Holding

Withdrawal of prosecution is a statutory power of the public prosecutor, not the executive, and must be exercised independently with court consent; in this case the APP acted independently, so the lower courts' order stands.

Issues considered

Can a pending criminal case be subjected to a second police investigation without the judge’s knowledge?
Do political or executive influences invalidate a withdrawal of prosecution under Sections 321 and 494 of the CrPC?
Is a District Magistrate’s directive to the public prosecutor to withdraw from a case compliant with Section 494 CrPC?
Who holds the statutory authority to withdraw a prosecution and what safeguards are required?

Legislation cited

Code of Criminal Procedure, 1973s. 321, s. 494
Indian Penal Code, 1860s. 380, s. 411

Subjects

criminal procedurewithdrawal of prosecutionsection 321 CrPCsection 494 CrPCpublic prosecutorexecutive interferencepolitical influencerule of lawspecial leave petition

Judgment

44

.A SUBHASH CHANDER
v.
STATE (CHANDIGARH AD.MN.) & ORS.
November 15, 1979
(V. R. KRISHNA IYER AND R. 'S. PATHAK, JJ.]
B
Criminal Procedure Code, Sections 321, 494-Scope of .
. The petitioner alleged that his house had been burgled and lhat many
valuable" were lost. "fhe police recovered the property. Eventually, charges
were also framed by the trial court against two other persons who were said to
be collaborators.
c During the pendency of the criminal case, the Asstt. Public Pr0$CCUlor
applied for withdrawal from prosecution under section 321, Cr. P.C. on the
ground that on fresh investigation by a senior officer the alleged search and
seizure were discovered to be a frame-up by the concerned police officer in ordcc
to pressurise the accused to withdraw a certain civil litigation. The court re.-
quired a fuller application, the Assistaot Public Prosecutor made a fresh and
more detailed petition for withdrawal which was eventually granted by tho trial
D court, dc.<:pit·~ the petitioner's remonstrance that the withhrawal wa · prompLed
by politic.al 111fiuencc wielded by the jeweller leading to instn1ctions. from high
quarters to the Assistant Public Prosecutor to withdraw from the case concerning
that accn~f'(f. It wai; a·l1eged that the Assistant Publi,. Pro"ecutor did not apply
.., independent mind in carrying out the said instructions. The trial c"'1tt
nevertheless accepted the request of the Assistaot Public Prosecutor and direi:ted
ocqllittal of 1)le jeweller, while continuing the case against the remaining two
E accused.. Tue order was unsuccessfully assailed in revision before the Jligh
Court by the petitioner.
By special leave to appeal under Article 136 of the Constitution, ii was
argued on behalf of the petitioner that (i) a case which pends in court cannot
be subject to a second police investigation without the judge even knowing
about it, (ii) political considerations of the Executive vitiate the motion for ."
~ \Vithdrawal of pending proceeding, and (iii} the District Magistrate's order to
withdra\V from a casl! co1nmunicated to the Public Prosecutor and carried out
by him, is co.alpliance with section 494.
Disn1issing the petition,
IIELD : When a crime is committed, the assessment of guilt and the award
of punishment or, alternatively, the discharge or acquittal of the accused are
G part of the criminal justice process administered by the courts of the land.
It is not the function of the executive to administer criminal justice and in our
system, judges are not fungible. [47 A]
When a case is pending in a criminal court, its procedure and progress are
governed bv the Criminal Procedure Code or other relevant statute. To inter-
cept and recall an enquiry or trial in a court, save in the manner and to the
extent provided for in the law, is itself a violation of the law. Whatever needs
ll to be done must be done in aecordance with the law. The function of adminis-
tering justice, under our constitutiona1 order, belongs to those entrusted with
judicial power. One of the few exceptions to the uninterrupted flow of the
SUBHASH CHANDER V. STATE 45

<:amt'& process is section 321, Cr. P.C. But even here it is the Public Prose- A
cutor and not any executive anthority, who is entrusted by the Code with the
.~er to withdraw from a prosecution, and that also with the consent of the
court. To interdict, intercept or_ jettison an enquiry or trial in a court, save
in the manner and to the extent provided for iu the Code itself, is lawlessness.
The even course of criminal justice cannot be thwarted by the executive, how-
ever hieh the accused, however sure· Government feels a caise is false, however,
unpalatable the continuance of the prosecution to the powers-that-be who wish B
to scuttle COll1'! justice because of hubris, affection or other noble or ignoble
.consideration. Among the very few exception to this uninterrupted How of the
.court process is section 494, Cr. P.C. Even here, the Public Prosecutor is
entrusted by the Code with a limited power to withdraw from a prosecution with
the court's consent whereupon the case comes to a close. What the law has
ignited, the law alone shall extinguish. [47 D-H, 48 A]
c
The promotion ,of law and order is an aspect of public justice. Grounds of
·public policy may· call for withdrawal of a prosecution. A prosecution dis-
covered to be false and vexatious cannot be allowed to proceed. But the power
must be cautiously exercised, and the statutory agency to be satisfied is the
Public Prooecutor in the first instance, not the District Magistrate or other
executive authority. Finally, the consent of the court is imperative. [48 G-H]
D
There WU no evidence to support the allegation of political influence. At
the Yme time, the District Magistrate acted illegally in directing the ksistant
Public Prosecu\Q1' (o wjt!\4.ra.w. It h:js. been alleged that the· second inestiga-
-tion of the case on the executive side, which led to the discovery that the earlier
irivestigation was motivated, was vitiated by the omission to question the first
informant. That was a matter for the Assistant Public Prosecutor to consider
when decidiq wbeth!o• Q1' npt to withdraw from the prosecution; It is abnn- E
·dantly c!esr that the Assistant Public Prosecutor made an independent decL.ion
on the material before him and did not act in blind compliance with the in•lruc-
tions of the District Magistrate. [50 F-H, 51 Al

1he rule of law warns off the executive authorities from the justicing
procea in the matter of withdrawal of cases. Since tke courts were satisfied
that the Public Prosecutor did not yield to the directive of the DL.trict Magis- F
trate but made an independent study of informing himself of the materials
placed before the conrt and then sought permission to withdraw from the prose-
cution, this court declined to reverse the order of the courts below. [51 F-H]

M. N. Sankaranarayana Nair v. P. V. Bala Krishna & Ors. AIR 1972 SC
496 : Bansi Lal v. Chandan Lal, AIR 1976 SC 370 : Balwant Singh <l Ors. v.
Bihar, AIR 1977 SC 2265, affirmed. G 1

CRIMINAL A~PELLA1E JURISDICTION : Special Leave Petitioo
(Criminal) No. 2076 of 1978.
From the Judgment and Order dated 17-3-1978 of the Punjab and
Haryana High Court in Criminal Revision No. 181177)
R. L. Kohli, S. K. Sabhanval and Subhash Chander for
Petitioner.
the •
' '

46 SUPREME COURT REPORTS ~1980] ;!, S.C.R.

A R. N. Sachthey for Respondent No. 1.
Ptem Malhotra for Respondent No. 2.
The Order of the Court was delivered by
KRISHNA IYER, J.--What constrains us to explain at some length
our reasons for rejection of leave to appeal in this case; is the desidera-
B tum that every executive challenge to justice-in-action is a call to the
court to strengthen public confidence by infusing lunctional freshness
into the relevant law sufficient to overpower the apprehended evil.
The house of the petitioner is said to have been burgled and he
alleges that he lost many valuables. The police, on information being
laid, searched and recovered the property. Eventually, charges were
c framed by the trial court against one .Hussan Lal, a jeweller, and one
Madan Lal, an alkged collaborator (respondents Nos. 2 and 3 in this
petition) under s. 411 I P.C. and one Ashok Kumar under s. 380, I.P.C.
During the pendency of the criminal case, the Assistant Public Prose-
cutor applied for withdrawal from pr06ecutiou under s. 321, Cr.P.C.
on the ground that on fresh investigation by a senio.r officer the alleged
~D
search and seizure were discovered to be a frame-up by the concerned
police officer in order to pressur'se the accu e<l Hussan LaJ to withdraw
0

a certain civil litigation. On the court requiring a fuller applicatio:i
the Assistant Public Prosecutor made a fresh and more detailed petitio,n
for withdrawal which was eventually grante<l hv the trial court, despite
the qetitioner's remonstrance that the withdrawal was prompted by the
political influence wielded by Hussan Lal leading to instructions from
high quarters to the Assistant Public Prosecutor to withdraw from
the case concerning that accused. It was alleged that in carrying out
) the instructions the Assistant Public Prosecutor did not apply an inde-
pendent mind. The court nevertheless accepted the request. OJf the
F Assistant Public Prosecutor and directed acquittal of Hussan Lal, while
continuing the case against the remaining two accused. The order w?s
unsuccessfully assailed in revision before the High Court by the peti-
tioner. Undaunted by that dismissal, he has moved this court under
Art. 136 of the Constitution. In view o!f the startling disclosures on
either side we have listened at some length to the oral submissions ill
'G supplementation o!f the affidavits in the record.
Tht: three focal points of arguments are whether (i) a case which
pends in court can be subject to a second police investigation without
the judge even knowing about it, (ii) political considerations of the
Executive vitiate the motion for withdrawal of pending proceeding, and
'H (iii) the District Magistrate's order to withdraw from a case communi-
cated to the Public Prosecutor and carried out by *im, is compliance
/
with s. 494.
SUBHASH CHANDER v. STATE (Kri5ifma Iyer, J.) 47

When a crime is cbmmitted in this country, the assessment of guilt A
and the award of punishment or, alternatively, the discharge or acquittal
of the accused are part of the criminal justice process administered by
the courts of the land. It is not the function of tk executive to
administer criminal justice and in our system, judges are not fungible,
as Justice Dongles in Chandler,(') asserted :
B
g·\" ~udges a;e not fungible; they cover the constitutiooal
spectrum; and a particular judge's emphasis may make a
world ad' difference when it comes to rulings on evidence,
"· the temper of the courtroom. the tolerance for a proffereJ
defen~e, and the Jiile. Lawyers recognize this when they
c
talk about 'shopping' for a judge; Senators recognize this
when they are asked to give their 'advice and consent' to
judicial appointments; laymen recognize this when they
ap~raise the quality and image of the judiciary in their own
community."
D
When a ease is pending in a criminal court. it< procedure· and progreis
are governed by the Criminal Proceduro Codo oc other relevant statnte
To intercept.and recall an enquiry or trial in a court, save in the manner
and to the extent provided for in the law, is itself a violation of the law
Wha~ver needs to be done must be done in acco.rdance with the
law. 'The function of administering justice, under our constitutional E
order, belongs to those entrusted with judicial power. One of the few
exceptions to the uninterrupted flow of the court's process is s. 321,
( Cr. P.C. But even h~re it is the Public Prosecutor, and not any execu-
tive authority, who is entrusted by the Code with the power to withdraw
from a prosecution, and that also with the consent of the court. We
F
repeat for emphasis. To interdict, intercept or jettison an enquiry
or trial in a court, save in the manner and to the extent provided
for in the Code itself, is lawlessness. The even course of criminal
justice cannot be thwarted by the Executive, however high the accused,
however sure Government feels a case is false, however unpalatable
the continuance of the prosecution to the powers-that-be who wish to G
scuttle court justice because of hubris, affection or other noble or
ig'!!oble consideration. Justicing, under our constitutional order, be-
longs to the judges. Among the very few exceptions to this uninter-
rupted flow of the court process is s. 494, Cr.P.C. Even here, the
Public Prosecutor--not any executive authority-is entrusted by the
Code with a limited power to withdraw from a prosecution, v1ith the H
(I) Cha~dler v. Judicial Council of the Tenth Circuit of the U.S 308 U.S.
74, 1970.
48 SUPREME COURT REPORTS [1980) 2 ~C.R.

A court's consont whereupon the case comes to a· close. What the law
has ignited, the law alone shall extinguish.

Although skeletal, the conditions for such withdrawal are implicit
in the provision, besides the general principles which have been evolved
through precedents. Once a prosecution is launched, its relentless
n course caunot be halted except on sound considerations germane to
public ·justice. All public power is a public trust, and the Public
Prosecutor cannot act save in discharge of that public trust, a public
trust geared to public justice. The cQ!lSent of the court under •· 321
as a condition for withdrawal is imposed as a check on the exercise.
of that power. Consent will be given only if public jUBtice in the
c forger sense is promoted rather than subverted by such withdrawal.
That is the essence of the nolle prosequi jurisprudence.

We wish to stress, since impermissible influences occasionally infil-
trate into this forbidden ground, that court justice is out of bounds
for masters and minions elsewhere. We do not truncate the amplitude
D
of the public policy behind s. 494 Cr.P.C. but warn off tempting adul-
teration of this policy, talcing the public prosecutor for granted. Maybe,
the executive, for plural concerns and diverse reasons, may rightfully
desire a criminal case to be scotched. The fact tha~ broader considera-
tions of public peace, larger considerations of public justice and even
F. deeper considerations of promotion of long-lasting security in a loca- ·
!ity, of order in a disorderly situation or harmony in a factioua milieu,
or halting a false and vexatious prosecution in a court, persuades tho
Executive, pro bona publico, sacrifice a pending cMC for a wider
benefit, is not ruled out although the power must be ~paringly exer-
cised and the statutory agency to be satisfied is the public prosecutor,
F not the District Magistrat_ti or Minister. The concurrence of the court
is necessary. The subsequent discovery of a hoax behind the prosecu"
tion or false basis for the criminal proceeding as i~ alleged In this
case, may well be a relevant ground for withdrawal. For the court
should not be misused to continue a case conclusively proved to be a
counterf~it. This statement of the law is not exhaustivo but is enough
G for the present purpose and, indeed, is well-grounded on precedents.

The promotion of law and order is an aspect of public jUstice.
Grounds of public policy may call for withdrawal of the prosccufion.
A prosecution discovered to be false and vexatious cannot be ~
to proceed. The grounds cover a large canvas. But the power must
H be cautiously exercised, and the statutory agency to be satisfied is the
Public Prosecutor in the first instance, not the District Magismte or
other executive authority. Finally, the consent of the coiirt itl flllpera-
(it!BHASH CHANDER v. STATE (Kri.1/ma Iyer, J.) 49

tive. The law was explained by this Court in M. N. SankaranarayttrU:t A
Nair v. P. V. Bala Kris/ina & Ors.(1)

, "A reading of Sec. 494 ,would show that it is the public
prosecutor who is in-charge of the case that must ask for
,Permission of the Court to withdraw from the prosecution of
any person either generally or in respect of one or more B
of the offences for which he is tried. This permission can
be sought by him at any stage either during the enquiry or
after committal oc even before the judgment is pronounced.
The section does not, however, indicate the reasons which
shoulcf weigh with the Public Prosecutor to move the Court
for permission nor the grounds on which the Court will grant c
or refuse permission. Though the Section is in general terms
and does not 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 D
justice which may be either that it will not be able to pro-
duce sufficient informatiou before prosecuting agency would
falsify the prosecution evidence or ,any other simila.r circum-
stances which it is difficult to predicate as they are depen-
dent entirely on the facts and circumstances of each case.
Nonetheless it is the duty of the Court also to see i• E
fnrtherance of justice that the permission is not sought on
grounds extraneous to the interest of justice or that o!Icnces
which are offences against the State go unpunished merely
because tl1e Govemment as a matter of general policy or
expediency unconnected with its duty to prosecute offenderi;
under the law. directs the Public Prosecutor to witl1draw from F
tile prosecution and the Public Prosecutor merely doet. ro
at its behest."

• The position was coufinned in Bansi Lal v. C/iandan Lal( 2 ) and
BalW(lnt Singh & Ors. v. Bi'1ar( 3 ). The law is thus well settled and
it8 application is all that ~alls for caution. In the special sitaation of G

, this case, two principles must be hammered home. 'f!le deeisiOl'I td
withdraw must be of the Public Prosecutor, not of other authorities,
even. of those whose displeasure may affect his continuance in o:!fice.

(I) A.l.R. 1972 S.C. 496.
C2l A.l.R. 1976 S.C. 370.
' \
'3) A.I.R. 1977 S,C. 2265.
\
50 SUPREME COURT REPORTS [1980] 2 s.c.R.

A The court is monitor, not servitor, and must check to see if the essen-
tials of the law are not breached, without, of course, crippling or
usurping the power of the public prosecutor. The two matters which
are significant are (a) whether the considerations are germane, and ,
(b) whether the actual decision was made or only obeyed by the Public
Prosecutor .
.B
In the setting of the present facts, the enquiry must be whether
the considerations on which withdrawal was sought by the Assistant

+
Public Prosecuto.r were germane and pertinent, and whether the actual
decision to withdraw was made by the Assistant Public Prosecutor or
was the result of blind compliance with executive authocity. If it
c appears from the material before the Court that germane or relevant
considerations did not prompt the motion for withdrawal but it was
the pressure of political influence, the Court wm withhold its consent.

Tbe fµnctionary clothed by the Code with the power to withdraw
from the prosecution is the Public Prosec~tor. The Public Prosecutor
D is not the executive, nor a flu'nkey of political power. Invested by
the statute with a discretion to withdraw or not to withdraw, it is for
him to apply an independent mind and exercise his discretion. In
doing so, he acts as a limb of the judicative process, not as an exten-
sion of the executive.

E In the present case, it appears that when the court commenced
proceedings, the accused Hussan Lal complained to 'higher police
officers that the concerned Assistant Sub-Inspector had initiated the
case merely for the pl\fPOSe of putting pressure on him to compromise
a suit against a close relative. The allegations were enquired into by y \
a senior offio~r and the District Magistrate, on the basis of the material
F coming to light, directed disciplinary action agai'nst the Assistant Sub-
Inspector and instructed the Assistant Public Prosecutor to withdraw
frO!ll the case against Hussan Lal. We find no evidence. to snpport
the allegations of political influence. At the same time, it is necessary
to point out that the District Magistrate acted illegally in directing the •
Assistant Public Prosecutor to withdraw. It has been alleged that the
G second investigation of the case on the executive side, which led to
the discovery that the earlier investigation was motivated, was vitiated
by the omission to question the first informant. That was a matter
foe the Assistant Public Prosecutor to consider when deciding whether
or not to withdraw from the prosecution.
H On the principal question arising in this case, the record shows
that the Public Prosecutor applied his mind to the disclosures emerging J
ram tbe! secood enquiry, and he1 found that "even the recovery wit-
SUBHASH CHANDER v. STATE (Kris/ma Iyer, J.) 5I

nesses Sarvashri Mato Ram mid Phool Singh did not support that they A
had witnessed the recovery or any disclosure statement was made iin
their presence by Madan Lal accused." He found that Phool Singh
' at the relevant time was bed-ridden mid had since expired. He also
discovered that Mato Ram had stated that nothing had happened in bis
presence but his signatures were obtnined by the fuvestigating Officer.
It is abundantly clear thar the Assistant Public Prosecutoc made an B
• independent decision on 1he material before him and did not act in
blind compliance with the instructions of the District Magistrate.

We cannot dispose of this petition without drawing attention to
the very disturbing presence of the District Magistrate in the withdrawal
proceedings. The jurisprudence of genuflexion is alien to our system c
and the law expects every repository ·of power to do bis duty by the
Constitution and the laws, regardless of commands, directives, threats,
and temptations. The Code is the master for the criminal process.
Any authority who coerces or orders or pressurises "' functionary 1I1ce a
ouhlic prosecutor, in the c;xclusive province of his discreti11·
violates tho rule of law and any public prosecutor who bends before
such co=nd betrays the authority of his office. May be, Govern-
•
J
ment or the District Magistrate will consider'that a prosecution or class
' of prosecutions deserves to be withdrawn on grounds of policy or rea-
sons of public interest relevant to law and justice in their larger con-
notation and request the public prosecutor to consider whether the E
case or cases m~y not be withdrawn. Thereupon, the Prosecutor will
give due weight to the material placed, the policy behind the recom-
mendation and the responsbile position of Government which, in the
last mialysis, has to maintain public order and promote public justice.
But the decision to withdraw must be his.

The District Magistrate who is mi Executive Officer is not the
Public Prosecuto~ and cannot dictate to him either. Maybe, the officer
had not apprised himself of the autonomous position of the Public
Prosecutor or of the impropriety of his intrusion into the Public Prose-
cutor's discretion by making an order of withdrawal. Similar mistakes
are becoming commoner at various levels and that is why we havei had G
to make the position of iaw perfectly clea.r. We emphasise that the
• rule of law warns off the executive authorities from the justicing pro-
cess in the matter of withdrawal of cases. Since we are satisfied that the
Publie Prosecutor did not yield to the directive of the District Magistrate
but made ari independent study of informing himself of tlie materials
plac:ed before the court and then ~ought permission to withdraw from H
the prosecution, we decline to reverse the order passed by the courts
bclaw.
52 SUPREME COURT REPORTS [1980] 2 s.c.R.

A The trial court was satisfied that the Assistant Public Prosecutor
had not exercised the power of withdrawal for any il!egitimate purpose
and tbo High Court endo.rsed that conclusion. We are not diaposed
to interfore with the order of the High Court.
'
One obvious grievance of the petitioner deserves to be mnedied.
B 'He is interested in getting back his stolen goods. The aCCHl!ed claims
no property ill' the goods. In tbe event of the complainant identifying '
them as his property, the trial court will consider passing appropriate
'
orders for tbe'1' return to him. Surely, criminal justice has many dimen-
sions beyond conviction and sentence, acquittal and innocence. The
victim is not te> be forgotten but must be restored to the extent possible.
c The petition is rejected.

N.K.A. Petition dismissed.