and if a requirement were super-imposed
that no prosecution shall be launched against a person holding high
B political office under an earlier regime without first setting up a Com-
~·
mission of Enquiry and the Commission coming to a prima facie con-
clusion that such person has committed acts which would constitute
offences, the entire criminal process would be reduced to a mockery
because the Commission of Enquiry itself might go on for years and
after the inquiry is concluded the 'prosecution will start where the
c entire evidence will have to be led again and it would be subject to '1
-
cross-examination followed by lengthy arguments. It would, in our
opinion, be perfectly legitimate for the successor Government to '-f
initiate a prosecution of a former Chief Minister or a person who has
held high political office under the earlier regime without first having
an inquiry made by a Commission of Enquiry, provided, of course, _the
D investigation is fair and objective and there is sufficient material to
initiate such prosecution. There are, under the existing law, sufficient
safeguards for the purpose of ensuring that no public servant is haras-
sed by false and vexatious prosecution or charges of corruption be-
cause no such prosecution can be initiated without sanction under
section 6 of the prevention of Corruption Act or section 197 of the ~-
E Code of Crim.inal Procedure, 1973. These safeguards cannot be said to
be inadequate even if they do not afford adequate protection in any
particular case, the Magistrate is. always there to protect .an innocent
accused because if in the opinion of the Magistrate, there is not suffi-
cient evidence and the charge against the accused appears to be
groundless, the Magistrate may straightaway discharge the accused
F without taking any evidence. It would beoome very difficult-almost
-
impossible-to bring, to use the words of Krishna Iyer, J. "the higher
inhabitants of Indian public and political decks" within the net of the
criminal law if an additional requirement is imposed that there should
first be an inquiry by the Commission of Enquiry before any prosecu-
ti on can be launched against them. This contention urged on behalf of
G Dr. Jagannath Misra must also, therefore, fail.
•
That takes us to the merits of the question debated before us,
namely, whether the learned Chief Judicial Magistrate and the High ~
Court were right in granting consent for withdrawal of.the prosecution
against Dr. Jagannath Misra and others. The application for with-
H drawal was made by Shri Lallan Prasad Sinha and consent for such
SHEONANDANPASWAN v. STATEOFBIHAR (BHAGWATI,J.) 745
~ withdrawal was given"by the learned Chief Judicial.Magistrate under
A
-section 321 of the Code of Criminal Procedure, 1973 and consequen-
tly, it is this section which falls for ronstruction and application in the
present case. The question is whether the application for withdrawal
made by Shri Lallan Prasad Sinha was -within the scope of his power
under section 321 and whether the consent given by the Chief Judicial
~--.l. Magistrate for such withdrawal _~as within the terms of that section. .B
Section 321 reads as follows:-

"321. Withdrawal from prosecution-The Public Prosecutor

- _y
or Assistant Public Prosecutor in charge of a case may, with
the consent of the Court, at any time before the judgment
is pronounced, withdraw from the prosecution of any
person either generally or in respect of any one or more ?f
c
~
the offences for which he is tried; and, upon such with-
drawal,-

(a) if it is made before a charge has been framed, the
• accused shall be discharged in respect of such offence D
or offences;

(b) if it is made after a ch.arge has been framed, or
when under this Code no charge is required he shall
·.J.. 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
- F
_,.( (ii) was investigated by the Delhi Special Police
/'
Establishment under the Delhi Police E_stablish-
men! Act, 1946 (25 of 1946); or

(iii) involved the misappropriation or destruc-
tion of, or damage to, any property belonging to G
the Central Government, or
--i (iv) was committed by a person in the service of
the Central Government while acting or purport-
ing to act in the discharge of his official duty,
H
746 SUPREME COURT REPORTS [ 1987] l S.C. R.

and the Prosecutor in charge of the case has not been
A
appointed by the Central Government, lie shall not, unless
he has been permitted by the Central Government to do so,
move the Court for its consent to withdraw from the pr-0-
secution and the Court shall, before according consent,
direct the Prosecutor to produce before it the permission
B granted by the Central Government to withdraw from the >·
prosecution."

This section corresponds to section 494 of the old Criminal Procedure
Code," 1898 and it incorporates certain changes which have relevance
in that they threw some light on the true interpretation of the section.
It may be noted that there are two limbs of section 321. The first is that
c any Public Prosecutor or Assistant Public prosecutor incharge of a case
'i -
may withdraw from the prosecution of any person but this power to
.,,_
withdraw from the prosecution is not an unfettered or unrestricted
power because it .can be exercised only "with the consent of the
Court". If the Court does not give its consent to the withdrawal of the
D prosecution·, the Public Prosecutor or the Assistant Public Prosecutor
cannot withdraw it. But the question is as.to what are the grounds on
which the Public Prosecutor or Assistant Public Prosecutor can apply
for withdrawal from the prosecution and also similarly what are the
considerations which must weigh with the Court in granting or refusing
consent for the withdrawal of the prosecution. There have been a ~
E number of decisions of tliis Court bearing on both these issues but it

-
must be conceded straightaway that these decisions do not disclose any
uniform approach. The Court has in some decisions taken very narrow
view while in some others it has adopted a broader view. The Court
has swung from narrow grounds to broad ones in different decisions
from time to time. We shall consider some of these decisions a little
F later.
;>---,
Now one thing is certain that no unfettered or unrestricted
power is conferred on the Public Prosecutor-when we refer to Public
Prosecutor, we also include Assistant Public Prosecutor-to apply for
withdrawal from the prosecution. It is obvious that the power confer-
G red on the Public Prosecutor to withdraw from the prosecution must be
a controlled or guided power or else it will
fall foul of Article 14 of the
Con~titution. It is necessary in this context to refer to certain other
provisions of the Code of Criminal Procedure, 1973 which, though not
directly relevant, throw some light on the determination of the ques-
tion as to what is the extent of the power of the Public Prosecutor to
H withdraw from the prosecution and how it is controlled and regulated.
'
SHEO NANDANPASWAN v, STATE OFBIHAR [BHAGWATI, J.I 747

~ When a First Information Report relating to the commission of a A
cognizable offence is lodged in a Police Station under section 154 or an
order is made by a Magistrate directing the police to investigate a
non-cognizable case under section 155, the police is bound to investi- .... -
gate the offence alleged to have been committed. The powers of the
police in regard to investigation and the procedure to be followed by
.,._J. . them in such investigation are set out in sections 157 to 172. Section B
173 sub-section (1) casts an obligation on the police to complete the
investigation without unnecessary delay and sub-section (2) of section
173 then proceeds to state that as soon as the investigation is comp-

- '
leted, the officer-incharge of the Police Station shall forward to a
-¥" Magistrate empowered to take cognizance. of the offence on a police
report, a report in the prescribed form stating the ·various particulars c
me11tioned in that sub-section. Section 190 confers power on the
"T Magistrate to take cognizance of an offence and there are three diffe-
rent ways in which cognizance of an offence may be taken by a Magis-
trate. This section states that cognizance of an offence may be taken-
(a) upon receiving a complaint of facts which constitute such an office
(b) upon a police report of such facts and ( c) upon information re- D
ceived from any person other than a police officer or upon his own
knowledge that such offence has been committed. We may concen-
trate our attention on clause (b) since the section read with that clause
clearly goes to show that even in the matter of initiating a prosecution,
~ the police has no unfetter.ed discretion. It is now well-settled as a result
of several decisions of this Court, of which we may mention only one, E
namely, H.S." Bains v. State; AIR 1980 SC 1883, that even ifthe report
submitted by the police to the Magistrate under section 173 states that
~
in the opinion of the police no offence appears to have been committed
aqd no prosecution may therefore be initiated, the Magistrate can still
form an opinion on the facts set out in the report that they constitute
. an offence and he can take cognizance of the offence and issue process .F
r\ against the aCCl!Sed. The Magistrate may also find, after considering
1 • the report, that the investigation is unsatisfactory or incomplete or
there is scope for fu,rther investigation and in that event, the Magis-
trate may decline to accept the report and direct the police to make
further investigation and then decide whether or not to take cogni-
zance of the offence after considering the report submitted by the G
police as a result of such further investigation. It will thus be seen ihat
1 the police has no absolute or unfettered discretion whether to prose-
cute an accused or not to prosecute him. In fact, in our constitutional
scheme, conferment of such absolute and uncamilised discretion would
be violative of the equality clause of the Constitution. The Magistrate is
.therefore given the power to structure and control the discretion of the H
748 SUPREME COURT REPORTS [1987] 1 S.C.R.

police. If the Magistrate finds from the report made by the police
A
either on initial investigation or on further. investigation directed by
the Magistrate, that prima facie an offence appears to have been com-
mitted, the Magistrate is empowered to take cognizance of the offence
notwithstanding the contrary opinion of the police and equally if the
Magistrate forms an opinion that on the facts set out in the report no
B offence prima facie appears to have been committed though the police
might have come to a contrary conclusion, the Magistrate can decline
to take cognizance of the offence. The discretion of the police to
prosecute is thus 'cabined and confined' and, subject to appeal or
re.vision, and the Magistrate is made the final arbiter on this question.
The Legislature has in its wisdom taken the view that it would be safer
C not to vest absolute discretion to prosecute in the police which is an
-
Executive arm of the Government but to subject it to the control of the
judicial organ of the State ..

The same scheme has been followed by the Legislature while
conferring power on the Public Prosecutor to withdraw from the pro-
D secution. This power can be exercised only with the consent of the
Court so that the Court can ensure that the power is not abused or
misused or exercised in an arbitrary or fanciful manner. Once the
charge-sheet is filed and the prosecution is initiated. it is not left to the
sweet-will of the State or the Public Prosecutor to withdraw from the
prosecution. The Court is entrusted with control over the prosecution
E and as pointed out by Krishna Iyer, J. in Subhash Chander v. State and
others; [1980] 2 SCR 44. "The even course of·criminal justice cannot
be thwarted by the Executive however high the accused, however sure
the Government feels a case is false, however unpalatable the con-
tinuance of the prosecution to the powers-that-be who wish to scuttle
court justice because of hubris, affection or other noble or ignoble
F · consideration." Once the prosecution is launched, its relentless course
cannot be halted except on sound considerations germane to public >--
justice. And again, to quote the words of.Krishna Iyer, J. in the same / I
case, "the Court is monitor, not servitor, and must check to see if the
essentials of the law are not breached, without, of course, crippling or
usurping the power of the public prosecutor." The Public Prosecutor
G cannot therefore withdraw from the prosecution unless the Court be-
fore which the prosecution is pending gives its consent for such with-
drawal. This is a provision calculated to ensure non-arbitrariness on the
part of the Public Prosecutor and compliance with the equality clause
of the Constitution.

H It is also necessary to point out that the law has fashioned
SHEO NANDAN PASWAN v. STATE OFBIHAR [BHAGWATI,J.] 749
~- another safeguard against arbitrary exercise of power by the Public A
Prosecutor in withdrawing from the prosecution and this safeguard is
that the Public Prosecutor can apply for withdrawal only on the basis
of certain legitimate grounds which are germane or relevant to public
justice. it is significant to note that the entire development of
administrative law is characterised by a consistent series of decisions
~-.+ controlling and .structuring the discretion conferred on the State and its B
officers. The Law always frowns on uncanalised and unfettered discre-
tion conferred on any instrumentality of the State and it is the glory of
administrative law that such discretion has been through judicial deci-
... sions structured and regulated. This Court has therefore, despite
fluctuating opinions delivered in different cases, laid down the broad
-+' principle and consistently acted upon it, namely, that the power to c
apply for withdrawal from the prosecution can be exercised only in
"Y. furtherance of justice. It was pointed out by this Court in M. N.
' Sankamnarayanan Nairv. P. V. Balakrishnan and others, [1972] 2 SCR
599, "the essential consideration which is implicit in the grant of the
power is that it should be in the interest of administration of justice."
So also, one of us, (B_hagwati, J. as he then was) said in State of D
Drissa v. C. Mahapatra, [1977] 1 SCR 38.5 "the ultimate guiding con-
side ration must always be the interest of administration of Justice."
That is the broad principle under which the Public prosecutor. must
_.,. bring his case in order to be able to justify his application for with-
drawal from the prosecution. What are the different grounds which
may possibly come within this principle is a matter which we shall E
presently discuss but whatever be the grounds on which the application
is made it can be sustained only if those grounds are relatable to
... furtherance of public justice .

There w~s one major question debated before us in regard to the
; position of the Public Prosecutor in relation to an application for with- F

{
A
I \
.
drawal from the prosecution and the issue was as to what is the degree
of autonomy conferred on the Public Prosecutor vis-a-vis the Govern-
ment whilst filing an application for withdrawal. This issue can be
operationalised into three different questions: ( 1) Does section 321
permit a Public Prosecutor to withdraw from a case without seeking
the opinion of the Government (2) whether section 321 empowers a G
Public Prosecutor to refuse to withdraw from the prosecution despite
__, the advice of the Government to withdraw and (3) where a public
prosecutor withdraws from the prosecution on the advice and direction
of the Government, does he act contrary to the requirement of section
321? These questions have _presented a lot of difficulty and unfortu-
nately' as mentioned earlier the decisions of this Court have not been H
750 SUPREME COURT REPORTS [1987) l S.C.R.

A consistent in the answer to be given to these questions. We shall refer
to a few of these decisions. In State of Bihar v. Ram Naresh Pandey;
[1957] SCR 279 which is the first important case dealing with the
*
interpretation and application of section 321, this Court while delibera-
ting on the role of a Public Prosecutor said:-

B " ...... it is right to remember that the Public Prosecutor }~
(though an executive officer as stated by the Privy Council
in Bawa Faqir Singh v. The Kind Emperor, [1938) L.R. 65
I. A. 388, 395) is, in a larger sense , also an officer of the
Court and that he is bound to assist the Court with his
fairly-considered view and the Court is entitled to have the
benifit of the fair exerCise of his function. It has also to be
"'f
-
c appreciated that in this cou11try the scheme of the adminis-
!ration of criminal justice is that the primary responsibility """1
of prosecuting serious offences (which are classified as
cognizable offences) is on the executive authorities. Once
information of the commission of any such offence reaches
D the constituted authorities, the investigation including col-
lection of the requisite evidence, and the prosecution for
the offence with reference to such evidence, are the func-
tions of the executive. But the Magistrate also has his allot-
ted functions in course of these stages." ................
In all these matters he exercises discretionary functions in )..
E respect-of which. the initiative is that of the executive but
the responsibility is his."

These observations.seem to suggest that the prosecution for an offence
is the function of the Executive and that the Public Prosecutor is really
..
an Executive Officer who is conducting the prosecution on behalf of
F the State. So also in M.N. Sankarayaraya Nair v. P. V: Balakrish- •
nan and others (supra) we find that there is a paragraph which seems to
implidely accept governmental directive in the matter of"withdrawal
_,\
from the prosecution as legitimate and that paragraph reads as
follows:-

G "The appellant's Advocate later during the course of the
argument conceded that there is no force in the first of his
contentions namely that the Public Prosecutor cannot
~
either be asked by the State Government to consider the
filing of a petition under section -19-1 nor would it be proper
for him if he was of the opinion that the prosecution ought
H not to proceed to get the consent of the Government to the
SHEONANDAN PASWAN v. STATEOFBIHAR [BHAGWATI, J.) 751
752 SUPREME COURT REPORTS [1987] l S.C.R.

concerned and held that the Public Prosecutor must apply his own mind and
A
come to his own decision whether 10 apply for withdrawal· or not,
irrespective of the opinion or advice of the Executive.

The same view was reiterated by Krishna Iyer J., speaking on
behalf of the Court, in Subhash Chander v. State and others (supra)
B where the learned Judge said:-

"The functionary clothed by the Code with the power to

c
withdraw from the prosecution is the Public Prosecutor.
The Public Prosecutor is not the executive, nor a flunk of
political power. Invested by the Statute with a discretion to
withdraw or not to withdraw, it is for him to apply an .
indep_endent mind and exercise his discretion. In doing so,
-
he acts as a limb of the judicative process, not as an exten-
sion of the executive."

The learned Judge strongly depricated the action of the District Magis-
D Irate in directing the Public Prosecutor to withdraw the prosecution in
the case before him and observed in words admitting of no doubt:-

"The jurisprudence of genufleidon is alien to our system
and the law expects every repository of power to do his ~
duty by the Constitution and the law, regardless of com-
E mands, directives, threats and temptations. The Code is
the master for the criminal process. Any authority who
coerces or orders or pressurises a functionary like a public
prosecutor, in the exclusive province of his discretion vio·
!ates the rule of law and any public prosecutor who bends
before such command betrays. the authority of his office.
F May be, Government or the District Magistrate will )..
consider that a prosecution or class of prosecutions 1
( -,

deserves to be withdrawn on grounds of policy or reasons
of public interest relevant to law and justice in their larger
connotation and request the public prosecutor to consider
whether the case or cases may not be withdrawn. There-
G upon, the Prosecutor will give due weight to the material
placed, the policy behind. the recommendation and the
respons.ible position of Government, which in the last
analysis, has to maintain public order and promote public
justice. But the decision to withdraw must be his."

H This case also, like the earlier one in Balwant Singh v. State of Bihar
SHEONANDANPASWAN v. STATEOFBIHAR [BHAGWATl,J.I 753

(supra), introduced the concept of independent application 9f mind by A
the Public Prosecutor on the question of withdrawal from the prosecu-
tion and insisted that the Executive cannot direct or pressurise the
Public Prosecutor to withdraw from the prosecution and the Public
Prosecutor must come to his own decision without bending before the
command of the Executive. Once this component of independent
application of mind on the part of the Public Prosecutor was intro: .B
duced the Court while considering whether consent for such
withdrawal ~hould be granted or not was required to deliberate not
only on the legitimacy of the grounds urged in support ofthe with-

- drawal but also whether the Public Prosecutor had applied his mind in
the matter.

But then again there was a slight shift in this position in the latest C
decision in R.K. Jain v. State, (1980) 3 SCR 982. The Court in this case
adopted a more middle of the road approach and after pointing out
what'the Court conceived to be the· correct position in law in the
following words:-
D
"Whilst at one point it said that it shall be the duty of the
Public Proseciitor to inform the Court and it shall be the
duty of the Court to appraise itself of the reasons which
prompt the Public Prosecutor to withdraw from the pro-
secution. The Court has a responsibility and stake in 1the
administration of criminal justice and so has the Public Pro- E
secutor, its 'Minister of Justice.' Both have a duty to protect
the administration of criminal justice against possible abuse
or misuse by the Executive py resort to the provisions of
s.321 Cr. PC." (emphasis is ours)

The Court recognised that the Government has a role in the administ- F
~' ration of criminal justice and observed:
(
,, \ .
"An elected Government, sensitive and responsive to the
feelings and emotions of the people, will be amply justified
if for purposes of creating an atmosphere of goodwill or for
the purpo<e of not disturbing the calm which has descended G
it decides not to prosecute the offenders involved or not to

I-~--
proceed further with prosecutions already launched. In
such matterswho but the Government can and should decide
in the first instance whether it should be baneful or beneficial
to launch or continu? prosecutions. If the Government
decides that it would be in the interest to, withdraw from H
754 SUPREME COURT REPORTS [1987] !S.C.R.

prosecutions, how is the Government to go about to task?"
A (emphasis is ours).

and proceeded to add that the Public Prosecutor may act on the advice
of the Government in applying_ for withdrawal of the prosecution
"where large and sensitive issues of public policy are involved." Chin-
B nappa Reddy, J. speaking ori behalf of the Court elaborated this view in
the following words:-

"Where large and sensitive issues of public policy are
involved he must if he is right minded the Public ProSecutor
seek advice and guidance from the. policy-makers. His •
sources of information and resources are of a very limited · f
c nature ·unlike those of the policy-makers. If the policy-
niakers themselves move in the matter in the first instance ·'1'
as indeed it is proper that they should where matters of
momentous public policy are involved and if they advice the
Public Prosecutor to withdraw from the prosecution, it is ·
D not for the Court to say that the initiative came from the
Government and therefore the Public Prosecutor cannot be
said to have exercised a free mind." (Emphasis is ours)

The majority Judges however took a different view in the present
appeal when it was heard by the earlier Bench. Baham! Islam, J. >
E stated the view of the majority in the following terms:-

"Unlike the Judge, the Public Prosecutor is not an abso-
lutely independeQt officer. He is an appointee of the
Government, Central or State (see sections 24 and 25, •
CrPC), appointed for cond~cting in court any prosecution
F or other proceedings on behalf of the Government con-
cerned. So there is the relationship of counsel and client
between the Public Prosecuto.r and the Government. A ,>--·\
Public ProsecutQf cannot act without instructions of the
Government; a Public Prosecutor cannot conduct a case
absolutely on his own, or contrary to the instruction of his
G client, namely, the Government ... Section 321 of the
Code does not lay any bar on the Public Prosecutor to
receive any instruction from the Government before he
files an application under that section. If the Public Pro-
secutor receives such instructions, he cannot be said to act
under extraneous influence. On the contrary, the Public
H Prosecutor cannot file an application for withdrawal of a
SHEO NANDANPASWAN v. STATE OFBIHAR [BHAGWATI, J.] 755

case on his own without instruction from the Government A
...... In our opinion, the object of Section 32 l, Cr. P.C.
appears to be to reserve power to the Executive Govern-
ment to withdraw any criminal case on larger grounds of
public policy such as inexpediency of prosecutions for
reasons of State, broader public interest like maintenance
of .Jaw and order, maintenance of public peace and B
harmony, social, economic and political; changed social
and political situation; avoidance of destabilization of a
· stable government and the like. And such powers have
been, in our opinion, rightly reserved for the Government,
for, who but the Government is in the know of such condi-
tions and situations prevailing in a State or in the country? c
The Court is. not in a position to know such situations."

It will thus be seen that the position in Jaw in regard to the degree of
autonomy enjoyed by the Public Prosecutor vis-a-vis the Government
in filing an application fdr withdrawal of the prosecution is rather
confused and it would be desirable to approach the question on first D
principle.

Now there can be no doubt that prosecution of an offender who
is alleged to have committed an offence is primarily the respo,nsibility
of the Executive. It is the executive which is vested with the power to
file a charge-sheet and initiate a prosecution. This power ·is conferred E
on the Executive with a view to protecting the .society against offen-
ders who disturb the peace and tranquillity of the society by commit-
ting offences. Of course it is left to the Court to decide whether t9 take
cognizance of the offences set out in the charge-sheet but the filing of
the charge-sheet and iniiiation of the prosecution is solely within the
responsibility of the Executive. When the prosecution is initiated by F
filing a charge-sheet the Public Prosecutor comes into the picture. Of
course, even ·before the ·charge-sheet is filed, the investigating
authorities may seek ihe advice of the Public Prosecutor in regard to
the prosecution of the accused but it is not. obligatory on the investi-
gating authorities to do so. The Public Prosecutor comes on the scene
as soon as the charge-sheet is filed and he appears and argues the case G
on behalf of the prosecution. It is the State through the investigating
authorities which files a charge-sheet and initiate the prosecution and
the Public Prosecutor is essentially counsel for the State for conducting
the . prosecution on behalf of the State. The expression ;'Public
Prosecutor" is defined in section clause (u) to mean " any person
appointed under section 24 and includes any person acting under the H
756 SUPREME COURT REPORTS [1987] IS.C.R.

Adirections of a Public Prosecutor." Section 24 provides for the appoint- +-
ment of a Public Prosecutor: sub-section (1) of section 24 states that
"for every High Court the Central Government or the State Govern-
ment shall, after consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more Additional Public
Prosecutors for conducting in such court any prosecution, appeal or
B other proceeding on behalf of the Central Government or State
·~· ,.

Government, as the case may be''. (Emphasis is ours). Sub-section(3)
of section 24 enacts that for every District, the State Government shall .
appoint a Public Prosecutor and may also appoint one or more Addi-
tional Public Prosecutors for the district and under sub-section(?) of
that section a person is eligible for being appointed as a Public Pr-0- ...
c secutor or an Additional Public Prosecutor only if he has been in -f
practice as an advocate for not less than 7 years. Thus the Public
Prosecutor appointed by the State Government conducts the prosecu- ...,;
tion on behalf of the State Government and the Public Prosecutor
appointed by the Central Government does so on behalf of the Central
Government. It is undoubtedly true that the Public Prosecutor is an
D officer of the Court, as indeed every· advocate practising before the
Court is, and he owes an obligation to the Court to be fair and just: he
must not introduce any personal interest in the prosecution nor must
he be anxious to secure conviction at any cost. He must present the
case on behalf of the prosecution fairly and objectively and as pointed
out by this Court in State of Bihar v. Ram Naresh Pandey (supra) he is
E bound to assist the court with his fairly considered view and tl)e fair
exercise of his judgment. But at the same time it must be noted that he
conducts the prosecution on behalf of the Central Government or the
State Government, as the case may be, and he isanadvocate acting on ....
behalf of the Central Government or the State Government which has
launched the prosecution. We are therefore of the view that there is
F nothing wrong if the Government takes a decision to withdraw from
the prosecution and communicate such direction to the Public Pr-0-
secutor. The Public Prosecutor would inter alia. consider the grounds ,>-.,
on .which the Government has taken the decision to Withdraw from the
prosecution and if he is satisfied that these grounds are legitimate, he
may file an application for withdrawal from the prosecution. If on the
G other hand he takes the view that the grounds which have been given
by the Government are not legitimate he has two options available to
him. He may inform the Government that in his opinion, the, grounds
which have weighed with the Government are not valid and that he >-
should be relieved from the case and if this request of his is not
granted, he may tender his resignation. Or else, he may make an
H application for withdrawal from the prosecution as directed by the
SHEONANDANPASWANv. STA1E0FBIHAR(BHAGWATI,J.] 757

~ Government and at the hearing of the application he may offer his A
consic\ered view to tlie court that the application is not sustainable on
the grounds set out by him and leave it to the court to reject the
application. We do not think there is anything wrong in the Public
Prosecutor being advised or directed by the Government to file an
application for withdrawal from the prosecution and the application
-4 for withdrawal made by him pursuant to such direction or advice is not B
necessarily vitiated. The Public Prosecutor can of.course come to his
own independent decision that the prosecution should be withdrawn
but ordinarily if he is wise and sensible person he will not apply for

-- -f
withdrawal without consulting the Government because it is the
Government which has launched the prosecution and is prosecuting
the accused. The critically, of course, he can make an application for
withdrawal from the prosecution without consulting the Government
C

'r' and he cannot be accused of any illegality for doing so and the court
may give its consent for such withdrawal but in that event the Public
Prosecutor would render the risk -of incurring the displeasure of the
Government which has appointed him. If the Public Prosecutor seeks
the permission of the Government for withdrawal from the prosecu- D
tion and the Government ·grants such permission to him and on the
basis of such permission he applies f0r wfthdrawal the application
,. cannot be said to be vitiated. The proviso to section 321 in fact con-
templates in so many terms that in certain categories of offences the
...l Public Prosecutor appointed by the State Government cannot move
. the Court for its consent to withdraw from the prosecution without the E
permission of the Central Government. There is no danger of abuse or
misuse of power by the Government inherent in this process because
there are two principal safeguards against any such abuse or misuse of
power by the Government: one is that the application must be based
on grounds which advance public justice and the other is that there can
be no withdrawal without the consent of the cciurt. F.

,.1\, Now let us consider the question as_ to what are the grounds on
which the Public Prosecutor can apj)ly for withdrawal from the pro-
secution. These grounds have been variously stated in the decisions o(
this Court but the basic principle under lying all these grounds is lhat
the withdrawal can be sought only for furthering the cause of public G
justice. If we may repeat what we have said before, the paramount
·"'1._ consideration must always be the interest of administration of justice.
That is the touch-stone on which the question must be. determined
whether an application for withdrawal of the prosecution can be sus-
tained. This Court tried to formulate several instances where the oause H
, of public justice would be served better by withdrawal from the pro-
758 SUPREME COURT REPORTS (1987] ! S.C.R.

A secution. It was observed by this Court in M.N. Sankaravaraya v. P. V. +
Balakrishnan (supra) that an. application for withdrawal from the pro-
secution may be made on the ground that "it will not be possible to
produce S!-lfficient ·evidence to sustain the charge or that subsequent
information before prosecuting agency would falsify the prosecution r
evidence or in any other similar circumstances which it is difficult to
B predicate as they are dependent eniirely on the facts and circum-
stances of each case". )bis Court also pointed out in State of Orissa v.
+--
C. Mohapatra (supra) that "it is not sufficient for the Public Prose-
cutor merely to say that it is not expedient to proceed with the pro-
secution. He has to make out some ground which would show that the
prosecution is sought to be withdrawn because inter alia the prosecu- ...
·-.i.
tion may not be able to produce sufficient evidence to sustain the
c charge or that the prosecution does not appear to be well-founded or
that there are circumstances which clearly show that the object of
administration of justice would not be advanced or furthered by going "'
on with the prosecution." It was also emphasised by this Court in
SubhashChander v. State (supra) that "justice cannot be allowed to be
D scuttled by the Public Prosecutor or the State because of hubris affec-
tion or other noble or ignoble considerations." This Court also
observed in R.K. Jain v. State (supra):

"In the past we have often known how expedient and '·
necessary it is in the public interest for the public Prose- .i
E cutor to withdraw from prosecutions arising out of mass
agitiations, communal riots, regional disputes, industrial
conflicts, student unrest etc. Wherever issues involve the
emotions and there is a surcharge of violence in the
atmosphere it has often been found necessary to withdraw
from prosecutions in order to restore peace, to free the
F atmosphere from the surcharge of violence, to bring about
a peaceful settlement of issues and to persist with prosecu-
tions where emotive issues are involved in the name of ' >'-"
vindicating the law even be utterly counter productive. An
elected Government, sensitive and responsive to the feel-
inJls and emotions of the people, will be amply justified if
G for the purpose of creating an atmosphere of goodwill or
for the purpose of not disturbing a calm which has descen-
ded it decides not to prosecute the offenders involved or _,...
not to proceed further with prosecutions already launched."

It will thus be seen that the· Public Prosecutor cannot maintain an
H application for withdrawal from the prosecuti?n on the ground that the
SHEONANDAN PASWAN v. STATE OFBIHAR [BHAGWATI,J.] 759

Government does not want to produce evidence and proceed with the A
·prosecution against the accused or that the Government considers that
it is not expedient to proceed With ihe prosecution. The Public Pro-
secutor has to make our some ground which would advance or further
the cause of public justice. If the ·Public Prosecutor is able to show that
he may not be able to produce sufficient evidence to sustain the
charge, an application for withdrawal from the prosecution may be B
legitimately made by him. But there are two clarifications which we
would like to introduce where the prosectition is sought fo be withdra-
wan on this ground.

- The first qualification is that where a charge has been framed by
·\. the Court either under section 228 or section 240 of the Code of Crimi- .C
nal Procedure, '1973, it would not be open to the Public Prosecutor to
'r apply for withdrawal from the prosecution on the ground of insuffi-
ciency of evidence in support of the prosecution. The reason is that
under section 228 a charge can be framed by the Court only if the court
is of opinion that there is ground for presuming that the accused has
committed an offence and so 'also under Section 240 the Court can D
frame a charge only if it is of opinion thl!t there is ground for presum-
ing that the accused has committed an offence. The Court in both
these cases applies its mind to the material consisting of the police
report and the documents sent with it under section 173 and comes to a
-( conclusion that,a prima facie case has been made out against the
accused and the charge should therefore be framed. When the Court E
has come to this conclusion after full consideration and framed a .
charge, it is difficult' to see how on the same material the Court can be
persuaded to hold that there is not sufficient evidence \o sustain the
prosecution. How can the Public ·Prosecutor be permitted to make a
volte face on the basis of the same material? That would be mockery of
justice and it would shake the confidence of the people in tl:te purity F
.~ and intergrity of the administration of justice. That is why ibis Court
f 'pointed out in Bansi Lal v. Chandi Lal, AIR [1976] SC 370 that, "if the
·material before the Additional Sessions Judge was considered suffi-
cient to enable him to frame the charges against the respondents, it is
not possible to say that there. was no evidence in support of the pro-
secution case." So also in Ba/want Singh v. State (supra) this Court G
reiterated that "the State should not stultify the Court by first stating .
_J that there is a true case to be tried and then make volte face to the
I effect that on a second investigation the case has been discovered to be
false." The Public Prosecutor in this last mentioned case sought to rely
on a second investigation for supporting_ the application for withdrawal
but. that was clearly and unequivocally not countenanced by this H
7~ SUPREME COURT REPORTS [1987] lS.C.R.

Court. Obviously, the Public Prosecutor would be on much weaker
A ground when on the same material which was before the Court when it
framed the charge, he subsequently seeks to withdraw the prosecution
on the grot1nd that there is not sufficient evidence to sustain the pro-
secution. It is, therefore, clear that though the prosecution can be
withdrawn at any stage, even after the framing of the charge, it would
B not be competent to the Public Prosecutor, once the charge is framed,
to apply for withdrawal of the prosecution on the ground that the same
material which was before the Court when it framed the fharge is not
sufficient to sustain the prosecution. Of course, if some material has
subsequently come to light which throws doubt on the veracity of the
prosecution case the Public Prosecutor can certainly apply for with-
drawal on the ground that the prosecution is not well-founded. It may
c also happen that in the meanwhile a key witness may have died or
-
some important evidence may have become unavailable or some such
thing may have happened; in that event, the Public Prosecutor may
legitimately feel that it will not be possible to sustain the prosecution in
the absence of such evidence and he may apply for withdrawal from
D the prosecution. But, on the same material without anything more, the
Public Prosecutor cannot apply for withdrawal from the prosecution
after the charge is framed. To allow him to do so would impair the
faith of the people in the purity and integrity of the judicial process.

The second qualification which we must introduce relates to a ).
E situation where a charge-sheet has been filed but charge has not been
framed in a warrant case instituted on police report. Section 239 of the
Code of Criminal Porcedure, 1973 provides:-

"If, upon considering the police report and the documents
sent with it under section 173 and making such examina-
F tion, if any, of the accused as the Magistrate thinks neces-
sary and after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the
charge against the accused to be groundless, he shall dis-
charge the accused, and record his reasons for so doing."

G Now when a warrant case instituted on a police report comes before
the Court, the Court is required to consider only the police report and
the documents sent alongwith it and the Court may make such exami-
nation, if any, of the accused as it thinks necessary and on the basis of -~
such material if the Court, after giving the prosecution and the accused
an opportun\ty of being heard, considers the charge against the
H accused to be groundless, the Court is bound to discharge the accused.
SHEONANDAN PASWAN v. STATE OFBIHAR [BHAGWATI,J.] 761
_..,.
What the Court, therefore, does while exercising its function under
A
section 239 is to consider the police report and the document sent
along with it as also any statement made by the accused if the court
chooses to examine him. And if the COU\1 finds that there is no prima
facie case against the accused the court discharges him. But that is
precisely what the court is called upon to do when. an application for
--+ withdrawal from the prosecution is made by the public prosecutor on B
the ground that there is insufficient or no evidence to support the
prosecution. There also the court would have to consider the material

- placed before it on behalf of the prosecution for the purpose of decid-
ing whether the ground urged by the public prosecutor for withdrawal
_.r of t_he prosecution is justified or not and this material would be the
' same as the material before the court while discharging its function
.,.
under section 239. If the .court while considering an application for
c
withdrawal on the ground of insufficiency or absence of evidence to
support the prosecution has to scrutinise the material for the purpose
of deciding whether there is in fact insufficient evidence or no evidence
at all in support of the prosecution, the court might as well engage
itself in this exercise while considering under section 239 whether the D
accused shall be discharged_ or a charge shall be framed against him. It
is an'identical exercise which the Court will be performing whether the
court acts under section 239 or under section 321. If that be so, we do
not think that in a warrant case instituted on a police report the public
-1. prosecutor should be entitled to make an application for withdrawal
from the. prosecution on the ground that there is insufficient or no E
evidence in support of the prosecution. The court will have to consider

- the same issue under section 239 and it will most certainly further or
advance the case of public justice if the court examines the issue under
section 239 and gives its reasons for discharging the accused after a
judicial consideration of the material before it, rather than allow the
r
..
prosecution to be withdrawn by the Public Prosecutor. When the pro- F
~ "~ secution is allowed to be withdrawn there is always an uneasy feeling
in the public mind that the case has not been allowed to be agitated
before the court and the court has not given a judicial verdict. But, if
on the other hand, the court examines the material and discharges the .
accused under section 239, it will always carry greater conviction with
the people because instead of the prosecution being withdrawn and G
taken out of the ken of judicial scrutiny the judicial verdict based on
1 assessment and evaluation of the material before the court will always
inspire greater confidence. Since the guidi~g consideration in all these
cases is the imperative of public justice and it is absolutely essential
that justice must not only be done but also appear to be done. We
wi>uld hold that in a warrant case instituted on a police report-which H
762 SUPREME COURT REPORTS (1987) I S.C.R.

·A the present case against Dr. Jagannath Misra and others admittedly
iS-:.it should not be a legitimate ground for the public prosecutor to
·urge in support of the application for withdrawal that there i• i!'snffi-
--_cient or no evidCnce in support of the prosecution. The court in such a
case ,should be left to decide under section 239 whether the accused
should be discharged or a charge should be framed against him.
B
.. We may also reiterate what was pointed out by this Court in State
of Orissa v. C. Mohapatra (supra) that in a given case it may not be
"conducive to the interest of jiistice to continue the prosecution ....
·since the prosei:ution with the possibility of conviction" may rouse
·· feelings of bitterness and'antagonism and disturb the calm and peace-
C ful atmosphere which has been restored. We cannot forget that ulti-
a
mately every offence has social or eronomic cause behind it and if the
·State feels that the elimination or eradication of the social or economic
cause of the crime would be better served by not proceeding with the
prosecution, the State should clearly be at liberty to withdraw from the
prosecution. This was the ground on which this court in State of Orissa
D v. C. Mohapatra (supra) allowed withdrawal of the prose.i:ution in a
. case where the incident resulting in the commission of the offence had
arisen out of rivalry between two trade unions but since the date of the
incident .calm and peaceful atmosphere prevailed in the industrial
undertaking. There may be broader considerations of public peace,
larger considerations of public jlistice and even deeper considerations
· E . of promotion of long lasting security in a locality, of order in a dis-
orderly situation or harmony in a factious milieu which may legiti-
. mately persuade the State to "sacrifice a pending case· for a wider
. benefit", The imperative of public justice may in such cases transcend
· . and overflow the legal justice of a particular litigation. We are wholly
in agreement with what this Court in Ba/want Singh v. State of Bihar
E. (supra):": .. communal feuds"which may have been amicably settled·
should not re-erupt on account of one· or two prosecutions pending .
. Labour dispute,. which, might have given rise to crimiri:i.l ca5es, when
. settled, might probably be another instance where the interests of
public justice in the broader i:onnoiation may perhaps warrant with-
drawal from the prosecution." We itlso express our approval of the
G observations made by this Court in R.K. Jain v. State (supra) which we
have reproduced above:

These are broadly the .considerations which can be brought under the
rubric of public justice so as to justify an application for withdrawal
from prosecution. But, of course, we must make it clear that in this
H .area no hard and fast rule can be laid down nor Can any categ?ries of
SHEO NANDAN PASWAN v. STATE OFBIHAR [BHAGWATI, J.] 763
__, cases be defined in which an application for withdrawal of the prosecu- A
tion could legitimately be made. It must ultimately depend on the facts
and circumstances of each case in the light of what is necessary in order
to promote the ends of justice.

When the application for consent to the withdrawal from the
--4 prosecution comes for consideration, the Court has to decide whether B
to grant such consent or not. The function which the court exercises in
arriving at this decision, as pointed out by this Court in State of Bihar
v. Ram Naresh, is a judicial fun.ction. The Court has to exercise its .,
judicial discretion with reference to sue~ material as is then available
~ · to it and in exercise of this discretion the court has to satisfy itself ·that
I the executive function of the public prosecutor has not been impro- c
perly exercised and that the grounds urged in support of the applica-
~
lion for withdrawal are legitimate grounds in furtherance of public
justice. The discretion has not to be exercised by the court mechani-
cally and the consent applied for has not to be granted as a matter of
formality or for the mere asking. The Court has to consider the mate-
rial placed before it and satisfy itself that the grant of consent would ·o
serve the interest of justice. That js why this Court in State ofBihar v.
Ram Naresh (supra) examined the entire material which was available
to it for the purpose of coming to the conclusion that there was no
evidence worth the name on the basis of which the prosecution could
-.I.. be sustained against the accused Mahesh Desai. This court pointed out
,that consent is not to be lightly given on the application of public E
prosecutor "without a careful aild proper scrutiny of the grounds on

- which the application for consent is made." It was emphasised by this
Court that in these matters the public prosecutor exercises. discretio-
nary functions in respect of which the initiative is that of the executive
but the responsibility is that of the court. This court again reiterated in
M.N. Sankarayaraynanan Nair v. P. V. Ba/akrishnan & Ors. (supra) F
./'\ that the court must satisfy itself that .the executive function of the
public prosecutor has not been improperly exercised and that it is not
an attempt to interfere with the normal course of justice and added
that the court may give its permission only if it is satisfied on the
materials placed before it that the grant of con~nt subserves the
administration of justice. nie. same view has been taken in all the G

_, subsequent cases and it must now be regarded as·well settled that the
court while considering whether ·10 grant consent or not must not
accept the ipse dixit of the public prosecutor and content itself by
merely examining whether the public prosecutor has applied an inde-
pendent mind but the court must satisfy itself not only that the grounds .
are germane or relevant to advancement of public justice but also H
764 SUPREME COURT REPORTS [1987] 1S.C.R.

A whether the grounds in fact are satisfactorily established. The ultimate
test which must be applied by the court in order to determine the
validity of the grounds in a particular case is that the requirement of
public justice outweighs the legal justice of that case so that with-
drawal froni the prosecution could be permitted in the larger interest
of public justice. The same considerations which we have discussed
B while determining what are the legitimate grounds on which an appli- +-
cation may be made by the public prosecutor for withdrawal from the
prosecution must also apply in guiding the court as to whether consent
for withdrawal of the prosecution should be granted or not. We may
again emphasise that the imperative of public justice provides the only.
relevant consideration for determining whether consent should be gran-
c mayorbenot.
ted It is not possible to provide an exclusive definition of what
regarded as falling within the imperative of public justice nor is
it possible to place the concept of public justice in a strait-jacket ._..,
formula. Every case must depend on its peculiar facts and circum-
stances because there may be a myriad situation where this question
may have to be considered by this court. The paramount consideration
D, must be the requirement of public justice and some of the grounds
which would bring the case within the fabric of public justice have
already been discussed by us in the preceding paragraphs and we need
not repeat them. The same grounds may be regarded as germane and
relevant to the requirement of public justice and if they exist, the court
would be justified in granting consent to withdrawal from the pro-
E secution.

If we apply these principles to the facts of the present case, it is
clear that the court of the Chief Judicial Magistrate, Patna as also the
High Court were clearly in error in granting consent to the withdrawal
from the prosecution against Dr. Jagannath Misra and others. We do
-
F not propose to go into the question whether the material available to
the court could be regarded as sufficient for sustaining the prosecution
of Dr. Jagannath Misra and others because if we consider this question
and make any observations in regard to the sufficiency of the material,
such observations may tend to prejudice Dr. Jagannath Misra and the
other accused. Of course, if there were no other reasons which would
G persuade the court not to grant consent to the withdrawal of the pro-
secution, we would have had to go into the question whether the
material produced before the court was sufficient prima facie to sustain
the prosecution. But, there are tWo very strong and cogent reasons
why consent to the withdrawal of the prosecution must be refused. In
the first place, the learned Chief Judicial Magistrate could have con-
H sidered under section 239 whether the material placed before him was
SHEONANDANPASWANv. STA1EOFBIHAR[BHAGWATI,J.I 765 ·
-,.1y sufficieni-to make out a prima facie case agaisnt Dr. Jagannath Misra
and the other accused so that if the learned Chief Judicial Magistrate A
came to the conclusion on the basis of such material that the charge
against Dr. Jagannath Misra ahd the other accused was groundless, he·
would be bound to discharge them for reasons to be recorded by him in
writing. There is no reason why in these circumstances the public
-~+ prosecutor should be allowed ·to withdraw from the prosecution under B
section 321. The same exercise could be performed by the learned
Chief Judicial Magistrate by acting under section 239. Moreover, in
the present case, the decision to withdraw from the prosecution was

- -{
\
taken by the Cabinet at a meeting held on 24th February 1981 and this
meeting was presided over by Dr. Jagannath Misra himself. It may be
that Shri Lallan Prasad Sinha did not implicitly obey the decision of
the Cabinet and applied.his independent mind to the question whether c
y the prosecution should be withdrawn or not but even so, it would
seriously undermine the confidence of the people in the administration
of justiC:e if a decision to withdraw the prosecution against him is taken
by the accused himself and pursuant to this decision the Special Public
Prosecutor who is appointed by the State Government of which the D
accused is the Chief Minister, applied for withdrawal from the pro-
secution. It is an elementary principle that justice must not only be
done but must also appear to be done. It would be subversive of all
principles of justice that the accused should take a decision to with-
.\.. draw the prosecution against himself and then the Special Public Pro-
secutor appointed in effect and substance by him makes an application E
for withdrawal from the prosecution. We are of the view that these"two

- considerations are so strong and cogent that consent to withdraw
from the prosecution ,should not have been granted in the present case.
It is no doubt true that if there is not sufficient evidence to
sustain the prosecution against J?r. Jagannath Misra an.d the other
/
accused, it would be subjecting them'1o harassment and inconvenience F
j'\ to require them to appear and argue before the Court for the purpose
' \ of securing an Order of discharge under sectiOn 239, but even so we
think it would be desirable in the interest of public justice that high'
political personages, accused of offences should face the judicial pr-0-
cess and get discharged, rather than seem to manoeuvre the judicial
system and thus endanger the legitimacy of the political as well as "the G
.. _, judicial process. It is possible that in a particular ca!ie personal harass-
ment or inconvenience may be caused by non withdrawal of the pr-0-
secution, if the accused is really innocent and is ultimately liable to be
discharged, but such harassment or inconvenience must be considered
as an inevitable cost of public life, which the repositories of public
H
power should have no hesitation to pay, as justice must not only be
766 SUPREME COURT REPORTS [1987] l S.C.R.

done but must also appear to be done. ~-
A

We accordingly allow the appeal, set aside the Order made by
the Chief Judicial Magistrate and confirmed by the High Court and
direct that the prosecution may proceed against Dr. Jagannath Misra
and the other accused in accordance with law.
B
+-
VENKATARAMIAH, J. I have gone through the judgments of
Bhagwati, C.J. and Khalid, J. which are pronounced today. I have also
gone through the orders of the Special Judge who permitted the with'

,. ...
drawal of the prosecution, the judgment of the High Court affirming
it, the three judgments pronounced by Tulzapurkar, J., Bahrul Islam,
c J. and R.B. Misra, J. by which this Court by majority affirmed the
order permitting withdrawal of the criminal case in question am:I also
of A.N. Sen, J. who passed the orders admitting the review petition. --r
The facts of the case are set out in the judgments referred to above and
it is unnecessary to repeat them here. I h_ave given my anxious consi-
deration to the case since it relates to the purity of public life.
D
At the outset it should be stated that merely because a court
discharges or acquits an accused arraigned before it, the Court cannot
be considered to have compromised with the crime. Corruption,
particularly at high places should be put down with a heavy hand. But
our passion to do so should not overtake reason. The Court always acts ~
E on the material before it and if it finds that the material i& not sufficient
to connect the accused with the crime, it has to discharge or aquit him,
as the case may be;noiwithstaniJing the fact that the crime complained
of is a grave one. Similarly if the case has been withdrawn by the Public
Prosecutor for good reason with the consent of the Court, this Court
should be slow to_ interfere with the order of.withdrawal. In this case if
F the Special Judge had rejected the application for withdrawal and the
-
High Court had affirmed that Order, this Court may not have inter- }-,
fered with that order under Article 136. of the Constitution of India.
(
\:"
Even if the Special Judge had permitted the withdrawal but the High
Court had reversed that order, this Court may not have interfered with
the orders of the High Court. But this is a case where the Special Judge
G had permitted the withdrawal of the prosecution, and the said order of
withdrawal has been affirmed by the High Court as well as by the
majority judgment pronounced by this Court earlier. The question is
whether this Court on review should interfere with the order permit-
ting the withdrawal of the case. Are there any strong and compelling
reasons which require interference with the qrder permitting with-
H drawal? This is the question which· has arisen before us now.
SHEO NANDAN PASWAN v. STATE OF BIHAR IVENKATARAMIAH. J.]767

-~ Since the orders of the Special Judge, of the High Court and of A
Bahrul Islam, J. and R,B. Misra, J. are in favour of the accused, I shall
not refer to theni. I shall refer only to the judgment ofTulzapurkar, J.
(See Sheonandan Paswan versus State of Bihar and others); [ 1983] 2
S.C.R. 61, who has held against the accused to.decide whether there
are sufficient incriminating circumstances which compel this Court to
--i set aside the order permitting withdrawal of the pr\)secution. lti his B
judgment at pages 101 to 103 Tulzapurkar, J. summarises the case
against Dr. Jagannath Misra thus:

-::,.
"It will appear clear from the apove discussion that the
documentary evidence mentioned above, the genuineness
·-1 of which cannot be doubted, clearly makes out a prima c
'
facie case against Respondent No. 2 sufficient to put hini on
"' trial for the offence of criminal misconduct under s. 5( I)
(d) read withs. 5(2) of the Prevention of Corruption Act,
1947. Similar is the position with regard to the incidental-
offence of forgery under s.466, I.P.C. ·said to have been
committed by him, for, ante-dating of the second order by D
him is not disputed; and it is on record that in regard to
such ante-dating no- explanation was offered by him during
the investigation when he was questioned about it in the

. '
presence of his lawyers and there has been no explanation
of any kind in any of the counter-affidavits filed before us.
But during the course of arguments his counsel offered the . E
explanation that could only be ascribed as a bona fide mis-
take or slip (vide written arguments filed on 14.10. 1982)
but such explanation does not bear scrutiny, having regard
to the admitted fact that after the ante-dated order was
pasted over the first order the despatch date appearing in
/
the margin was required to be and has been altered to F
14.5.1975 by over-writing is required to be done there can-
('. not any bona fide mistake or slip. The ante-dating in the
circumstances would be with obliqu~ intent to nullify any
possible action that could have or might have been taken
pursuant to the first order as stated earlier, that being the
most natural consequence flowing from it which must in G
law be presumed to have intended. It would, of.course, be
open to him to rebut the same at the trial but at the mo-
ment there is no material on record-by way of rebuttal. In
the circumstances it is impossible to accept the paucity of
evidence or lack of prospect of successful prosecution as a
H
valid ground for withdrawal from the prosecution. On the
768 SUPREME COURT REPORTS [1987] 1 S.C.R.

A aforesaid undisputed documentary evidence no two views
are possible in the absence of any rebuttal material, which,
of course, the respondent No.2 will have the opportunity to
place before the Court at the trial. What is more the so-
called unfair or over-zealous investigators were miles away
when the aforesaid evidence came into existence.
B
As far as Respondent No. 3 (Nawal Kishore Sinha)
and Respondent No.4 (Jiwanand Jha) are concerned it can-
not be forgotten that they have been arraigned alongwith
Respondent No. 2 on a ctiarge of criminal conspiracy in -::.::_
pursuance whereof the several offences are said to have )-
been committed by all of them. Further it is obvious that
c the principal beneficiary of the offence of criminal miscon- ~
duct said to have been committed by Respondent No. 2
under s. 5(1) (d) read with s. 5(2) of Perevention of
Corruption Act, 1947 has been Respondent Nil.3 and so far
as Respondent No.4 is concerned it cannot be said that
D there is no material on record suggesting his complicity.
Admittedly, he has been very close to Respondent No. 2
for several years and attending to bis affairs-private and
party affairs and the allegation against him in the F.I.R is
that he was concerned with the deposit of two amounts of
Rs.10,000 and Rs.3,000 on 27.12.1973 and 1.4.1974 in the ~
E Savings Bank Account of Respondent No. 2 with the Cent-
ral Bank of India, Patna Dak Bungalow Branch, which
sums, says th~ prosecution, represented some of the bribe
amounts said to have been received by respondent No. 2
and the tangible documentary evidence in proof of the two
-
deposits having been made in Respondent No. 2's account
F consists of two pay-in slips of the .concerned branch of '
· Central Bank of India. Whether the two amounts came I \r
from the funds of the Patna Urban C-0-operative Bank or
not and whether they were really paid as bribe amounts or
not would be aspects that will have to be considered at the
trial. However, as pointed out earlier the offence under
G s.5(1) (d) would even otherwise be complete if pecuniary
advantage (by way of scuttling the civil liability of
surcharge) was conferred on Nawal Kishore Sinha and
others. If Respondent No. 2 has to face the trial then in a
case where conspiracy has been charged no withdrawal can
be permitted against Respondent No. 3 and Respondent
H No. 4. In arriving at the conclusion that paucity of evidence
SHEO NANDAN PASWAN v. STAIB OFBIHAR IVENKATARAMIAH, J.)769
---~
-~ is not a valid ground for withdrawal from the prosecution in A
regard to Respondents Nos. 2,-3 and 4. I have deliberately
excluded from consideration the deb.atable evidence like
confessional statements of the approvers etc. (credibility
and effect whereof would be for the trial court to decide)
said to have been collected ·by the allegedly over-zealous
B
~ investigating officers after Respondent No.2 went out of
power in 1977."

- ....
The three circumstances put up against the accused in this case
are (i) that Jiwanand Jha had credited Rs.10,000 and Rs.3000 on
_;;,. ' 27.12.1973 and on 1.4.1974 respectively in the Savings Bank account
\ of Dr. Jagannath Misra, (ii) that there was ante-dating of the order c
passed by Dr. Jagannath Misra on 16.5.1975 and it had been shown as
y having been passed on 14.5.1975, and (iii) that there was a conies-
sional statement of Hydari which supported the prosecution. Tulza-
purkar, J .. himself has found it not safe to act on the confessional
statement. He observes "I have deliberately excluded frcim considera-
tion the debatable evidence like confessional statement of approvers D
(credibility and effect wehereof would be for the trial court to decide)
said to have been collected by the allegedly over-zealous investigating
officers after Respondent No. 2 went out of power in 1977". The two
._ other circumstances on which Tulzapurkar, J. has acted are (i) the
crediting of Rs.10,000 and Rs.3,000 on 27.12:1973 and J.4.1974
respectively in the ·savings Bank Account of Dr. Jagannath Misra by E
Jiwanand Jha and (ii) the ante-dating of the orders dated 16.5.1975.

--.. As regards the first of these two circumstances Tulzapurkar, J.
Observes: "Admittedly, he (Jiwanand Jha) has been very close to
Respondent No. 2 (Dr. Jagannath Misra) for several years and attend-
' ing to his affairs-private and party affairs and the allegation against F
-J'\ him in the F.I.R. is that he was concerned with the deposit of two.
, · amounts of Rs.10,000 and Rs.3,000 on 27.12.1973 and on J.4.1974
respectively in the Savings Bank Account of Respondent No. 2 with
the Central Bank of India, Patna Dak Bungalow Branch, which sums,
says the prosecution represented some of the bribe amounts said to
have been received by Respondent No.2 and the tangible documentary G
evidence of the two deposits having .been made in Respondent No. 2's
-'. account consists of two pay-in-slips of the concerned Branch of Central
1 Bank of India. Whether the two amounts came from the funds of the
Patna Urban Co-operative Bank or not and whether they were really
paid as bribe amounts cir not would be aspects that will have to be
considered at the trial". On this observation, it has to be stated, that it H
770 SUPREME COURT REPORTS (1987) 1 S.C.R.

has not been shown by any extract of bank account that the said two --.¢.-
A
sums came from the Patna Urban Co-operative Bank. If that was so
there would have been entries in the Bank accounts. Mere crediting of
two sums, without any other reliable evidence, in a bank account by a
politically or a friend does not by itself show that the sums were
either bribe amounts or any official. favour had been shown. This fact
B by itself is not conclusive about the guilt of the accused. -~

As regards the ante-dating of the order dated 16.5.1975 it may be.

-
noticed that Tulzapurkar, J. himself observes in the course of his order
"It is true that a mere ante-dating a document or an order would not
amount to an offence of forgery but if the document or the order is ,.,.~
).
c arite-dated with the obligue motive or fraudulent intent indicated
above (without the same actually materialising) it will be a forgery."
.....,
The passing of the two orders one on 16.5.1975 on the note sheet
and the other on buff paper which is dated 14.5.1975 is not in dispute.
It is explained that it was the practice in the Bihar Secretratiat that
D whenever an order is changed it is done by writing the later order on a
buff-sheet and pasting it on the earlier order. We were shown another
file of the Bihar Government where similar pasting had been done.
Tulzapurkar, J. observes that "the second order which was ante-dated
with the obvious fradulent intent of nullifying or rendering any action
that could have been or in fact might have been taken (even if not _j,
E actually taken) pursuant to the first order after the file had left the
Chief Minister's Secretariat on 16.5.1975, that being the most material
consequence flowing from the act of ante-dating the second order". It
is not shown by the prosecution that any action had been taken
pursuant to the order dated 16.5.1975 by any of the departmental
authorities. If any action had been taken it would have been a matter
F of record readily available for production. No such record is produced
before the Court. Hence it is a mere surmise to say that any such action
was sought to be nullified, particularly when there was no acceptable
r,._
evidence at all on the communication of the order dated 16.5.1975 to
any departmental authorities. I also adopt the reasons given by Bahrul
Islam. J. and R.B. Misra, J. in support of my judgment.
G
In fact about 23 criminal cases have been launched against Naval
Kishore Sinha and others for the offences alleged to have been com-
mitted by them. They remain unaffected. The questions involved in·
this case are whether Dr. Jagannath Misra has been a privy to the
misdeeds committed in the Patna Urban C<i-operative Bank, whether
H he and his co-accused should be prosecuted for the offences of conspi-
SHEONANDANPASWANv.STATEOFBDIAR(VENKATARAMJAH,J.lnl

racy, bribery etc., and 'whether the Public Prosecutor bad grievously A
erred in applying for the withdrawal of ibe case. All the other Judges
who have dealt with the case on merits from the Special Judge on-
wards; except TUJzapurkar; J., have opined that the permission was
properly given for withdrawal. In the circumstances, it is difficult to
take a different view in this case.
B
I respectfully agree with the legal position flowing from' section·
321 of the Code. of Criminal Procedure as explained by Krishna Iyer
and Cbinnappa Reddy; JJ. in respect of cases relating to Bansi Lal and

- . -{
Fernandes in R. K. Jain etc,, v. State through Special Police
Establishment and Ors., etc. etc., [1980] 3 S. C. R'. 982. In that case
Cbinnappa Reddy, J. bas summarised the true leg~ position thus: . c
'·
"1. Under the scheme of the Code prosecution of an offen-
der for a serious offence is primarily the responsibility of
the Executive.

2. The withdrawal from the prosecution is an executive D
function of the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that
of the Public Prosecutor and none else, and so, be cannot
surrender that discretion to someone else.
E
4. The .Government may suggest to the Public Prosecutor
that he may withdraw from the prosecution but none can
compel him to do so .
.r
5. The Public Prosecutor may withdraw from the prosecu-
tion not merely on the ground of paucity of evidence but on F
/
other relevant grounds as well in order to further the broad
-/'.
I
ends of ·public justice, public order and peace. The broad
ends of public justice will certainly include' appropriate
social, economic and, political purposes Sans Tammany
HaU enterprise.
G
6. The Public Prosecutor is an officer of the Court and
responsible to the Court.
-~
7. The Court performs a supervisory function in granting
its consent to the withdrawal.
H
772 SUPREME COURT REPORTS [1987] 1 S.C.R.

A 8. The Court's duty is not to reappreciate the grounds
which led the Public Prosecutor to request withdrawal from
the prosecution but to consider whether the Public Pro-
secutor applied his mind as a free agent, uninfluenced by
irrelevant and extraneous considerations. The Court has a
special duty in this regard as it is the ultimate repository of
B legislative confidence in granting or withholding i1:s consent
to withdrawal from the prosecution.

We may add it shall be the duty of the Public Pro-
secutor to inform the Court and it shall be the duty of the
Court to appraise itself of the reasons which prompt the
c Public Prosecutor to withdraw from the Proseculion. The
Court has a responsibility and a stake in the administration
of criminal justice and so has the Public Prose,rutor, its
'Minister of Justice'. Both have, a duty to protect the
administration of criminal justice against possible abuse or
misuse by the Executive by resort to the provisions of s.321
D Criminal Procedure Code. The independence of the
judiciary requires that once the case has travelled to the
Court, the Court and its officers alone must have control
over the case and decide what is to be done in each case."

In the circumstances of this case I find it difficult to say that the
E Public Prosecutor-had not applied his mind to the case or had con-

-
ducted himself in an improper way. If in the light of the material
before him the Public Prosecutor has taken the view that the:re was no
prospect of securing a conviction of the accused it cannot be said that
his view is an unreasonable one. We should bear in mind the nature ot •-•o=.
the role of a Public Porsecutor. He is not a persecutor. He is the
F representative not of an ordinary party to a controversy, but of
sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all, and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justi~ shall
be done. As such he is in a peculiar and very definite sense ihe servant
of the land the two fold aim of which is that guilt shall not escape or
G innoceni::e suffer. He may prosecute with earnest and vigour i:tdeed,
he should do so. But while he may strike hard blows, he is not at
liberty to strike fould ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is
to use every legitimate one to. bring.about a just one, (See Berger v.
United States), 295 U.S. 78. It is a privilege of an accused that be
H should be prosecuted by a Public Prosecutor in all cases involving
SHEO NANDAN PASWAN; STATEOFBIHAR [VENKATARAMIAH,J.1773

-)r heinous charges whenever the State undertakes proseeution. The A
judgment of a Public Prosecutor under section 321 of the Code of
Criminal Procedure, 1973 cannot be lightly interfered with unless the
Court oomes to the conclusion that he has not applied his mind or that ·
his decision is not bona fide.,

·A person may have been accused of several other misdeeds, he B
may have been an anathema to a section of the public media or he may
be an unreliable politician. But these circumstances should not enter
into the decision of the Court while dealing with a criminal charge

- · ~,
against him which must be based only.on relevant material.

Judged by the well-settled principles laid down by this Court in c
State of Bihar v. Ram Naresh Pandey; [1957] S.C.R. 279 and R.K.
·y Jain's case (supra), it is seen that the averments in the application are
similiar to the avemments in the application made for withdrawal in
the case relating to Fernandes which are to be found in R.K. Jain's
case (supra). I feel that no case has been made out in this case for
interference. I am also of the opinion that there is no need to differ D
from the legal position expaunded in the above two decisions. If any
change in the law is needed, it is for Parliament to make necessary
amendment to section 321 of the Code of Criminal Procedure, 1973. It
is significant that section 321 of the Code of Criminal Procedure, 1973
~-. is allowed to remain in the same form in 1973 even though in 1957 this
Court had construed section 494 of the former Criminal Procedure E
Code as laid down in Ram Naresh Pandey's case (supra). I, however,
find it difficult to construe section 321 of the Code of Criminal Proce-

- dure, 1973 in the light of the principles of administrative law.

which
BefJre leaving this case I may refer to another circumstance
is rather distrubing. The Review Petition was filed before this F
1
,{ Court after the retirement of Bahrul Islam, J. Allegations of bias were
~/ -made against him apparently to get the petition admitted. But later on
they. were withdrawn before the Court ·hearing the Review Petition
prono;,inced its order. But again in the course of the hearing before
this Bench an attempt was made to repeat the allegation of bias against
the learned Judge. But on objection being taken by the Court, it was G
promptly withdrawn. This conduct on the part of the appellant deserves
·1 to be deprecated.

The Review Petition was admitted after the appeal had been
dismissed only because Nandini Satpathy's case had been subsequently
reffered to a larger Bench to review the earlier decisions. When the tf

....
774 SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A earlier decisions are allowed to remain intact, there is no justification
to reverse the decision of this Court by which the appeal had already
been dismissed. There is no warrant for this extra-ordinary procedure
to be adopted in this case. The reversal of the earlier judgment of this
Court by this process strikes at the finality of judgments of this Court
and would amount to the abuse of the power of review vested in this
B Court, particularly in a criminal case. It may be noted that no other
court in the country has been given the power of review in criminal
cases. I am of the view that the majority judgement of Bahrul Islam
and R.B. Misra, JJ. should remain undisturbed. This case cannot be

C
converted into an appeal against the earlier decision of this Court.

Having considered all aspects of the case, I agree with the deci- }
sion of Khalid, J. and dismiss the appeal filed against the judgment of
-
the High court. '<I

KHALID, J. I regret I cannot persuade myself to agree with the
Judgment now pronounced by the learned Chief Justice, the last por-
D lion of which was received by me on 18. 12. 1986. It is unfortunate that
a discussion oould not be held about this case by the Judges who heard
this case, after it was reserved for Judgment in September, !986. It was
by a sheer accident that this apeal came before a Constitution Bench.
Criminal Appeal Nos. 48 & 49 of 1983 were orginally directed to be
posted before a Constitution Bench and this Appeal was also directed ~
E to be heard by a Constitution Bench because the same points were
involved. Judgments are being pronounced today in those appeals

-
dismissing them. I have agreed with the oonclusion but not with the
reasoning. Due to paucity of time I have written only a short Judgment
there. This appeal has been pending for·a long time. I am, therefore,
pronouncing a Judgment of my uwn hurriedly prepared so that this
F matter can be given quietus.

2. This appeal had an unpleasant history. I am grieved at the.-~·\
tum of events in this case. Even so, it is necessary to have the utmost
restraint in dealing with the said tum of events, because what is in-
volved here, is the credibility of this Court as the Highest Court of the
G land. In two well reasoned ooncurring Judgments, Beharul Islam, J.
and R.B. Misra, J. dismissed the appeal by their Judgments dated
December 16, 1982 and by an equally reasoned Judgment, Tulza-
purkar, J. dissented from the main Judgment and allowed the appeal. 't-
These Judgments are reported in 1983 (2) SCR 6 I. One of the Judges
(Baharul Islam,J) demited office on 13. 1.1983. An application was
H filed on 17. 1.· 1983, to review the judgment. This application can only
SHEO NANDAN PASWAN v. STAlE OFBIHAR [KHALID,J.] 775

rt ->r be to review the concurring judgments. On 27.1.1983, an application A
to raise additional grounds, specifically, based on bias was filed. The
review application was considered in chambers on 13.4. 1983. Notice
was issued, returnable on 19.4.1983. In July, 1983, the matter was
again considered in chambers when allegation of bias was given up. In
August, 1983, the matter was heard in open Court by Tulzapurkar, J.,
A.N. Sen, J. and R.R Misra, J. On.August 22, 1983, the order worded. 15.
--~
as follows (reported in 1983(4) SCC 104) was by A.N. Sen, J.

"I, therefore, admit the review petition and direct the re-
...... hearing of the appeal."
. .{
\ The learned Judge who gave this order justified his conclusion with the c
following observation:
·Ir
' "In view of the limited scope of the present proceeding I do
not consider it necessary to deal at length with the various
submissions made by the learned counsel appearing on be-
half of the parties. In the view that I have taken after a very D
anxious and careful consideration of the facts and circumst-
'·'
' ances of this case I am further of the opinion that it will not
be proper for me in this proceedings to express any views
on the same. Applying the well-settled principles governing
4, a._review petition and giving my very anxious and careful ·
.consideration to the facts and circumstances of this case, I E
have come to the conclusion that the review petition should
be admitted and the appeal should be re-heard. I have
, deliberately refrained from statingmy reasons and the vari-
ous grounds which have led me to this conclu,sion. Any
decision of the facts and circumstances which, to my mind,
constitute errors apprarent on the face ?f the record and F
) my reasons for the finding that these facts and circumst-
y' ances ·constitute errors apparent on the face of the record.
resulting in the success of the review petition; may have the
possibility of prejudicing the appeal which as a result of my
decision has to be re-heard."
.;;, G
In paragraph 15, the learned Judge directed as follows:

---
~ "Accordingly, I further direct that the appeal be re-heard
immediately after the decision ofNandani Satpathy case."

The other Judges agreed with this. H
776 SUPREME COURT REPORTS [1987] l S.C.R.

A 3. Thus the Bench that heard the review petition did not disclose
in the order, the reasons why re-hearing of the appeal was ordered nor
did it outline in the order, what constituted errors apparent on the face
of the record to justify the order passed. By this order, the Bench did
not set aside the earlier judgment. All that was done was to admit the
review petition and to direct re-hearing of the appeal. The one ques-
B tion seriously debated at the bar is whether the Judgment sought to be
reviewed was set aside or not. It was forcefully contended that the
earlier judgment was not set aside and was still at large. This was met
with the plea that if it was not set aside, what is it that the Court now
hears? I will examine this contention presently. ·

c 4. One incontrovertible fact is that the earlier was not in terms
set aside. Admitting a review petition is not the same thing as setting '<I
aside the order, sought to be reviewed.

Order 47 Rule I C.P.C. deals with review in civil matters. Article
137 of the Constitution is a special power with the Supreme Court to
D review any judgment pronounced or order made by it. An order pas- ~
sed in a criminal case can be reviewed and set aside only if there are \•
errors apparent on the record. In this case, we are left only to guess
what reasons or grounds persuaded the Judge to pass this order, for,
the learned Judge has deliberately refrained from stating his reasons 1
and 'various grounds' in the order. ~
E
That the Judgment was not set aside can be concluded from one
important fact. One of the Judges who was a party to this order (R.B.
Misra, J) had earlier dismissed the appeal with convincing reasons. If
the Judgment was set aside by the order passed in the review petition,
the learned Judge ~ould definitely have given his own reasons for
F doing so by a separate order. This has not been done. All that the
order says is that the review petition had been admitted. The direction >-
to re-hear the appeal, therefore, can only be to ascertain reasons to see 11
whether the Judgment need be set aside.· In my view, with great
respect, it would be highly unfair to the learned Judge (R.B. Misra, J.)
to. contend that his earlier Judgment was set aside.
G
It is left to us now, the unpleasant task to unravel this mystery

H
and to divine the mind of man. I must confess my failure in this task.
After hearing the lengthy arguments, I have not been able to find any
error apparent on the face of the record in the earlier Judgment. The
direction contained in the second order was to re-hear the appeal.
-
That wish has been set aside by the reviewing order nor any error
SHEONANDANPASWAN v. STATEOFBIHAR [KHALID,i.J 777

~ discemab[e on the face of the record shown, in my considered view, A
the original order has to stand, which means that the appeal has to be
r• dismissed affirming it. This is the short manner in which this appeal
" can be dismissed and I do so. However, I do not propose to rest
., ,content with this manner of disposal of the appeal.
., B
5. This matter was heard at lengtl;l. The stand taken by the
appellant is that the earlier Judgment has been set aside. Therefore, it
is only fair that the facts of the case and the questions of law bearing on
them are also considered since the matter has been placed before a
bench of five Judges.

~
,,.
6. The appeals referred to this Bench do not raise any questions
of constitutional law. There are decisions rendered by Benches of
c
three Judges and two Judges of this Court wherein the scope of Section
32 1 of Criminal Procedure Code (Section 494 of Old Criminal Proce-
dure Code) has been discussed at length. Two criminal appeals 48 and
49 of 1983 were referred to a Constitution Bench, originally. The
D
Bench that referred these appeals did not doubt the correctness of
such earlier Judgments. The reference order reads as follows:

·, "Special leave granted in both the matters. In view ofcer-
tain decisions referred to at ihe time of the hearing of the
petitions with differing interpretations, it appears that in
E
.. order to clarify the legal issues connected with po:-ver of
withdrawal of criminal cases and put them beyond pale of
controversy, it is better the matter b<; placed befoe Hon'ble.
the Chief Justice to place the matter before a larger Bench
'
~ of five Judges."
p - J'
• · It is this order of reference and the direction by the Bench that
:/ heard the review petition, to re-hear this appeal immediately after the
decision in Nandani Satpathy's case, criminal appeal Nos.48 and 49 of
1983, that has brought this case also before this Bench. This is the
accidental coincidence about which reference was made by me in the
opening paragraph of this Judgment.
G
7. It is not necessary to deal at length with· the facts leading to
this appeal. The background facts have been given in detail in the
Judgment sought to be reviewed. I do not, therefore, think it neces-
sary to encumber this Judgment with all the facts. i shall refer only to
the bare facts necessary for the purpose of this Judgment. H

'
778 SUPREME COURT REPORTS (1987] l S.C.R.

8. The appellant and respondent No. 2 belonged to the rival
A
political parties. The appellant is a member of the Bihar Legislative
Assembly. Respodent No. 2 was the Chief Minister of Bihar. Respon-
dent No. 4 was a close associated of Respondent No. 2. Respondent
No. 3 started the Patna Urban Co-operative Bank and became its
·Chairman. He and respondent No. 2 were close friends. There were
B some irregularities in the affairs of the bank. Proceedings were taken
to prosecute those connected with the bank for the irregularities. The
then Chief Minister (Respondent No. 2) ordered the prosecution of
the office' bearers and staff of the ba\tk including its Honorary Secre-
tary Shri K.P. Gupta, Manager M.A. Haidari and the loan clerk.

c Consequent upon a mid tenn poll to the Lok Sabha in March,
1977, there was a change of Ministry at the Centre. In April, 1977, the
Patna Secretariat Non-Gazetted Employees Association submitted a
\ representation against the second respondent to the Prime Minister
and the Home Minister of the Union Government. In June, the
Government, headed by the second respondent, was replaced by the
D Government headed by Shri Karpoori Thakur. The Employees'
Association submitted a copy of their representation to the new Chief
Minister on July 9, 1977, requesting him to enquire into the allegations
against the second respondent. After a detailed procedure and ob-
taining requisite sanction from the Governor, a criminal case was
instituted by the vigilance against the second respondent and others.
E On 19.2.1979, a charge-sheet was filed.

9. The charge-sheet filed by the State of Bihar against the
respondents on 19th February, 1979, was for offences under Sections
420/466/471/109/120-B ofl.P.C. and under Sections S(I)(a), S(a)(b) &
5(l)(d) read with Section 5(2) of the Prevention of Corruption Act,
F 1947. The charge against the second respondent was that he, who at all )
material times, was either a Minister or the Chief Minister of Bihar
abusing his position as a public servant, in conspiracy with the other
accused, sought to interfere with the criminal prosecution and
surcharge proceedings against Nawal Kishore Sinha and others with a
view to obtain to himself and to the· other respondents pecuniary
G advantage to the detriment of Patna Urban Cooperative Bank. The
Cheif Judicial Magistrate took cognizance of the case on 29. 7. 1979.

IO. There was a change of ministry in Bihar in June, 1980 and
the second respondent became the Chief Minister again. A policy
decision was taken on !0.6. !980, that criminal cases launched out of
1-l political vendetta and cases relating to political agitation be with-
SHEONANDANPASWAN v. STATEOFBIHAR (KHALID,!.] 779

drawn. On 24.2.1981, the Government aJ!J?<>inted Shri L.P. Sinha as.a A
Special Public Prosecutor. On 25.2.1981, the secretary to the Govern-
ment of ·Bihar wrote a letter to the District Magistrate informing him
of the policy decision taken by the Government to withdraw from
prosecution of two vigilance cases including the case with which we are
concerned. He was requested to take steps for the withdrawal of the
case. On 17th June, 1981, Shri Sinha made an application under Sec- B
lion 321 of the Cr.P.C. to the Special Judge seeking permission to
withdraw from the prosecution of respondent Nos. 2, 3 & 4, on four
grounds; (a) Lack of prospect of successful prosecution in the light of

- J
,•
the evidence, {b) Implication of the persons as a result of political and
personal vendetta, ( c) Inexpediency of the prosecution for the reasons
- \ of the State and public policy and (d) Adverse effects that the con- c
tinuance of the prosecution will bring on public interest in the light of
the changed situation. The learned Special Judge gave consent sought,
by his order dated 20th June, 198 !. A criminal revision ~as filed be-
fore the High Court against this order. This was dismissed on 14th
September, 1981 and this disinissal has given rise to this appeal.
D
1 !. The application for withdrawal and their order granting consent
are assailed on the following grounds: ·

( 1) The withdrawal was unjustified on merits.

(2) It.was against the principles settled by this Court in vari- E
ous decisions governing the exercise of power under Section
. 321 Cr.P.C.

{3) Neither the public prosecutor nor the Special Judge
applied their mind in the application for withdrawal and in
< the order giving consent. F
(

--"' I
,, ' (4) Shri L.P. Sinha was not competent to apply for with-
drawal since Shri A.K.Datta's appointment to conduct the
case under Section 24{8) ,of the Cr.P.C. had not been
cancelled.
G
(5) In the circumstances of the.case Shri Sinha did not func-
tion independently but was influenced and guided by the
State Government decision in the matter and the withdrawal
was vitiated for this reason.
•
12. I will disJ,ose of. question No. 4 first. It is not necessary to H
780 SUPREME COURT REPORTS [1987] 1 S.C.R.

consider in detail the question whether Shri Sinha was competent to
A
make the application for withdrawal. The contention is that Shri
Sinha's appointment is bad since the earlier appointment of Shri Datta
had not been set aside. This case was pressed before the three 'Judges
who heard the appeal first and is repeated before us also. All the three •
Judges who gave the Judgement in the case of Sheonandan Paswan v.
B State of Bihar & Ors., [1983] 2 SCR 61, have declined to accept the
plea that Shri Sinha was not a competent public prosecutor since Shri
Dalt's appointment-had not been cancelled. I adopt the reasons given
in the judgment and reject the plea repeated before us .

. 13. The real question that has to be answered in this case is
whether the executive function of the public prosecutor in applying
c for, and the supervisory functions of the Court in granting consent to,
the withdrawal have been properly performed or not. The four
remaining points enumerated above virtually revolve around this
question.

D 14. Section 321 needs three requisites to make an order under it
valid; (1) The application should be filed by a public prosecutor or
Assistant public prosecutor who is competent to make an application
for withdrawal, (2) He must be in charge of the case, (3) The applica-
tion should get the consent of the Court before which the case is
pending. )-
E
I find that all the three requisites are satisfied here. The question
is whether the functions by the public prosecutor and the Court were
properly performed. At no stage was a case put forward by any one
that the application made by the public prosecutor was either mala fide
or that it was not in good faith. There is no allegation of bias against
F the Special Judge. The application filed by the public prosecutor dis-
closes the fact that he had gone through the case diary and the relevant
materials connected with the case and that he came to the conclusion
that in the circumstances prevailing at the time of institution .of the
case and investigation thereof, the case was instituted on the ground of
political vendetta and only to defame the· fair image of J.N. Misra.
G This statement of the public prosecutor has not been challenged as
borne out .of any unwholesome motive. It has not been made out or
suggested that the public prosecutor was motivated by improper con-
,_
•
siderations. The only contention raised is that the reasons are not
sufficient or relevant.

H 15 . .The public prosecutor should normally be credited with fair·
SHEONANDANPASWAN v. STATE OFBJHAR IKHALID,J.] 781
-.>, ness in exercise of his power under Section-32 I, when there is no attack A
against him of having acted in an improper manner. He had before him
the State Government's communication of the policy taken by it. He
had before him the case diary statements and other materials. He.
perused them before filing the application. Thus his part under Section
32 l in this case has been performed strictly in conformity with this
Section. The question that remains then is whether the grounds urged B
·~ by him in support of withdrawal were sufficient in law. The application
!
clearly shows that Sh. Sinha applied his1 mind to the facts of, the case.
One would normally not expect a more detailed statement in an appli-

- (

°'·
cation for withdrawal than the one contained in ·the application in
question, when one keeps in view ·the scope of Section 32 l and the
wide language it uses. The plea that there was lack of application of c
mind by the public prosecutor has only to be rejected in this case.
~
16. The Chief Judicial Magistrate was acting as the Special
Judge. In his order giving consent he has expressly stated that he
perused. the relevant records of the case before granting, consent. This
.statement was not challenged in the revision petition before the High D
Court. It has, therefore, to be assumed that the Magistrate perused the
relevant records before passing the order. We must give due credence
to this statement by the Magistrate. There is no other allegation
against the Special Judge. Thus the function of the Special Judge was
~. also performed in conformity with the Section. The matter was taken
in revision before the High Cou.rt. The High Court dismissed the revi- E
sion and while doing so exercised its power properly because the mate-

-
rials before the .Court would justify only an order of dismissal and not
an order ordering retrial. -
17. Section 321 gives the public prosecutor, the power tor .with-
drawal of any case to any stage before judgment is pronounced. This F
pre-supposes the fact that the entire evidence may have been adduced
-/
'
in the case, before the application is made. When an application under
Section 321 Cr.P.C. is made, it is not necessary for the Court tG assess
the evidence to discover whether the case would end in conviction o(
acquittal. To contend that the Court when it exercises its limited
power of giving consent under Section 321 has to assess the evidence G
and find out whether the case would end in acquittal or conviction,
would be to re-write Section 321 Cr.P.C. and would be to concede to
the Court a power which the scheme of Section 321 does not contemp-
late. The acquittal or discharge order under Section 321 are not the
same as the normal final orders in criminal cases. The conclusion will
not be backed by a detailed discussion of the evidence in the case of H
782 SUPREME COURT REPORTS [ 1987] 1 S. C.R.

A acquittal or absence of prima facie case or groundlessnesss in the case ~-
of discharge. All that 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 process of law. The Court, after considering
these facts of the case, will have to see whether the application suffers
from such impropreties or illegalities as to cause manifest injustice if
B consent js given. In this case, on a reading of the application for
.Y·
withdrawal, the order of consent and the other atttendant circum-
stances, I have no hesitation to hold that the application for with-
drawal and the order giving consent were proper and strictly within the

c
confines of Section 321 Cr.P.C.

18. While construing Section 321, it is necessary to bear in mind
the wide phraseology used in it, the scheme behind it and its field of
\. -
operation. True, it does not give any guideline regarding the grounds --1
on which an application for withdrawal can be made. But in applying '
it, we have to bear in mind that it was enacted with. a specific purpose
and it would be doing violence 'to its language and contents by impor-
D ting into the section words which are not there or by restricting its
operation by fetters in the form of conditions and provisos. Its pre-
decessor Section 494 had been on the statute book from the inception
of the Criminal Procedure Code. When the code was amended in 1973,
this Section was re-numbered and the only change brought in this
section is to add the words "in charge of the case" while referring to ..+-
E the !'ublic Prosecutor or Assistant Public Prosecutor.

F
19. The old code contained a section which enabled the Adv-0-
cate General to inform the High Court before which a case is pending
at any stage before the return of the verdict that he will not further
prosecute the defendant upon the charge. This was Section 333
Cr.P.C. The discretion of the Advocate General under this Section was
-
~..
absolute. It was not subject to any control. When the Advocate
General informs the High Court that he does. not propose to proceed
with the prosecution, the Court has no alternative but to stay all pro-
ceedings and to act in accordance with that section. That section has
now been deleted from·the Code. Public Prosecutor5 are lesser mortals
G and therefore the discretion given to them by section 321 is less
plenary and is made subject to one limitation and that is the consent of
the Court before which the prosecution is pending.

Section 333, which was deleted consequent on the disconti-
nuance of orginal criminal trials in the High Court, has still a bearing,
H while considering the scope of Section 321 corresponding to Section
SHEONANDAN PASWAN v. STATEOFBIHAR [KHALID,J.l 783

494 of the earlier code and a comparative study of the two sections and A
their scope will be appropriate. Both the Sections pertain to with-
drawal of prosecutions though at different level. A harmonious view
should, in my view, prevail in the reading of the two sections. Section
333 does not give any discretion or choice to the High Court when a
motion is made under it. Such being the case, Section 321 must also be
construed, as conferring powers within circumscribed limits to the B
Court to refuse to grant permission to the public prosecutor to with-
draw 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 Advo-
cate General and stop the proceedings and discharge or aequit the
accused, the subordinate courts when moved under Section 321 · C
Cr.P.C. 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 woul<j not have intended to confor
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, b'e just and reasonable to hold D
that while conferring powers upon the subordinate courts under Sec-
tion 494 to give consent to a public prosecutor withdrawing _the pro-
secution, 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 proseciltion-The Public Prose-
cutor or Assistant Public Prosecutor in charge of a case
may, with the consent of the Court at any time before the
Judgment is pronounced, withdraw from the prosecution of F
any person either generally or in respect .of any one or
more of the offences for which he is tried; and, upon such
withdrawal:-
( a) if it is made before a charge has been framed, the
accused shall be discharged in respect of such offence o~
offences; G
(b) if it is made after a charge has been framed, or when
under this code no charge is required, he shall be aequitted
in respect of such offence or 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 H
784 SUPREME COURT REPORTS [1987] l S.C.R.

A Judgment is pronounced, but this application for withdrawal has to get
the consent of the Court and if the Court gives consent for such with-
drawal the accused will be discharged if no charge has been framed or
acquitted if charge has been framed or where no such charge is re-
quired to be framed. It clothes the public prosecutor to withdraw from
the prosecution of any person, accused of an offence both when no
B 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".

c
20. 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
t -
consent and not to determine any matter judicially. The judicial func-
tion implicit in the exercise of the judicial discretion for granting the
'f
consent would normally mean that the Court has to satisfy itself that
the executive function of the Public Prosecutor has not been impro-
D perly exercised, or that it is not an attempt to interfere with the normal
course of justice for illegitimate reasons or purposes .
•
21. The Court's function is to give consent. This section does not
obligate the Court to record reasons before consent is given. However,

E
I should not be taken to hold that consent of the Court is a matter of
course. When the Public Prosecutor makes the application for with-
.+-
drawal 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 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
F order giving consent, a higher Court is satisfied that such consent was
given on an overall consideration of the materials available, the order
giving consent has necessarily to be upheld. \-
22. It would be useful to compare the scope of the Court's power
under Section 32 l with some other sections of the Code. There are
G some provisos in the Code which relate to the manner in which Courts
have to exercise their jurisdiction in pending cases "'._hen applications
are made for their withdrawal or when the Court finds that there is no
).-
ground to proceed with the cases. Sections 203, 227, 245, 257 and 258
are some such sections. Section 203 of Criminal Procedure Code em-
powers a Magistrate to dismiss a complaint at the initial stage itself if
H he is of opinion that there is no sufficient ground for proceeding. But,
SHEONANDANPASWANv. STATEOFBIHAR [KHALID, I.[ 785

~ before doing so, the Magistrate is called upoµ to briefly record his A
reasons for so doing. The Section reads as follows:

"203. Dismissal of complaint.

· If, after·considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the B
enquiry or investigation (if any) under Section 202, the
Magistrate is of opinion that there is no sufficient ground

-"
for proceeding, he shall dismisss the complaint, and in
every such case he shall briefly record his reasons for so
~
doing."
c
' Section 245(1) deals with the power of the Magistrate in dis-
" t charging an accused when no case has been made out· against him.
However, the _Section imposes an. obligation on the Magistrate to re- .
cord his reasons before discharging the accused, Section 245( 1) reads
as follows:
D
"If, . upon taking all the evidence referred to in Section 244,
the Magistrate considers, for reasons to be recorded, that
no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate
shall discharge.him."
E
This section gives the Magistrate, in cast;s where he considers that the
accused should be discharged, a power to discharge him but the po~er
- is fettered by an obligation to record his reasons for doing so. if
reasons are not recorded in an order of discharge that would be viola-
tive of the mandate of the Section.
F
Section 245(2) enables the Magistrate to discharge an accused
"at any previous stage" of the case also if he considers that the charge
against an accused is groundless. Sub-section (I) deals with a stage
when all evidences referred to in Section 244 is taken. Section 244
deals with evidence in any warrant case i11stituted otherwise than on a
police report. It is when all such evidence has been- taken that the -G
Magistrate can discharge the accused under Section 245( I), while Sec-
tion 245(2) deals with the case in which the evidence referred to in
Section 244 has not been taken. Here again the order of discharge by
Magistrate has to be supported with reasons for discharge. Section
245(2) reads as follows:
H
786 SUPREME COURT REPORTS [1987] l S.C.R.

A "Nothing in this section shall be deemed to prevent a A-
Magistrate from discharging the accused at any previous
stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless."

An order of discharge under either of the two sub-sections can be
B
sustained only if the Magistrate has recorded.his reasons.for discharge. )..--

Section 257 in chapter 20, deals with trial of summons cases by a
Magistrate and provides for the withdrawal of com plaints. It reads as

c
follows:

"257. Withdrawal of Complaint-If a complainant, at any
}- -
· time before a final order is passed in any case under this
Chapter, satisfies the Magistrate that there. are sufficient
grounds for permitting him to withdraw his complaint
i
against the accused, or if there be more than one accused,
against all or any o~ them, the Magistrate may permit him
D
to withdraw the same, and shall thereupon acquit the
accused against when the complaint is so withdrawn."
•
The wording of this section is also significantly different from Section
321. When a complainant wants to withdraw his complaint against the
accused, the Magistrate can permit him to withdraw the same and ~-
E
acquit the accused against whom the complaint is so withdraw, only
when he satisfies the Magistrate that there are sufficient grounds for
p~rmhting him to withdraw his complaint. In other words, the
complainant cannot withdraw ·his complaint as he pleases nor can the
Magistrate permit him to do so unless the Magistrate satisfies himself
that there are sufficient grounds to withdraw the complaint. This sec-
-
F
tion thus contemplates an order disclosing sufficient grounds to satisfy
the Magistrate to accord permission to withdraw the complaint. The \,
power conferred on a Magistrate under this Section is in order. to \-
ensure that a complainant does not abuse the process of law by filing a
false or vexatious complaint against another and withdrawing the
complaint after ·adequatly embarrassing or harassing the accused so as
G to escape the consequences of a complaint or suit for malacious pro-
secution by the accused in the complaint.

Section 258 Cr.P.C. in the same chapter deals with the power of
Magistrate to stop proceedings in certain cases which can also be use-
H fully read. •
SHEONANDANPASWANv. STATEOFBIHAR[KHALID,J.] 787

. "258. Power to stop proceedings in. certain cases-In any A
. summons case instituted otherwise than upon complaint, a
Magistrate of the first class or, with the previous sanction
·of the Chief Judicial Magistrate, any other Judicial Magis-
trate, may, for reasons to be recorded by him, stop the
proceedings at any stage without pronouncing any
judgment and where such stoppage of proceeding is made B
•·-1
after the evidence of the principal witness has been recor-
ded, pronounce a judgment of acquittal, and ill any other
case, release the accused, and such release shall have the

- -~
\
effect of discharge."

This section deals with the stopping of proceedings at. any stage with- C
out pronouncing any judgment and acquitting_ or discharging the
accused a• the case may be, but the section mandates the Magistrate to
record his reasons for doing so. The Magistrate, cannot stop procee-
dings under this section without recording his reasons. Even in a
Sessions case the Sessions Court cannot exercise its powers of dis-
charge under Section 227 without recording reasons therefore. Section D
227 is in the following terms:-
"If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the sub-
missions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for E
proceeding against the accused, he shall discharge the
accused and record his reasons for so doing."
It is thus clear that .the scheme of the above Sections differ from
Section 321.
The scope of Section 321 can be tested from another angle and F
that with reference to Section 320 which deals with "compounding of
offences". Both these Sections occur in Ch<)pter 24 under the heading
"General Provisions as to Enquiries' and Trials". Section 320( 1) per-
tains to oompounding of offences, in the table,. which are not of a
serious nature while Section 320(2) pertains to offences of a slightly
serious in nature but not constituting grave crimes. The offences in the G
table under Section 320(1) may be compounded by the persons
mentioned in the third column of the table without the permission of
the Court and those given in the Table-II, under Section 320(2) can be
compounded only with the permission of the Court. Under Sub-
section 4(a), when a person "who would otherwise be competent to
compound an offence under Section 320, is under the age of 18 years H
788 SUPREME COURT REPORTS [1987] 1 S.C.R.

A or is an idiot or a lunatic, any person competent to contract on his
behalf may, with the permission of the Court, compound such offence.
"'-
Sub-section 4(b) provides that when a person who would otherwise be
competent to compound an offence under this Section is deiid, the
legal representative, as defined in the Code of Civil Procedure, of such
person may, with the consent of the Court, compound such offence.
B ~-·
These two sub-sections use the expression "with the permission
of the Court" and "with the consent of the Court'" which are more or
_less ejusden generis. On a fair reading of the above-mentioned Sub-
sections it can be safely presumed that the Sections confer only a .,,.
supervisory power on the Court in the matter of compounding of ~
c offences. in the manner indicated therein, with this safeguard that the '
accused does not by unfair or deceitful means, secure a composition of
the offence. Viewed thus I don't think that a plea can be successfully i
put forward that granting permission or giving consent under Sub-
section 4(a) or 4(b) for compounding of an offence, the Court is en-
joined to make a serious detailed evaluation of the evidence or assess-
D ment of the case to be satisfied that the case would result in acquittal
or conviction. It is necessary to bear in mind that an application for
compounding of an offence can be made at any stage. Since Section
32 I finds a place in this chapter immediately after Section 320, one will
be justified in saying that it should take its colour from the imme-
diately preceding Section and in holding that this Section, which is a ~-
E kindred to Section 320, .contemplates consent by the Court only in a
supervisory manner and not essentially in an adjudicatory manner, the
grant of consent not depending upon a detailed assessment of the
weight or volume of evidence to see the degree of success al the end of ....
the trial. All that is necessary for the Court to see is to ensure that the
application for withdrawal has been properly made, after independent
F consideration, by the public prosecutor and in furtherance of public
interest.

I referred to these sections only by way of illustration to
'
\__
,-
emphasis the distinction. between section 32 l and other sections of the
Code dealing with orders withdrawing criminal cases or discharging or
G stopping· proceedings. My purpose in referring to the above sections is
only to show that Section 321, in view of the wide language it uses,
enables the public prosecutor to withdraw from the prosecution any
accused, the discretion exercisable under which is fettered only by a
consent from Court on a consideration of the materials before it and
that at any stage of the case. The Section does not insists upon a
· H reasoned order by the Magistrate while giving consent. All that is

·~··
I ' SHEO NANDAN PASWAN v. STATE OFBlllAR (KHALID,J.] 789

necessary to satisfy the section is to see that the public prosecutor acts A
in good faith and that the Magistrate is satisfied that the exercise of
discretion by the public prosecutor is proper.

23. There is no appeal provided by the Act against an order
giving consent under Section. 321. But the. order is revisable under
Section 397 of the Criminal Procedure Code. Section 397 gives the B
High Court or the Sessions Judge jurisdiction t<;> consider the correct-
ness, legality or propriety of any finding; sentence or order and as to
the regularity of the proceedings.of any inferior Court. While consi-
dering the legality, propriety or the correctness of a finding or a con-
-1_· clusion, normally, the revising Court does not dwell at length into the
\ facts and evidence of the case. The Court in revision considers the c
materials only to satisfy itself about the correctness, legality and.
propriety of the findings, sentence or order and refrains from sub-
stitu~ing its own conclusion·on an elaborate ·consideration of evidence.

An order passed under Section 321 comes to this Court by special
leave, under Article 136 of the Constitution of India. The appeal be- D
fore us came thus. It has been the declared policy of this Court not to
embark upon a roving enquiry into the facts and evidence of cases like
this or even an order against discharge. This Court will not allow itself
to be converted in~o a Court of facts and evidence. This Court seldom
~- goes into evidence and facts. That is as it should be. Any departure
from this salutary self imposed restraint is not a healthy practice and E

-- does not commend itself to me. It is necessary for this Court to re-
member that as an apex Court, any observation on merits or on facts
and evidence of a case which has to go back to the Courts below will
seriously prejudice the party affected and it should be the policy of this
Court not to tread upon this prohibited ground and invite unsavory but
- justifiable criticism. Is this Court to assess the evidence to find out F
_ /\. whether there is a case for acquittal or conviction and convert itself \
f • into a trial Court? Or is this Court to order a retrial and examination of
hundred witnesses to find out whether the case would end in acquittal
or conviction? Either of these conclusions in the case is outside the
scope of Sect.ion 321. This can be done only if we rewriie Section 321.
G
24. Section 321 Cr.P.C. is virtually a step by way of composition
•. -4 of the offence by the State. The State is the master of the litigation in
Cfi!ninal cases. It is useful to remember that by the exercise of func-
tions under Section 321, the accountability of the concerned person or
persons does not disappear. A private complaint can still be filed if a
party is aggrieved by the withdrawal of the prosecution but running the H
790 SUPREME COURT REPORTS (1987] 1 S.C.R.
,...,__
A possible risk of a suit of malicious prosecution if the complaint is bereft
of any basis.

25. Since Section 321 does not give any guideline regarding the
grounds on which a withdrawal application can be made, such guide-
lines have to be ascertained with reference to decided cases under this
B section as well as its predecessor Section 494. I do not propose to ~·
consider all the authorities cited before me for the reason that this
Court had occasion to consider the question in all its aspects in some
of its decisions. Suffice it to say that in the Judgments rendered by
various High Courts, public· policy, interests of the administration,
inexpediency to proceed with the prosecution for reasons of State and
c paucity of evidence were c:Onsidered good grounds for withdrawal in
)- ·-
many cases and not good grounds for withdrawal in certain other cases
depending upon the peculiar facts and circumstances of the cases in 1
those decisions. AIR 1932. Cal. 699 (Giribala Dasi v. Mader Gazi),
AIR 1943 Sind 161 (Emperor v. Sital Das), AIR 1936 Cat. 356
(Marihar Sinha v. Emperor), AIR 1949 Patna 233 (The King v. Moule
D Bux and Ors.) AIR 1952 Raj. 42 and 1933 Privy Council 266 are some
of the cases which were brought to our notice .

... Ram Naresh Pandey's case reported in 1957 SCR 279 is a land
mark case which has laid down the law on the point with precision and ,._ Iii
certaintly. In this decision the functions of the Court and the Public
E Prosecutor have been correctly outlined. W~ile discussing the role of

-
the Court, this Court observed:

"His discretion in such matters has necessarily to be· exer-
cised with reference, to such material as is by then available
and it is not a prima fade judicial determination of any
F specific issue. The Magistrate's functions in these matters ,
are not only supplementary, at a higher level, to those of, .~\.--
the executive but are intended to prevent abuse. Section
494 requiring the consent of the Court for withdrawal by
the public prosecutor is more.in line with this scheme, than
with the provisions of the Code relating to inquiries and
G trials by Court. It cannot be taken to place on the Court the
responsibility for a prima fade determination of the triable
issue. For instance the discharge that results therefrom
need not always conform to the standard of "no prima fade
case" under Sections 209(1) and 253(1) or of 'groundless-
ness' .;oder Sections 209(2) and 253(2). This is not to say I
H that a consent is to be lightly given on the application of the
SHEO NANDAN PASWAN v. STATE OFBIHAR !Kli:ALID, J.l 791

public prosecutor, without a careful and proper scrutiny of A
the grounds on which the application for consent is made."

This decision was approved by this Court in M.N. Sankaranarayanan
Nair v. P.V. Balakrishnan & Ors., [1972) 2 SCR 599 as is seen at page 606:

" ..... In the State of Bihar v. Ram Naresh Pandey {1957 B
SCR 279) it was pointed out by this Court that though the
Section does not give any indication as to the ground on
which the Public Presecutor may make an application on
J the consideration of which the Court is to grant its consent,
it must none-the-less satisfy itself that the executive function
of the Public Prosecutor has not been improperly exercised
and that it is not an attempt to interfere with the normal c
course of justice for illegitimate reasons or purposes ..... "

26. I will now briefly refer to some other cases cited to understand
how Courts considered the scope of Section 32 l depending upon the
facts of each case. D
•
In the case of Bansi Lal v. Chandan Lal, AIR 1976 SC 370 this
Court followed its earlier decision reported in [1972) 2 SCR 599 which in
tum followed [1957) SCR 279 and declined consent when withdrawal
was sought on the ground that the prosecution did not want to produce
evidence and continue the criminal matter against the accused. The E
Sessions Judge gave his consent as it appeared to him "futile to refuse
permission to the State to withdraw prosecution". This consent was set
..... aside because reluctance to produce evidence was held to be not suffi-
cient ground for withdrawal.

· In State of Orissa v. Chandrika Mohapatra & Ors., [ 1977) l SCR F
·-;'\ 335 the application for withdrawal was made.on two grounds: (i) that it
was considered inexpedient to proceed with the case; (ii) that the
evidence colle.cted during investigation was meagre and no useful
puqiose would be served by proceedings with the case against the
accused. The Magistrate gave consent holding that compelling the
State to go on with the prosecution would involve unnecessary expen- G
diture and waste of public time. This Court upheld the consent and
..-1 held that meagre evidence was a legitimate ground for withdrawal. .
The following observation at page 338 is useful for our purpose on an
important aspect. In that case, as in. this case, the Magistrate had
clearly stated in his order that he was giving consent after going
through the materials placed before him. This is how the Court sum- H
med up its finding:
792 SUPREME COURT REPORTS (1987] 1 S.C.R.

A "It is difficult for us to understand how the High Court ""--
could possibly obsenie in its order that the Magistrate had
not perused the case diary when in terms the learned
Magistrate has stated in his order that he had read the case
diary and it was after reading it that he was of the opinion
that the averment of the prosecution that the evidence was
B not sufficient was not ill-founded. Then again it is difficult ~.
to comprehend how the High Court could possibly say that
the learned Magistrate accorded consent to the withdrawal
of the prosecution on the ground that it was inexpedient to
proceed with the case, when, in so many terms, the learned
• Magistrate rejected that ground and granted consent only .~
on the second ground based on inadequacy of evidence .. "
c
When the Magistrate states in his order that he has considered the 'f
materials, it is not proper·for this Court not to accept that statement.
The proper thing to do is to hold that the Magistrate gave consent on
objective consideration of the relevant aspects of the case. It would be
D acting against the mandate of Section 321 to find fault with the Magis-
trate in such cases, unless the order discloses that the Magistrate has
failed to consider whether the application is made in good faith, in the
interest of public policy and justice and not to thwart or strifle the
process of law.

E In Ba/want Singh v. State of Bihar, [1978] 1SCR604 this Court felt
unhappy when the public prosecutor and the Magistrate had surren-
dered their discretion, but still declined to grant leave under Article
136 and the withdrawal stood confirmed.

In Subhash'Chander v. State, [ 1980] 2 SCR 44, this Court upheld
F the consent given for withdrawal since a fresh investigation had
revealed that the case was framed b_y the concerned Police Officers >.
with ulterior motives. This Court observed that two relevant matters - · \"
to be considered about the consent are: (1) whether the considerations
are germane and (2) whether actual decision was taken by the public
prosecutor or he only obeyed the orders dictated to him by others.
G
In Rajendra Kumar Jain v. State, [1980] 3 SCR 982, this Court
had to deal with two sets of cases-one relating to the Baroda Dyna-
mite case and the other the Bhiwani Temple Demolition case. In that
ca8e, this Court summarised eight propositions which are given in the
judgment rendered by Tulzapurkar, J. in Sheonandan Paswan v. State
H of Bihar & Ors., This Court observed that paucity of evidence is not
,, SHEONANDANPASWAN v. STATEOFBIHAR [KHALID,J.I 793
~~ the only ground on which the Public Prosecutor may withdraw from
A
the prosecution, though that is a traditional ground for withdrawal.
· Political purposes and political vendetta afford sufficient ground for
withdrawal.

27. All the above decisions have followed the reasoning of Ram
·~ Naresh Pandey's case and. the principles settled in that decision were B
not doubted.
It is in the light of these decisions that the case on hand has to be

-· ·~
considered. I find that the application for withdrawal by the Public
Prosecutor has been made in good faith after careful consideration of
the materials placed before him and the order of consent given by the
Magistrate was also after due consideration of various details, as indi- c
~ cated above. It would be improper for this Court, keeping in view the
scheme of Section 321, to embark upon a detailed enquiry into the
facts and evidence of the case or to direct re-trial for that would be
destructive of the object and intent of the Section.
D
Now, I propose to quickly rush through the facts of the case to
make the discussion complete.

28. When the matter was first heard by this Court, the docu-
ments produced were profusely referred to by counsel on both sides.
-+- This consisted of also affidavits. filed by both sides. Baharul Islam, J,
< E
after discussing the questions cif law examined the factual aspect also.
Referring to Shri 'Yenugopalan's arguments (the appellants' counsel
.... then), on facts, the learned Judge observed as follows:

"The learned Counsel fairly concedes that he does not take
much reliance or .oral evidence but takes strong reliance on
F
two pieces of documentary evidence, namely alleged crea-
-/\ tion of forged documents by Dr .. Mishra and the confes-
sional statement of Haidari implicating Dr. Mishra."

On this concession, the learned Judge proceeded to consider the
factual details pressed by the Counsel, but cautioned himself saying
G
that consideration of the factual details should not be treated as a
precedent because, according to him, the appellant should not be
-I permited to raise them for the first time in an appeal by special leave
under Article 136 of the Constitution. This is how the learned Judge
spoke.
H
"Before proceeding further, it is pertinent to mention that
794 SUPREME COURT REPORTS (1987] l S.C.R.

in. his application before the Special Judge, the appellant
A
did not find fault with any of the grounds of withdrawal in
the application filed by the Public Prosecutor under Section
321. His only contention was that an attempt was being
made by the Public Prosecutor to scuttle the case and that
the Court should apply its independent mind before
B according consent to the withdrawal and that he should be
heard in the matter. He made no mention of any forgery by
antedating or by pasting of any earlier ord!"r and thereby
making any attempt at shielding of any culprit. He thus,
prevented the Special Judge and the High Court from
giving any finding on alleged forgery on the allegations of
pasting and ante-dating and thereby depriving us also from
c the benefits of such findings of the Courts below. This
question of fact has now been sought to be brought to the
notice of this Court during the course of argument by
learned counsel of the appellant in this appeal. A question
of fact that needs investigation cannot be allowed to be
D raised for the first time in an appeal by Special Leave under
Article 136 of the Constitution."

I respectfully agree with this approach.

29. We have a few documents on which reliance has been placed
E by counsel on both sides in furtherance of their submission. Prior to
March, 1977, there were only three important documents relating to
the mis-deeds in Patna Urban Co-operative Bank:

(a) Report of the Reserve Bank oflndia;
(b) Audit report of the Special Divisional Co-operative
F Audit Officer; and
(c) The report of the Estimates Committee of the Bihar ,~
Legislative Assembly.

In none of the three reports has the second respondent been named
G either as a conspirator in any offence or as an offender in relation to
the affairs of the bank. These three documents, therefore, will not
help the appellant to press a case against the second respondent before
a Criminal Court. The accusation against the second respondent was
that he was trying to shield N.K. Sinha. But it is useful to remember
that 17 criminal cases had been filed against him and they are still
H pending.
SHEONANDAN PASWANv. STATE OFBIHAR [KHALID,l.l 795

A
Thus a one important piece of evidence that is pressed into
service against the second respondent is the confessional statement of
Haidari. There were two cases against Haidari, the. case on hand and
another case. In this case he was granted pardon. He turned an
approver and became a prosecution witness. He has been prosecuted
in several other cases on the basis of orders passed by respondent B
No. 2 on 4'8.1976. His first confessional statement was on 4-11-1976.
Then he did not implicate respondent No. 2. He was re-arrested
0022-1-1978. He made a second confessional statement on 24-1-1978.

- This time he implicated the second respondent for the first time for
the alleged offence said to have been committed in the years 1973-75.
What is the evidentiary value of these confessional statements
c
implicating the second respondent. The second statement at best is
the confessional statement of a co-accused which normally will not
insP.ire confidence, in any Court. It is also a statement or an
accomplice turned approver and hence of a very little evidentiary
value. The question for consideration is whether a retrial should be
ordered on this legally weak and infirm evidence, when this Court D
execises its jurisdiction while considering an order giving consent on
an application under Section 321 of Criminal Procedure Code. I have
no hesitation to reject such a request 1:9nsistent with the declared
policy of this Court not to embark upon eviden.ce.

The second piece of evidence relates to the alleged forgery. The E
gravamen of the charge is that the second respondent as Chief Minister
passed an order on 16-5-1975, in Hindi and wrote another order put-
ting the date as 14-5-1975 and got it pasted over the earlier order. The
allegation is that he changed the original Hindi digit 'six' into 'four'.
This is not denied by the second respondent. The case put forward is
that, by the above act of ante-dating by over-writing, the second res- F
pondent committed forgery and also an offence under SectioQ 5(l)(d)
of the Prevention of Corruption Act. I do not propose to deal with this
part of the case in detail for the simple reason that there is no shred of
evidence in this case, that this file ever left the office of the Chief
Minister nor that any one had secured any benefit by this over-writing.
When Shri Rajendra Singh, one of the learned counsel asserted that G
the file had not left the Chief Minister's office, that assertion was not
met by any one on the appellant's side. There is no evidence as to
when the date was changed and as to whether this change of date had
extended any benefit on the third respondent, N.K. Sinha. That being
so, this factual aspect also need not detain me. On these materials, one H
796 SUPREME COURT REPORTS [1987] 1 S.C.R.
A fails to understand how an offence under Section 466 could be made
out. Taking the entire evidence against the appellant it cannot be held
that he has committed forgery under Section 463 or an offence under
Section 466. Even though there is over-writing or pasting or interpola-
tion or change of digits, there is no evidence at all to show that this
B paper went out of the Chief Minister's office or that any one was
unduly favoured or that any one secur~d undue advantage by use of
such over-writing.

The appellant is admittedly a political rival of respondent No. 2.
There is no love lost between them. It is at the instance of such a highly
interested person that this Court is called upon to direct retrial of the
C case, setting aside the consent given by the Special Judge. The second
respondent is a leader of a political party. He was a rival to the Chief
Minister who followed him after the 1977 at the time of institution of
the case. In 1977, when the second respondent was the Chief Minister,
a warrant of arrest was issued against Shri Karpoori Thakur for his
D arrest and detention. It has been suggested that Shri Thakur had
grudge against the second respondent. Viewed against this back- •
"
ground, in my view, it would not advance either the interests of justice
or public interest, on the unsatisfactory factual details of the case, to
accept the appeal and direc! retrial.

E 33. I have deliberately refrained from considering the factual +
details of the case because the details are available in the three Judg-
ment rendered by the three Judges of this Court reported in [1983] 2
SCR 61. I have approached the whole case in a purely detached man-
ner with reference to the facts of the case and the question of law -
involved. In this case this Court is called upon only to consider the
F ambit and scope of Section 321 Cr.P.C. and not the truth or otherwise
of the allegations against the second respondent. Therefore, when we
uphold the order of the High .<;:ourt and that of the Special Judge, we .)..,.-
have only upheld the propriety of the orders tested against the scope of
Section 321 Cr.P.C. The number of true cases that get crucified at the
altar of the doctrine of benefit of doubt is legion. Since the scope of
this appeal does not and cannot extend to the consideration of the
G
merits of the case in depth, I have advisedly not embarked upon such
an enquiry. I firmly believe that this Court.while deciding cases should
consider only the legal issues involved and not the individuals
involved.

A On a careful consideration of the facts and circumstances of the
SHEONANDANPASWANv. STATEOFBIHAR[KHALID,J.] 797

case, I hold that this appeal has to fail and has to be dismissed. Accord- A
ingly, I dismiss the appeal.

v. Khalid].

ORDER S. NatarajanJ. B

In accordance with the opinion of the majority the appeal shall
stand dismissed.

S.R. Appeal dismissed.
c