Holding

A withdrawal under Section 321 is invalid when based on extraneous considerations and where a prima facie case exists; the public prosecutor must apply his mind independently, and the court must ensure the grounds are legally valid.

Summary

The Supreme Court examined the withdrawal of a criminal case against the former Chief Minister of Bihar and others under Section 321 of the Code of Criminal Procedure, 1973. The State had appointed a new special public prosecutor, L.P. Sinha, who applied to the Special Judge for permission to withdraw, citing lack of prospect of conviction, political vendetta, state policy, and adverse public interest. The Court held that while Sinha was a competent public prosecutor who had applied his mind, the grounds (b), (c) and (d) were irrelevant to the ordinary offences of bribery and forgery and the case disclosed a prima facie case. Consequently, the withdrawal was vitiated and the order allowing it was set aside. The appeal was allowed, directing that the case proceed to trial.

Issues considered

The true scope and nature of the power under Section 321 CrPC.
Whether L.P. Sinha was a competent public prosecutor entitled to file the withdrawal application.
Whether the withdrawal was justified on the grounds pleaded, including lack of prospect of prosecution, political vendetta, state policy and public interest.
Whether the trial court’s supervisory function in granting consent was proper.

Legislation cited

Code of Criminal Procedure, 1973s. 24(3), s. 24(8), s. 2(u), s. 321
Co-operative Societies Act, 1935s. 40
Indian Penal Code, 1860s. 109, s. 120-B, s. 420, s. 466, s. 471
Prevention of Corruption Act, 1947s. 5(1)(a), s. 5(1)(b), s. 5(1)(d), s. 5(2)

Subjects

Section 321public prosecutorwithdrawal from prosecutionexecutive functionjudicial supervisionpolitical vendettapublic policyprevention of corruption actforgerybriberyBiharspecial leave

Judgment

61
SHEONANDAN PASWAN A

v.
STATE OF BIHAR & OTHERS
B
December 16, 1982

(V. D. TULZAPURK~R, BAHARUL ISLAM AND R. B. MISRA JJ.)

A. Nol/es Prosequi-Nature and scope of power under section 321 of
the Code of Crlmi11al Procedure, 1973 - In th• discharge of his
duties, whether a public Prosector, who is always instructed by the c
Govtrnment can he said to be fret and independent.

B. Special Pilb/ic Prosecutor, appointment of.:._Appointment of Special
Public Prosecutor to conduct the case in question without cancelling
the appointment of an earlier appointee:.._Competency of the latter
appointee applying for wilhdrawal of the case, Code of Criminal
Procedure, 1973, S•cti•ns 24 (8) and 321. D
C. 'Code of Criminal Procedure. 1973-Section 321- Grounds /or
withdrawal from prosecution-Whether the grounds like (a) imp/i..
cation of the accussd as a result of personal and political vendetta.
(b) inexpediency of prosecution for reafon1 of State and Public
policy. and ( c) adver1e c!!ects which the continuance <?f prosecution B
will bring on public interest etc. would be .relevant for withdrawing
from the prosecution.

D. Nol/es Prosequi - Accused charged with offences of ·criminal
misconduct and forgery-Permission to withdraw on an application
made on the ground of lack or prospect of successful prosecution
in the light of the evidence on record-High Court confirming the
said order-Interference by the Supreme Court under Article 136.

After obtaining the requisite sanction from the Gc1vernor on 19th '
February, 1979, a chargesheet in Vigilance P. S. case no. 9 (2) 78 was filed by
the State of Bihar against Respondent No 2 (Dr. Jagannath M!Shra), Respondent
no. 3 (Nawal Kishore Sinha), Re•pondent no. 4 (Jiwanand Jha) and three
others {K. P. Gupta since dece!l-sed, M.A. Haidari and A. K, Singh Who later G
became approvers) for offences under Sections 4201466/471/109/120-B 1.P.C.
, and under Section 5 (!) (a), 5 (!) (b) and 5 (!) (d) read with Section 5 (2) of the
Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge
against the respondent no. 2, was that all times material he was either a
Minister or the Chief Minister of Bihar and in '1tha~ capacity by corrupt and
or iHega! means or by otherwise abusing his position as a public servant, be, in H
conspiracy with the other accused and with a view to protect Nawal Kisbore
Sinha~ in particular, sought to subVert criminal prosecution and surcharge
62 SUPREME COURT REPORTS (1983] 2 s.c.a,

A prccc<dings ataivst Nav.al Ki~tcire SiDba and others, and either obtained for
himself er cor.feritd en tbcm pecuniary advantage to the detriment of Patna.
Urban Cc-operative Bark, its n:crr.bcrs, depositors and creditors and thereby
ccmmittcd the c·ff<nce of criminal misconduct under Section 5 (1) (d) read with
S<cticn S (2) c.f the Prevention of Conuption Act, 1947 and in that process
ccrrrnittrd the otl:cr cff<r::ccs si:ccifird in the charfe-shc:ct, {ncluding the offences
of for[cry 11ndfr srcHcn 4!6 I.P.C. Crgniz2ncc cf the case was taken on 21st
B Nc.,tn.ber, 1979 by the learned Chief Judicial Magistratc-cum·Special Judge
(Vigilanct) Pall a, who i~flUCd precess against the accused, but before the trial
ccamel!ctd 1l:e ·Sta1c Gcvcniment, at the instance of Respondent no. 2, who
in 1he n::cavtime had ccme 10 power and had become the Chief Minister; took a
decisicn in February 1981 to witl:ldraw frcm t:he prosecution for reasons of
State and Public Policy. Though initially Shri Awadesh Kumar Dutt, Senior
Advocate Patna High Court, bad been appointed as a Special Public Prosecutor
c by lhe previous Go,·ernment for conducting the case, the State Government
(now beaded by Respondent no. 2) without canceIJing Sbri Dutt's appointment
as Special Public Prosecutor, on 24th February 1981 constituted a fresh panel
of lawyers for conducting cases pertaining to Vigilance Department. Sri Lalan
Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted
the said case and was informed of the Government's said decision and on 26th
D March, 1981, be was further requested to take steps for withdrawal of the case
after he bad conSiclerrd the matler and sath.fied himself about it. On 17th June,
1S8J, Sri La1an Prasad Sinha made an application under Section 321 Crl. P.C.
1973 to the Special Judge seeking permission to withdraw from the prosecution
of Respondent Nos. 2, 3 and 4 in the. case on four grounds: namely, (a) Lack
of prospect of succcssfuprosccution in the lishtin of the evidence, (b) Implication
of the persons as a result of political and personal vendetta, (c) Inexpedieacy
of the prosrcution for the reasons Of the State and Public Policy; and (d) Adverse
E tffccts that the continuance of the prosecution will bring on public interest in
the light of the changed situation. The learned Special Judge by bis order
dated 20th June 1981 granted the permission. A Criminal Revision No. 874/81
preferred by the apJ)tlJant against the said order was dismissed in limln~ by the
High Court on 14th Septrm~er, 1981. H<nce the approval by Special Leave
of the Court.

Allowin1 the Appeal, t~e Court

HELD : (i) Lalan Prasad Sinha was the competent officer entitled to
apply for the withdrawal from the prosecution, there being no in6rmity in his
appointment. [155 B-C]
G (ii) He did apply bis mind and came to his owa conclusions before
making the application for the withd1awal from the prosecution. [149 G]

Per mojority (Baharul Islam and Misra JJ, Tulzapurkar J dissenting)

The executive function of the Public Prosecutor and or the supervisory
B function of the trial court in iranting its consent to the withdrawal have been
properly performed and not vitiated by reason of any illegality. (l43E-158A 1
SHEONANDAN v. BIHAR 63

Per TUlzapurkar J (Concurring with BaharuI Islam and Misra JJ.) A
1:1 Sri Lalan Prasad Sinha was the competent officer entitled to apply
for the withdrawal from the prosecution. [84 E. 85 F]

2:2 It is true that the appointment of the form�r prosecutor. in the
instant case, made by the previous . government to conduct the case in question
had not been cancelled, though in fitness of things it should have been cancelled
but ibat did not prevent the new government to make a fresh appointment of a B
Public Prosecutor and to put him in charge of the case. Appointments of
Public Prosecutors generally fall under Section 24 (3) of the Code of Criminal
Procedure, but when the State Government appoints public prosecutors for the
purpose of any case or class of cases. the appointees became Special Public
P rosecutors under Section 24 (8) of the Code. [85 B·D)

1:2 Further it cannot be disputed that the former prosecutor not having C
appeared before the Special Judge at any stage of the hearing was never in-
charge of the case not in the actual conduct of the: case; on the other band,
after the allotment of this Case to him, the latter was incbarge of the case and
was actually conducting the case. be having admittedly appeared in the case at
least on four occasions before the Special Judge. [BS D·F]

Stal• of PunJah v. Sur}•et Singh [19671 2 s.c.R. 347;
and Anr.,
M.N.S. Nair v. P.V. Ba/akrishnun and O;s [1972] 2 S.C.R. 599, followed.
D
1:3 It is true that, in the instant case, the State�;Governmeot bad taken
its own decision to withdraw from the prosecution in the case against the accused
persons and it is also true that the said decision was communicated to the
Public Prosecutor1 but if the letters communicating the decision arc carefully
scrutinised, it will be clear that the State ;Government merely suga;ested him
(which it was entitled to do) to withdraw from the prosecution but at the same E
time asked him to consider the matter on his own and after satisfying himself
about it make the necessary application which he did. and there is no material
to doubt the recital that is found in the app1icati0n that be had himself considered
relevant materials connected with the case and bad come to his own conclusions
in that behalf. [86 D-F]

2. From the Supreme Court'; enunciation of the legal position governing F
the proper exercise of the power contained in Section 3211 three or four things
became clear :

(i) Though withdrawal from prosecution is an executive function· of
ihe Public Prosecutor for which statutory discretion is vested �in him, the
discretion is neither absOlutc nor uoreviewablc but�it is subject to the court's
supervisory function. In fact being an executive function it would be subject G
to a judicial review on certain limited grounds like any other executive action;
the authority with whom the discretion is vested 'must genuinely address itself
.
to the matter before it, must not act under the dictates of another body, must
not do what it has been forbidden to ,do, must act in good faith, must have
regard to all relevant considerations and must oot be swayed by irrelevent
. co11side1atio11s, must not seek to promote purposes alien to the lener or the H
spirit of the legislation that gives it power to act arbitrarily or capriciously,"
[81 E·H, 82A)
64 SUPREME COURT REPORTS [19S3] 2 s.c.a.

A (ii) Since the trial court's supervisory function of either granting or
refusing to grant the permission is a judicial function the same is liable to
correction by the High Court under its revisionaJ powers both under the oJd
-and present Code of Criminal Procedure, and naturally the Supreme Court
would have at least coextensive jurisdiction with the High Court ·in an appeal
pr~ferred to it by special leave or upon a certificate by the High Court. [82 B~D]

B (iii) No dichotomy as such between political offences or the like on
the one hand and common law crimes on the other could be said to have been
made.by the Supreme Court for purposes of Section 321, for, even in what are
called political offences or the like, committing common law crimes, is implicit,
for the withdrawal from the prosecution of which the power under Section 321
has to be resorted to. But the decisions do Jay down that when common law
crimes are motivated by political ambitions or considerations or they BI'!'
c committed during or are followed by mass agitations, communal frenzies,
regioQlll disputes, industrial conflicts, student unrest or like situations involving
emotive issues giving rise to an atmosphere surcharged with violence, the broader
cause of public justice, public order and J;eace may outweigh the public interest
·of administering criminal justice in. a particular litigation and withdrawal from
the prosecution of that litigation would become necessary, a certainty of convic·
tion notwithstanding, and persistence in the prosecution in the name of vindi·
D eating the law may prove counter-productive. In other words, in case of such
cqnflict between the two types of public interests, the narrower public interest
should yield to the broader public interest, and, therefore, an onerous duty is
cast upon the court to weigh· and decide which public interest should prevail in
each case while granting or refusing to grant its consent to the withdrawal from
the prosecution. For, it is not invariably chat whenever crime is politicaUy
motivated or is committed in or is followed by any explosive situation involving
E emotive issue that )the prosecution must be withdrawn. In other words, in
each case of such conflict the court has to weigh and decide judiciously. But
it is obvious that unless the crimes in question arc µr 1e politica1 offences liko
sedition or are motivated by political considerations or are committed during 01
are followed by mass agitations. communal frenzies, regional disputes, industrial
conflicts, student unrest or the like situations involving emotive issues givin1-
rise to an atmosphere surcharged with violence, no question of serving any
F broader cause of public justice, public order or peace would arise and in the
absence thereof the public interest of administering criminal justice in a given
case cannot be permitted to be ·sacrificed, particularly when a highly placed
person is allegedly involved in the crime, as otherwise the common man's faitb
in the rule of Jaw and' democratic values would be shaltered. [82 D-H, 83 ~~DJ

(iv) When paucity of evidence or lack of prospect of successful
G prosecution is the ground for withdrawal the court ha1 not merely the power but
·a duty to examine the material on record without which the validity anu
propriety of such gfound cannot be determined. {83 D-E] ·

State of BihDr v. Ram Naresh Pa11dep, [1957] SCR 2?9; Stat~ of Oriss11
v. Chandrika Mohopatra and Ors., [1977) 1 SCR 335; Bal•ant Singh and Or1.
H v. State of Bihar, [1978) I SCR 604; R. K. Jal# v. Stat<, [1980] 3 SCR 982;
M.N.S. Nair v. P. V. Ba/akrishnan and Ors, [1972] 2 S.CR 599, referred to.
SHEONANDAN V. BIHAR 65.

3:1 lo the li11ht of the legal principles, it would he clear, that this .l
Vigilaoco P.S. case 9 (2) (78) being an ordinary criminal case involvin& the
cOmm.ission of common law crimes of bfibery and forgery in ordinary normal
circumstances with self-aggrandisement or favouritism as the motivating forces,
srounds (b), (c) and (d) stated in tho application for withdrawal wero irrelevant
and extraneous to the issue of withdrawal and since admittedly these were the
considerations which unquestionably influenced the decision of the Public
Prosecutor in seeking the withdrawal as well as the decision of the trial court to B
arant the permission, the impugned withdrawal of Vigilance P.S. case 9 (?.) 78
from the prosecution would stand vitiated in law. [87 H. 88 A, G-H, 89 A-BJ

3:2 Admittedly, the offences of bribery (criminal misconduct) and

-
. "
. forgery which arc said to have beeri committed by Respondent No. 2 in cons·
piracy with the other accused are ordinary common law crimes and were not
committed during nor were they foJlowed by any mass agitation or communa I
frenzy or regional dispute or industrial conflict or student unrest or 'the like
c
eiplosive situation involving any emotive issue giving rise to any surcharged
atmosphere of violence; further it caanot be di!!puted that these are not per se
political offences nor were they committed out of any political motivation What-
soever; in fact the motivating force behind them was merely to give protection
to and shield Sri Nawal Kishore Sinha, a close friend, from'criminal as well
as civil liability-a favouritism amounting to criminal miscon:iuct allegedly D
indulged in by Respondent No. 2 ·by ·abusing his position as a Minister or Chief
Minister of Bihar. If therefore, the offences did not partake of any political
character nor were committed in nor followed by any _explosive situation
involving emotive issue giving rise to any surcharged atmosphere of violence,
n6 question serving any broader cause of public justice, public order or peace
could arise and in absence thereof the public interest of administering criminal
justice in this particular case could not be permitted to be sacrificed. [88 C-F]

3:3. No resuJts of any election, howsoever sweeping, can bo
•
construed as the pCople's mandate to condone or compound the common law
erimes allegedly committed by those who have been returned to poweri
in fact such in terpretation of the mandate would be contrary to all
democratic canons. Success at hustings is no licence to sweep all dirt under
the carpet and enjoy the fruits nonchalantly. Therefore, the plea of chanee in
the situation brought about by the elections putting Re!pondent No. 2 in power
r
as Chief Minister and prosecution against the head of State would have had
adverse effects on public interest including public order and p~1~~ is m1~pL1~ei.
At the worst~ all -that can happen is that Respondent No. 2 will have to step
down and nothing more. Any fear of destabilisation of the Government is
entirely misPlaced. On the other hand, withdrawal From the prosecution of
such offences would interfere With the , normal course of administration of g
criminal justice and since Respondent No. 2 is placed in a high position, \
the same is bound to affect the common man's faith in the rule of law
and administration of justice. Further if the proof of the offences said to have
been committed by Respondent No. 2, in conspiracy with the other accused
based on undisputed and genuine documeotary evidence, no question of political
and personal vendetta or unfair and oyerzea-Ious investigation would arise. B
[89 D-H, 90 A]
66 SUPREME COURT REPuRTS [1983) 2 S.C.R.

A 3:4 The documentary evidence. comprising the Audit Reports, the
relevant notings in the concerned file and the two orders of the Respondent No. 2,
the genuineness of which cannot be doubted, clearly makes out a prima facie case
against Respondent No. 2 sufficient to put him on trial for the offence of criminal
misconduct under Section S -(1) (d) read with Section S (2) of the Prevention of
Corruption Act, 1947. Similar is the incidental offence of forgery under Section
466 LP.C. for antedating the second order. The gquestion of 11 paucity of
evidence", therefore, does not arise. The 'trial court failed, therefore, in its
B duty lo examine this before permitting the withdrawal from prosecution.
[IOI C-E. H, 102 A]

3:5 Yet another legal infirmity attaching to the executive ,function of
the Public Prosecutor as well as the supervisory judicial function of the trial y
......
.•
court which would vitiate the final order is that while the caarge·sheet is under
c sub-clauses (a), (b) and (d) of Section 5 (I) read with Section 5 (2) of the
Prevention of Corruption Act along with other offence~ under the Penal Co de, ..
in the application for withdrawal and during the submission made before the
Court as well as in the order of the trial Court permitting the withdrawal the
reference is to Sectiun S (I) (c) and not S (l) (d). Obviously the permission
granted must be regarded as having been given in respect of an offence with
which Respondent No. 2 had not been charged, completely ignoring 'the offence
under Section S (I) (d) with which he had been mainly charged. This state of
D affairs brings out a clear and glaring noil-application of mind both on the
part of the Public Prosecutor and also the learned special Judge with
the issue of withdrawal; !n the High Court also there is no improvement
in the situation. [103 B, D, E, F, H,· 104 A-CJ

Per Baharul Islam, I.
E 1:1 In view of the definition of "Public Prosecptor" in Section 2 o:
the Code of Criminal Procedure read with Section 24 (8) of -the Code and
'in the light of the decision o( the Supreme Court in State of Punjab v. Surjeet
Singh [1967] 2. SCR 347, there cannot be any doubt, that Sri L.P. Sinha was a
Public Prosecutor validity appointed under sub·section (8) of Section 24 or
the Code. [115 D·E]

F State of Punjab v. Surjeet Singh, [1967] 2 SCR, 347, followed.

1:2 The appointment of Sbri L.P. Sinha cannot be collaterally challenged
particularly in an application under Article 136 of the Constitutioo. Shri A.K.
Dutta, the earlier appointee had at no. point of tirue came ftrward lo make any
grievance at any stage of the case, either at the appointment of Sri L.P. Sinha as
Special Public Prosecutor or in the latt~r'_s conduct of the case; nor Sri L.P. Sinha
G y,.hose appointment and right to make an app\icatioo uhd~r Sl!ction 321 of the
Code have been challanged is before the Suprem~ Court. [115 E~GJ

1:3 The appointment of the latter prosecutor without the termination
of the appointment of the earlier one might at best be irregular or improper,
H but cannot said to be legally invalid. The doctrine of de facto jurisdiction which
bas been recognised in India win operate in this case. (115 G H, 116 AJ
4
SHEONANDAN V, BIHAR 67

Gokaraju Rangaraju v. State of Andhra Pradesh, [1981] 3.S.C.R. 474, A
followed.

Newzealand and Norton v. Shelly Country p. 1886; 118 US 425 quoted
with approval.

1:4 Shri L.P. Sinha was both d~ jur~ and de facto Public Prosecutor in
the case. If be fulfilled -the two conditions as required by Section 321. namely, 'B
(i) that he was the Public Prosecutor; and (ii) was incharge of the case, he was
competent to supply for withdrawal of the case, even if he were appointed for
that purpose only. (118 H, 119 A-C]

2:1 Section 321 enables the Public Prosecutor or Assistant Public
Prosecetor incharge of a case to withdraw from the prosecution with the consen_t
of the court. Before an application is made under Section 321, the Public
Prosecutor has to apply his mind to the facts of the case indopendently without
bei.;g subject to any out side influence. But ·it cannot be said that a Public
Prosecutor's action will be illegal if he receives any coinmunication or instruction
from the Government. Unlike ~the Judge, the Public Prosecutor is not an
absolutely independent officer. He is an appointee of the Government, Central
or State. appointed conducting in Court any prosecution or proceedings on
behalf 'of the Government. A public prosecutor cannot act without instructions D
of the Government; a public prosecutor cannot conduct a case absolutely on bis
own, or contrary to the instructions of his client, namely. the Government.
Section 321 does not lay any bar on the public prosecutor to receive any instruc-
tion from the Government before he files an application under that Section. If
the pi.lblic prosecutor receives such instructions, he cannot be said to act under
extraneous influence. On the contrary, the pLJb\ic pro~ecutor carinot file
an application for withdrawal of a case on his own without instruction from
the Government. [I l9:D-H, !20 B·C]

2:2 A mere perusal of the application made by the pO.biic prosecutor
abundantly shows that he did, apply his mind to the facts :or the case; be perused
the case Diary and the relevant materials connected with the case", before he
made lthe application. He did not blindly quote from the Government letter
which contained only one ground, namely, "inexpediency of prosecution fop.
reasons of state and public policy". A comparison of the contents of this
letter with the contents of the application under s~ction 321 completely neg.uivcs
the contention that he did not himself apply his mind ind;,p~ncl~ritly to th~ fact
'
of the case.and that he blindly acted on extraneous considerations. [112 F-H] ·

3:1 The object of Section 321 appJars to be to reserve pow~r to the
Executive Government to withdraw any criminal case on larger grounds of public G
policy, such as, inexpediency of prosecutious for reasons of State; broader publii~
interest like n1ainteoance of law and order; maintenance of public pea~ and
harmony, social, economic and political; changed ~ocial and political situation;
avoidance of destabilisation of a State Government and the .like. Aad such
powers have been rightly .reserved for the Government; for, who but the
Government is in tbe know of such conditions and situations prevailing in a ff
State or in the country. The Court is not in a position to know such situations.
(126 D-F]
68 SUPRBMB COURT REPORTS (1983) 2 S.C.R.

A '
3:2 The withdrawal from the prosecution is an executive function of
the public prosecutor and the ultimate decision to withdraw from the prosecution
is bis; the Government may only suggest to the Public Prosecutor that a
particular case may not be proceeded with, but nobody can compel him to do so;
not merely inadequacy of evidence, but other relevant grounds such as to
fqrther the broad ends of public justice, economic and political; public order and
peace are valid grounds for withdrawal. The exercise of the power to accord
or withdraw consent by the court is discretionary. Of course, it has to exercise
the di$crction judicially, The exercise of the power of the Court ·is judicial to
the extent that the Court in according or refusing consent has to see: (i) whether
the grounds of withdrawal are valid; and (ii) whether )he application is bonafide
and not collusive. It may be remembered that an order passed by the Court
under Section 321 is not appealable. (128 D-G)

c 3:3 A mere perusal of the impugned order of the Special Judge granting
permission to withdraw from the prosecution of accused persons, in the case in
question shows that be has applied his mind to the re1evant law. What the
court has to do under section 321 is to see whether the application discloses
ralidgroundsofwithdrawa/-valid as judicially laid down by the Supreme Court.
[128 G-H]

3:4 A criminal proceeding with a prima facie case may also be with·
D drawn. Besides, the normal practice of the Supreme Court in a criminal appeal
by Special Leave under Art. 136 of the_Constitution directed against an order of
conviction or acquittal is that it does not peruse the evidence on record aod
appreciate it to find whether findings of facts recorded by the courts below arc
correct or erroneous, far less does it peruse the police diary to see whether ado.
quate n;iaterials were collected by the investigating agency. It accepts the findings
of the Courts below unless it is shown that the findings are the results of a wrong
II application of the principles of law and that the impugned order has resulted in
grave miscarriage of justice. [129 A-C]

R.K. lain v. The State, [1980] 3 S.C.R. 982, followed.

3:5 An order under Section 3U of the Code does not hue the same
status as an order of conviction or acquittal recorded by a Trial Court or

' appellate court in a criminal prosecution, in as much as the former has not been
made appealable. An order under Section 321 of the Code bas a narrower
1cope. As an order under Section 321 of the Code is judicial, what the trial
court is expected to do is \ogive reasons for according or refusing its consent to
the withdrawal. The duty of the Court is to see that the grounds or withdrawal
are legally valid and the application made by the public prosecutor is bonafide
and not collusive. 1 In revision of an order under Section 321 of the Code, tho
G duty of the High Court is to see that the consideration by the trial court
of the application under Section 321 was not misdirected and that the grounds
of withdrawal are legally· valid. In this case the trial court elaborately consi-
dered the grounds of withdrawal and found them to be valid and accordingly
accorded its cons~nt for withdrawal. In revision the High Court affirmed the
findings of the trial court. In this appeal by special leave, therefore, there is n•
II juatification to disturb the findings of the courts below and peruse the statemeJ11t1
of witneSSf'S recorded or otber materials colle.:ted by the iiJvestigatiog offico.,
durin& the course of investigation. [129 C-H]
SHBONANDAN V, BIHAI. 69
3:6 A question of fact tilat needs investigation cannot be allowed to be A
raised for the first time in an appeal by special leave under Article 135 of the
Constitution. In his application before the special Judge the appellant did not
find fault with any of the grounds of withdrawal in the application filed by the
Public Prosecutor under Section 321. There was no mention of any forgery by
antedating or by pasting of any earlier order and thereby making any attempt
at shielding of any culprit. He thus prevented the special Judge and the High
Court from giving any finding an alleged forgery and thereby depriving the 8
Supreme Court also from the benefits of such findings of the courts below.
[131 C-B]

3:7 There is no prima facte case of forgery or criminal m.isconduct made
out on the materials on record. If the Cbief Minister found that his first order
was unwarranted by law, it was but right that he cancelled that order. Pasting
' order by a piece of paper containing another order prima facie appears suspicious-:-'
but pasting is the common practice in the Chief Minister's Secretariat. Antodating
c
eimpliciter is no offence. [132 C, B, F]

3:8 If two interpretations are possible, one indicating criminal intention
and the other innocent, needless to say that the interpretation beneficial to thC
accused must be accepted. [132 OJ
D
3:9 Remand for trial if made will be a mere exercise in futility and it
will be nothing but an abuse of the Court to remand tbr; case to th~ trial court
in view of t~e following circumStances, namely, (l) the occurrence took place
as early as 1970; it is already more than twelve years; (ii) Respondent .No. 2 is
the Chief Minister in his office. Knowing human nature, as it is, it can hardly
be expected that the witnesses, most of whom are officials, will come forward and
depose against a Chief Minister, and (iii) Even after the assumption otoffice by E
Respondent No. 2 as the Chief Minister is in the court of Special Judge, tho
prosecution was pCnding on several dates but the Prosecutor, Sri A.K. Dutta,
did not take any interest in the case at all. It cannot be accepted that a
Public Prosecutor appointed by tho Government in power, will now take
interest and conduct the case so aa to 1ecure conviction or his own Chief
Minister. [136 F-H, 137 A-BJ

Per R.B. Misra J. F
1:1 A bare perusal of Section 121 of the Criminal Procedure Code shows
that it dot! not put any embargo or fetter on the power of the Public Prosecutor
to withdraw from prosecuting a particular criminal case pending in anY court.
All that he requires is that he can a·nly do so With tbe consent of the court whero
the case is pending in any court. [1<40 C-D]
G
1:2 In, this country, the scheme of criminal justice places the prime
responsibility of prosecuting serious offences on the executive auth11rity. The
investigation, collection of requisite evidence and the prosecution for the offences
with reference to such evidence are the functions of the executive. The function
of the court io this respect is a limited one and intended only to prevent the abuse.
Tbelfunction of the court in accordiDJ its consent to withdrawal i•, however, H
a judicial function. It, therefore, becomes neceasary for the court bef~ro
70 SUPREME COURT REPORTS [1983) 2 s.c .•.

whom the application for withdrawal is filed by the public prosecutor to apply
A its.mind so that the appellate court may examine and be satisfied ihat the court
has not accorded its consent as a matter of course but bas applied its mind 10 the
grounds taken in the applic3.~tion for withdrawal by Public Pros~cutor. [140 E-G]

Stale of Bihar v. Ram Naresh Pond ey, [1957] SCR 297; M.N.S. Nair v.
/'. V. Balakrishnan & Ors., [1972] 2 SCR 599, State of Orissa v. C. Mohapatra,
(1977] I SCR 355; Ba/want Singh v. State of Bihor, [1978] 1 SCR 601; R.K. Jain . ·
B v. State, [1980] 3 SCR 982, referred.

2:1 Section 321 is in very wide terms and in view of the decisions of the
Supreme Court, it will not be possible to confine the grounds of withdrawal or
criminal procced:ng only to offences which may be termed as political offences or
offences involving emotive issues. The only guiding factor which should weigh
c with Public Prosecutor while making the appJication for withdraw~! and the court
ascording its permission for withdrawal is to see whether the interest of public
justice is advanced and the application for withdrawal is not moved with oblique
motive unconnected with the vindication of the cause of public justice. [l 45 E~G]

2:2 The Indian Penal Code or the Code of Criminal Procedure does not
make any such distinction between po1itical offences and offences other than
D political ones. Even if it is accepted that political offences are unknown to juris-
prudence and other Acts do contemplate political offences, the fact remains that
Section 321 Cr. P.C. is not confined only to political offences, but it applies to all
kinds of offences and the application for withdrawal can be made by the Public
Prosecutor on various grounds. (145 H, 146 A~B]

2:3 To say that unless the crime allegedly committed are ptr se political
offences or are motivated by political ambition or consideration or are committed
during mass agitation, communal frenzies, regional disputes, no question of
serving a broader cause of public justice, public order or peace can arise.is to
put limitation on the broad terms of Section 321 of the Code. (148 F-G]

3:1 The Public Prosecutor may withdraw from the prosecution not only
F on the ground of paucity of evidence but oli the other relevant grounds as well
in order to further broad aims of justice, public ord~r and peace. Broad aim
of public justice will cert8inly include appropriate social, economic and political
. purposes. [143 G-HJ

3:2 An application for withdrawal from the prosecution can be made
G on various grounds and it is not COD.fined to political offences. Therefore, it
cannot be said that the grounds mentioried in the application for withdrawal,
namely:

(i) implication of the accused persons as a result of political and
persona] vendetta,
H
(ii) inexpediency of the prosecution for the reaS{'IDS of State and Pub1ic
poliCy, and
SHEONANDAN v. BIHAR 71
(iii) adverse effects that the continuance of the prosecution will bring A
on public interest in the light of the changed situation, are
irrelevant.

are not liable grounds for withdrawal. [145 G-HJ

3:3 Further, the decision of the public prosecutor to withdraw from
the case on the grounds given by him in his application for withdrawal cannot B
be said tO be actuated by improper or oblique motive. He bonafide thought
that in the changed circumstances it would be inexpedient to proceed with the
Case ancl would be a sheer waste of public money and time to drag on with the
case if the chances for conviction are few and far between. In the circumtances,
instead of serving the public cause of justice. it will be to the detriment of
public interest. [149 B-DJ

3:4 The letter sent by the Government to the public prosecutor did not
c
'• indicate that the Goverment wants him not to proceed with the case, but the
lettet gave full discretion to the Public Prosecutor, to apply his own mind and
to come to his own conclusion. Consultation with the Government or high
officer is not improper. But the Public Pro!ecutor has to apply bis own mind
to the facts and circumstance~ of the case b~fore coming to the conclusion to
withdraw from the prosecution. From the materials on the· record, it is clear
that the Public Prosecutor has applied his own mind and came to his own
D
conclusions. [155 D-F]

3:5 The statlltory responsibility for deciding withdrawal sqtiarely rests
upon the public prosecutor. It is noo-negotiablel and cannot be bartered
away. The court's duty in dealing with the application under Section 321 is
not to reappraise the tn1terials which led ithe public prosecutor to request E
withdrawal from the prosecution but to consider whether public prosecutor
app1ied his mind as a rree agent uninfluenced by irrelevant and extraneous or
oblique considerations, as the court has a special duty in this regard in as much
as it is the ultimate repository or legislative confidi::nce in granting or withdrawing
its consent to withdrawal from prosecution. (149 D-B]

3:6 If the view of the Public Prosecutor is one, which Clluld in the
.I'
circumstances be taken by any reasonable man, the court cannot substitute its own
opinion for that of the Public Prosecutor. If the Public Prosecutor has applied
bis mind <fn the relevant materials and his opinion is not perverse and which a
reasonable man could have arrived at, a roving enquiry into the evidence and
materials on the record for the purpose of fin.ding out whetb~r his conclusions
were right or wrong would be incompetent. [154 H, 155 AJ
G
In the view takCo that no prima faci~ case has boeo made out under
Section 466 of the Indian Penal Code and Section 5 (I) (d) of the Prevention of
Corruption Act and the fact that the High Court in revision agreed with the
view of 1be Special Judge giving consent to the withdrawal from the prosecution
on the application o' the Public Prosecutor under Section 321 I.P.C. tbi1 Court H
cannot make, a fresh appraisal of evfdence and come to a different conclusion .

. ---~-.
72 SUPREME COURT REPORTS [ 1983] 2 s.c.a.

A All that this ~ourt bas to sec ia that the Public Prosecuto• was not actuated
by extraneous or improper consideration• while moving the application for
withdrawal from the prosecution, E,.ven if it is J?Otsjble to have another view
different from the oD.e taken by the Public Prosecutor while moving the
application for withdrawal from prosecution the Supreme Court should be
reluctant to interfere with the order unless it comet to the conc1usion that the
Public Prosecutor has not applied his mind to the facts and circumstances of
B the case, and has simply acted at the beheat of the Government or hact been
actuated by extraneous and improper considerations. On the facts and circum~
stances of the case, it is clear that the Public Pro1ecutor was actuated by oblique
or improver motive. [157 B-F]

c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
241 of 1982.
y
...
•

Appeal by Special leave from the judgment and order dated
the 14th September, 1981 of the Patna High Court in Criminal
:
Revision No. 874 of 1981.

D K.K. Venugopal, S.K. Sinha, S.K. Verma, V.N. Singh, L.K.
Pandey, M.N. Krimanani and V.N. Sinha for the Appellants.

K. Parasaran, Solicitler General, K.P. Verma, P.S. Mishra :and
R.P. Singh for Respondent No. I.

..4.K. Sen, O.P. Malhotra and R.K. Jain for Respondent No. 2.

Rajendra Singh, R.P. Singh Ranjit Kumar and S. Goswami, >-
for Respondent No 3.

S.N. Kacktr and M.P. Jha for Respondent No. 4.

F Jaya Narayan)nd Smt. Nirmala Prasad for Intervenor.

The following Judgments were delivered

TuLZAPURKAR, J. By this appeal, preferred on the basis of
the special leave granted to him, the appellant is challenging the
G withdrawal from the prosecution of Respondents Nos. 2, 3 and 4 in
a criminal case under s. 321 of the Criminal Procedure Code, 1973.

After obtaining the requisite sanction from the Governor on
19th February, 1979 a charge-sheet in Vigilance P.S. Case 9 (2)
H 78 was filed by the State of Bihar against Respondent No. 2
(Dr. Jagannath Misra), Respondent No. 3 (Nawal Kishore Sinha) ...
Respondent No. 4 (Jiwanand Jha) and three other (K.P. Gupta, since
SHEONANDAN v: BIHAR (Tulzapurkar, J.) 73

deceased, N.A. Haidari and A.K. Singh, who later became appro· A
vers) for offences under ss. 420/466/471/109/120·B I.P.C. and .under
s. 5(1) (a), 5(1) (b) and 5(1) (d) read with s. 5(2) of the Prevention
of Corruption Act, 1947. Inter alia, the gravamen of the charge
agai11st the ~espondent No. 2 was that at all times material he W.!IS
either a Minister or the Chief Minister of Bihar and in that capacity
by corrupt or illegal means or by otherwise abusing his position as a 8
public servant, he in conspiracy with the other accused and with a
view to protect Nawal Kishore Sinha in particular, sought to subvert
crimial prosecution and surcharge proceedings against Nawal Kishore
Sinha and others, and either obtained for himself orjconferred on them
pecuniary advantage to the detriment of Patna Urban Cooperative
Bank, its members, depositors and creditors and thereby committed c
the offence of criminal mis.conduct under s. 5(1) (d) read with s.5(2)
of the Prevention of Corrution Act, 1947 and in that process commi.
tted the other offences spel-"ified in the charge-sheet, including the
offence of forgery under s.: 466 I.P.C. cognizance of the case was taken
on 21st November, 1979 by the learned Chief Judicial Magistrate- D
cum-Special Judge (Vigilance), Patna, who issued process against the
accused but before the trial commenced the State Government, at
the instance of Respondent No. 2, who in the mean time had come
to power and had become the Chief Minister, took a decision in
February 1981 to withdraw from the prosecution . for reasons of
State and Public Policy. Though initially Sbri Awadhesh Kumar E
Dutt, Senior Advocate, Patna High Court, bad been appointed as a
Special public prosecutor by the previous Government for conduct-
ing the saicj case, the State Government (now headed by Respondent
No. (2) without cancelling Shri Dutt's appointment as Special Public
prosecutor, on 24th February., 1981 constituted a fresh panel of
lawyers for conducting cases pertaining to Vigilance Dopartment and F.
Shri Lalan Prasad Sinha; one of the Advocates so appointed on the
fresh panel was allotted the said case and was informed of the
Government's.said decision and on 26th March 1981 he was further
requested to take steps for the withdrawal of the case after he had
considered the matter and satisfied himself about it. On 17th June,
1981 Sbri Lalan Prasad Sinha made an application under s. 321 Cr. G
P.C. 1973 to the Special Judge seeking permission to withdraw from
the prosecution of Respondent Nos. 2, 3 and 4 in the case on four
grounds, namely, (a) Lack of prospect of successful prosecution in
the light of the evidence, (b) Implication of the persons as a
H
result of political .and personal vendetta, (c) Inexpediency of the
prosecution for the r~!l~Q!IS pf the State and public policf
74 SUPRBMB COURT REPORTS (1983] 2 S.C.1<.

A and (d) Adverse effects that the continuance of the prosecution
will bring on public interest in the light of the chauged situation;
and the learned Special Judge by his order dated 20th June, 1981
granted the permission. A Criminal Revision (No. 874/1981) pre-
ferred by the appellant against the said order was dismissed in limine
by the High Court on 14th September, 1981. It is this withdrawal
8 from the prosecution permitted by the learned Special Judge and its
confirmation by the High Court that are being challenged in this
appeal.
y
-.-- •
Counsel for the appellant raised three or four contentions in
c support of the appeal. In the first place he contended that the impu-
gned withdrawal was utterly unjustified on merits and also illegal being
contrary to the principles enunciated by this Court governing the
exercise of the power under s. 321 Cr. P.C. According to him the
decisions of this Court bearing on the nature and SC<)pe of the PCJiWer
under the section clearly suggest that for purposes of that section a
D dichotomy exists between political offences and common law offences
and that the considerations of public policy, public interest, reasons of
State or political and personal vendetta may become relevant in the
case the former cateorgy but are irrelevant while withdrawing from the
prosecution of common law offences and since in the instant case the
offences with which the accused and particularly Respondent No. 2
had .been charged were common law offences, namely, bribery
(criminal misconduct) and forgery and not with any political
offence the grounds at (b), (c) and (d) mentioned in the application
seeking permission. for withdrawal were irrelevant and eura-
neous and non-germane considerations influenced the Public
r
Prcsecutor as also the Court the withdrawal is vitiated and is
F bad in law and as regards ground (a),. namely, insufficiency of evi-
dence or lack of prospect of successful prosecution the same was
clearly untenable being in teeth of undisputed and genuine documen-
tary evidence including the orders admittedly passed by respondent
No. 2 in his own hand that was available to prove the charges; he
also urged that in a case where the proof of the offences was pri-
G marily based on documentary evidence, the genuineness of which was
not in dispute no question of ·political and personal vendetta or
unfair and over enthusiastic investigation could arise; therefore, the
impugned withdrawal deserved to be quashed. Socondly, counsel
H contended that Shri Lalan Prasad Sinha~was not the competent officer
to apply for withdrawal from the prosecution of the case under s. 321
Cr P.C. inasmuch as that Sbri A.K. Dutt's appointment as Special
•

SHEONANDAN v. BIHAR (Tulzapurkar, J.) 75

public Prosecutor made under s. 24(8) Cr. P.C. to conduct this case A
had not been cancelled an'd as such the application for permission to
- withdraw as well as the permission granted thereon were unauthori-
sed, incompetent and illegal. Thirdly, it was urged that on the facts
and citC)lmstances of the case Shri Lalan Prasad Sinha did not func-
tion independently as a free agent but was influenced and guided by
the State Government's decision in the matter and as such the with-
drawal at the behest of the Government was vitiated. Counsel also
urged that Sbri Lalan Prasad Sinba's decision (if at all it was his
""':T ~ own) to withdraw from the prosecution as well as the Special Judge's
decision to grant permission were vitiated by non-application of
mind.

Ou the other band, Counsel for the Respondents refuted all
the contentions urged on behalf of the appellant. It was denied that
the withdrawal in question was unjustified on merits or illegal or con-
"' trary to the principles governing the exercise of the power s. 321; on
the Contrary counsel for the Respondents urged that the decisions of D
this Court !lad clarified the position that under the Code a withdrawal
from the prosecution was an executive function of the Public Prosecut
or that the discretion to withdraw from the prosecution was that of
the Public Prosecutor and none else and that he could withdraw frooi
the prosecution not merely on the ground of paucity of evidence but
-< on other relevant grounds as well in order to further the broad ends
E
of public justice, public order and peace and the broad ends of pub·
lie justice would include appropriate social, economic and political
purposes, and what was more in granting its consent to the with-
·'· drawal the Court merely performed a supervisory function and in
dischatgiog such function the Court was not to reappreciate the
F
grounds which led the public prosecutor to request withdrawal from
" the prosecution but to consider whether the Public prosecutor had
applied his mind as a free agent, unifluenced by irrelevant or extra-
neous consideration. It was disputed that the grounds (b), (c) and
(d) mentioned in the application seeking permission to withdraw were
irrelevant or extraneous or that ground (a) was untenable. Accord- G
ing to Counsel in the instant case Shri Lalan Prasad Sinha, being in
charge as well as in the conduct of the case was competent to make
,.,., the application for withdrawal and he had done so after considering
all the relevant factors and circumstances bearing on the issue
and satisfying himself about it and not at the behest of the Govern- H
ment as contended by the appellant and the learned Special Judge
also performed bis sui;>~rvisory fun9tion in grantio~ the requisit~
•

76 SUPllllMB COURT RBPOlttS (1983) 2 s.c.a.

A permission on relevant considerations. Counsel emphatically denied
that either the public prosecutor's decisio11 to withdraw from the
prosecution or the special Judge's supervisory function was vitiated
by non-application of mind. Lastly it was contended that this Court
should not interfere with the impugned orders of the trial Court as
well as the High Court in exercise of its powers under Art. 136 of
B the Constitution and the appeal be dismissed.

Having regard to the aforesaid rival contentions' that were
urged before us by the learned Attorney General and Council on ·1"-
c eitber side it is clear that principally three questions arise for our -r "
determination in this appeal, namely, (!) what is the true scope and
nature of the power under s. 321 of Cr. P.C, 1973? (2) whether ,
Sbri Lalan Prasad Sinha was competent officer entitled to apply
for withdrawal from the prosecution and if so whether be discharged
bis executive function independently as a free agent? And (3) whether
D the withdrawal from the prosecution of respondents 2, 3 and 4 in ,,.
Vigilance P. S. Case No. 9 (2) 78 was unwarranted and unjustified
on facts as ·also in law ? In other words, whether the executive
function of the Public Prosecutor and or the supervisory function
performed by the Court was vitiated on account of e.,traneous
considerations or non application of mind etc deserving interference
by this Court ?
E
On the first question s. 321 in terms gives no guidance; it
merely says that "the Public Prosecutor in charge of a case may,
\vitb the consent of the Court, at any time before the judgment is
pronounced, withdraw from the prosecution of any person either
F generally or in respect of any one or more of tbe offences for which
he is tried" and goes on to indicate the results that entail upon such
withdrawal, namely, either. a discharge of the ac:cused if the with-
drawal is made before the charge is framed or an acquittal of the
accused if it is made after the charge has been framed; in other
words, it gives no indication or guideline as to in what circumstances
G or on what grounds the public Prosecutor may apply for withdrawal
from the prosecution nor the considerations on which the Court is
to grant its consent and hence the necessity to go to decisions of
this Court for ascertaining the true scope and nature of the power
contained in it. In this behalf quite a few decisions of this Court
H both in regard to the earlier provision contained in s. 494 Cr. P.C.
1898 and the present provision contained in s. 321 (both being
pubstantially in pari materia) were referred to by Counsel for the
SllBONANDAN v. BIHAR (tulzapurkar, J.) 77
parties but it is uot necessary to deal with all ·of them and a refe·
. A
rence to four decisions, namely, State of Biha; v. Ram Naresh
- Pandey,{') State of Orissa v. Chandrika Mohapatra and Ors.,{')
Ba/want Singh and Ors. v. State of Bihar(') and R. K. Jain v. The
State(') having a bearing on· the aspects under consideration will
suffice. These decisions, apart from enunciating the principles which
would govern the exercise of the power under the section, emphasise
B
the functional dichotomy of the Public Prosecutor (who performs an
executive function) and the Court (which performs a supervisory
-r judicial function) thereunder .
. '-
In Ram Naresh- Pandey's case (supra) the Court while dealiqg
with s. 494 of the old Code observed thus: c
'•
"The section is an enabling one and vests in the Public
Prosecutor 'the discretion to apply to the Court for its
consent to withdraw from the prosecution of any person.
The consent, if granted, has to be followed up by bis
discharge or acquittal, as the case may be .. . .. There can 0
be no doubt, however, that the resultant order on the
granting of the consent, being an order of 'discharge' or
'acquittal', would attract the applicability of correction by
the High Court under as. 435, 436 and 439 or 417 of the
Code of Criminal Procedure. The function of the Court,
therefou, in granting Its consent may well be taken to be a
judicial function. It follows that in granting the· consent
the Court must exercise a judicial discretion ....... Th_e
initiative is that of the Public Prosecutor and what the
Court has to do is only to give its consent and not to
determine any matter judicially ...... The judicial function, F
· therefore, implicit in the exercise of judicial discretion/or
granting the consent would normally mean that th,e Court
has to satiify 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 no.rmal
course of justice for illegitimate reasons or purposes ...... . G
It (s. 494) cannot be taken to place on the Court the
· resppnsibility for a prima facie determination o( a triable
_,
m fl957) S.C.R. 279
(2) [1977] l S.C.R 335.
(3) [1878] 1 S C.R: 604.
(4> {t98oJ 3 s.c.R. 982.
sUPll~Mll coul!.r KEPotits (1983] 2 s.c....

A· issue. For instance the discharge that results therefrom
need not always conform to the standard of 'no prima
facie case' under ss. 209 (I) and 253 (I) or of 'ground-
lessness' under ss. 209 (2) and 253 (2). This is not to say
that a consent is to be lightly given on the application of
the Public Prosecutor, without a careful and proper scrutiny
B of the grounds on which the application for consent is
made ." (Emphasis supplied).

In Chandrika Mohapatra's case (supra) while setting out the ,,- -
y.
principles that should be kept in mind by the Court at the time
c of giving consent to withdrawal from the prosecution under s. 494
the Court observed thus :

"It will therefore, be seen that it is not sufficient for
the Public Prosecutor merely to say that it is not expedient
to proceed with the prosecution. He ha~ to make out some
D ground which would show that the prosecution is sought to
be withdrawn because inter alia the prosecution may not be
. able to produce sufficient evidence to sustain the charge or
that the prosecution does not appear to be well founded or
that there are other circumstances which clearly show that
the object of administration of justice would not be
E advanced or furthered by going on with the prosecution.
The ultimate guiding consideration must always be the interest
df administration of justice and that is the touchstope on
·which the question must be determined whether the
prosecution should be allowed to be withdrawn."
r-

It may be. stated that Criminal Appeal No. 310 of 1975 was
one of the appeals decided by the Court in that case. In that appeal
the incident, during the course of which offences under ss. 147, 148
149, 307 and 324 I.P.C. were said to have been committed, had
arisen out of rivalry between two trade unions and since the date of
G
the incident calm and peaceful ;itmosphere prevailed in the industrial
undertaking and in those circumstances the State felt that it would
not be conducive to interest of justice to continue the prosecution
against the respondents since the prosecution with the possibility of
H conviction of the respondents would rouse feelings of bitterness and
antagonism and disturb the calm and peaceful atmosphere prevailing
in the industrial undertaking and hence permission to withdraw
SH~ONAN!>AN v. BJtlAR (1'ulzapurkar, J.) 79
was sought and granted. Upholding the permission the Court· A
observed thus :

"We cannot forget that ultimately every offonce has a
social or economic cause behind it and if the state feels that
elimination or eradication of the social or economic cause
of the crime would be better served by not proceeding with
B
the prosecution the State should clearly be at liberty to
withdraw from the prosecution."

In Ba/want Singh's case (supra) the independent role of the
Public Prosecutor in making an applicatian for withdrawal from the c
prosecution was emphasised and the Court pointed out that the sole
consideration which should guide the Public Prosecutor before he
decides to withdraw from the prosecution was tbe larger factor of
the administration of justice and not political favours nor party
pressures nor the like considerations; nor should be allow himself
to be dictated by his administrative superiors to withdraw from D
prosecution, but that the consideration which should weigh with
him must be whether the broader cause of public justice will be
advanced or retarded by the withdrawal or continuance of tho
prosecution. The · Court also indicated some instances where
withdrawal from prosecution might- be resorted !O independently
of the merits of the case where the broader cause of pub! i~ justice
II
would be served :

"Of course, the interests of public justice being the
paramount consideration they may transcend and overflow
the legal justice of tbe particular litigation. For instance,
communal !Wds which may have been amicably settled
shou~d not re·erupt on account of one or two prosecutions
p~n~mg. Labour disputes which, might have given rise to
'
~nmmal cases, when settled, might probably be another
mstance where the interests of public justice in the broad
connota~ion mai perhaps warrant withdrawal from
prosecuti.in. Other instances may also be g·1ven h
t:: G
br·· were
pu tc J~st1ce may be served by withdrawal even apart from
the merits of the case."

In ~.K. la.in' s case (supra) after reviewing the entire case law H
on the subject this Court enunciated eight propositions as emerging
SUPREME COURT li.l!MRts iI983j i s.C.R.
A from the decided cases (page 996 of the Report), out of which the
following six would be material for the purposes of tbe instant case :

"I. The withdrawal from tbe prosecution is an executive
function of the Public Prosecutor.

8 2. ·The discretion to withdraw from the prosecution is
that of the Public Prosecutor and none else, and so, he
cannot surrender that discretion to someone else.

3. The Government may suggest to the Public Prosecu-
tor that he may withdraw from the prosecution but
c ·none can compel him to do so.

4. The Public Prosecutor may withdraw from the prose-
cution not merely on the ground of paucity of evidence
but no other relevant grounds llS Well in order to further
the broad ends of public ju,stice, public order and peace.
The broad ends of public justice will certainly include
D appropriate social, economic and, we add, political
purposes Sans Tammany Hall Enterprises.

S. The Court performs a supervisory function granting its
consent to the withdrawal.

E 6. 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 Prosecutor applied· his mind as a free agent,
uninfluenced by irrelevant and extraneous considera-
-
F tions. The Court has a special duty in ibis regard as it
is the ultimate repository of legislative confidence in
granting or withholding its consent to withdrawal from
the prosrcution "

G By way of elaborating proposition No. 4 above, the Court has
gone cin to observe thus :

"We have referred to the precedents of this Court
where it has been said that paucity of evidence is not the
H only ground on which the Public Prosecutor may withdraw
from the prosecution. In the past we have often known
how expedient and necessary it is in the public interest for
SHil6NANDAN v. BIHAR (Tu/zapurkar, 1) ~I

the Public Prosecutor to withdraw from prosecutions A
arising out of mass agitations, communal riots, regional
disputes, industrial conflicts, student unrest, etc. Whenever
issues involve the emotions and there is a surcharge of
violence in the atmosphere it has often been found neces-
sary to withdraw from prosecutions in order to restore
peace, to free the atmosphere from the surcharge of vio. B
lence, to bring about a peaceful settlemeet of issues and to
preserve the calm which may follow the storm. To persist
with prosecutions where emotive issues are involved in the
name of vindicating the law may even be utterly counter-
productive."
c
Similarly, by way of elaborating proposition No. 6 above the Court
bas gone on to observe thus :

"We may add it shall be the duty of the Public Prosecutor
to inform the Court and·it shall be the duty of the Court to D
apprise itself of the reasons which prompt 'the Public Prose·
cutor to withdraw from the prosecution. The Court has a ·
responsibility and a stake in 1he administration of criminal
justice and so has the Public Prosecutor, its 'Minister of
Justice'. Both have a duty to protect the administration of
criminal justice against possible abuse or misuse by the E
Executive by resort to the provisions of s. 321 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."

From the aforesaid enunciation of the legal position governing
the proper exercise of the power contained in s. 321, three or four
things become· amply clear . .Jn the first place though it is an executive
function of the Public Prosecutor for which statutory discretion is
vested in him, the discretion is neither absolute nor unrevie~able but G
it is s~bject t~ th.e Court's supervisory function. In fact being an
e.xe~uttve funcllo~ 11 would be subject to a judicial review on certain
hm1ted grou.nds l~ke ~ny othe~. executive. action, the authority with
whom the d1sc.retton 1s vested must genumely ;iddress itself to the
matter before ti, must not act under the dictates of another bod H
m~st not do what it has been forbidden to do, must act in goo~
faith, must have regard to all relevant considerations and must not
,
82 siJPitilME COURT REPORts (198~] 2 s.c.R.

A be swayed by irrelevant considerations, must not seek to promote
purposes alien to the letter or to the spirit of the legislation that gives
it power to act and not must act ·arbitrarily or capriciously ....
These several principles can conveniently be grouped in two main
categories ' failure to exercise a discretion, and excess or abu~e of
discretionary power. The two classes are not, however, mutually
B exclusive." (vide de Smith's judicial Review of Administrative Action
4th Edition pp. 285-86)

Secondly, since the trial Court's supervisory function of either
granting or refusing to grant the permission is a judicial function the
c same is liable to correction by the· High Court under its revisional
powers both under the old as well as the present Code of Criminal
Procedure, and naturally this Court would have at least co-extensive
jurisdiction with the High Court in an appeal preferred to it by
special leave or upon a certificate by the High Court.
I
D Thirdly, no dichotomy as such between political offences or the
like on the one band 'and common law <:rimes on the other could be
said to have been made by this Court for purposes of s. 321 as con-
tended for by Counsel for the appellant, for, even in what are called
· political offences or the like, committing common law crimes is
implicit for the withdrawal from the prosecution of which the power
E under s. 321 has to be resorted to. But the decisions of this Court
do lay down that when common law crimes are motivated by politi-
cal ambitions or considerations or they are committed during or are
followed by mass agitations, communal frenzies, regional disputes,
industrial conflicts, student unresi or like situations involving
F emotive issues giving rise to an atmosphere surcharged with violence
the broader cause of public justice, public order and peace may out-
weigh the public interest of administering criminal justice in a parti-
cular litigation and withdrawal from the prosecution of that litigation
would become necessary, a certainty of conviction nqtwitbstanding
persistence in the prosecution in the name of vindicating the law may
G prove counter-productive. Io other words, in case of such conflict
between the two types of public interests, the narrower public interest
should yield to the broader public interest, and therefore, an one-
rous duty is cast upon the Court to weigh and decide which public
interest should prevail in each case while granting or refusing to
H grant its consent to the withdrawal from the prosecution. For, it is
not invariably that whenever crime is politically motivated or is com-
mitted in or is followed by any explosive situation involving emotive
SHEONANDAN V; BIHAR (Tu/zapurkar, J.) . 83.
issue that the prosecution must be withdrawn. An instance in point A
would be the case of Mahatma Gandhi's assassination, which was
in a sense politically motivated (due to transfer of Rs. 55 crores to
Pakistan) and was followed by explosive situation involving emotive
issue resulting in widespread violence, arson and incendiarism against
members of a class in the country particularly in Maharashtra but
no one suggested any withdrawal and the prosecution of the persons, " B
who also in.eluded a political personality, was rightly carried to its
logical end resulting in conviction of the guilty and acquittal of the
political personality. In other words, in each case of such conflict
the Court has to weigh and decide judiciously. But it is obvious that
unless the crime in question are per se political offences like sedition
or are motivated by political considerations or :i.re committed during c
or are followed by mass agitations, communal frenzies, regional dis-
putes, industrial conflicts, studa1o1t unrest or the like situations
involving emotive issues giving rise to an atmosphere surcharged with
violence, no question of serving any broader cause of public justice
public order or peace would arise and in the absence thereof th~
D
public interest of admfoisteying criminal justice in a given case cannot
be permitted to be sacrific.ed, particul~rly when a highly placed
person is alJegedly involved in the crime, as otherwise the common
man's faith in the rule of law and democratic values would be
shattered.
E
Fourthly, the decision in R.K. Jain's case (supra) clearly shows
that when paucity of evidence or lack of prospect of successful pro-
secution is the ground for withdrawal the Court bas not merely the
power but a duty to examine the material on record without which
the validity and propriety of such ground cannot be determined. In
th~t case this Court disposed of two sets of appeals, one where the
F
withdrawal from the prosecution against George Fernandes and
others was on the ground that the offences were of political charactor
and the other pertained to withdrawal from the prosecution in four
cases against Chaudhry Bansi Lal on the ground that the evidence
G
available was meagre and in one out of the four cases the complai-
nant (Sbri Manobar Lall had been suitably and profitable compen-
sated. The Court upheld the grant of permission for withdrawal in
both the sets of appeals-in the first set on the ground that the
offences alleged to have been committed by George Fernandes and
others were of a political character, the motive attributed to the H
accused being that they wanted to change the Government led by
Shrimati Gandhi and therefore with the change in the Government
. 84 sUi'RBMB COURt RBMllTS (1983] ~ s.c.ll.

the broad ends of public justice justified the withdrawal, while in the
other set the Court examined the entire material available on record
and came to the conclusion that the ground put forward had been
made out and justified the withdrawal. It may be stated that in M.N.S,
Nair v. P. V. Balakrishnan and Ors.( 1) the Sessions Court as well as
the High Court had permitted withdrawal from the p~osecution of a
case involving offences of forgery, cheating, etc. on the ground that
the dispute was of a civil nature, that there had been enormous
delay in proceeding with a trial and that securing of evidence would
involve heavy expenses for the state as witnesses were in fat off places.
This Court allowed the appeal, set aside the permission granted for
the withdrawal and directed the trial to proceed in accordance with
c the law after holding that none of the grounds alleged or even their
cumulative effect would justify the withdrawal from the prosecution '
in particular after examining the mlterial on record this Court came
to the conclusion that the finding of the lower courts that the dispute
was of a civil nature was incorrect. It is thus clear that when paucity
of evidence or lack of prospect of successful prosecution is the
D ground for withdrawal this Court mu.st of necessity examine the
material in order to determine the validity or propriety of the ground.
It is in the light of the aforesaid legal principles that two questions
arising in this appeal will have to be decided.

The next question raised by Counsel for the appellant was
B whether Shri Lalan Prasad Sinha was the competent officer entitled
to apply for the withdrawal from the prosecution and if so whether
be discharged bis function independently as a free agent ? Jn this
behalf Counsel urged that the initial appointment of Shri A.K. Dutt

, as the Special Public Prosecutor made by the State Government
under s. 24 (8) Cr. P.C. on 26th February, 1979 to conduct this case
bad not been cancelled, that Shri Lalan Prasad Sinha could merely
be regarded as one of the four Public Prosecutors appointed on the
fresh panel constituted under Law (Justice) Department's letter No.
CjMis.-8-43/78 J dated 24th February, 1981 and that though this
particular case had been allotted to him by the letter datedl25th
February, 1981, he bad no authority over the head of Shri A.K.
G Dutt to apply for withdrawal from t~e prosecution and as such the
application made by him would be unauthorised and illegal and
consequently the Court's order dated 20th June, 1981 would be
vitiated. Counsel further contended that the State Government bad
already taken a decision to withdraw from the prosecution in this
H
U) (1972) 2 S.C.R. 599.
SHEONANDAN v. BIHAR (Tulzapurkar, J.) 85

case on grounds of inexpediency of prosecution for reasons of State A
and public policy, that the said decision was communicated to Shri
Lalan Prasad Sinha,· who was directed to take steps in that behalf
and that it was P}lrsu~nt to such direction that be made the apjlli-
cation and not independentl} on his own as a free agent and, there-
fore, the executive function on the part of the Public Prosecutor
(assuming he had the authority to make the application) was impro- I
perly performed. It is not possible to accept· either of these conten-
tions for the reasons we shall presently indicate.

It is true that the appointment of Shri A.K. Dutt made by the
previous Government as the Special Public Prosecutor to conduct this
case b, d not been cancelled, though in fitness of things the new
c
' Government should have done so but that did not prevent the new
Government to make a fresh appointment of a Public Prosecutor
and to put him in charge of the case. Appointments of Public Pro-
secutors generally fall under s. 24(3) but when the State Government
appoints Public Prosecutors for the pu.rposes of any case or class of
D
cases the appointees become Special Public Prosecutors under s. 24(8)
and in the instant case under the Law (Justice) Department's letter
dated 24th February, 1981 a fresh panel of lawyers consisting of 4
Advocates including Shri Lalan Prasad Sinha was constituted "for
conducting cases pertaining to Vigilance Department both at Head-
quarters at Patna as also outside Patna" and, therefore, Shri Lalan
prasad Sinha will have to be regarded as having been appointed as
Special Public Prosecutor under s. 24(8). But apart from this aspect
of the matter, on the facts obtaining in the case, it cannot be disput-
ed that Shri A.K. Dutt not having appeared before the Special
Judge at any stage of the hearing was never defacto incharge of the
case nor in the actual conduct of the case; on the other hand, after the F
allotment of this case to him Shri Lalan Prasad Sinha was incbarge
of the case and was actually conducting the case.be having admit-
tedly appeared in the case at least on 4 occasions (on 6th, April, 21st
April, 27th April and 26th May, 1981) before the Special Judge, and,
therefore, in our view, he was the proper·person who. could make the
necessary application in the matter of withdrawal. In this context G
it will be useful to point out that s. 494 of th' old Code seemed to .
authorise "any Public Prosecuter" to withdraw from the prosecution
with the consent of the Court but this Court in State of Punjab v.
Surijit Singh & Anr. (1) had held that "the reasonable interpretation
u
(I) ~1967] 2 S.C.R. 347,
86 SUPREME COURT REPORTS [1983] 2 s.c.R.

A to be placed upon s. 494, in our opinion, is that it is only the Public
Proseol1tor, who is incharge of a particular case and jj actually con:
ducting the prosecution, that can file an application under that sec-
tion, seeking permission to withdraw from the prosecution." The
same view was reiterated by this Court in the Case of M.N. S. Nair v.
P. V. Balkrishnan (supra). The present section 321 Cr. P. G has
B given legislative recognition to the aforesaid view of this Court
inasmuch as it expressly provides that the Public Prosecutor "in-
charge of a case" may withdraw from the prosecution with the
consent of the Court. We are satisfied that though he was appoin-
ted as the Special Public Prosecutor to conduct this case in February
c 1979 Shri A.K. Dutt was neither incharge of the case nor was
actually conducting the same at the .material time and since Shri
Lalan Prasad Sinha was not merely incharge of the case but was
actually conducting the case was tlie proper officer to apply fot the
withdrawal from the prosecution.
y

D Similarly, there is no substance in the contention that Shri
Lalan Prasad Sinha had sought the withdrawal from the prosecution
at the behest of the State Government. It is true that the
Government State had taken its own decision to withdraw
from the prosecution in the case against the respondents
Nos. 2, 3 and 4 and it is also true that the said decision was com·
B municated to Shri Lalan Prasad· Sinha but if the two letters, one
dated 25th February 1981 from the Law Secretary to the District
Magistrate and the other dated 26th March 1981 from the Addi.
Collector, Incharge Legal . Section to the Special Public Prosector,
Incharge Vigilance cases, are carefully scrutinized it will be clear
that the State Government merely suggested to Shri Lalan Prasad
F Sinha (which it was entitled to do) withdraw from the prosecution
but at the same time asked him to consider the matter on his own
and after satisfying himself about it make the necessary application
which he did on 17th June, 1981 and there is no material to doubt
the recital that is found in the application that he bad himself consi-
dered relevant materials connected with the case and had come to
G his own conclusion in that behalf. We are not impressed by the
argument that the appointment of Shri Lalan Prasad Sinha was
made only for applying for withdrawal and not for conducting the
case. The appellants contention, therefore, has to be rejected.

H
The next ·important question that ·arises for consideration is
whether the withdrawal from the prosecution of Respondents Nos.
SHEONANDAN v. BIHAR (Tulzapwkar, J.) 81
2, 3 and 4 in Vigilance P.S. Cas' No. 9 (2) 78 was unwarranted, A
unjustified or illegal on facts as also in law. In other words, the
real question is whether the executive function of the public prosecu-
tor and or the supervisory function of the Trial Court in granting its
consent to the withdrawal have been improperly performed or are
vitiated by reason of any illegality ? This will necessitate the con-
sideration of the four grounds on which the withdrawal was sought B
by the Public Prosecutor and granted by the trial Court under s. 321
Cr. P.C. As stated earlier, pursuant to the suggestion of the State
Government and after considering the matter for himself Shrf Lalan
Prasad Sinha in his application dated 17th June, 1981 specifically set
out for grounds for withdrawal from the prosecution in the namely
(a) lack of prospect of successful prosecution in the light of evidence,, c
(bJ the implication of the persons as a result of political and pero-
sonal vendetta, (c) the inexpediency of the prosecution for the reasons
of the State and Public policy and (d) the adverse effects that the
continuation of the prosecution will bring on public interests in the
light of the changed situation. Significantly enough the learned
D
Special Judge after summarising the submtssions of Shrl Lalan
Prasad Sinha, which were in terms of the averments made and the
grounds set out in the application, passed a short reasoned order on
20th June, 1981 as follows:

Having considered the legal position explained by the
Supreme Court (in R.K. Jain's case)·and submissions made
by the learned Special P.P. in charge of this case and hav-
ing perused the relevant records of the case I am satisfied
that it is a fit case in which prayer of the learned Specfal
·P.P. to withdraw should be allowed and it is, therefore,
allowed. Consequently the special P.P. Shri Lalan Prasad F
Sinha is permitted to withdraw from the prosecution and in
view of section 321 (a) Cr. P. C. the accused persons are
discharged."

In other words, the learned Special Judge accepted all the grounds
. on which withdrawal was sought and granted the permission to G
withdraw from the prosecution on those grounds. The question is
whether Vigilance P.S. Case No. 9 (2) 78 was such as would attract
the grounds and even if the grounds were attracted was withdrawal
from the prosecution justified ?
H
Out of the four grounds set out above, I shall deal with
grounds (b), (c) and (ci) first and ground (a) later. In the light of
88 SUPREME COURT REPORTS (1983] 2 s.c.a

A the legal principles discussed above it cannot be disputed that
grounds like the inexpediency of the prosecution for the reasons of
State or public policy, implication of the accused persons out of
political and or personal vendetta and adverse effects which the
continuance of prosecution will have on public interests in the light
of changed situation are appropriate and have a bearing on the
B broader cause of public justice, public order and-peace, which might
in a given case outweigh or transcend the narrower public interest of
administering criminal justice in a particular litigation necessitating
the withdrawal of the latter, but, as observe dearlier, no question of
serving and broader cause of public justice, public order or peace
c can arise unless the crimes allegedly committed are per se political
offences or are motivated by political ambitions or considerations or
are committed during or are followed by mass agitations, communal
frenzies, regional disputes, conflicts, student unrest or like situations
which involve emotive issues giving rise to a surcharged atmosphere
of viplence. Admittedly, the offences of bribery (criminal mis-con-
D duct) and forgery which are said to have been committed by Respon-
dent No. 2 in conspiracy with the other accused are ordinary
common law crimes and were not committed during nor were they
followed by any mass agitation or communal frenzy or regional
dispute or industrial conflict or student unrest or the like explosive
situation involving any emotive issue giving rise to any surcharged
E atmosphere of violence; further it cannot be disputed that these are )-
not per se political offences nor were they committed out of any poli-
tical motivation whatsoever; in fact the motivating force behind them
was merely to give protection to and shield Shri Nawal Kishore Sinha,
a clo~e friend, from criminal as well as civil liability-a favouritism ,tr··
amounting to criminal misconduct allegedly indulged in by Respon-
F dent No. 2 by abusing his position a.s a Minister or the Chief Minis-
ter of Bihar. If therefore the offences did not partake of any politi-
cal character nor were committed in nor followed by any explosive
situation involving emotive issue giving rise to any surcharged
atmosphere of violence rio question serving any broader cause of
public justice, public order or peace could arise and in absence
G there of the public interest of administering criminal justice in this
particular case could not be permitted· to be sacrified. In other
words, this being an ordinary criminal case involving the commis-
sion of common law crimes of bribery and forgery in ordinary nor-
mal circumstances with self-aggrandisement or favouritism as the
H motivating force, grounds (b), (c) and (d) were irrelevant and extra-
neous to the issue of withdrawal and since adlI!ittedir these wer~
SHEONANDAN •• BIHAR (Tulzapurkar, J.). 89
'
the considerations which unquestionably influenced the decision of A
the public prosecutor in seeking the withdrawal as well as the deci·
sion of the trial Court to grant the permission, th~ impugned with·
drawal from the prosecution would stand vitiated in law.

Counsel for the respondents urged that as a result of the elec- B
tions there was a change in the situation, that Respondent No. 2's
party had received the peoples' mandate and voted to power, that
Respondent No. 2 had become the Chief Minister of the State and
that the prosecution against the head of the Statt would have had
adverse effects on public interestincluding public order and peace and,
therefore, its continuation was regarded as inexpedient for reasons of
c
State and public policy. I fail to appreciate the contention: for,
what has the change in the situation brought about by the.elections
putting one or the other party in power got to do with the continua-
tion of prosecution for ordinary common law crimes of bribety (crimi·
nal-mis-conduct) and forgery especially when the offences were not
D
actuated by any political motivation whatsoever nor had they been
committed in or followed by any explosive situation involving emotive
issue? No emotive issue was or is involved whatsoever. Surely, in the
absence of the aforesaid, aspects no result of any election, howsoever
sweeping, can be construed as the peoples' mandate to condone or
compound the common law crimes allegedly committed by those E
who have been returned to power; in fact such interpretation of the
mandate would be contrary to all democratic canons, Success at
hustings is no licence to sweep all dirt under the carpet and enjoy
fruits non-challantly. Moreover, the apprehension that public
interest including public order and peace would be ad verscly affected
by the continuation of the prosecution of commo!} law cnmes (which F
- do not partake of any political character or are not committed in or
followed by any explosive situation involving emotive issue) against
the head of the State is ill-founded, for, all that can happen is that
Respondent No. 2 will have to step down and nothing more. Any
fear of destabilisation of the Government is entirely misplaced. On
the other hand, withdrawal from the prosecution of such offences G
would interfere with the normal course of administration of criminal
justice and since Respondent No. 2 is placed in a high position the
same is bound to affect the common· man's faith in the rule of law
and administration of justice. Besides, as I shall point out later, if
the proof of the offences said to have been committed by Respon· H
dent No. 2.in conspiracy with the other accused was based on docu-
mentary evidence, the genuineness
,, ',' '
9f whicn is
; .. not. in
' . '
dispute,
'
no
. '.
90 SUPREMB COURT RBPORTS [1983) 2 S.C.R.

A question of political and personal vendetta or un.fair and over-
zealous investigation would arise. In my view, in all the facts and
circumstances, grounds (b), (c) and (d) were not attracted to the
instant case and were irrelevant and extraneous to the issue of with·
drawal and since these grounds had influenced the executive function
of the Public Prosecutor as weJI as the supervisory judicial function
B of the trial Court the performance of these functions is vitiated. The
High Court has simply put its seal on the trial Court's order accept·
ing these gronds. The impugned withdrawal as permitted by the
trial Court and confirmed by the High Court in so far as it is based
on these grounds would be bad in law.

c I shall now proceed to deal with the ground (a) that was put
forward for withdrawal from the prosecution. In substance the :
ground was that there were no chances of successful prosecution in
view of paucity of evidence to prove the charges. As stated earlier
when such is the ground it is the duty of the Court to examil)e the
D material to ascertain whether the ground was valid one or whether
the available material was sufficient to· make out a prima facie case
against the accused to put him on trial ? And I shall approach the
problem strictly from this angle.

The facts giving rise to the launching of the aforesaid
E
prosecution against. respondent Nos. 2, 3 and 4 and three others
may he stated : The Patna Urban Co-operative Bank was registered
in May 1970 and commenced its banking business with Nawal
Kishore Sinha as its Chairman, K.P. Gupta as its Honorary Secre·
tary, M.A. Haidari as its Manager and A.K. Singh as a Loan Clerk
F (who also worked as the care· taker and Personal Assistant to. N.K.
Sinha). A Loan Sub-Committee consisting of N.K. Sinha the
Chairman, K.P. Gupta the Secretary and one Shri Purncndu Narain,
an Advocate used to look after the sanctioning and granting of
-
Joans. Under its bye.Jaws the Chairman was the ultimate authority
in regard to all the functions of the Bank and the Honorary
G Secretary along with the Chairman had to exercise supervisory
control over all the activities of the Bank while the Manager was
concerned with its day to day working. Dr. Jagan Nath Mishra,
then an M.L.C. and who subsequently became a Minister and the
Chief Minister iil the Bihar Cabinet helped the Bank and its
H Chairman (N.K. Sinha being his close associate and confidant) in
several ways including mobilisation of resources for the Bank.
separate audits into the working of the Bank were conducted by
SHEONANDAN v. BIHAR (Tulzapurkar, J.) . 91

the Reserve Bank of India as well as by the Co-operative Depart- A
ment of the Bihar Government for the years 1972-73 and 1973-74
during the course of which a large number of irregularities (such
as non-maintenance of cash books in a proper manner, grant of
over-draft facility without current account etc ), illegal practices,
acts of defalcations and malversation of funds of the Bank came to
light; in particular the Audit Reports disclosed that huge amounts B
running into lakhs of rupees had been squandered away by (a) giving
loans to non-members, (b) giving loans even without application,•
agreement or pronote, (c) giving loans without hypothecations,
(d) giving short term loans instead of realising cash on sale proceeds
even for hypothecated goods, (e} giving loans to the same persons
~c
.. in different names and (f} giving loans to ficticious persons and
' non-existing firms or industries etc. and the audit team of the
Reserve Bank in its report came to the conclusion that the Chairman
Shri Nawal Kishore Sinha and others were responsible and account-
able for 'bad loans' to the tune of Rs. 12 lakhs and 'mis-appropria-
tion and embezzlement' to the tune of Rs. 25 lakhs. On the basis
D
of these audit reports at the instance of the Reserve Bank the
management of the Bank through itg Board of Directors was
superseded on 10th of July, 1974 under the orders of the Registrar,
Co-operative Societies, and Nawal Kishore Sinha the Chairman and
other Directors on the Board were removed and an officer of tl\e
Co-operative Department, Government of Bihar, was appointed as E
the Special Officer to look after the affairs of the Bank.

On the strength of the aforesaid Audit Reports the Registrar,
Co-operative Societies, agreeing with the Joint Registrar, put up a
note dated 4. l l.l 974 to the Secretary, Co-operative saying that
prima facie charges of defalcations, conspiracy, etc. were made out

- against.the officials of the Bank and legal action be taken against them
after taking the opinion of the Public Prosecutor; the Secretary by his
note dated 7.l l.1974 sought the opinion of the Law Department
on 18. l 1.1974 the Law Department recorded its opinion in the rele-
vant file (being File No. IX/Legal-9/75 of the Department of Co-ope-
ration) that a case of conspiracy and criminal breach of trust against G
the loanees and office bearers of the Bank was prima facie made out.
On 16.12.1974 a draft complaint was prepared by the Assistant Public
Prosecutor, Patna for being filed before the Chief iudicial Magistrate,
Patna; on the same day (16.12.1974) an office noting was made by
Shri Bimal on the file suggesting that the Law Department's advice on H
the draft complaint. be obtained, which course of action was approved
J:>y the Secretary, Go-operation on 16.12.1974~ by the Minister for
192 SUPJtEME COU!tT !tEPOJtTS IJ983J 2 s.c.~.

A Co-operative (Shri Umesh Prasad Verma) on 1.1.1975 and by the
then Chief Minister (Shri A. Gaffoor) on 2.1.75. Accordingly, the
file was sent to the Law Department which reiterated its earlier
adv~ce for launching the prosecution and on the file being received
back on 18.1.1975, the Secretary Co-operation endorsed the file on
21.1.1975 to A.P.P. Shri Grish Narain Sinha for necessary action
B i.e. to file the prosecution (vide the several notings made in File No.·
IX/Legal-9/75-relied upon by the respondents). In other words by
• 21.1.1975 the stage was set for launching a criminal prosecution
against the loanees and the members of the Board of Directors of
the Bank with Nawal Kishore Sinha as the principal accused
and a complaint petition in that behalf duly. approved by the Law
Department and signed ·by Shri~Jagdlsh Narain Verma, District
Co-operative Officer, Patna on 25. 1.1975 was also ready with the
:
A.P.P. for being filed in the Court. But before the A.P.P. could
file the complaint, Respondent No.2 (Jagan Nath Mishra, Agriculture
and Irrigation Minister) wrote a buff-sheet note dated 24.1.1975
D asking the Secretary, Co-operation to send the concerned file along
with Audit Reports to him before the institution of the Criminal
case. Accordingly, after obtaining the approval cf the then Co-opera-
tive Minister and the then Chief Minister for sending the file to
respondent No. 2, the Secretary recalled the file and other papers
from the A.P.P. on 28.1.1975 and on 24.2.1975 he sent the file to
E the Law Minister en route the then Chief Minister. It may be
stated that under the Notification dated 30th April, :;1974 issued
under Art. 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 Gaffoor was inter alia holding the portfolio of
Law also but according to the affidavit of Shri Neclanand Singh
dated 19th October, 1982 filed on behalf of Respondent No.I before
us Shri A. Gaffoor as per his note dated 29-8-1974 addressed to
the Chief Secretary and circulated to various departments had, with
a view lo Jessen bis heavy burden, requested Respondent No. 2
(Jagan Nath Mishra) to look after the work of the Law Departmeat
G and as such endorsing the file on 24. 2.1975 'to the Law Minister
en-route the Chief Minister' would mean that the file must have
gone to respondent No. 2 as there was no other person 'holding the
Law portfolio excepting the Chief Minister himself under the Noti-
fication dated 30th April, 1974. It is claimed by the appellant that
H Respondent No. 2 sat tight over the file for over two and half
months till he became the Chief Minister whereas it is suggested on
~h11lf of the Respondents that though the file was called fof by
sllEONANbAN v. BIHAR (tulzapurkar, })

Respondent No. 2 on 24·1·1975 it did hot actually reach him till' A
middle of May, 1975. However, ignoring the aforesaid controversy,
the fact remains that the filing of the complaint got postponed from
24-1-1975 (the date of Buff-sheet order of Respondent No. 2) till
middle of ~fay, 1975 and in the meantime on 11.4.1975 Respondent
No. 2 replaced Shri A. Gaffoor as the Chief Minister and in the
middle of May 1975 as the Chief Minister Respondent No. 2 passed B
two orders which are very eloquent.

On 16-5·1975 in the File No. IX/Legal·9/75 respondent No. 2
wrote out an order in his own hand in Hindi concerning the action
to be taken against Nawal Kishore Sinha i.nd oth.ers, the English
rendering of which, according to the respondents, runs thus : c
"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.
Stern action should be taken for realisation of Joans from
D
the Joanees and if there are difficulties in realisation from
the loanees sur-cbarge proceedings should be initiated
against the Board of Directors. The normal condition be
restored in the Bank after calling the Annual General
Meeting and holding the election.
(Sd) 1agan Nath Mishra E
16-5-1975

In the margin opposite the above order the seal containing ihe
despatch entry originally showed 16-5-1975 as the date on which the
file was despatched from the Chief Minister's Secretariat to the F
Co-operative Department after Respondent No. 2 had made the
above order. It is clear that the first part of the above order
regarding the criminal involvement is in teeth of the Audit' Reports
of the Reserve Bank and the Co-operative Department and contrary
to the opinion of the Law Department it. thwarted the crimi~al
prosecution against Shri Nawal Kishore St~h~ ~n~ . others, while. G
under the .latter part it still exposed them to clVll habthty by way of
sur-charge proceedings to. be adopted against them in default of ·
realisations from the Ioanets but as even the loans had . been
advanced mostly in ficticious names and were actually utilised by the
office-bearers themselves the prospect of civil liability l~omed large H
before them. Realising this position Respondent No. 2 irregul~rly-
any seal showing inward receipt of
there being no endorsement nor

T
94 SUPREM~ cuURT l<EPORTS [1983] i S.C.R.

A the File by Chief Minister's Secretariat-got bold of the File again
and passed another order in iiis band on a piece of paper in Hin Ji
under bis signature but bearing an earlier date !4.5.1975 and had it
pasted over the earlier order dated 16.5.1975 in the File so as to
efface the same completely, and the date of despatch 16.5.7:i in the
despatch seal appearing .in the margin was altered to 14 5 1975 by
B over writing; an English rendering of this second order, addressed to
the Minister for Co·operation, runs thus :

"Please issue order for restoring the normal condition
in the Bank after holding Annual General Meeting.

c (Sd) Jagan Nath Mishra
14·5·1975"

It ;is undisputed i.that Respondent No. 2 did pass the aforesaid
two orders in his own hand in Hindi, the first on 16-5-1975 and the
D second subsequently in point of time but ante-dated it to 14-5-1975
and had it pasted over the first order completely effacing that orcler.
Such conduct on his part has been explained only on the basis that
as the Chief Minister he had the authority and power to revise or
review his earlier order and that it is the usual practice prevailing in
the Patna Secretariat that whenever any order passed earlier is
E sought to be revised or reviewed by the same officer or Minister it is
done by pasting it over by a piece of paper containing the revised
orders (Para 8 of the counter affidavit of Shri Bidhu Sbekhar
Banerjee dated 17-3-1982 filed on behalf of respondent No. 1) Even
with this explanation the admitted position that emerges is that the
aforesaid two orders were passed by respondent No. 2, that the
second order was ante-dated to. 14-5-1975 and that the same was
pasted on the file so as to efface completely the earlier order. In
other words in substance and reality the entire order passed by
,..
Respondent No. 2 in the concerned file on 16-5-1975 which contained
4 directions ; (a) there being no allegation of defalcation against the
Chairman, the Members of the Board no criminality was involved,
G
(bl stern action for realisation of the loans from the loanees be
taken, (c) failing which sur-charge proceedings against the Board of
Directors be initiated and (d) restoration of normal condition in
the Bank be brought about by calling Annual General Meeting and
holding the election, was wiped out and completely substituted by
the second order which merely retained the last direction (item (d)
above) of the first order. In effect under the second order both the
criminal as well as civil liability of Nawal Kishore Sinha and others
SHEONANbAN v. BIHAR (Tulzapurkar, },) 95
were given a go-bye, notwiths landing the Audit Reports of the A
Reserve Bapk and the Co-operative Department and Respondent
No. 2 merely directed that the normal condition in the Bank be
restored and this result was brought about by tbe second order which
was ante-dated with the obvious fraudulent intent of nullifying or
rendering nugatory any action that could have been or might have .
been taken (even if not actually taken) pursuant to the first order B
after the file had left the Chief Minister's Secretariat on 16.5.1975,
that being the most natural consequence flowing from the act of
ante-dating the second order. It is not necessary that the fraudulent
intent should materialise; it is enough if act of ante-dating is done
with the fraudulent intent. This being a case of inter-departmental
orders, the first order dated 16th May, 1975 passed by Respondent
c
'
No. 2 became operative as soon as the concerned file left the Chief
Minister's Secretariat and as such the same could be revised or
reviewed by Respondent No. 2 by officially and regularly calling
back the file and by passing a fresh order snbsequent in point of
time modifying or cancelling the earlier order but surely not by the D
crude method of pasting the subsequent order over the first so as to
efface the same completely and in no event by ante-dating it. It is
true that mere ante-dating a document or an order would not amount
to an offence of forgery but if the document or the order is ante;
dated with oblique motive or fraudulent intent indicated above
(without the same actually materialising) it will be forgery.

The aforesaid undisputed documentary evidence comprising
the Audit Reports, the relevant notings in the concerned file and the
two orders of Respondent No. 2 clearly makes out a prima facie
case of the commission of two common Law offences of criminal
Ii
mis-conduct s. 5(1) (d) of Prevention of Corruption Act) and forgery
(s. 466 I.P.C.) by Respondent No. 2 without needing any further
material to establish the same. The ingredients of the former can be
said to be prima facie satisfied in that by passing the two orders Res-
pondent No. 2 by corrupt or illegal means or by otherwise abusing his
position as the Chief Minister subverted the criminal prosecution and G
surcharge proceedings against Nawal Kishore Sinha and others and
bad thereby at any rate obtained for them pecuniary advantage to
the deteriment of the Bank, its members, depositors and creditors.
This is apart from the aspect as to whether while doing so he obtain·
ed pecuniary advantage for himself or not, for which further material
by way of confessional statement of the approvers would be required
to be considered or appreciated but ignoring such further material
96 ~tJPREME COUR1 RFPORts [1983) ~ s.t.11.

A the ingredients of s. 5 (1) (d) get satisfied prima facie as ·indicated
above. Ai regards the latter though Respondent No. 2 had the
authority and power to pass the second order in substitution of the ....
first, by ante-dating the second order with fraudulent intent the
ingredients of forgery again prima facie satisfied. In other words,
the aforesaid material is clearly sufficient to put Respondent No 2
B on trial for, if the said material remains unrebutted a conviction
would clearly ensue.

It was strenuously contended by Counsel for respondents,
particularly by counsel for Respondent No. 2 that if the aforesaid
0 two orders passed by Respondent No. 2 are properly understood it
cannot be said that the effect of either of these two orders was to
thwart or to scuttle or to subvert the criminal prosecution and sur-
charge proceedings against Nawal Kishore Sinha and others and that
the effect of the second order was certainly not to countermand the
directions contained in the first order in regard to items (b) and (c)
D above but in fact the effect was to facilitate recourse to surcharge
proceedings against the office-bearers without the hurdle of being
required to make the recovery of loans from the loanees first, which
was the import of the first order dated 16-3-1978. It was further
contended that instead of stifling the criminal prosecution against
Nawal Kishore Sinha and other office bearers Respondent No. 2 at
E a subsequent stage bad directed prosecution of office bearers includ-
ing N11wal Kishore Sinha and actually the Co-operative Department
had taken steps to adopt surcharge proceedings even against Nawal
Kishore Sinha by issuing show cause notice to him and therefore, the
charges of criminal misconduct and forgery against the Respon-
dent No. 2 in conspiracy with others were clearly unsustainable and
F withdrawal from the prosecution sought· by the public prosecutor
was proper and justified. In my view, however, as I shall presently
indicate, the further materials on record do not bear out or support
these submissions of counsel for the respondents.

G On the question as to whether the effect of either of the afore-
said two orders was to thwart; scuttle or subvert criminal prosecu-
tion and surcharge proceedings or not and what was intended by
Respondent Nu. 2 when he passed those orders would be clear from
his further conduct evidence by subsequent notings and orders
H passed by him till he "ent out of power in 1977 and in this behalf
it would be desirable to delineate the course which the subsequent
events took in regard to criminal prosecution as well as surcharge
SUEONANOAN v. BIHAR (Tulzapurkar, J,) 97

proceedings separately. As regards criminal prosecution, it appears A
that the Co-operative Department wanted to go ahead with it and
in that behalf by his next noting dated 28-6-1975 the then Minister
for Co-operation sought directions from the Chief Minister as to
what should be the next course of action in the matter of filing the
complaint and Respondent No. 2 as the Chief Minister passed the
following order on the. file on 30-6-1975 : "Discussion has been held. B
Tl).ere is no need to file the prosecution." This clearly show what
Respondent No. 2 intended by his aforesaid two orders in the matter
· of criminal prosecution and the direction clearly runs counter to the
suggestion that he ·did not thwart, scuttle or subvert the criminal
prosecution against Nawal . Kisbore Sinha and others. It further
appears that in July, 1975 there were questions and ca11 attention c
motions in the Bihar Legislative Assembly during the course of
which the propriety of non-prosecution of the culprits concerned in
the Bank fraud, despite Law Department's advice, was discussed,
that the Speaker referred the matter to the Estimates Committee of
the House, that in June, 1976 the Estimates Committee submitted
its Report recommending prosecution ·of Nawal Kishore Sinha and D
others, that in July, 1976 a debate took place in the Assembly on
the recommendations contained in the said Report and the Govern-
ment was forced to agree to launch prosecutions against the culprits.
In the wake of these events Respondent No. 2 as the Chief
Minister passed an order on 4-8-1976 for launching criminal prose-
B
cutions but even there he directed that prosecutions
be launched against some of the office-bearers and loanees
of the Bank including Shri K. P. Gupta, the Hony, Secretary, Shri
M.A. Haidary, the Manager and Shri K.P. Gupta, the Loan Clerk
but not against Nawal Kishore Sinha who was excluded from being
arraigned as an accused and accordingly 23 criminal cases were filed
against the aforesaid office-bearers and loanees. This order is another
indication that even with all the furore which the Banks affairs had
created Respondent No. 2 wanted to and did protect and save
Shri Nawal Kishore Sinha from criminal prosecution by excluding
him from the array of accused persons. As regards the 23 criminal
cases filed against the other office bearers and the loanees of the G
, Bank there is on record in the Co-operative Department File
No. 12/Legal-31 /77 a Bµff-Sheet order dated 2-2-1977 passed by
Respondent No. 2 to the following effect : "Io order to recover the
money from some of the loanees of the Patna Urban Co-operative
Bank, criminal cases were instituted against them. Action should be H
taken immediately for the withdrawal of the cases against those
loanees who have cleared the loan in full, and proper instalments for
98 SvPRJ!Mll COURT REPORTS [1983] 2 s.c ....

payment of loans should be fixed against those who want to repay
A the loan but ·due to financial handicaps are unable to make payment
at a time, and thereafter necessary further action should be taken."
It appears that pursuant to this order after verifying that loans from
three parties (Plastic Fabricators, Ciimaz Plastic Udyog and K K.
Boolan) had been cleared the criminal cases against them were direc-
ted to be withdrawn immediately. However, the protection given to
Shri Nawal Kishore Sinha against criminal prosecution continued to
benefit him.

In the meanwhile in April, 1976 the Banking Licence of
the Patna Urban Co-operative Bank was cancelled by the
Reserve Bank of India and furthe"r at the instance of the
Registrar, Co-operative Societies, the Bank was ordered to be
liquidated. It appears that Shri T. Nand Kumar, I.A.S., Liquidator
of the Bank addressed a communication to the Registrar, Co-opera-
tive Societies suggesting that besides the other office-bearers S ri
Nawal Kishore Sinha, the ex-Chairman of the Bank also deserve I
to be pr,,secuted for offences of embezzlement, forgery, cheating, etc
D but the matter was kept pending for report of the Superintendent of
Police (Co-operative Vigilence Cell) ; the S.P. (Co-operative Vigilence
Cell) after collecting facts and evidence got it examined by Deputy
Secretary (Law) in C.I.D., obtained the opinion that a criminal case
was fully made out against Shri Nawal Kishore Sinha and proposed
that a fresh criminal case as per draft F.I.R. be filed and that Shri
E
Nawal Kishore Sinha should also be made co-accused in a number
of cases already under investigation, the S.P. (Co-operative Vigilance
Cell) obtained the approval of D.I.G., C.I.D. on his said proposal
and submitted the same to the Secretary, Co-operation, for obtaining
Chief Minister's permission. In view of the Chief Minister's earlier
order restricting the filing of criminal cases against some of the
F
office-bearers and loanees only the S.P's noting categorically stated
that tbe draft F.I.R. (against N.K. Sinha) had been vetted by D.I.G.
C.l.D. as well as by I,G. of Police. After examining tbe entire mate-
rial carefully and obtaining clarifications on certain p~ ints Shri
Vinod Kumar Secretary Co-operation put up a lengthy note dated
15-1-1977 to the Minister for Co-operation in whicb he specifically
G
placed the proposal of S.P. (Co-operative Vigilance Cell) for
lodging F.I.R. against Shri Nawal Kishore Sinha for his
· approval and also suggested that the Hon'ble Minister may
also obtain the approval of tbe Chief Minister. The Minister
H for Co-operation in his turn endorsed the file on 20-l 1977
to the Chief Mini•ter for the latter's approval. The file was
received by the Chief Minister's Secretariat on 30-3-1977 and
SHEONANDAN •• BIHAR (Tuizapurkar, J.) 99

Respondent No. 2 as the Chief Minister on 9-4-1977 instead of A
indicating his mind either way merely marked the file to "I.G. of
Police", which was meaningless as the prior noting had clearly indi-
cated that a draft F.I.R. had been vetted by_ both, D.l.G., C.I.D.
and I.G. of Police. Counsel for Respondent No. 2 submitted that the
endorsem~nt made by the Chief Minister meant that he had approved
the action as proposed. It is impossible to accept the B
submission. Had the Chief Minister merely put his signature or
initials without saying anything it might have been possible to
suggest that he had approved the proposal, but to mark the file to
"LG. of Police" without saying 'as proposed' or something to that
effect cannot mean that the Respondent No. 2 had approved the
proposal. In fact, with the knowledge that the J.G. of Police had c
'< approved and vetted the draft F.I.R. agninst N.K. Sinha, merely
marking the file to "LG. of Police" amounted to putting off the
matter Meanwhile Respondent No. 2's Government went out of
power and under the President's Rule the matter was dealt with by the
Governor Shri Jagaa Nath Kaushal (the: present Union Law Minister)
who granted the approval on l 6·5· 1977 as a result whereof a crimi-
D
nal case (being F.I.R. Ca~e No. 97 (j) 77 ) ultimately came to be
filed at Kadam Kuan Police Station on 30-5-1977 against Nawal
Kishore Sinha, for which Respondent No. 2 cannot take any credit
whatsoever. On the other hand, the subsequent events show that so
long at it lay within his power Respondents No. 2 made every effort E
to protect and save Nawal Kishore Sinha from criminal prosecution
by abusing his official position-a criminal prosecution which had
been proposed by independent bodies like the Reserve Bank of
India and the Co-operative Department, agreed to by the .Law
Department, recommended by the Estimates Committee and ultima-
tely approved by the Governor Shri Jagan Nath Kaushal. F

As regards the surcharge proceedings the position is very
simple. As discussed earlier, the two dir~ctions contained in the first
order dated 16-5-1975 for taking stern action to realise loans fMm
the Ioanees and in default to initiate surcharge proceedings against G
the Board of Directors were wiped out by the subsequent ante-dated
order 14-5-1977, and thereby Respondent No. 2 thwarted surcharge
proceedings and attemped to give a go bye to the civil liability of
Nawal Kishore Sinha and other office-bearers of the Bank. This
conduct on the part of Respondent No 2 has been explained in the H
counter-affidavit of Shri Vinod Kumar Sinha dated 8-10-1982 filed·
before us, and counsel for Respondent No. 2 pressed it into service
100 SlJPREME COlJRT ltEP6RT~ ( J983] ~ s.c.lt.

A during his arguments and the explanation is that a separate file titled
"Surcharge Proceedings" being File No. 3 of I 975 maintained in the
office of Deputy Registrar, Co-operative Societies, Patna Division
shows (a) that by bis letter dated 30-4· 1975 the Deputy Registrar
informed the joint Registrar that discussions bad already been held
with the Registrar and that surcharge proceedings would be initiated
B as soon as possible (b) that on I0-6.1975 the necessary proposal for
surcharge was drafted and filed by the District Co-operative Officer
before the Registrar under sec. 40 of the Bihar and Orissa Co-opera-
tive Society Act and (c) on 1-7-1975 Surcharged Case No. 3 of 1975
had been started against Nawal Kisbore Sinha and others by direct-
ing issuance of show-cause-notice to them and that in view of these
c facts Respondent No. 2 could not be said. to have counter-manded
the Surcharge proceedings, it is further urged that the order dated
16-5-1975 directing surcharge proceedings was, therefore, unneces-
sary and irrelevant as the proper authority, namely, the Registrar
had already decided to start surcharge proceedings which were
started by issuance of show-cause notice to Nawal Kishore Sinha
.D and others on 1-7-1975 and, in fact, if the struck-out order dated
16-5-1975 had remained without being replaced by the order dated
14-5-1975 the surcharged proceedings which were filed on I0-6-1975.
would have been delayed and the effect of recalling the first order
dated 16-5-1975 (incidentally recalling of th~ first order by the second
order is admitted) was to facilitate the surcharge proceedings (which
I . were being processed at that time in the office of Deputy Registrar)
without being required to adopt recovery proceedings from the
loanees first. Counsel for Respondent No. 2 strenuously urged that
instead of thwarting or stalling the surcharge proceedings the subs-
quent order dated 14-5-1975 removed a hurdle. The explanation to
say· the least is disingenuous for two or three reasons and cannot be
F accepted. First, admittedly and this was fairly conceded by counsel
for Respondent No. 2, that there is no material on record to show
that File No. 3/75 pertaining to surcharge pJoceedings was sent to
the Chief Minister (Respondent No. 2) or was seen by him prior to
16-5-1975, indeed, it was never sent.to him at all with the result
c· that Respondent No. 2 had no knowledge of either the notings and
orders contained therein or what was bemg done in the office of the
Deputy Registrar, Co-operative Societies, when he passed either of
the two orders dated 16-5-1975 and 14-5-1975 and the explanation,
therefore, that Respondent No. 2 facilitated the filing of the sur-
H charge proceedings by the office of the Deputy Registrar, without the
necessity of proceeding against the loanees first, is not candid. Secon-
dly, the proposal for surcharge proceeding itself was submitted and
SHBONANDAN v. BIHAR (Tulzapurkar, J.) l ()I

filed by the District Co-operative Officer against Nawal.Kisbore
Sinha and others on 10-6·1975 and the surcharge proceedings
actually could be said to have been initiated on 1-7-1975, when
'
show cause notice was directed to be issued and served on Nawal
' Kishore Sinha on 15-7·1975, while thwarting of the surcharge
proceedings against Nawal Kishore Sinha and others was already
complete, having been accomplished by Respondent No. 2 by his B
ante-dated order 14-5-1975. Thirdly it is obvious that Respondent
No. 2 cannot take credit for the action that was taken in the matter
of surcharge proceedings against Nawal Kishore Sinha and others
by· the Office of Registrar, Co-operative Society independently of
and in spite of Respondent No. 2's action of .subverting the sur-
charge proceedings. c
It will appear clear from the above discussion that the
documentary evidence mentioned above, the genuineness of which
cannot be doubted, clearly makes out a prima facie case against
Respondent No. 2 sufficient to put him on trial for the offence of D
criminal misconduct under s. 5 (I) (d) read with s. 5 (2) of the
Prevention of Corruption Act, 1947. Similar is the position with
r~gard to the incidental offence of forgery under s. 466, 1.P.C. said
to have been committed by him, for, ante-dating of the second order
by him is not disputed; and it is on record that in regard to such
ante-dating no explanation was offered by him during the investi-
gation when be was questioned about it in the presence of bis
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 explanation that could only be ascribed as a
bona fide mistake or slip (vide written arguments filed on 14. l 0.1982)
but such explanation does not bear scrutiny, having regard to the
F
>
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 bas been altered to f 4.5.1975 by over-writing and if over-writing
is required to be done there cannot any bona fide. mistake or slip.
The ante-dating in the circumstances would be with oblique intent
to nulify any possible action that could have or might have been
G
taken pursu.ant to the first order as stated earlier, that being the
most natural consequence flowing from it which in must in law be
presumed to have intended. It would, of course, be open to him
to rebut the same at the trial but at the moment there is no material H
on record-by way of rebuttal. In the circumstances it is impossible
to accept the paucity of evidence or lack of prospect of sll\:cessful
102 SUP1 EME COUR1 REPORTS [1983] 2 s.c.R.

A prosecution as a valid gruund for withdrawal from the prosecution.
On the 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
B into existence.

As far as Respondent No. 3 (Nawal Kishore Sinha) and
Respondent No. 4 (Jiwanand Jha) are concerned it cannot be
forgotton thatthey have been arraigned alongwith Respondent No. 2 A.
on a charge of criminal conspiracy in pursuance whereof the several
c offences are said to have been committed by all of them. Further
it is obvious that the principal beneficiary of the offence of
criminal misconduct said to have been committed by Respondent
No. 2 under s. 5 (I) (d) read with s. 5 (2) of Prevention of
Corruption Act, 1947 has been Respondent No. 3 and so far as
Respondent No. 4 is concerned it cannot be .said that there
is no material on record suggesting his complicity. Admittedly, he
D has been very close to Respondent No. 2 for several years and
attending to his affairs-private and party affairs and the allegation
against him in the F .l.R. is that he was concerned with the deposit
of two amounts of Rs. I0,000 and Rs. 3,000 ·on 27.12.1973 and
J.4.1974 in the Savings Bank Account of Respondent No 2 with the
Central Bank of India, Patna Oak Bungalow Branch, which sums,
E says the prosecution, represented some of the bribe amounts said to
have been received by respondent No. 2 and the tangible docu-
mentary evidence in proof of the two deposits having been· made in
Respondent No. 2's account consists of two pay-in slips of the
concerned branch of Central Bank of India. Whether the two
amounts came from the funds of the Patna Urban Co-operative
F 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 s. 5 (I) (d) would
even otherwise be complete if pecuniary advantage (by way of scutt-
G ling 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 per-
mitted against Respondent No. :; and Respondent No. 4. In arriving
at the conclusion that paucity of evidence is not a valid ground for
H withdrawal from the prosecution in regard to Respondents Nos. 2, 3
and 4. I have deliberately excluded from consideration the
\lebatable eviden~e like confessional statelljents of the approver$
SHEONAND!,N •• BIHAR (Tulzapurkar, J.) 103

etc. (credibility and effect whereof would be for the trial cnurt to A
decide) said to have been collected by the allegedly over-zealous
investigating officers after· Respondent No. 2 went out of power
in 1977,

There is yet another legal infirmity attaching to the executive B
function of the Public Prosecutor as well as the supervisory judicial
function of the trial court which would vitiate the final order. As per
the charge·sheet filed against them respondents Nos. 2, 3 and 4 were
said to have committed offences under ss. 420/466/417/109/120-B,
l.P.C. and under ss. 5 (1) (a), (b) and 5 (l) (d) read withs. 5 (2) of
the Corruption of Prevention Act, 1947 and gravaman of the charge c
against the respondent No 2 was that in his capacity either as a
Minister or the Chief Minister of Bihar by corrupt of illegal means
or by otherwise abusing his position as a public servant he, in
conspiracy with the other accused and with a view to protect Nawal
Kishore Sinha ip particular, sought to subvert criminal prosecution
and surcharge proceedings against Nawal Kishore Sinha and others D
and either obtained for hims.elf or conferred on them pecuniary
advantage to the detriment of Patna Co-operative Bank, its Members,
depositors and creditors; in other word~. the principal charge. against
Respondent No. 2 was in respect of the offence of criminal mis-
conduct under s. 5 (1) (d) read with s. 5 (2) of Prevention of
Corruption Act, 1947 and the offence under s. 5 (I) (c) was nowhere
mentioned or referred to. The difference between s. 5 (I) (d) (bribery
amounting to criminal mis-conduct) and s. 5 (I) (c) (breach of trust
amounting to criminal mis-conduct) is substantial, each having
different ingredients but in the application for withdrawal filed by
Shri Lalan Prasad Sinha on 17th June, 1981 he stated that with-
drawal from the prosecution in Vigilance Case No. 9 (2) 78 was F
_, sought in reopect of several offences including the offence of criminal
mis-conduct under s. 5 (I) (c) read withs. 5 (2) of the Prevention of
Corruption Act and through out the application there was no
reference to the offence of criminal mis-conduct under s. 5 (I) (d)
read with s. 5 (2) of tbe said Act. Io other words, an offence under G
s. 5 (I) (c) read with s. 5 (2) with which Respondent No. 2 had
never been charged was mentioned and the offence under s. 5 (I) (d)
read with s. 5 (2) with which he was principally charged was
completely omiaed. Obviously submissions contained in the
application as well as those that were made at the hearing before 8
the Court were in relation to tbe offence of s. 5 (I) (c) and not s. 5
(I) (d). Similarly the learned Special Judge while granting the
104 SUPREME COURT REPORTS [1983) 2 S.C.R

A requisite permission bas also referred to the offence under s. 5 (I) (c)
and not s. 5 (I) (d) of the Prevention of Corruption Act in his order
and obviously the permission granted must be regarded as having
been given in respect of an offence with which Respondent No. 2
bad not been charged, completely ignoring the offence under s. 5
(I) (d) with which he had mainly been charged. This state'.of affairs
8 brings out a clear and glaring non-application of mind both on the
part of the Public Prosecutor as also the learned Special Judge
while dealing with the issue of withdrawal; in the High Court also
there is no improvement in the situation. This must lead to
the quashing of the impugned withdrawal from the prosecution.
Having regard to the aforesaid .discussion it is clear that
c the impugned withdrawal was not justified either on merits or '
'
in law ~nd being illegal has to be quashed. I would, therefore,
allow the appeal set aside the withdrawal order and direct that
Vigilance P. S. Case No. 9 (2) 78 be proceeded with the d·isposed of
in accordance with law.
D
BAHARUL ISLAM, J. This is an appeal by special leave by
Shri Sheonandan Paswan, who intervened in an application under
Section 321 of the Cod~ of Criminal Procedure, 1973 (hereinafter
'the Code') pending before the Chief Judicial Magistrate-cum-
E Special Judge, Patna. The material background facts may be
narrated thus :

2. The appellant is a member of the Bihar Legislative
Assembly and belongs to the Lok Dal Party. Respondent No. 2,
Dr. Jagannath Mishra, is currently the Chief Minister of Bihar ; and
Respondent No. 4, Sbri Jiwanand Jba at the relevant time was a
close associate of Respondeut No. 2. Respondent No. 3, Shri
Naval Kisbore Sinha, who started the Patna Urban Cooperative
Bank (hereinafter 'the Bank') and became its Chairman, had been
a colleague of Respondent No. 2 in the Legislative Council of
Bihar. In 1972, respondent No. 2 became Minister for Cooperation
G and Agriculture. On June 18, 1974, the Sub Divisional Co-operative
Audit Officer, Patna, submitted bis audit report of the Bank in
respect of the year 1972-73 alleging a number of irregularities in
the affairs of the Bank. The report was submitted to the Co-
operative Department whereupon the Joint Registrar, Cooperative
H
Audit Department, recommended legal action against the Directors
pf the !lank. The legal assistant of the Department submitted a
SHBONANDAN V. BllIAR (Baharul Islam, J.) 105

draft prosecution report prepared by the Public Prosecutor with a A
suggestion that the Registrar of the Cooperative Department should
obtain the opinion of the Law Department on the draft prosecution
report. The Registrar agreed to send the draft prosecution report
to the law ·Department but expressed desire that the Minister in
charge of the Cooperative Department should see the report.
Accordingly the file was endorsed to the Minister in charge of the
Cooperative Department. The then Chief Minister, Shri Abdul
Gafoor, signed it by way of agreement with the Registrar to obtain
the advice of the Law Department and approved the First Informa-
tion Report (FIR). The Secretary of the Cooperative Department
then requested the Public Prosecutor to amend the draft FIR which
was sent to the Law Department for opinion. The Law Department
c
""• returned the file to the Cooperative Department stating that it had
already given its opinion and that it was not its duty to file
complaint. The file was then endorsed. to the Additional Public
Prosecutor for necessary action. Respondent No. 2 who was the
Minister in charge of Irrigation and Agriculture also wanted to see 0
the file along with the audit report before the complaint was actually
filed. The Cooperation Minister endorsed the file to the Chief
Minister, Shri Gafoor, with his comments that the file might be
sent to the Irrigation Minister. The Secretary, Cooperative,
requested the Additional Public Prosecutqr to release the file, with the
endorsement, "filing of complaint may await further instructions". E
The Additional Public Prosecutor sent the file to the Secretary,
Co-operative, through a special messanger with a request to return
the file after persual by the Chief Minister (Shri Gafoor). The
Secretary, Cooperative Department, sent the file to the Minister of
Cooperation with his remarks, inter alia, "para 4 :-Law Deptt.
have tendered their advice. at page 13/N that criminal case made F
out against the Secretary and other Directors of the bank should be
filed·."

"Para 5 : Chief Minister and Minister (Law) have desired to
see the file before complaints are actually lodged". As a result the
file was recalled from the Additional Public Prosecutor, G

The above movement of the file was between January, 1975 to
,, February 24, 1975.
H
3. On April 11, 1975, there was a change in the Ministry of
nihar. Chief Minister, Abdul Gafoor, was replaced by Respondent

---
106 : SUPREME COURT REPORTS [1983] 2 s.C.R.

A No. 2 as Chief Minister and one Dr. Jawahar Hussain became the
Minister of Cooperation. On May 16, 1975, the aforesaid file was
put up before the Chief Minister, who ordered for taking strict steps
for realisation of the loans, failing that for starting surcharge
proceedings, and to restore normal conditions in the Bank after
convening annual general meeting and holding election.
B
Subsequently, the said order was covered by pasting a piece
of paper containing a fresh order to which we shall refer later. On
June 28, 1975 the Minister of Cooperation wrote to the Chief
Minister that the buff-sheet of correspondence showed that the
former Chief Minister (Shri Gafoor) postponed the filing of the
c complaint and wanted to see the file ; and as the former Chief
Minister had passed the said orders, it was for the new Chief
Minister to indicate the next course of action in the case.
Respondent No. 2 wrote on the file that discussions had been held
and that there was no need to file any case. On August 4, 1976,
the Chief Minister ordered for the prosecution of the office bearers
and loanees of the bank including its honorary Secretary, Shri K.P.
D Gupta, Manager, Shri M.A. Haidari (hereinafter 'Haidari') and the
loan clerk.

4. There was a mid-term poll to the Lok Sabha in March,
1977. In that poll, the Corlgress (I) Government at the Centre was
E voted out of power and the Janata Government was installed with
Shri Morarji Desai as t.he Prime Minister iind Chaudhury Charan
Singh as the Home Minister. In April following, the Patna
Secretariat Non-gazetted Employees' Association submitted a 25
point representation against Respondent No. 2 to the Prime Minister
and the Home Minister of the Union Government apprising them
F of the irregularities of the Bank. In June following, the Congress
(I) Government of Bihar headed by Respondent No. 2 was replaced
by Janata Government headed by Shri Karpoori Thakur. The said
Employees' Association on July 9, 1977 submitted a copy of the
representation to the new Chief Minister, Shri Karpoori Thakur,
G with a request for making an enquiry into the allegations by an
Enquiry Commission. The representation was el)dorsed by the
State Government to the Inspector General (Vigilance) for a
preiiminary probe.. Eventually the preliminary inquiry was entrusted ·
to the then Joint Secretary, Shri D.N. Sahay.
H
5. The Union Home Minister, Chaudhury Charan Singh,
wrote a D.O. letter to the Chief Minister of Bihar, Sbri Karpoori
SHEONANDAN v. BIHAR (Baharul Islam, J) 107

Thakur, saying that as per Code of Conduct, 1964, the Prime A
Minister had to look into a complaint against a Chief Minister or
an ex-Chief Minister and obtain comments of the Chief Minister
in the first instance and then decide the course of action. On
25.7.1977, Joint Secretary, Shri D.N. Sahay, ~ubmitted his preli-
minary report and recommended that the Home Ministry of the J)
Gove191nent of India should be informed of the proposed C•>Urse of
action and suggested that before ordering detailed inquiry, it was
essential to take concurrence of the Union Home Minister. The
Chief Minister, however, on 23.8.1977, discussed the matter witb
the Chief Secretary 'at 20.08 p.m.' and ordered full enquiry without
the consent of, or intimation to, the Union Home Ministry.

On 1.9.1977, Joint Secretary, Shri D.N. Sahay, wrote to the
Special Secretary regarding the charge No. 8 that related to the
Bank that as a Commission of Enquiry had already been· instituted,
he doubted the desirability of a vigilance inquiry. The Chief
Minister, Shri Karpoori Thakur, opined that the materials collected D
by the Vigilance Department would be used by the Com'llission.
On 20.9.1977, the Joint Secretary, Shri D.N. Sahav, again ~eferred
to the Conduct Rules of 1964 for Ministers and Chief Ministers and
suggested that necessary notes by Chief Minister should be sent to
the Union Home Minister for neces>ary orders for inquiry. Then
on 17.10.1977, Chief Minister, Shri Karpoori Thakur, who had E
written a D.O. Jetter to the Home Minister, Chaudhury Charan
Singh, regarding the allegations with regard to the Bank again
suggested that although a Commission of Enquiry had been appoint-
ed, the Vigilance inquiry might continue, as the materials collected
by vigilance might be used by the Commission.
p
In October; 1977, Shri S.B. Sahay was posted as D.I.G.
(Vigilance) by the _Chief Minister, Shri Kar,>oori Thakur. On
7.11.1977, Shri S.B. Sahay ordered for inquiry on all points without
obtaining consent of the Union Home Ministry and without waiting
for further orders.
G
In November, 1977, one Shri D.P. Ojha was posted as S.P.,
Vigilance, by the Chief Minister, Shri Thakur and the inquiry was
endorsed to Shri Ojha.
H
6. It has been alleged by the respondents that in January,
1978, some Inspectors of the qo Ii~~ R,ashubir Singh, Sharda,
108 SUPRB.llB COURT REPORTS lJ983} 2 S.C.k,

A Prasad Singh, Ram Dahin Sharma and others were transferred to
Vigilance Department and they were responsible for the investigation
of the major portions of the c;ise in question, and that 1111 the
criminal cases investigated by D.S.Ps. (CID), Bihar, relating to the
Bank were transferred tO Vigilance Department and placed under
the charge of the Inspector, Shri Raghubir Singh. Haidari, afore-
'8 said, who had been an accused of Kadam Kuan P.S. eve and
arrested and who had made a confessional statement was rearrested
by the investigating officer, Shri Raghubir Singh on 22.1.1978.
Haidari made a second confession implicating Respondent No. 2 for
the first time. On 26.1.1978, A.K. Sinha who was also rearrested
made a confession. On 28.1.1978. D.P. Ojha, aforesaid, submitteq
x:
c his inquiry report recommending institution of criminal cases against
Respondent No. 2 and others. Similar recommendations were also
made by Shri S.B. Sahay, aforesaid, and also by the I.G. Vigilance.
The file w.as then referred to the Advocate General, Shri K.D.
Chatterjee, appointed by the Karpoori Thakur Government. On
D 31.1.1978, the Chief Minister, Shri Thakur, approved it with the
• direction to band over the file to Shri S.B. Sahay, who in tum,
endorsed it to Shri D.P. Ojha for investigation and institution of
the case. On 1.2.1978, Shri Ojha directed Shri R.P. Singh,
Additional S.P. to institute a case. After having obtained sanction
of the Governor, a criminal case was instituted on 1.2.1978 by the
Vigilance Police and on 19.2.1979 a charge-sheet was submitted
against the respondents and others.

7. On 26.2.1979, one Shri Awadesh Kumar Datta (herein-
after 'A.K. Datta'), a Senior Advocate of the Patna High Court was
appointed Special Public Prosecutor by the Karpoori Thakur
F Government to conduct the two vigilance cases against Respondent
No. 2. .

8. On 21.11.1979, the Chief Judicial Magistrate-cum-Special
Judge, Patna, took cognizance of the case.
'
G 9. Shortly thereafter, there was a change of Government in
Bihar and Respondent No. 2 became the Chief Minister again. On
J0.6.1980, the State Government took a policy decision that
criminal cases launched "out of political vendetta" in 1978-79 and
cases relating to political agitation be withdrawn.
H
10. On 24.2.1981, the Government appointed one Shri Lallan
.Prasad Sinha (her~in~fter 'L.P. Sinha') as Sp~cia! Public Prosecuto~

.__ , __
SHEONANDAN v. BIHAR (Baharul Islam, J.) 109

along with three others vide letter No. C./Mis-8-43 J dated A
24.~.1981.

... On the following day ·(25.2.1981), the Secretary to the Govern-
ment of Bibar wrote a letter to the District Magistrate informing
. him about the policy decision of the Government to withdraw from.
prosecution of two vigilance cases including the case in band, B
namely,_ Vigilance P.S. Case No. 9(2)78. The letter is at page 85
of Vol. I of the Paper Book and reads thus :
"Letter No. MW 26-81, J.
Government of Bihar,
Law (Justice) Department c
'· From
Sbri Ambika Prasad Sinha,
. Secretary to Government, Patna.

To D
The District Magistrate,
Patna.
,Patna, dated 25th February, 1981.
Subject: The withdrawal of Vigilance P.S. Case No. 9(2)78 E
and Case No. 53(8)78 ii! connection with

Sir,
I am directed to say that the State Government have
decided to withdraw from prosecution the above-mentioned
two criminal cases on tM grounds of inexpediency of F
prosecution for reasons of State and public policy,

You are, therefore, requested to. direct the public
Prosecutor to pray the Court ,after himself considering for
the witbdral\lal of the above mentioned two cases for the G
above reasons under Section 321 of the Code of Criminal
Procedure.

Please acknowledge receipt of the letter . and also
intimate this Department about the result of the action
t~ken, H
Yours faithfully,
Sd/ • Illegil>I~
l IO SUPIU!UB COURT IU!POl.TS (1983) 2 S.C.ll, ,

A Secretary to Government,
Patna.
Memo No. MW 26/81, 1056 J.

Patna, dated 25th February, 1981.
Copy forwarded to Vigilance Department for infor·
mation.
Sd/- Illegible
Secretary to Government, Bihar.
Patna". (emphasis added)
c 11. Accordingly, on 17.6.1981, Shri L.P. Sinha filed an appli·
cation under section 321 of the Code.

On 20.6.1981, the Special Judge passed the impugned order
giving his consent to withdraw the case.

D 12. It may be noted at this stage that before the impugned
order was passed, the appellant filed an application under section
302 of the Code and the learned Judge held that the appellant had
no locus standi in the matter. The appellant then filed a criminal
revision before the High Court and the High Court after hearing
the appellant, by its order dated 14.9.1981, rejected the revision
E petition and affirmed the order of withdrawal passed by the Special
Judge.

13. Hence this appeal by special leave against the order of
the High Court in the criminal revision.
F 14. Shri Venugopal, learned counsel appearing for the
appellant formulated three points before us :.

(I) That the permission accorded by the Special Judge to
withdraw the case in question was contrar¥ to a series of
decisions of this Court and is unsustainable.
G
(2) That Shri L.P. Sinha who had made the application
under section 321 of the Criminal Procedure Code was
not the Public Prosecutor in charge of the case.

ff (3) That in the facts and circumstances or the case, Shri
L.P. Sinha \)Ould q<;>t iind cjid 1101 f1,mction indepen•
\lently.
SHBONANOAN v. B!RAR (Baharul Islam, J.) 111

Shri Prasaran, learned Solicitor General, appearing for Res- A
pondent No. I, the State of Bihar, on the other hand, submitted,

(I) that the institution of the case was the result of politi-
cal vendetta and the vendetta had vitiated the inves-
tigation of the case;
B
(2) that Shri L.P. Sinha was the Public Prosecutor in
charge of the case and was competent to make the
application under section 32 I of the Code and that his
appointment cannot be collaterally challenged ; and

(3) that the impugned order of the Special Judge was
legally valid.
c
'.
15. The first point for decision is whether Shri L.P. Sinha
was the Public Prosecutor in charge of the case as required by Sec-
tion 321 of the Code. Section 321 of the Code reads (material por-
tion only) :
D
"321. Withdrawal from prosecution-The Public Prosecu·
tor 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 pro-
secution of any person either generally or in respect of
any one or more of the offences for which he is tried;
and, upon such withdrawal.-

(a) if it is made before a charge bas been framed, the
accused shall be discharged in respect of such
offence or offences ;
F
(b) if it is made after a charge has been fram~d, or
>
when under this Code no charge is required, he
shall be', acquitted in respect 'of such offence or
offences:
Provided that ........... . " G
Three of !_he essential requirements of section 321 are :
(I) that a Public Prosecutor or Assistant Public Prosecu-
tor is the only competent person to withdraw from
the prosecution of a person ; H
(2) that he must be in charge of the case;
112 SUPREME COURT llEPORTS (1983] 2 S.C.R.

A (3) that the withdrawal is permissible only with the con-
sent of the Court (before which the case is pending).

As stated above, Shri A.K. Datta was appointed Special
Public Procecutor for conducting the case in question vide order
under letter No. C/Special/04/79 which reaCls thus (material portion
B only):

"Letter No. C/Special/04/79

<": 'vernment of Bihar
Law (Justice) Department
c From.
Shri Yogebwar Gope,
Under Secretary to the Government of Bihar.

D
To
Shri R.N. Sinha,
-
District Magistrate, Patna.
Patna, dated February, 1979.
Subject : Appointment for conducting Vigilance P.S. Case
No. 9 (2) 78 and 53 (8) 78 State Versus Dr.
E
Jagannath Mishra, ex-Chief Minister and others.
Sir,
I am directed to say that the State Government have
been pleased to appoint Shri Awadhesh Kumar Datta,
F Senior Advocate, Patna High Court, as Special Public
Pro.secutor for conducting vigilance P.S. Case Nos. 9 (2) 78
and 53 (8) 78 in which Dr. Jagannath Mishra, ex-Chief
Minister, is the main accused.
2. The order for appointing Junior Advocates for
G assisting Shri Datta will be issued later.
Yours faithfully,
Sd/-Yoge~hwar Gope

Memo No. 1313, J, Patna dated 26th February, 1979
H
Copy forwaded to Shri Awadhesh Kumar Datta.
Senior Advocate, Patlla High Court/Cabinet (Viginlance)
SHEONANDAN v. BIHAR (Baharu/ Islam, J.) 113

Deptt., Government of Bihar, Patna for information and A
necessary action.

Sd/-Yogeshwar Gope
Under Secretary to Government of
Bihar".

Later on, in pursuance of para 2 of the said letter No. C{Special B
04/79 dated 26th February, 1979, by letter No. C/Misc.-8-43/78 J
dated 24th February, 1981, the Government constituted a panel of
lawyers to conduct vigilance cases. This letter reads (material
portion only) :

"Letter No. C/Mis-8-43/78 J. (l

Government of Bihar,
Law (Justice) Department.

From
D
Sbri Ambika Prasad Sinha,
Secretary to Government, Bihar

To

The District Magistrate, Patna
E
Patna, dated February 24, 1981.

Subject : Constitution of the panel of lawyers for
conducting cases pertaining to Vigilance
Department.
F
Sir,'
I am directed to say that for conducting case pertain·
ing to Vigilance Department, the State Government.
by cancelling the panel of lawyers constituted under
Law (Justice) Department letter No. 5240 J. dated
G
19.8.1978, have been pleased to constitute a panel of the
following four lawyers in place of the previous panel.

(l) Sri Ramjatan Singh,
Salimpur A bra, Patna-3.
H
(2) Sri Bindeshwari Prasac;I ~in~h 1
Lalji Tola, Patna- L
114 SUPREME COURT REPORTS (19831 2 s.c.11..

(3) Sri Karola Kanta Prasad, Advocate Road
No. 2D, Rajendranagar; Patna.
(4) Sri Lalan Prasad Sinha, Advocate, Sarda
Sadan, Saidpur, Nala Road, Patna-4.

B 2........................ .

3. This order shall be effective with immediate effect.
4.
Yours faithfully.
..,
<·
c Sd/-Illegible
Secretary to Government.
Memo No. 1043 J., Patna dated 24th February, 1981.

Copy forwarded to Sri Ram Jatan Singh, Advocate,
Salimpur, Abra, Patna-3, Sri Bindeshwari Prasad Singh,
D
Advocate, Lalji Tola, Patna-I, Sri Karola Kanta Prasad,
Advocate, Road No. 20, Rajendra Nagar, Patna-16, Sri
Lallan Prasad Sinha, Advocate, Sharda Sadan, Saidpur,
Nala Road, Patna for information and necessary action.
2. Cabinet (Vigilance) Department is requested to inform
E the lawyers of the old panel about this order.

Sd/-lllegible
Secretary to Government, Bihar".
It is evident from the last quoted letter that Shri LP. Sinha
F was appointed a Public Prosecutor.
16. The State Government may appoint a Special Public
Prosecutor under sub-section (8) of Section 24 of the Code for the .
purpose of any case or classes of cases. Public Prosecutor bas been
defined under clause (u) of Section 2 of the Code as :
G "2(u)-"Public Prosecutor" means any person appointed
under Section 24, and includes any person acting under
the directions of a Public Prosecutor,.

In the case of State of Punjab v. Surjit Singh and another,(') a
Bench of five Judges of this Court considered the provisions of

(I)
' .
[1967]. 2 S.C.R.
. 347.
SHEONANDAN v. BIHAR (Baharu/ Islam. J.) HS

Section 492 to 495 of the old Code dealing with tbe appointment A
of Public Procecutor. The Court observed :

·'Public Prosecuton are appointed by tbe State Govern-
ment under section 492(1) or by the District Magistrate
or the Sub-Divisional Magistrate, under sub-section
(2) of section 492. The appointment, under sub- B
section (I) of section 492 can be a general appoint-
ment or for a particular case, or for any specified class
of cases, in any local area. Uctder this provision more
than one officer can be appointed as Public Prosecutors
by the State Government. Under sub-section (2), the
appointment of the Public Prosecutor is only for the c
purpose of a single case. There is no question of a
general appointment of the Public Prosecutor, under
sub-section (2). Therefore, it will be seen, that a
Public Prosecutor or Public Prosecutors, appointed
either generally, or for any case, or for any specified
D
classes of cases, under sub-section (2), are all Public
Prosecutors under the Code".

There cannot be any doubt, therefore, that Shri L.P. Sinha was a
Public Prosecutor validly appointed under sub-section (8) of section
24 of the Code.
. ' E
But what was submitted by the appellant was that Sbri L.P.
Sinha could not be appoiuted a Public Prosecutor wit bout the
appointment of Sbri A.K. Datt, having been terminated first. It
was not the contantion of the appellant that the appointment of
Sbri L.P. Sinha was otherwise invalid.
F
17. The answer to this contention is this, Shri A.K. Datta had
at no point of time come forward to make any grievance at any
stage of tbe case, either at the appointment of Shri L P. Sinha as
Special Public Prosecutor or in the latter's conduct of the case;
nor Shri L.P. S10ha whose appointment and rig'1t to make an.
G
application under section 321 of the Code have been challenged, is
before us. His appointment cannot be collaterally challenged,
particularly in an application under Article 136 of the Constitution.

The appointment of Shri L.P. Sinha without the termination H
of the appointment of Shri A.K. Datta, might at best be irregular
or improper, but cannot be said to be le~ally invalid. T~~ d<><;trioQ
116 SUPREME COURT REPORTS (1983] 2 S.C.R.

A of de facto jurisdiction which has been recognised in India will
operate in this case. In the case of Gokaraju Rangaraju etc. v. State
of Andhra Pradesh (1) to which one of us (Baharul Islam, J.) was
a party, it has been held :

"The doctrine is now well establised that 'the acts of
B the Officers de facto performed by them them within
the scope of their assumed official authority, in the interest
the public or third persons and not for their own
benefit, are generally as valid and binding, as if the
were the acts of officers de Jure".

c The judgment referred, with approval, to the following
observations-made in the case of 'New Zeland and Norton v. Shelby
x.
Country decided by the United States Suprem Court-
..
"Where an office exists under the law, it matters not
how the appointment of the incumbent is made, so far as
D the validity of his acts are concerned. It is enough that he
is clothed with the insignia of the office, and exercises
its powers and fuoction ...... The official acts of such
persons are rrecognised as valid OD grounds of public
policy, and for the protection. of these having official
business to transact".
E
This Court in Gokaraju's case (supra) also quoted with
approval the {following passage from Colley's 'Constitutional
Limitation' :

"An intruder is one who attempts to perform the
F duties of an office without authority of law, and without
the support of public acquiscence-

No one is under obligation to recognise or respect
the acts of an intruder, and for all legal purposes they are
absolutely void. But for the sake of order and regularity,
G and to prevent confusion in the conduct of iiublic bussiness
and in security of private right, the acts of officers de facto
are not suffered to be questioned because of the want of
legal authority except by some direct proceeding instituted
for the purpose by the State or by some one claiming the
ff
ti) [1981) 3 S.C.R, 474.
SHBONANDAN v. BIHAR (Baharul Islam, J.) 117

office de Jure, or except wlien the person himself attempts A
to build up some right, or claim some privilege or emolu-
ment, by reason of being the officer which he claims to be.
In all other cases the acts of an Officer de facto are as
vallid and effectual, while be is suffered to retain the
office, as though be were an officer by right, and the same
legal consequences will flow from them for the protection 8
of the public and of third parties. There is an important
principle, which finds concise expression in the legal
maxim that the acts of officers de facto cannot be
questioned collaterally".
'- c
18. The next question is whether Shri L.P. Sinha was in
charge of the case as required by section 321 of the Code. Shri
L.P. Sinha was entrusted With and put in charge of, the case in ques-
tion, namely, Vigilance Case No. 9(2) 78, vide Leiter No. 1829
dated 25th Februbary, 1981. The relevant portion of the letter
reads:
D
"Letter No. 1829
Bihar Government,
Cabinet (Vigil'ance) Department.

From
Sbri Shivaji Sinha,
Special Secretary to Government.

To

Shri Lallan Prasad Sinha, Advocate, F
Sharda Sadan, Sendpur,
Nata Road, Patna.

Patna, dated 25th February, 1981

Subject :-Panel of Advocates for----cases pertaining
to Vigilance Department. G

Sir,
You have also been appointed as Panel Lawyer
relating to the above subject vide letter No. 1943 dated H
24.2.1981 of the Law Department. In many cases, charge
sheets have been submitted in the Court of Chief Judicial
118 SUPREMB COURT REPORTS [J983j 2 S.C.&.

Magistrate-cum-Special Judge. Out of these cases the
following cases are allotted to you to work for the prosecu- r
tion:

I. Vigilance P.S. Case No, 9(2)78
B 2.
3. ,...,
< -,
4.
5.
c
Please take necessary action for the prosecution in the
cases on being acquainted with the present position from
the court.

Yours faithfully,
D Sd/- Shivaji Sinha
25.21981.
Special Secretary to Government".
(emphasis added).

Shri L.P. Sinha had been appointed a Government counsel on
E 24.2.1981 to conduct vigilance cases as stated above. The applica-
. lion for withdrawal was made by him on 17.6.1981-more than
four months later. After having been appointed Public Prosecutor,
and having been put in charge of the Vigilance P.S. Case No.
9(2)78, he appeared in the case on seven dat~s, namely, 6.4.1981,
F 21.4.1981, 27.4.1981, 26.5.1981, 3.6.1981, 19.6.1981 and 20.6.1981.
It has been stated in the affidavit filed by the Secretary, Law Depart-
ment of the State of Bihar that the order disclosed that "no one
else appeared for the prosecution" except Shri L.P. Sinha. There is
nothing on record to show whether in fact Shri A.K. Datta did at
all accept the appointment as a Public Prosecutor. The record does
G not show that be took any steps at all in the case. Shri L.P. Sinha
could not have appeared on seven different dates during the course
of 3! months and taken steps in it had be (A.K. Datta) been in
charge of the case. The learned Special Judge also bas found as a
fact in his judgment thanhe application under section 321 of the
H Code was made "by Shri Lallan Prasad Sinha, Special Public
Prosecutor, in charge of this case" (emphasis added). There is,
therefore, absolutely no doubt that at the relevant time Shri L.P.
SHEONANDA~ v. BIHAR (Baharul Islam, J.) 119

Sinha was in charge of the case, and not Shri A.K. Datta, as A
submitted by the appellant. Shri L.P. Sinha was botb de jure and
de facto Public Prosecutor in the case.

It was factually wrong that Shri L.P. Sinha was appointed
only to withdraw the case, as submitted by appellant's counsel.
B.
Even ifhe were, there was nothing illegal in it (also see 1931 Cal.
607). If Shri L.P. Sinha fulfilled the two conditions as required by
section 321 of the Code, namely, that (i) be was a -Public Prosecutor
and (ii) was in charge of the case, he was competent to apply for
withdrawal of the cas~, even if he were appointed for that purpose
only.

19. The next question for decision is whether Shri L.P. Sinha
functioned independently. The appellant's submi>Sion is that Shri
L.P. Sinha acted as directed by the Government to make the
application for withdrawal and himself did not apply his mind.
D
Section 321 of the Code enables the Public Prosecutor or
Assistant Public Prosecutor in charge of a case to withdraw from
the prosecution with the consent of the Court. The appellant
submits, in our opinion correctly, that before an application is made
under section 321 of the Code, the Public Prosecutor has to apply
his mind to the facts of the case independently without being subject
E
to auy outside influence ; and secondly, that the Court before which
the case is pending cannot give its consent to withdraw without
itself applying its mind to the facts of the case. But it cannot be
said that a Public Prosecutor· s action will be illegal if he receives
any communication or instruction from the Government. F
Let us consider the point from the practical point of view.
Unlike the Judge, the Public Prosecutor is not an absolutely in-
dependent officer. He is an appointee of the Government, Central
or State (see ss. 24 and 25 Crl. P.C.), appointed for conducting in
Court any prosecution or other proceedings on behalf of the Govern- G
ment concerned. So there is the relationship of counsel and cilent
between the Public Prosecutor and the Government. A Public
Prosecutor cannot act without instructions of the Govern-
ment a Public Prosecutor cannot conduct a case absolutely on
his own, or contrary to the instruction of his client, namely, the H
Government. Take an extreme hypothetical case, in which Govern-
ment is the prosecutor, and in which there is a prima facie case
120 SUPRB/dB COURT REPORTS I1983I 2 S.C.R.
A against an accused, but the Government feels on the ground of
public policy, or on the gro_und of law and order, or on the ground of
social harmony, or on the ground of inexpediency of prosecution
for reasons of State, the case should not be proceeded with ; the
Government will be justified to express its desire to withdraw from
the prosecution and instruct the Public Prosecutor to take necessary
B legal steps to withdraw from the prosecution. 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 Publi_c Prosecutor receives such instruc- ~
< .
tions, he cannot be said to act under extraneous influence. On the
contrary, the Public Prosecutor cannot file an application for
c withdrawal of a case on his own without instruction from the
Government.
Now in the above hypothetical case, if the Government gives
instructions to a Public Prosecutor to withdraw from the prosecution
of a case, the latter has the following courses open to him :
D
(i) He can blindly file the petition without applying his
mind to the facts of the case. This is not contemplated
by Section 321 of the Code ;
(ii) He may, himself, apply his mind to the facts of the
E case, and may agree with the instructions of the
Government and file the petition stating the grounds
of withdrawal. This is what is contemplated by the
section and has been done in this case ; or
(iii) He may tell the Government, "It is a good case for
the prosecution ; conviction is almost sure ; and I do
F not agree with you that the case should be withdrawn,
I am not going to file a petition for withdrawal." In
that event, the Public Prosecutor will have to return
the brief and perhaps to resign. For, it is the Govern-
ment, not the Public Prosecutor, who is in the know
G of larger interest of the State.
20. Let us now see if Shri L.P. Sinha applied his mind to the
facts of the case before he made th~ application. He made the
following application before the Court :
"IN THE COURT OF THE CHIEF JUDICIAL
H MAGISTRATE, PATNA
Withdrawal Case No. - - - - o f 1981
SHEONANDAN v. BIHAR (Baharul Islam, J.) 121

In Vigilance P.S. Case No. 9(2)78. A

The humble petition on behalf of the Public Prosecutor
for withdrawal of the Vigilance of P.S. Case No. 9(2)78
under section 321 of the Code of Criminal Procedure.

Most respectfully shewth : B
I. That this is an application for withdrawal of
Vigilance P .S. Case No. 9(2)78 which has been
charge-sheeted under sections 466/! 20B/109 of the
Indian Penal Code and sections 5(I)(a), 5(l)(b),
5(l)(c) read with section 5(2) of the Prevention of c
Corruption Act against Dr. J.N. Mishra, Shri
Jivanand Jha and Shri N.K.P. Sinha.

2. That since the prosecution of the case involves the
questions of momentous public policy of the
Government, which may have its consequences of D
wide magnitude affecting the larger issue of public
interest also, the desirability of the continuance
of the prosecution was broadly examined both
by the State Government and also by me.
Keeping in view (a) Jack of prospect of suecessful
prosecution in the light of evidence, (b} the E
implication of the persons ao a result of political
and personal vendetta, (c) the inexpediency of
··~ the prosecution for the reasons of the State and
public policy, (d) the adverse effects that the
continuation of the prosecution will bring on
public interests in the light of the changed situa- F
tion, and after giving anxious considerations and
full deliberations, I beg to file this application to
withdraw from the prosecution of all the persons
involved in the aforesaid case;
G
3. That I have, therefore, gone through the case
diary and the relevant materials connected with
the case and have \come to the conclusion
that in the circumstances prevailing at the time of
institution of the case and the investigation there- H
of, it appears that the case was instituted on the
ground of political vendetta and only to defame
-
122 SUPl.BllE COURT REPORTS (1983) 2 s.c.R.

A the fair image of Dr. J.N. Mishra, who was then
the leader of the opposition and one of the
acknowledged leaders of the Congress party in
the country. The prosecution was not launched
in order to advance the interest of public justice.
I crave leave to place materials in support of the
B above submission and conclusion at the time of
moving this petition.

4. That it is in public interest that the prosecution
which bas no reasonable chance of success and
c has been launched as a result of political vendetta
unconnected with the advancement of the cause of
public justice should not proceed further. More
so, as the same is directed against the head of the
Executive in whom not only the electorate have
put their faith and confidence, but who bas been
D elected leader of the majority party in the legisla-
ture, both events have taken place after the
institution of the case.

It is, therefore, prayed that your honour would be
pleased to grant permission to withdraw from the prose-
E cution of the persons accused in case and your honour
may further be pleased to pass further orders in conformity
with section 321 of the Code of the Criminal Procedure,
1973.

And for this the petitioner shall ever pray."
F
A mere perusal of the above application abundantly shows
that Sbri L.P. Sinha did apply his mind to the facts of the case ;
he perused "the Case Diary and the relevant materials connected
with the case" before be made the application. He did not blindly
G quote from the Government letter No. M/26-81 J. dated 25th
February, 1981 (quoted above) which contained only one ground
namely, "inexpediency of prosecution for reasons of State and
public policy". A comparison of the contents of this Jetter with
the contents of the application under section• 32 I of the Code
H completely negatives the appellant's contention that Sbri L. P.
Sinha did not himself apply his mind independently to the facts of
tho case and that he blindly acted on extraneous considerations.

I
SlIBONANDAN v. BIHAR (Baharul Islam, J.) 123

As a proof of non-application of the mind of the Public A
Prosecutot, learned counsel pointed out that Sbri L.P. Sinha
mentioned in bis petition inter alia Section 5(1 )(c) in place of
Section 5(1)(d) of the Prevention of Corruption Act. In our opinion,
in the background of the case, it is too insignificant an error to be
taken note of.
B
21. The appellant then submits that the Court erred in giving
its consent for withdrawal as there was a triable case before it.
The submission is misconceived. What the Court bas to do under
section 321 is to see whether the application discloses valid ground
of withdrawal-valid as judicially laid down by this Court.
c
Learned counsel cited the following decisions of this Court
reported in State of Bihar v. Ram Naresh Pandey('), State of Punjab
v. Surjit Singh and Ors.('), M.N.S. Nair v. P.V. Balakrishnan &
Ors.(3), Bansi Lal v. Chandan Lal('), State of Orissa v. Chandi'ika
Mahapatra and Ors.('). Ba/want Singh and Ors. v. State of Bihar(•),
Rajindera Kumar Jain's case('). D
We need not refer to all these decisions except to Rajindra
Kumar Jain's case (supra). hereinafter referred to as "George
Fernandes' Case", in asmuch as, this decision has considered all
the earlier decisions, and summarised the observations as under :
E
"Thus from tbe precedents of this Court; we gather,

(I) Under the Scheme of the Code prosecution of an
offender for a serious offence is primarily the res·
ponsibility of the Executive.
F
(2) The withdrawal from the proscuction is an executive
function of the Public Prosecutor.

(3) The discretion to withdraw from the ptosecution is
that of the Public Prosecutor and none else, and G

(1) [1957] S.C.R. 279.
(2l [1967] 2 S.C.R. 347.
(3) [1972) 2 SCR 599.
(4) A.I.R. 1976 S.C. 370.
IS) [1977) 1 S.C.R. 335. H
(6) (1978) 1 S.C.R. 604.
(7) [1980) 3 S.C.R. 370.
124 SUPREME COURT REPORTS f1983) 2 S.C.R.
A so, he cannot surrender that discretion to someone
else.

(4) The Government may suggest to the Public
Prosecutor that he may withdraw from the
prosecution but none can compel him to do so.
B
(5) The Public Prosecutor may withdraw from the
prosecution 11ot merely on the ground of paucity
of evidence but on other relevant grounds as well
*'
<:·
in order to further the broad ends of public justice,
public order and peace. The broad ends of public
c justice will certainly include appropriate social,
economic and we ado, political purposes Sans
Tammany Hall enterprise.

(6) The Public Prosecutor is an officer of the Court
D and responsible to the Court.

(7) The Court performs a supervisory function in
granting its consent to the withdrawal.

(8) The Court's duty is not to reappreciate the grounds
E which led the Public Prosecutor to request
withdrawal from the prosecution but to consider
whether the Public Prosecutor 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 legislative confidence in granting or
withholding its consent to withdraw from the
prosecution". (emphasis added).

The Court in the above decision has also observed :

G "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 atmosphere from the surcharge of
violence, to bring about a peaceful settlement of issues and to
preserve the calm which may follow the storm. To persist
H with prosecutions where emotive issues are involved in the name
of vindicating the law may even be utterly counter-
productive. An elected Government, sensitive and
SHEONANDAN v. BIHAR (Baharul Islam, J.) 125

responsive to the feelings and emotions of the people, will A
br amply justified if for the purpose of creating an
atmosphere of goodwill or for the purpose of not disturbing
a calm v;hich has descended it decides not to prosecute the
offenders involved or not to proceed further with prosecu-
tions already launched. In such matters who but the Govern-
ment, can and should decide inthe first Instance, whether B
it should be baneful or beneficial to launch. or cohtinue
prosecutions. If the Government decides that it would be
in the public lnferest to withdraw from prosecutions hpw is
the Government to go about this task".

The Court further observed :
c
"But where such large and sensitive issues of public
policy are involved, he (Public Prosecutor) must, if he is
right minded, seek advice and guidance from the policy-
makers. His sources of infQrmation and resources are of
D
... ll very limited nature unlike those of the policy-makers.
If the policy-makers themselves move in the matter in
the first instance, as indeed it is · proper that they should
where matters of momentous public policy are involved,land
if they advise the Public Prosecutor to withdraw from the
prosecution, it is not for the Court to say that the
initiative came from the Government and therefore the E
Public Prosecutor cannot be said to have exercised a
free mind. Nor can there be any quibbling over
words". (emphasis added).

-A.._ This decision is a complete answer to the contention raised
by learned counsel of the appellant that a triable case cannot be F
withdrawn. Paucity of evidence is only one of the grounds of
withdrawal.

22. Faced with this decision learned counsel submitted that
the case in hand was a case involving common law offences while
George Fernandes case (supra) was dealing with political offences, G
which offences only, according to counsel, can be permitted to be
withdrawn from prosecution. We are unable to accept the
submission. (Section 321 has not dichotomised into common law
offences and political offences. The Court held in George H
Fernandes case (supra), with respect rightly, "to say that an
offence is of a political character is not to absolve the offenders of
126 SUPllBME COURT llBPOkTS 11983] 2 s.c.R.

A the offence. But the question is, is it a valid ground for the Govern-
ment to advise the Public Prosecutor to withdraw from the
prosecution". (emphasis added). The reason of the absence of any
dichotomy in section 321 of the Code appears to us to be the very
object of the section. What is the necessity of this section. An
offence is an offence. A trial will end in conviction or acquittal
B of the accused. If the offence is compoundable, it may be
compounded. But if the offence is not compoundable, why should
the trial be withdrawn? How are offences under sections 121-A,
120-B of the Penal Code, and sections 4, 5 and 6 of the Explosive
Substances Act, 1908 and sections 5(3) (b) and 12 of the Indian
Explosives Act, 1884 (as in George Fernande's case) less henious
c than offences under sections 420/466/471/l09/ 120B of the Penal
Code and 5(1) (a), 5(1) (b) and 5(1) (d) of the Prevention of
Corruption Act (as in this case) ? Are offences relating to security
of State less serious than corruption? la our view, the answers
are in the negative. The reverse appears to be truer.
D In our opinion, the object of section 321 Cr. P.C. a(1pears
to be to reserve power ·to the Executive Government 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 law and order; maintenance of public
peace and harmony, social, economic '.and political; changed social
I 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 conditions and situatio11s
prevailing in a State or in the c.Juntry '/ foe Court is not in a
position to know such situations. /"'-

23. In George FernaAdes case (supra), the allegations against
Shri George Fernandes, who later on beca•ne a Mtnister of the _
Union Government during the Janata regime, where that after the
proclamation of Emergency on June 25, 1975, Shri George
G Fernandes, Chairman of the Socialist Party of India, and Chairman
Railwaymen's Federation, sought to arouse resistence against the
said Emergency and to overthrow the Government and that he
committed various acts in pursuance of that object. The investigat·
ing agency submitted a charge sheet against Shri Fernandes and
H twenty-four others for offences under section 121-A, 120-B, Penal
Code, read with sections 4, 5 and 6 of the Explosive Substances
Act, 190$ and sections 5(3) (b) aQd 12 of the Indian Explosives
SHEONANDAN v. BIHAR (Baharuf Islam, J.) 127

Act, 1884. Two of the accused persons had been tendered pardon. A
They had, therefore, to be examined as witnesses in the Court
of the Magistrate taking cognizance of the offences notwithstanding
the fact that the case was exclusively triable by the Court of
Sessions. The evidence of the approver was recorded on March
22, 1977 and the 'case was adjourned to March 26, 1977 for B
further proceedings. At that stage, on March 26, 1977, Shri N.S.
Mathur, Special Public Prosecutor filed an application under section
321 of the Code, for permission to withdraw from the prosecution .
.The application reads :

"It is submitted on behalf of the State as under .- (

'
- L That on 24.9.1976, the Special Police Establish·
meat after necessary investigation had filed a charge sheet
in this Hon'ble Court against Shri George Mathew
Fernandes and twentyfour others for offences u/s 121A
IPC, 120B IPC r/w sections 4, 5 and 6 of the Explosive D
Substances Act, 1908 and sections 5(3) (b) and 12 of the
Indian Explosives Act, 1884 as well as the substantive
offences.

2. That besides the accused who were sent up for
trial, two accused, namely, Shri Bharat C. Patel and E
Rewati Kant Sinha were granted pardon by the Hon'ble
Court and were examined as approvers u/s 306 (4) Cr. P.C.

3. That out of 25 accused sent up for trial cited in the
charge sheet, two accused namely, Ladli Mohan Nigam
and Atul Patel were declared proclaimed offenders by the
Hon'ble Court. F

4. That in public interest and changed circumstances
the Central Government has desired to withdraw from the
prosecutions of all the accused.

5. It is therefore prayed that this Hon'ble Court may
G
accord consent to withdraw from (?) 26th March, 1977.

Sd/-
(N.S. Mathur)
Special Public Prosecutor for
H
the State, New Delhi",
128 SUPREME COURT Rl!PORTS (1983] 2 s.c.1.

A It is seen that the only ground for withdrawal was "public
interest and changed circumstances" as mentioned in para 4 of the
petition.

The Chief Metropolitan Magistrate granted his con1ent for
withdrawal from the prosecution on the ground that it
B
was '·expedient to accord consent to withdraw from the
prosecution", (emphasis added). In revision, the High
Court affirmed the Magistrate's order. The appeal by
Special Leave was dismissed by this Court. In other words, an
c application stating Government's desire to withdraw from prosecu-
tion on the grounds of 'public interest' and 'changed circumstances'

-
was held to be valid under section 321 Cr. P.C.

24. The next question for examination is whether the per-
mission was given by the Special Judge in violation of law
D as laid down by this Court in this regard. We have already
referred to the. decisions cited by the appellant. The law
laid down by this Court in the series of decisions referred to above,
inter alia, is (I) that the withdrawal from the prosecution i< an
executive function of the Public Prosecutor and that the ultimate
decision to withdraw from the prosecution is his ; (2) that the
Government may suggest to the public prosecutor that a particular
case may not be proceeded with, but nobody can compel him to
do so ; (3) that not merely inadequacy of evidence, but other
relevant grounds such as to further the broad ends of public justice,
economic and political; public order and peace are valid grounds
for withdrawal. The exercise of the power to accord orw ithdraw
consent by the Court is discretionary. Of course, it has to exercise

' the discretion judicially. The exercise of the power of the Court
is judicial to the extent that the Court, in according or refusing
consent, has to see (i) whether the grounds of withdrawal are valid;
and (i'i) whether the ap~lication is bona fide or is collusive. It may
be remembered that the order passed by the Court under section
321 of the Code, either according or refusiPg to accord consent,
G
is not appealable. A mere perusal ·of the impugned order of the
Special Judge shows that he has applied his mind to the facts of
the case and also applied his mind to the law laid down by this
Court in Geroge Fernandes case that has summarised the entire law
H on the point, and correctly applied them to the facts of this case.
It is therefore not correct to say that the decision of the Special
1ud11e was contrary to the law laid down by this Court.
SHl!ONANDAIJI v. BIHAR (Baharul Islam, J.) 129

25. The only other submission of the appellant is that ther~ A
is a prima facie case for trial by the Special Judge and, that this
,, Court should send it back to him , for trial. We have held above_
that a criminal proceeding with a prima facie case may also be
withdrawn. Besides, the normal practice of this Court in a criminal
appeal by Special Leave under Article 136 of the Constitution
directed against an order of conviction or acquittal is that this Court B
does not peruse the evidence on record and re-appreciate it to find
whether findings of facts recorded by the Courts below are correct or
erroneous, far less does it peruse th~ Police Diary to see whether
adequate matedals were collected by 'the investigating agency. It
accepts the findings of the Courts below unless it is shown that the
findings are the results of a wrong application of the principles of
c
the law and that the impugned order has resulted in grave
miscarriage of justice.

26. An order under section 321 of the Code, in our opinion,'
does not have the same status as an order of conviction or acquittal
recorded by a trial or appellate Court in a criminal prosecution,
inasmuch as the former has not been made_ appealable. An order
under section 321 of the Code has a narrower scope. As an order
under section 321 of the Code recorded by the trial Court is judicial
what the trial Court is expected to do is to give reasons for accord-
ing or refusing its consent to the withdrawal. As stated above, the
duty of the Court is to see that the grounds of withdrawal are legally
valid and the application made by the Public Prosecutor is bona fide
and is not collusive. In revision of an order under section 321 of the
Code, the duty of the High Court is to see that the consideration by
the trial Court of the application under section 321 was not mis-
directed and that the grounds of withdrawal are legally valid. In this F
case, the trial Court elaborately considered the grounds of withdra:
wal and found them to be valid and accordingly accorded its consent
for withdrawal. In revision the High Court affirmed the findings of
the trial Court

We find no justification in this appeal by Special Leave to G
disturb the findings of the Courts below and peruse the statements of
witnesses recorded or other materials collected by the investigating
cfficers during the course of investigation.
H
27. Although it does not arise out of the three points formula-
ted by Mr, Venugopal at the start of his argument, nor does it arise
130 SUPllEMB COUIT llBPOllTS (1983) 2 S.C.ll

A out of the appellant's petition opposing withdraw~!. learned coun-
sel submitted that there was a prima facie case for trial by the Special
Judge and the case should be remanded to him for trial. Let us
examine that aspect also as it has been argued at length. 1

Learned counsel fairly concedes that he does not take much
B reliance on oral evidence but takes strong reliance on two pieces of
documentary evidence, namely, alleged creation of forged docu-
ments by .Dr. Mishra and the confessional statement of Haidari
implicating Dr. Mishra.

Elaborate arguments were advanced by learned counsel of the
c parties on the piece 0f documentary evidence which, according to
the appellant's counsel would form the basis of conviction of Respon-
dent No. 2. That documentary evidence was that Respondent No. 2
as Chief Minister passed an order on 16-5-1975 in Hindi. English
• translation of this order reads as follows :

D ·'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.
Stern action should be taken for realisation of loans from
the Joanees and if there arc difficulties in realisation from
the Joanees, surcharge proceedings should be initiated
E against the Board of Directors. The normal co11dition be
restored in the Bank after calling the Annual General
Meeting and holding the elections."

According to the appellant, Respondent No. 2 wrote the
p following fresh order -

"Please issue orders for restoring the normal condition
in the Bank after holding Annual General Meeting.

Sd// Jaganath Mishra
14-5-75"
G
and pasted it over the earlier order.

According to the appellant, Respondent No. 2 by overwriting
'4' (in (Hindi) on the original Hindi digit '6' changed the date
H
16-5-1975 to 14-5-1975. These facts have not been denied by
Respondent No. 2 before us.
SHllONANDAN •• BIHAR. (Baharul Islam, J.) 131

The appellant's submission was that by the above act-of ante-
dating by over-writing. Respondent No. 2 committed forgery, and_
by pasting over the earlier order committed an offence under
t-- section 5 (I) (d) of the Prevention of Corruption Act as by that
latter act be' obtained pecuniary advantage to Sbri Nawal Kisbore
Respondent No: 3, by stopping the surcharge proceedings.

28. Before proceeding further, it is pertinent to mention that
in bis application before the Special Judge, the appellant 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 c
mind before 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 order 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 antedating and thereby D
depriving us also from 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 ·raised for the first time in an
appeal by Special Leave under Article 136 of the Constitution.
I
29. Be that as it may, let us examine the contention. But this
will not be treated as a precedent. The pasted order coAtaining the
following :

(i) The Chief Minister's finding that there was no allegation
of defalcation agB.inst the Chairman and Members of
the Board;
'
(ii) Direction to take stem action for realisation of the
loans from the loanees;
G
(iii) Directions to initiate surcharge proceedings in case of
difficulties in realisation;

(iv) Direction to call the annual General Meeting of the
Bank. ~ad bold election in order to restore the normal
8
cond1t1on of the Bank.
f32 '· suritsM~ couar 1uirons (1983] 2 S.C.R.

Only the portions against (i), (ii) and (iii) above have been covered
by pasting the fresh order which is but (iv) above. The appellant's
submission is that by covering the first three directions, Respondent
No. 2 shielded Respondent No. 3 and others from realizing the due
from the culprits including Respondent No. 3 or from initiating
surcharge proceedings against them. The answer to the contention is
B three-fold:

(i) The order of surcharge by the Chief Minister is tmwarranted
by law. Section 40 of the Bihar Cooperative Societies Act, 1935
gives power only to the Registrar to initiate surcharge proceedings. .v
c An appeal lies from his order to the State Government under sub- .
section (3) of section 40. In fact, admittedly Deputy Registrar of
Cooperative Societies issued notices of surcharge against Respondent
No. 3 on 31-12-1975 when Respondent No. 2 himself was the Chier
..
Minister). If the Chief Minister found that his first order was un-
warranted by Law, it was but right that he cancelled his first order
D
(ii) On a second thought any authority may bona fide change
his mind and decide that restoration of the normal condition of the
Bank by calling the annual General Meeting and election should be
attended to first and realization of the loans and surcharge proceed-
ings later. Bona fide scoring out the order retaining the last part,
would constitute no offence by Respondent No. 2. Pasting an order
by a piece of paper/containing another order prima facie appears
suspicious, but pasting is the common practice in the Chief Minister's
Secretariate as revealed by the file produced before us.

(iii) Antedating simpliciter is no offence. Mr. Venugopal

' advanced an argument on the possible motive of antedating and sub-
mitted that the motive was to obliterate any possible action on the
first order, The submission is highly speculative and cannot be
accepted.

G In any view, if two interpretations are possible, one indicating
criminal intention and the other innocent, needle•s to say that the
interpretation beneficial to the accused must be accepted.

30. Confessional Statement of Haldari
H
As stated above, there was another vigilance case known as
Kadam Quan P.S. Case No. 97 (5) J7 relating to the officers of the
.,"/J' SHOMAllDAN v. Bl9All. (6aharul Isla•, J.) 133

Bank. It was being investigated by the Officers of the Cooperative
Department but abruptiy it was transferred to the Vigilance Depart-
ment on 16-1-1978. In this case Haidari, aforesaid, was one of the
accused. He was also one of the accused in the case in hand, but
later on, on grant of pardon, he turned an approver and became a
prosecution witness. He was also being prosecuted in several other
cases on the basis of orders passed by Respondent No. 2 on 8
4-8-1976. In the Kadam Kuan case, Haidari made a confessional
statement on 4-11-1976 but did not implicate Respondent No. 2. He
was re-arrested on 22-1-1978 whereafter he made a second confes-
sional statement on 24-1-1978, this time implicating Respondent
No. 2 for the first time for the alleged offence said to have been
committed in the years 1973-75. As the Kadam Kuan case also
c
related to the affairs of the Bank and Haidari had already made a
confessional statement, there was no need for him to make a second
confess.ional _statement on 24-1-1978. It may be remembered that
on that date; Vigilance Case No. 9 (2) 78 had not yet been registered
and Haidari was not an accused in this case and therefore it cannot D
be said that the confessional statement on which great reliance has
been pla·;ed by the appellant was a confessional statement made by
an accused. This case was registered at the Vigilance Police Station
in the morning on 1-2-1978 and, theretore, to give legal validity to
the confessional statement it was shown recorded in Kadam Kuan
case No. 97 (5) 77. This confessional statement is said to be the
second confessional statement of Haidari in the same Kadam Kuan
case. Haidari's so-called confessional statement therefore is not
only not a confessional statement of a co-accused but it inspires no
confidence. On the top of it, it was the statement of an accomplice
turned approver, and is worthless.
f'
~ 31. The submission _of the respondents that the criminal case
against Respondent No. I is the result ·of political vendetta has also
to be considered.

(i) The first circumstance pointed out by the respGndents in
this regard is the unusual hurry in which the file was moved. It has
been stated in the affidavit filed on behalf of the State of Bihar by
Shri Bidhu Shekhar Banerjee, Deputy Superintendent of Police, H
Cabinet Vigilance Department, that within the period of four days
...
134 SUPUMI! COU11T UPOaTS (1983) 2 s.c.a.

A the inquiries were completed, advice obtained and orders paued for
instituting the case as follows :

" (i) The Kadamkuan P.S. Case No. 97 (5) 77
was transferred to Vigilance Department by an
order dated 9-1-1978 passed by Shri Karpoori

• Thakur, the then Chief Minister. 16-1-78

(ii) Confessions of Shri M.A. Haidari who was
being prosecuted in other cases on the order
passed by Dr. Mishra in . August, 1976 and of
c Shri A.K. Singh, a subordinate clerk as well as
appointee of Shri M.A. Haidari, were recorded
after their re-arrest, in the present case on 22-1-78
and 26-1-78 respectively. 24-1-78
28-1-78

D (iii) Enquiries Report submitted 28-1-78 .
(iv) Report forwarded by the D.l.G. of
Police to the I.G. 29-1-78

(v) The same was forwarded to the Chief
Secretary 30-1-78
I
(vi) The Chief Secretary forwarded it to the ~

Advocate General. 30-1-78

(vii) The Advocate General returned the file ,,.... _
, to the Chief Secretary 31-1-78

(viii) The Chief Secretary sent the file to the
Chief Minister (Shri Karpoori Thakur) 31-1-71

(ix) The Chief Minister pas<ed order for
prosecution of Dr. Mishra. 31-1-78
G (x) The case was registered. 1-2-78"

(ii) The second circumstance pointed out is the political
bitterness between Respondent No. 2 and Shri Karpoori Thakur.
H Frcm the facts narrated atfthe begining, it is seen that there
was animosity between the appellant and Shri Karpoori
Thakur, the former Chief Minister of the Jaoata Government on
SHEONANDAN v: •IHAR. (Baharul Islam, J.) 13S

the one hand and Respondent No. 2. Dr. Mishra, the present
Congress (I) Chief Minister of Bihar, on the other.

It has been stated that Respondent No. 2 is one of the pro-
minent leaders of the Congress Party that was politically opposed
to the Janata Party Government headed by Shri Karpoori Thakur
at the time of the institution or the case. In 1977 when Respondent B
No. 2 headed the Congress Government, a warrant of arrest was
issued against Shri Karpoori Thakur for his arrest and detention,
for his alleged anti-Government activities and that Kupoori Th1kur
was absconding for long. It has been suggested that Shri Karpoori
Thakur was nursing grudge against Respondent No. 2. The
suggestion appears to have substance. Shri D.P. Ojba was a Superin- c
tedent of Police in Bibar. It has been stated in the counter-alliJavit
filed by Respondent No. 4 that he (Ojha) has been indicted by Justice
Mathew in his report submitted on 9.5 1975 relating to the murder
of Shri L.N. Mishra, brother of Respondent No. S. Justice method
in his report held :
D
"The direct responsibility for making security arrange-•
ments under the security instructions dated 13·9·1971
issued by the Central Government devolve on the head of
the Police (SJiri D.P. Ojha). The Commission finds that,
the S.P. Samastipur failed to discharge the duty enjoined
I
•· upon him by the instruction dated 13.9.1971 issued
by the Central Government. The S.P. Samastipur was
guilty of derelication of duty in this respect. The officer
who failed to discharge their duty or were negligent of the
performance of same could be directly responsible to the
State Government and the State Government to be the
agency for taking appropriate action against them."

It bas been stated in affidavit that the Janata Government
at the Centre had accepted the said findings of the Mathew
Commission. But the Government of Bihar headed by Sbri Karpoori
Thakur, not only exonerated Sbri D.P. Ojba, but transferred
G
him to the Vigilance Department and all the case~ relating
to the Patna Co·operative Bank (the bank in question) were
transferred to the Vigilance Department in charg of Ojha. The
;
Respondent's allegations are that not only Chief Minister Shri
Karpoori Thakur had bis own political animosity against Dr. Mishra 8
but Shri Ojha bad to work under the influence of the. Chief Minister.
It has been suggested that be has been instrumental in .directing the
136 SUPllBlll COUJ.T Ul'el.TI [1983) 2 s.c.11..

investigation in .such a way that a · case was made out against
Dr. M~shra and others by collecting false evidence. The suggestion
cannot be ruled out as frivolous or unreasonable. Shri Karpoori . 1
Thakur, the then Chief Minister ignored the wholesome suggestion
of the then Union Home Minister, Chaudhury Charan Singh, that
a former Chief Minister, could be proceeded against only after
B obtaining clearance of the Prime Minister according to the Code of
Conduct of 1964. He also ignored the suggestion in this regard of
Shri D.N. Sahay that before proceeding against an ex-Chief Minister
clearance from the Prime Minister and the Home Minister was
necessary. He also ignored the suggestion of Shri D.N. Sahay that
no Vigilance Enquiry was necessary as there was already a Commis-
c sion of Enquiry into the Bank matter, and directed the investigation;
This shows active interest of Sbri Karpoori ThakurJn the prosecution
of Respondent No. 2.

(iii) The third circumstance pointed out is that although
D Respondent No. 4 ·has been made an accused, no allegation against
. hi!ll has 1'•en pointed out.

32. It is common place that the prosecution is to prove the guilt
of the accused beyond reasonable doubt and that the accused need not
prove beyond reasonable doubt his defence, if any. If the defence is

• probable and reasonable, and its considerations creates doubt in the
creditability of the prosecution case, the accused will get the benefit
and shall have to be acquitted: In the instant case, as we have
observed, the entire investigation bas been vitiated and no person
can be convicted on the basis of evidence procured by such _A ...
investigation.
F
33. The following circumstances also need to be taken into
account in considering whether the case merits sending back to the
Special Judge for trial as proposed by the appellant, assuming and
only assuming, there is a prime facie case for trial :
G (i) The occurrence took place as early as 1970 ; it is alread}
more than twelve years.

(ii) Respondent 'No. 2 is the Chief Minister in his office.
Knowing human nature, as it is, it can hardly be expected that the
witnesses, most of whom are officials, will come forward and depose
against a Chief Minister.
'
sHEONA'NDAN 1'. BIHAR (Misra, J.) !31
(ii\) Even after the assumption of office by Respondent No. 2 A
the Chief Minister, in the Court of the Special Judge, the prosecu-
tion was pending on several dates but the Public Prosecutor, Shri
A.K. Datta, did not take any interest in the case at all. It cannot be
expected that a Public Prosecutor appointed by the Government in
power, will now take interest and conduct the case so as to secure
conviction of his own Chief Minister. Remand for trial, if made, B
will be a mere exercise in futility ; and it will be nothing but an
abuse of the process of the Court to remand the case to the trial
,- '•~ CoUrt.
• I \_"r"
,'
34. As a result of the foregoing discussions, the appeal is
dismissed.
c
MISRA, J•. I have the privilege of perusmg the differing
judgIQents of brothers Tulzapurkar and Baharul {slam JJ. While
I resj)!lctfully agree with some of the findings reached by brother
Tulzapurkar, . I regret my inability to concur with. some .of the D
findings: I, therefore, propose to give my own reasons for the same.

The present ,appeal by special leave is. a sequel to. an application

.
under s.321. of the, Code of Criminal Procedure (hereinafter referred
to as the. 'C~de') made by the Public Prosec~tor for permission of
' the.Cour.t for. withdrawal of, Vigilance Case No. 9 (2) 78 filed by
the State of Bihar against Respondent No. 2. (Dr. Jagannath Mishra,
Respondent No. 3 (Nawal Kishore Sinha), Respondent No. 4
(Jiwanand Jba) and three others (K.P. Gupta, since deceased,
M.A. Haidari and A.K. Singh) who later became approvers, for
offences under ss. 420/466/471/J09/120·B Indian Penal Code and
under s.5 (I) (a), .5 (I) (b) and 5 (I) (d) of the Prevention of Corrup-
'tion Act, f947. Material facts have already been detailed in the
two judgments and, therefore, it is no use repeating the same over
again.

In order to appreciate the contention raised by the counsel
for the parties it is essential to read the grounds taken in the appli-
G
cation. Para 2 of the application reads :

"That since the prosecution of the case involves the
question of momentous public policy of the Government,
which may ·ha"e its consequences of wide ·magnitude ·
affecting the large issue of publicinterest also, thedesitability

~··
138 SUPUYI! COUllT UPOllTS (1983] 2 s.c.a.

• of the continuance of the prosecution was broadly examin-
ed both by the State Government and also by me.
Keeping in view (a) lack of prospect of succ:essful prosecu-
tion in . the light of evidence, (b) the implication of the
persons as a result of political and personal vendetta, (c)
the inexpediency of the prosecution for the reasons of the
State and public policy, (d) the adverse effects that the
continuation of the prosecution will bring on public interest
in the light of the changed situation, and after giving my
anxious considerations and full deliberations, I beg to
file this !application to withdraw from the proaecution of
all the persons involved in the aforesaid ease."
e
Jara 3 of the application states :

"That I have therefore gone throuah the caae diary
and the relevant materials connected with the case and
have come to the conclusion that in the circu!llstancea
D prevailing at the time of institution of the case and the
investigation thereof, it appears that the calC was inatitutcd
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 Congress Party in the country. The prosecution wa1
not launched in order to advance the interest of public
Justice."
. ..
Para 4 reads :

r "That it is in public interest that the prosecution which
ba5 no reasonable chance of success and bas been launch-
ed 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
bead of the Executive in whom not only the electorate have
G put their faith and confidence but whom has been elected
leader of the majority party in the legislature, both events
have'{aken place after the institution of the case."

H The application was opposed on a variety of grounds by the
the appellant, which I shall deal with in the later part of the judg-
ment in detail.

_,..,,,...
lllll&NAMllAW v. llRAl (Misra, J.) 139

The applieatioa wu, however, allowed by the Chief Judicial
Magistrate-cum-Special Judge Vigilance and he accorded his con1e11e
by his 1peaking order dated 20th June, 1981.

The appellant took up the matter in revision to the High Court
which also confirmed the order of the trial court. The appellaat
has now come to this Court by special leave. The grounds taken OI I
behalf of the appellant are four fold :

!. (a) For the purposes of s. 321 or the Code there exists
."°1
'·~
a dichotomy between political offences and offences
under common law. While the former can be with·
drawn on grounds of public policy, public interest or
c
•
reasons or state even though there is certainty of
obtaining a conviction, no question of public policy,
public interest or reasons of State could every ariac ia
a prosecution for a Common Law offence or a common
case of bribery or forgery. · D
(b) Similarly, no question of political or personal ven-
defta would arise in a case where the proof of the offence
is based primarily on documents, the genuineness of ·
which is not in dispute. Thus three of the grounds on
• which withdrawa) from prosecution is based viz. public
policy, public interest, reasons of State, and public or
personal vendetta are irrelevant grounds, if it is,
established that the offence under s. 466 of the I.P.C.
and s. S ( l) (d) of the Prevention of Corl'\lption Act
primarily based upon indisputed documentary evi-
dence make out a prime facie case.
F

2. If the Court chooses to give consent to tqe withdrawal
of a crimimal case on the ground of paucity of evi-
dence or absence of a successful prosecution., the court G
has to examine the material or evidence alre11dy
recorded for deciding whether withdrawal is an abuse
of or an interference with the normal course of
justice.

3. The Public Prosecutor who applied for withdrawal of B
the case was not competent to ·witl;tdt~W ·as he was
not incharge of the ca~. and in· any case he acted at
[1983) 2 s.c.a.

the behast of the Govern!llent and ct.id not apply his
own mind.

4. The documentary ·evidence· ·on the record prima facie •
makes out a case of forgery (s. 466 IPC) and s. 5 (1) d) .
(criminal misconduct) of the Prevention of Curruption
Act.

Before dealing with the points raised on behalf of the
appellant it is appropriate at this stage to know the natuN ard
scope of s. 321 of the Code, ;:~.

c A bare perusal of the section shows that it does not prescribe
any ground nor does it put any embargo or fetter on the power of
the Public Prosecutor to· withdraw from prosecuting a particular
criminal case pending in any court. All that it requires is that he
can do so only with the consent of the court where the case is pen\!·
ing. This Court has, however, laid down certain-guiding principles
'D
',
for the exercise of the power of withdrawal under this section by the
Public Prosecutor or by the court according its consent to such
withdrawal. It is in the light of those guidelines that the propriety
or the legality of the withdrawal of criminal proceeding has to be
judged.
E In this country the scheme of criminal justice places the prime
responsibility of prosecuting serious offences on the executive
authority. The investigations, collection of requisite evidence and
the prosecution for the offences with reference to such evidence are
the functions of the executive. The function of the· court in this
respect is a limited one and intended only to prevent the abuse. The
F function of the court in according its consent to witndrawal is,
however, a judicial function. It, therefore, becomes necessary for
the court before whom the application for withdrawal is filed by the
Public Prosecutor to apply its mind so that the appellate court may
examine and be satisfied that the court has not accorded its consent
as a matter of course but has applied its mind to the grounds taken
G in the application for withdrawal by Public Prosecutor.

The guiding principles laid down by the various decisions of
this Court may now be referred to. Io State of Bihar v. Ram Naresh
Pande(') this Conrt had the occasion to consider the scope of the
JI
<J> [1957] s.c.~. 297.
. SBEONANDAN v. BIBAR (Misra, J.) 141
~:.· _., :·.•:: ;, ., '?.""' . .: I
corresponding s. 494 of the unamended Code, which wa; in p1rl A
maierfd with the pteserit' section 32 l, and observed as follows '.

"The magistrate's, functions in· these matters are»not
· only supplementary, at a higher level, to .those:ofthe
executive but are intended ·. to prevent abuse. Section 494
' consent of the Court for:wrthdrawal by the
requiring the 8
Public Prosecutor is more in line with this scheme, than
with the provisions of the Code relating. to inquiries, and
trials by the Court. It cannot be taken to place on
the Court the responsibility for a ptima facie deter-
mination of a triable issue, for fostance the discharge
that results therefrom need not always conform to the c
standard of "no prima facie case" under ss. 209 (!) and
253 (I) or of "groundlessness" under ss. 209 (2) and
253 (2).

" ... the function of the Magistrate in giving consent. is a
judicial one open to correction. . .. the application . for D
consent may legitimately be made by the Public Prosecutor
for reasons not confined to the judicial prospects of· tho
prosecutions.... If so, it is clear that, what th> Court has
to determine, for the·. exercise of its discretion in granting ' I
or withholding 'consent' is not a triable issue on judicial
evidence.''
E
•
Again in M.N.S. Nair v. P.V. Balkrishnan(') this Court after
reviewing various cases from different High Courts laid down the
- ' following guidelines :

"Though the section is in general terms and does not F
circumscribe the powers of the Public Prosecutor to seek
permission to withdraw from the prosecution the essential
consideration which is implicit in the grant of the power is
that it should be in the interest of administration of justice
which may be either. that it will not be able to produce
sufficient evidence to sustain the charge or that subsequent G
information before prosecuting agency would falsify the
prosecution evidence or any other similar circumstances. which
it is difficult to predicate as ·they are dependent entirely on'
.· the facts q.nti circumst~nces of each case. Nonetheless. it is

Ill (1972] .2 S.C.R. 599.

~- - ''
142 M1PUlll CotJU UPCal~ !1913) 2 S.C;J..

A the duty of the Court also to ~ in furtherance of juatice
that the permission is not sought on grounds extraneOMs to
the interest of justice or that offences which are offences •
against the State go unpuniahed mf!'ely because the Govern-
lflent as a matter of general policy of expediency unconnected
with Its duty to prosecute offenders under the law, direct• the
B Public Prosecutor to withdraw from the prosecution and
the Public Prosecutor merely does ao at its behest."

"It appears to us that the wide and general powers whiclt
are conferred under Sec. 494 on the Public Prosecutor to
withdraw from the prosecution though they arc subject to
c the permission of the Court have to be exercised by him In
relation to the facts and circumstancea of that case in fur-
therance of, rather than as·a hinderance to the object of the
law and Justified on the material in the case which substan-
tiate the grounds alleged, not necessarily from those gathered
by the judicial method but on other materials which may
D not be strictly on legal or admissible evidence. 'The Court
also while considering the request to grant permission
under the said Section should not do 10 as a necessary
formality-the grant of it for the mere asking. It may do
so only if it is satisfied on the materials placed before it
,II that the grant of it subserves the administration of justice
•
ard that permission was not being .sought covertly with
an ulterior purpose unconnected with the vindication of the
law which the executive organs are in duty bound to further
and maintain."
(Emphasis supplied)
F
The same principle was reiterated again in State of Oris sa v.
C. Mohapatra(') iri these words :

"The ultimate guiding consideration must always be the
interest of administration of justice and that is the touch-
G stone on which the question must be determined. No hard
and fast rule can be laid down nor can any categories of
cases be defined in which consent should be granted or
refused. It must ultimately depend on rhefacts and circum-
stances of each case in the light of what is necessary in
B
(I) [1977] 1 S.C.R. 355.
s.OMANDAN '· BIB.<t. (Alisra, J.) 143

order to promote the ends ofjustice. be.cause, the objective A
or every judicial procefS· must be the attainment of justice. i
(Emphasis supplied)

JD Ba/want Singh v. State of Bihar('-) this Court laid down :
B
"The statutory responsibility for deciding upon
withdrawal squarely vests on the public prosecutor. It h
non-negotiable and cannot be bartered away in favour of
tbote who may above him on the administrative side .. the
con1iderati,on which must weigh with him is, whether the
broader cause or public justice will be advanced or retarded c
by the withdrawal or continuance or the prosecution."

The last in the aeries is the cue of Ra}elldra Kumar Ja/11 v.
3tate('). After review or the various cases or this Court, ·the Court
t.id down the followina propositions :
D
"J. Under the acheme or the Code prosecution of an
offender for a serious offence is primarily the responai-
bility or the Executive. .

2. The withdrawal from the prosecution is an executive
function or the. Public Prosecutor. E
•
3. Th~ discretion to withdraw from the prosecution is that
or the Public Pro1eeutor and none else, and 10, be
cannot surrender that diacretion to aomeone else.
4. The Govemmentmay suggest to the Public Prosecutor •·
that be may withdraw from the prosecution but none
can compel him to do so.
5. The Public Prosecutor may withdraw from the prosecu-
tion not merely on the ground of paucity of evidence
but on other relevant grounds as well in order to G
further the broad ends of public justice, public order
and peace. The broad ends of public justice will
certainly include appropriate social, economic and,
we add, political purposes Sans Tammany Hall
enterprise. H
(I) (1978] IS C.R. 604.
121 [1980] 3 $.C.R. 982.
~ r '

144 SUPREME COURT REPORTS (1983] 2 s.c.1..

6. The Public Prosecutor 'ls an o'fficer of the Court and
responsible to the Court.

7. The Court performs a supervisory function in granting
its consent to the withdrawal,
B
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 Prosecutor applied liis mind as a free agent, -(
uninfluenced by irrelevant and extraneous considei'a·
tions: The Court bail a:· special duty in this regard as
it is the ultimate repository of legislative confidence
in granting.or withholding its consent· to-withdrawal
from ihe prosecution."

In view of the principlet Iaid down in the aforesaid cases, I
D have to examine whether the grounds taken by· the appellant are
tenable.

I take up the first gro.und raised on ,,behalf of tl!e appellant
that for the purpose of s. 321 Cr. P,C.--there exists dichotomy
E between the pplitical offe11ces and offences at Common Law and
while political offences. can .. be withdrawn on grounds of public
policy, public interest, or for reasons of the State, even though there
is certainty of obtaining a conviction, no such consideration could
a
ever 'arise in prosecution for a. Common Law offence or a common
case of bribery or forgery.
F

This argument proceeds on the assumption that in the cases
cited above, permission was gra;,ted only in cases relating to
political offences and not with regard to offences at. Common Law.
G
I am afraid, this. will not be a fair reading of the decisions
mentioned above. One of the principles laid down in the aforesaid
cases is that the Public P.rosecutor may withdraw from the prosecu·
tion not only on
the ground of p~ucity of evidence but on other
H relevant grounds as well in order to further broad aims of justice,
public order and peace. Broad aims of public justice will certainly
include appropriate 'social, econ~mjc and political :purposes. In
•
SHBONANDAN v. BIHAR (Misra, J.) 145

M.N.S. Nair's case (supra) this Court after enumerating certain
grounds further observed :
r " . any other similar circumstances which it is difficult
to predicate as they are dependent entirely on the facts and
circumstances of each case."

Likewise in C. Mohapatra's case (supra) this Court again observed:
•
"No hard and fast rule can be laid down nor can any
categories of cases be defined in which consent should be
granted or refused'"

In face of these observations it will be difficult to accept the conten·
tion that withdrawal from prosecution can be permitted only in
political offences and not in Common Law offences. In the past there
have been cases where crimes motivated by political ambitions or
considerations. or committed during mass agitations, communal
frenzies, regional disputes, industrial conflicts, student unrest or
the like situations involving emotive issues giving rise to an
atmosphere surcharged with violence, have been permitted to be
withdrawn in the in~erest of public order and peace. But on that
account it will not be correct to say that permission to withdraw
can be granted by the Court only when offences as enumerated above
are involved. Section 321 is in very wide terms and in view of the E
decisions cited above it will not be possible to confine the grounds
only to offences which may be termed as political offences or offences
involving emotive issues. To interpret the section in the way as
desired by the counsel for the appellant will amount to re-writing
section 321 of the Code. The only guiding factor which should
weigh with the public prosecutor while moving the ap~lication for F
withdrawal and the court according its permission for withdrawal
is to see whether the interest ' of public justice is advaJced and the
application for withdrawal is not moved with oblique motive
unconnected with th_e vindication of cause of public justic•.

If on.ce it is accepted that the application for withdrawal from G
the prosecutwn can be made on various grounds and it is not
confined to political offences, the contention raised on behalf of
the ~pp_cllant th_at grounds Nos. (b), (c), (d) mentioned in the
apphcauon for withdrawal are irrelevant in the instant case will not
be tenable. The Indian Penal Code or the Code of Criminal
Procedure does not make any such distin9tion between political

/
146 SUPREME COURT REPORTS (1983 J 2 s.c.a.

offences and offences other than political ones, Even if it is accepted
that political offences are not unknown to jurisprudence and other
Acts do contemplate political offences, the fact remains that s. 321
Cr. P.C. is not confined only to political offences or social offences,
but it applies to all kinds of offences and the application for
withdrawal can be made by the Public Prosecutor on various
B · grounds. The only safeguard that should be kept in mind by the
Public Prosecutor is that it should not be for an improper or
c.blique or ulterior consideration, and the guiding consideration
should be that of vindication of i- Jblic justice.

- In the application for withdrawal ·from prosecution the public
Prosecutor has given four reasons and he has applied his own mind
to the facts and circumstances of the case. In para 3 of his
application he has clearly stated that he has gone through the case
diary and the relevant materials connected with the case and has
come to the conclusion that in the circumstances prevailing at the
time of institution of the case and the investigation thereof it
D appears that the case was instituted on the grounds 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 Congress Party in the country.

The Court while according the consent to the withdrawal has
E only to see that the bublic Prosecutor has acted properly and has not
been actuated by oblique or extraneous considerations. It is not the
function of the Court to make a fresh appraisal of the evidence and
come to its own codclusioo on the question whether there is a
triable issue to be investigated by the Court.

F First I take up ground No. (b) in para 2 of the application
for withdrawal, that is, the implication of respondent No. 2, as a
result of personal and political vendetta. In the opinion of the
Public Prosecutor, the prosecution was motivated by personal and
political vendetta. The aforesaid criminal case was instituted
during the period of Janata Party Government by an order dated
G
31st of January 1978 passed by Shri Karpoori Thakur, the then
Chief Minister, who was the party leader of the appellant
Sheonandan Paswan, who was also the State Minister of the Janata
Party Goverment. +

H
From tre materials placed on the record it is evident that
respondent No. 2 is one of the prominent leaders of the party
SHBONANDAN V. BIHAR (Misra, J.) 147

politically opposed to the Janata Party which was the party in A
power led by Sbri Karpoori Thakur at the relevant time of the
institution of the prosecution. Respondent No. 2 bad been a bitter
critic of the principles and policies of Sbri Karpoori Thakur. · In
1977 when respondent No. 2 was heading the government a warrant
of arrest was issued against Shri Karpoori Thakur for his arrest
and detention. The appellant, formerly a Deputy Magistrate, was B
posted as Assistant Secretary in the Chief Minister's Secretariat of
respondent No. 2. He was removed from the Secretariat to some
other department by respondent No. 2. The appellant joined the
{_ Lok Dal and fought election on Lok Dal ticket after resigning bis
job. When be became a State Minister in the Ministry of Shri
Karpoori Thakur, he came to occupy a big official bungalow at
c
Bailly Road, Patna. In 1980 wh~n the party to which respondent
No. 2 belongs came to power, respondent No. 2 became the Chief
Minister. The appellant ceased to be a State Minister and was
asked to hand over possession of the official residence. Since the
appellant refused to vacate, the State Government ultimately D
resorted to extreme legal step for dispossessing him. This made the
appellant feel aggrieved. He vindicated bis right by filing a writ
petition in the High Court which was eventually decided in his
favour. The fact, however, remains that there was no love Jost
between the appellant and respondent No. 2.
E
When Shri Karpoori Thakur became the Chief Minister in the
Janata Party regime, the quickness with which the files moved when
a decision was taken to prosecute respondent No. 2 is very signi-
ficant. From the affidavit of Shri Bidhu Sekhar Banerjee, Deputy
Superintendent of Police, Cabinet Vigilance Department, it it
apparent that within the course of a few days the inquiries were
completed, advice obtained and orders passed for instituting the
,
case. On 9th of January 1978 all the criminal cases investigated
by Dy. S.Ps. Cl, Bihar, relating to Patna Urban Co-operative Bank,
including P.S. Case No. 97(5)77 were transferred to Vigilance
Department by order of Shri Karpoori Thakur, the then Chief
Minister and placed under the Inspector, Shri Raghubir Singh. On G
22nd January, 1978 M.A. Haidari and A.K. Sinha, accused of
Kadam Kuan P .S. Case No. 97(5)77 were re-arrested by Shri
Raghubir Singh, Inspector and the second confession of Shri M.A.
Haidari was secured in which for the first time be brought allegation•
against Dr. Mishra. The confession of Shri A.K. Sinha was secured H
on 26th of January, 1978. On 28th January 1978 Shri D.P. Ojha,
148 SUPREME COURT REPORTS · (1983] 2 s.c.a.

S.P. Vigilance submitted his inquiry report recommending institution
of criminal cases against Dr. Mishra and others. On 29th of
January 1978 Shri S.B. Sahay DIG Vigilance also recommended the
institution of a criminal case. On ~0th of January 1978, I.G.
Vigilance also recommended the prosecution. On the same day the
file was referred to Advocate General Shri K.D. Chattarjee appoint-
B ed as Advocate General by Shri Karpoori Thakur. On 31st of
January, 1978 the Chief Secretary sent the file to the Chief Minister
of Bi!iar. On the same day the Chief Minister, Bihar approved it
and handed over the file direct to Shri S.B. Sahay, DIG. On !st of
February, 1978 the file was endorsed by S.P. Vigilance, Shri D.P.
Ojha to Addi. S.P., R.P. Singh for instituting the case. On Isl of
c February, 1978 !!: Vigilance Criminal case was instituted in Police
Station at 0600 hrs. At 8.50 hrs. the Case was discussed by I.G.
with DIG Shri S.B. Sahay and Shri D.P. Ojha and decision was
taken to search houses of Dr. Mishra at Patna, Balua Bazar, and
his relations. On the same day request to issue search warrants
D was made and search warrants were issued. On the same day
Inspectors M/s. Sharda Nanda Singh, Raghubir Singh and Ramdehia
Sharma were got transferred from CID to Vigilance.

The speed with which the file of the criminal case moved from
E one place to another and orders obtained itself indicates that it was
not to vindicate the cause of public justice but it was only to feed
their grudge that such a keen interest was exhibited by. the Chief
Minister and the appellant also actuated by his personal and political
vendetta sought to oppose the application for withdrawal. In these
circumstances it is doubtful whether the appellant was truly ~-
representing th~puhlic interest.
r
To say that unless the crime allegedly committed are per se
political offences or are motivated by political ambition or consi-
deration or are committed mass agitation, communal frenzies,
regional disputes, no question of serving a 'broader cause of public
justice, public order or peace can arise is to put limitation on the
G
broad terms of section 321 of the Code.

The Public Prosecutor was of the view that as a result of
election there was a change in the situation in as much as Respondent
No 2's party received the peoples' mandate and voted to power and
e Respondent No. 2 bad become the Chief Minister of the State and
_that the prosecution against the head of the State would have had
adverse effect on public interest, including public order and peace
·- SHBONANDAN v. BIHAR (Misra, J.) 149

and, therefore, he thought it inexpedient for reasons of State and A
public policy to proceed with the case. It is the Public Prosecutor
who has been given the exclusive power to apply for withdrawal
and if he in his discretion thinks that i! would be inexpedient to
proceed with the case the Court cannot reconsider the matter afresh
and come to its own conclusion different from the one taken by
the public prosecutor unless the Court comes to a conclusion
that the public prosecutor has done so with an improper or oblique
motive.

In my opmton the decision of the public prosecutor to
withdraw from the case on the grounds given by him in his
application for withdrawal cannot be said to be actuated by impro- c
per or oblique motive. He bona fide thought that in the changed
circumstances of the case it would be inexpedient to proceed with
the case and it would be sheer wastage of public money and· time
. _ to drag on with the case if the chances for conviction are few ar.d
far between. In the circumstances instead of serving the public
cause of justice it will be to the detriment of public interest. D
The statutory responsibility for deciding withdrawal squarely
rests upon the. public prosecutor. It is non-negotiable and cannot
be bartered away. The Court's duty in dealing with the application
under s. 321 is not to reappreciate the grounds which led the public
prosecutor to request withdrawal from the prosecution but to
.E
consider wbetber the public prosecutor applied bis mind as a free
agent unifiuenced by irrelevant and extraneous or oblique consi-
derations as the Court has a special duty in this regard inasmuch
as it is the ultimate repository of legislative confidence in granting
or withholding its consent to withdrawal from pro~ecution. The F
Court's duty is to see in furtherance of justice that the permission
is not sought on grounds extraneous to the interest of justice.

The Public Prosecutor applied bis mind and on perusal of
case diary and other materials he was satisfied in the interest of G
public justice to withdraw from the case.

The Court also passed a speaking order while according its
consent to the withdrawal. The relevant portion of its order is in
the following terms : ·
H
"Having considered the legal position explained by the

..
,
Supreme Court and the submissions made by the learned

}
150 SUPREME COURT REPORTS (1983] 2 s.c.a.

A Special Public Prosecutor in-charge of this case, and
having perused the relevant records of the case I am
satisfied that it is a fit case in which the prayer of the
learned Special Public Prosecutor to withdraw should be
allowed and it is therefore allowed."

B Normally the observation made by the Court that it has perused
the relevant records of the case should he presumed to he correct
unless a very strong case is made out for holding that it did not do
so and the vaunted remark made by the Court that it has done so is
incorrect. In a similar situation this Court in C. Mohapatra's case
(supra) observed :
c
" .. according to the prosecution, the evidence collected
during investigation. was not sufficient to sustain the charge
against the respondent and the learned Magistrate was
satisfied in regard to the truth of this averment made by the ·<
Court Sub-Inspector. It is difficult for us to understand
D how the High Court could possibly observe in its order
that the Magistrate had l)Ot perused the case diary
when in terms the .learned Magistrate has stated in his
order that be had read the case diary. and it was after read·
ing it that he was of the opinion that the averment of the
prosecution that the evidence was not sufficient was not
E
ill-founded

An attempt has been made on behalf of the appellant to show
that the case diary was not with the Court and that it was lying
elsewhere and, therefore, he could not have perused the case diary
F and his observation is not quite correct. This contention cannot be
accepted at its face value in view of the observations made by the
court.

Now I take up gropnd No. (a) of the application for
withdrawal from the case. This ground relates to lack of prospect
G of a successful prosecution in the light of evidence. The counsel
for the appellant has contended that in the instant case on the
documentary evidence itself, which is not in dispute, an offence
under s. 466 of the Indian Penal Code ands. 5 (I) (d) of the Pre-
Yention or Corruption Act is prima facie made out and the Public
H
Pro1ecutor waa not justified in moving the application for withdrawal
on this ground. He referred to the antedating or an order. Dr. J.N.
SBEONANDAN v. BIHAR (Misra, J.) ISi

Mishra, Respondent No. 2, after becoming the Chief Minister passed
an order in his handwriting on 16th May, 1975 in Hindi, the English
rendering whereof is given below:

"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. B
Stern action should be taken for realisation of the loans
from the loanees and if there are difficulties in realisation
from the loanees surcharge proceedings should be initiated
against the Board of Directors. Normal conditions be
restored in the Bank after calling the Annual General
Meeting and holding elections. c
Sd/- Jagan Nath Mishra
16.5.1975."

It appears that this order was replaced by another order in Hindi,
the English rendering of which is : , D
"Please issue orders for restoring the normal condition's
in the Bank after holding Annual General Meeting.

Sd/- Jagan Nath Mishra
14.5.1975." E
by pasting !his order over the order dated 16th May, 1975 and by
antedating the latter order as 14th of May, 1975 and this clearly
in the opinion of the learned counsel brings out an offence of
criminal misconduct under s. 5 (I} (d) of the Prevention of Corrup-
tion Act and of forgery under s. 466 IPC. A lot of argument was
advanced that the pasting of an order over the order dated 16th
May, 1975 by a letter order itself creates a suspicion. This was
rather an unusual method adopted by Dr. J.N. Mishra to erase the
previous order and to replace it by another order of the same date
by antedating it as 14th may 1975 by pasting it over the earlier G.
order. The method of replacing one order by another by pasting
over the earlier one appears to be a well-recognised practice in the
Secretariat of Bihar Government and Solicitor General Shri K.
Parasaran showed various similar orders which had . been replaced
by another order by. pasting over the earlier one. So, that part of
the argument loses all its force on examination of various similar
H
orders by adopting the same method. The question, however, is

•
152 SUPltE1"!E Cc>Ult1 ltBPOltTS (1983] 2 S.C,R.

whether this antedating of the latter order as 14th May 1975 by
pasting it over the earlier order would amount to criminal miscon-
duct within the meaning of s. 5 (I) (d) of the Prevention of Corrup-
tion Act and forgery within the meaning of s. 466 of the Indian
Penal Code. Insofar as it is material for the purpose of this case,
s. 5 (I) (d) of the Prevention of Corruption Act reads :
8
"5. (I) A Public servant is said to commit the offience
of criminal miscondnct-

(a) ...., ....................................... .

(b) ....................................... .

(c) ............... .

(d) if he, by corrupt or illegal means ·or by otherwise
abusing his position as public servant, obtains for
D himself or for any other person any valuable thing
or pecuniarS< advantage."
The contention on behalf of the appellant is that by chang-
ing the order dated 16th May, 1975, respondent No. 2 obtained
for Nawal Kishore Sinha, respondent No. 3, a pecuniary advantage
inasmuch as by antedating the second 01der respondent No. 2 had
E absolved Nawal Kishor Sinha from the surcharge proceedings. The
factum of change has not been disputed by respondent ·No. 2 and
therefore, prima facie an offence under s. 5(1) (d) is made out and
no other evidence be looked into. In the circumstances the Public
Prosecutor was not justified in coming to the conclusion that
there was no prospect of conviction of respJndent No. 2.
F
I am afraid this contention cannot be accepted for obvious
reasons. The earlier order dated 16th May, 1975 no doubt
contemplated four things :

(I) that there is no allegation of defalcation against the
G Chairman and Members of the Board of the Bank;

(2) stern action should be taken for realisation of the
loansfrom the Ioanees;

B (3) if there are difficulties!in the realisation from the loanees
surcharge proceedings should be initiated against the
Board of Directors, and
SHEONANDAN v. BIHAR (Misra, J.) 153

(4) normal conditions be restored in the Bank after calling
the annual general meeting and holding elections.

By the second order, which is said to have been antedated, only the
fourth part of the order has been maintained. There seems to be
no earthly reason for antedating the latter order by putting the
date as 14th of May, 1975. It was always open to the Minister to B
have changed his order and pass another order. The same purpose
could have been served by Respondent No. 2, if he really wanted
.to absolve Respondent No. 3 from the liability by passing the order

'"
.r
/
on the 16th of May, 1975 by replacing the earlier order by the
subsequent order. Rather that purpose of Respondent No. 2, if at
all, could have been served better by keeping the date of the second c
order as 16th May, or any subsequent date. Secondly, the second
antedated order date<! 14th May, 1975 could not stand in the way
of initiating surcharge· proceedings against Respondent No. 3 and
other members of the Board of the Bank. Date 14th May, 1975,
for all we know, may have been on account of some accidental slip.
The other reason as suggested by the Solicitor General is that
D
surcharge proceedings ·could be initiated only by the Co-ope~ativc
Department under s. 40 of the Bihar and Orissa Co-operative Socie-
ties Act, J935. It reads :

"40, Where as a 11sult of an audit under s. 33 or an
enquiry under s. 35, or an inspection under ss. 34, 36 or 37,
I
or the winding up of a Society i.t appears to the Registrar
that any person who has taken part in the organisation or
management of the society or any past or present officer
of the society ha~ been guilty of the fact or O'llission men-
tioned in clauses (a), (b), (c) or (d) the Registrar may
enquire into the .c.rnduct of such persons or officers and
F
after giving such officer or person an opportunity of being
heard, make an order for surcharge "

Therefore, in view of the· aforesaid provisions of s. 40 of the Co-
operative Societies Act, takiag steps for a surcharge is not within G
the jurisdiction of the State Executive. This may have been another
reason for dropping the proceedings for surcharge, if. at all, against
the officers of the bank. There is yet another reason. The second
antedated order does not say a word about dropping the surcharge
proceedings ordered by Respondent No. 2 in the earlier order and, B
therefore, it is difficult to say that Respondent No. 2 bad actually
dropped the surcharge proceedinas against Respondent .No. 3 and

,,...."! ...
~'
154 SUPREME COURT REPORTS [l 983] 2 S.C.J<.

A other offiers of the Co-operative Bank. Indeed, surcharge proceedings
had been initiated. Surcharge files regarding surcharge case No. 3
of 1975 proves that surcharge proceedings were proposed initially
by the Deputy Registrar on 30th of April 1975 and were in fact
taken on !st June, 1975 and the !how cause notice was issued on
!st July 1975 and surcharge order was made against Shri Nawal
B Kishore Sinha and others on 31st December, 1975. This shows
clearly that no benefit or 'advantage was given to Nawal Kishore
Sinha or others by the order of 14th May, 1975. From the affidavit
of Jiwanand Jba, Respondent No. 4 it appears that an amount of
Rs. 33,96,024.90 was given as loans to 180 persons. Out of the
total amount given by way of loans an amount of Rs. 25,64,682.23
c has already been realised from I 06 persons. The unrealised amount
is only Rs. 8,31,337.67 for which decrees have been passed against
64 persons and as against the reillaining JO persons proceedings for
realisation are going on.

About the offence of forgery under s. 466 of the Indian Penal
D Code also I have my grave doubts. Forgery has been defined under
s. 463 as "making any false document". Making of false document
is defined in s. 464. According to the counsel for the appellant
the present case falls within the scope of "who dishonestly or frau-
dulently makes a document or part of a document ... at a time at
which he knows that it was not made, •igned, sealed or executed "
The word "dishonestly" has been defined in s. 24 of the Indian
Penal Code as "whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person is
said to do that thing "dishonestly." "Fraudulently" has been defined.
in s. 25 as "a person is said to do a thing fraudulently if be does !! -
that thing with intent to defraud but not otherwise." The precise
F contention raised on behalf of the appellant is that Respondent No. 2
changed the order which has been earlier passed with the intention
of causing wrongful loss to the Bank by reason of the fact that by
the order passed surcharge proceeding was countermanded.

On the materials on record I am not satisfied that a prim1 facie
G i:ase under s. 5 (l) (d) of the Prevention of Corruption Act and of
forgery under s. 466 Indian Penal Code are made out.

The facts have many faces. If the view of the Public Pro>ecu-
H tor is one, which could in the circumstances be taken by any reaso-
nable man, the Court cannot substitute its own opinion for that of
the Public Prosecutor. If the Public Prosecutor has applied his mind
,.,.1; .
""''--
-.
SllEONANDAN v. BIHAR (Misra, J) 155

on the relevant materials and bis opinion is not perverse, and which A
a reasonable man could have arrived at, a roving inquiry into the
evidence and materials on the record for the purpose of finding out
whether his conclusions were right or wrong would be incompotent.
That would virtually convert this Court into an Appellate Court
selting on judgment.
B
Th·e contention raised by the counsel for appellant that the
Public Prosecutor Shri Lallan Prasad Sinha was not competent to
·~
• r apr4' ~" wifhdrawal has .not been accepted by my brothers
./ Tulzapurkar and Baharul Islam JJ. and I respectfully agree with
t.hem. c
If the Public Prosecutor thought that the c1ntinuance of the
prosecution in the circumstances would only end in an exercise in
futility, he was fully justified in moving the application for withdra-
wal. The only question is whether he has applied his mind and he D
was not actuated by any extraneous consideration or improper
motive. It was sought to be argued on behalf of the appellant that
the Public Prosecutor has acted at the behest of the Government
and be did not apply bis own mind. Reference was made to the
letter sent by the Government to the Public Prosecutor. The letter
did not indicate that the Government wants him not to proceed E
with the case but the letter gave full freedom to the Public Prose·
cutor to apply his own mind and to come to'his own conclusion.
lo view of the various authorities of 'this Court, consultation with
the Government or high officer is not improper. But the Public
Prosecutor bas to apply his own mind to the facts and circumstances
of the case before coming ·to the conclusion to withdraw from the
prosecution. From the materials on the record I am satisfied that
the Public Prosecutor bas applied his own mind and came to his
own conclusions.

The last but not the least in importance was the point raised G
on behalf of the appellant that the sanction for . prosecution had
already been given by the then Chief Minister, Abdul Gafoor and
the complaint was going to be filed but it was postponed on account
of Respondent No. 2 who by that time overtook as the Chief
Minister of Bihar. The argument is that firstly he tried to delay the ff
filing of the complaint ; and secondly that he ordered for not pro.
156 SUPREME COURT REPORTS (1983] 2 s.c.R.

A secuting the officers of the bank including Respondent No. 2, Shri
Jagan Nath Mishra.

It appears from the notes on dates given on behalf of the
Respondent that the file went to the Chief Minister, Respondent
No. 2 because of an earlier noting dated !st of January 1975 by
Shri Omesh Prasad Verma that the Chief Minister may also like to
see. A further noting dated 31st of January 1975 by Shri R.K.
Shrivastava in the Ministry of Co-operation was to the following
effects :
Cl
"Chief Minister and Minister of Law have desired to ·-
see the file before complaints are actually lodged. As per
their directions, the file has been recalled from the
Additional Public Prosecutor. Io the circumstances
narrated above Minister of Law and Chief Minister would
D like to accord their approval to the filing of the complaint."

A subsequent note of Shri R. K. Shrivastava dated 27th of January
1975 is in the following terms :

"The Chief Minister bas desired that if the said com-
plaint has not been fiied should await till he is able to see
E the file. Another buff sheet bas been received from the
Minister of Agriculture also. The file may kindly be
recalled and filing of complaints may await 1111 further
clearance of the C.M.'"

F It appears that the previous Chief Minister was replaced by that
time Dr. J.N. Mishra. It is in these circumstances that the file was
sent to Respondent No. 2 in his capacity as Chief Minister in pur-
suance of the earlier desire of the then Chief Minister, Shri Abdul
Gafoor, and passed the following orders :

G
"In order to recover the money from some of the
loanees of .the Patna Urban Co-operative Bank criminal
cases were instituted against them. Action should be taken
immediately for the withdrawal of the cases against those
H loanees who have cleared the loan in full and proper instal-
ments for payment of loans should !le fixed against those
who want to repay the loan but due to financial incapacity
SHEONANDAN v. BIHAR (Misra, J.) 157

are unable to make payment at a ti me and thereafter neces-
sary further action should be taken."

Io this state of affairs it cannot be said that Respondent No. 2
was out to obstruct the criminal proceedings.

The facts that the prosecution, if ordered, will s.tart after a gap
of about eight years cannot be lost sight of. In the view taken by
me in the earlier part of. the judgment that no primafacie case in
• my opinion has been made out under s. 466 of the Indian Penal
Code and s. 5 (1) (d) of the Prevention of Corrupiion Act and the
fact that the High Court in revision agreed with the view of the
c
Special Judge giving consent to the withdrawal from the prosecution
on the application of the Public Prosecutor under ~s. 321 iCr. P.C.
this Court cannot make a fresh appraisal of evidence and come to a
different conclusion. All that this Court has to see is that the Public
Prosecutor was not actuated by extraneous or improper considera- D
tions while moving the application for withdrawal from the prose·
cution. Even if it is possible to have another view different from
the one taken by the Public Prosecutor while moving the application
for withdrawal from prosecution tbis Court should be reluctant to
interfere with the order unless it comes to the conclusion that the
Public Prosecutor has not applied his mind to the facts and circum- E
stances of the case, and has simply acted at the behest of the
Government or has been actuated by extr!lneous and improper con·
siderations. On the facts and circumstances of the case it is not
possible for me to bold that the Public Prosecutor was actuated by
oblique or improper motive.

In view of my finding that the criminal case against Respondent
No. 2 and others was instituted on account of personal or political
vendetta at the instance of some disgrunted political leaders, that oo
prima facie case of forgery or misconduct is made out on the
materials on the record, that the Court's jurisdiction in dealing G
with the application under s. 311 of the Code is only to see whether
the Public Prosecutor· had applied for withdrawal in the interest of
Public Justiee, or he has done so actuated by improper or oblique
motive, that a substantial amount of.Joan has already been realised,
that the continuance of the criminal ~case in the circumstances of H
this case· will be only an exercise in futility at the cost of public
money and time, that the trial court as well as the High Court
158 SUPllEME COURT REPORTS (1983] 2 8.C.R.

A· were satisfied with the grouuds for withdrawal taken by the Public
Prosecutor, the view taken by the trial court as well as the High
Court in my opinion does not suffer from any infirmity and is a just
and proper one.

For the reasons given above the appeal must fail and it is
B a.~cordingly dismissed.

Appeal allowed• .
S.R.
.l.'

"