TMI Blog1982 (12) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... h Misra), Respondent No. 3 (Nawal Kishore Sinha), Respondent No. 4 (Jiwanand Jha) and three other (K.P. Gupta, since deceased, N.A. Haidari and A.K. Singh, who later became approvers) 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 against the respondent No. 2 was that at all times material he was 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 public servant, he in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha in particular, sought to subvert criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Cooperative Bank, its members, depositors and creditors and thereby committed the offence of criminal mis-conduct under s. 5(1) (d) read with s.5(2) of the Prevention of Corruption Act, 1947 and in that process committed the other offences specified in the charge-sheet, including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terly 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 scope of the power under the section clearly suggest that for purposes of that section a 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 extraneous and non-germane considerations influenced the Public Prosecutor as also the Court the withdrawal is vitiated and is bad in law and as regards ground (a), namely, insufficiency of evidence or lack of prospect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , economic and political purposes, and what was more in granting its consent to the withdrawal the Court merely performed a supervisory function and in discharging such function the Court was not to reappreciate the 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, uninfluenced by irrelevant or extraneous 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. According 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 Government as contended by the appellant and the learned Special Judge also performed his supervisory function in granting the requisite permission on relevant considerations. Counsel emphatically denied that either the public prosecutor's decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (both being substantially in pari materia) were referred to by Counsel for the parties but it is not necessary to deal with all of them and a reference to four decisions, namely, State of Bihar v. Ram Naresh Pandey,(1) State of Orissa v. Chandrika Mohapatra and Ors.,(2) Balwant Singh and ors. v. State of Bihar(3) and R. K. Jain v. The State(4) 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 the functional dichotomy of the Public Prosecutor (who performs an executive function) and the Court (which performs a supervisory judicial function) thereunder. In Ram Naresh Pandey's case (supra) the Court while dealing with s. 494 of the old Code observed thus. 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 his discharge or acquittal, as the case may be ..... There can be no doubt, however, that the resultant order on the granting of the consent, being an order of 'd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stone on which the question must be determined whether the prosecution should be allowed to be withdrawn. 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 the incident calm and peaceful atmosphere 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 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 was sought and granted. Upholding the permission the Court observed thus: We cannot forget that ultimately every offence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the prosecution not merely on the ground of paucity of evidence but no other relevant grounds as well in order to 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 Enterprises. 5. The Court performs a supervisory function granting its consent to the withdrawal. 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 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 withdrawal from the prosecution. By way of elaborating proposition No. 4 above, the Court has gone on to observe thus: We have referred to the precedents of this Court where it has been said that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. In the past we have often known how expedient an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 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 abuse of discretionary power. The two classes are not, however, mutually 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 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. Thirdly, 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 this Court for purposes of s. 321 as con-tended for by Counsel for the appellant, for, even in what are called political o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l conflicts, student 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 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 faith in the rule of law and democratic values would be shattered. Fourthly, the decision in R.K. Jain's case (supra) clearly shows that when paucity of evidence or lack of prospect of successful prosecution is the ground for withdrawal the Court has 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 that case this Court disposed of two sets of appeals, one where the withdrawal from the prosecution against George Fernandes and others was on the ground that the offences were of political character and the other pertained to withdrawal from the prosecution in four cases against Choudhry Bansi Lal on the ground that the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment under s. 24 (8) Cr. P.C. On 26th February, 1979 to conduct this case had 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.C/Mis-8-43/78 J dated 24th February, 1981 and that though this particular case had been allotted to him by the letter dated 25th February, 1981, he had no authority over the head of Shri A.K.Dutt to apply for withdrawal from the 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 had already taken a decision to withdraw from the prosecution in this case on grounds of inexpediency of prosecution for reasons of State 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 pursuant to such direction that he made the application and not independently on his own as a free agent and, therefore, the executive function on the part of the Public Prosecutor (as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that section, 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. C. has given legislative recognition to the aforesaid view of this Court inasmuch as it expressly provides that the Public Prosecutor incharge of a case may withdraw from the prosecution with the consent of the Court. We are satisfied that though he was appointed as the Special Public Prosecutor to conduct this case in February 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 the proper officer to apply for the withdrawal from the prosecution. 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 communicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Judge after summarising the submissions of Shri 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 having perused the relevant records of the case I am satisfied that it is a fit case in which prayer of the learned Special P.P. to withdraw should be allowed and it is, therefore, allowed. Consequently the special P.P. Shri Lalan Prasad 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 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 ? Out of the four grounds set out above, I shall deal with grounds (b), (c) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence 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 commission of common law crimes of bribery and forgery in ordinary normal circumstances with self-aggrandisement or favouritism as the motivating force, grounds (b), (c) and (d) were 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 grant the permission, the impugned withdrawal from the prosecution would stand vitiated in law. Counsel for the respondents urged that as a result of the elections 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 State would have had adverse effects on public interest including public order and peace and, therefore, its continuation was regarded as inexpedient for rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory judicial function 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 accepting these grounds. 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. 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 examine the 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 prosecution against respondent Nos. 2, 3 and 4 and three others may be 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 Hono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sinha the Chairman and other Directors on the Board were removed and an officer of the Co-operative Department, Government of Bihar, was appointed as 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 4.11.1974 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 7.11.1974 sought the opinion of the Law Department on 18.11.1974 the Law Department recorded its opinion in the relevant file (being File No. IX/Legal- 9/75 of the Department of Co-operation) that a case of conspiracy and criminal breach of trust against the loans 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 Judicial Magistrate, Patna; on the same day (16.12.1974) an office noting was made by Shri Bimal on the file suggesting that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Notification dated 30th April, 1974. It is claimed by the appellant that 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 behalf of the Respondents that though the file was called for by Respondent No. 2 on 24-1-1975 it did not actually reach him till 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 May, 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 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 and others, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in Hindi, the first on 16-5-1975 and the 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 order. 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 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 Shekhar 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of two common Law offences of criminal 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 Respondent No. 2 by corrupt or illegal means or by otherwise abusing his position as the Chief Minister subverted the criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others and had 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 obtained 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 the ingredients of s. 5 (1) (d) get satisfied prima facie as indicated above. As 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. There 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 Kishore Sinha and others. It further appears that in July, 1975 there were questions and call attention 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 others, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed a communication to the Registrar, Co-operative Societies suggesting that besides the other office-bearers Sri Nawal Kishore Sinha, the ex- Chairman of the Bank also deserve to be prosecuted for offences of embezzlement, forfery, cheating, etc. but the matter was kept pending for report of the Superintendent of Police (Co-operative Vigilance Cell); the S.P. (Co-operative Vigilance 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 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 office-bearers and loanees only the S.P's noting categorically stated that the draft F.I.R. (against N.K. Sinha) had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ultimately approved by the Governor Shri Jagan Nath Kaushal. As regards the surcharge proceedings the position is very simple. As discussed earlier, the two directions contained in the first order dated 16-5-1975 for taking stern action to realise loans from the loanees and in default to initiate surcharge proceedings against 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 attempted 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 counter affidavit of Shri Vinod Kumar Sinha dated 8-10-1982 filed before us, and counsel for Respondent No. 2 pressed it into service during his arguments and the explanation is that a separate file titled Surcharge Proceedings being File No. 3 of 1975 maintained in the office of Deputy Registrar, Co-operative Societies, Patna Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he explanation, therefore, that Respondent No. 2 facilitated the filing of the surcharge proceedings by the office of the Deputy Registrar, without the necessity of proceeding against the loanees first, is not candid. Secondly, the proposal for surcharge proceeding itself was submitted and filed by the District Co-operative Officer against Nawal Kishore 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 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 surcharge proceedings. It will appear clear from the above discussion that the documentary evidence mentioned above, the genuineness of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereof the several 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 (1) (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 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.I.R. is that he was concerned with the deposit of two amounts of ₹ 10,000 and ₹ 3,000 on 27.12.1973 and 1.4.1974 in the Savings Bank Account of Respondent No 2 with the Central Bank of India, Patna Dak Bungalow Branch, which sums, says the prosecution, represented some of the bribe amounts said to have been received by respondent No. 2 and the tangible documentary 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal mis-conduct) and s. 5 (1) (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 withdrawal from the prosecution in Vigilance Case No. 9 (2) 78 was sought in respect of several offences including the offence of criminal mis-conduct under s. 5 (1) (c) read with s. 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 (1) (d) read with s. 5 (2) of the said Act. In other words, an offence under s. 5 (1) (c) read with s. 5 (2) with which Respondent No. 2 had never been charged was mentioned and the offence under s. 5 (1) (d) read with s. 5 (2) with which he was principally charged was completely omitted. Obviously submissions contained in the application as well as those that were made at the hearing before the Court were in relation to the offence of s. 5 (1) (c) and not s. 5 (1) (d). Similarly the learned Special Judge while granting the requisite permission has also referred to the offence under s. 5 (1) (c) and not s. 5 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion 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 Information 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 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 the file along with the audit report before the complaint was actually filed. The Cooperation Minister endor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a mid-term poll to the Lok Sabha in March, 1977. In that poll, the Congress (I) Government at the Centre was voted out of power and the Janata Government was installed with Shri Morarji Desai as the Prime Minister and 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 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, with a request for making an enquiry into the allegations by an Enquiry Commission. The representation was endorsed by the State Government to the Inspector General (Vigilance) for a preliminary probe. Eventually the preliminary inquiry was entrusted to the then Joint Secretary, Shri D.N. Sahay. 5. The Union Home Minister, Chaudhury Charan Singh, wrote a D.O. letter to the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs were transferred to Vigilance Department and they were responsible for the investigation of the major portions of the case in question, and that all 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, aforesaid, who had been an accused of Kadam Kuan P.S. case 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, submitted 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 was then referred to the Advocate General, Shri K.D. Chatterjee, appointed by the Karpoori Thakur Government. On 31.1.1978, the Chief Minister, Shri Thakur, approved it with the direction to hand over the file to Shri S.B. Sahay, who in turn, endorsed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter and also intimate this Department about the result of the action taken. Yours faithfully, Sd/- Illegible Secretary to Government, Patna. Memo No. MW 26/81, 1056 J. Patna, dated 25th February, 1981. Copy forwarded to Vigilance Department for information. Sd/- Illegible Secretary to Government, Bihar. Patna . (emphasis added) 11. Accordingly, on 17.6.1981, Shri L.P. Sinha filed an application under section 321 of the Code. On 20.6.1981, the Special Judge passed the impugned order giving his consent to withdraw the case. 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 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. 14. Shri Venugopal, learned counsel appearing for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /04/79 which reads thus (material portion only): Letter No. C/Special/04/79 Government of Bihar Law (Justice) Department From Shri Yogehwar Gope, Under Secretary to the Government of Bihar. 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. 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, Senior Advocate, Patna High Court, as Special Public Prosecutor 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 assisting Shri Datta will be issued later. Yours faithfully, Sd/-Yogeshwar Gope Memo No. 1313, J, Patna dated 26th February, 1979 Copy forwarded to Shri Awadhesh Kumar Datta. Senior Advocate, Patna High Court/Cabinet (Vigilance) Deptt., Government of Bihar, Patna for information and necessary action. Sd/-Yogeshwar Gope Under Secretary to Government of Bihar . Later on, in pursuance of para 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r,(1) a Bench of five Judges of this Court considered the provisions of Section 492 to 495 of the old Code dealing with the appointment of Public Prosecutor. The Court observed: Public Prosecutors are appointed by the State Government 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-section (1) of section 492 can be a general appointment or for a particular case, or for any specified class of cases, in any local area. Under 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, 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, and to prevent confusion in the conduct of public business 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 office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an Officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection 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 . 18. The next question is whether Shri L.P. Sinha was in charge of the case as requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teps in it had he (A.K. Datta) been in charge of the case. The learned Special Judge also has found as a fact in his judgment that the application under section 321 of the 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. Sinha was in charge of the case, and not Shri A.K. Datta, as submitted by the appellant. Shri L.P. Sinha was both 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. Even if he 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) he was a Public Prosecutor and (ii) was in charge of the case, he was competent to apply for withdrawal of the case, 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 submission is that Shri L.P. Sinha acted as directed by the Government to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 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: (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 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 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 Government, not the Public Prosecutor, who is in the know 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 the application. He made the following application before the Court: IN THE COURT OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected 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 has been elected leader of the majority party in the legislature, 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 prosecution 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. A mere perusal of the above application abundantly shows that Shri 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 he made the application. He did not blindly 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 letter with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude appropriate social, economic and we add, political purposes Sans Tammany Hall enterprise. (6) The Public Prosecutor is an officer of the Court and responsible to the Court. (7) The Court performs a supervisory function in granting its consent to the withdrawal. (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 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 : 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 with prosecutions where emotive issues are involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 heinous than offences under sections 420/466/471/109/120B 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 ? In our view, the answers are in the negative. The reverse appears to be truer. In our opinion, the object of section 321 Cr. P.C. appears 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 Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharat C. Patel and 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. 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 accord consent to withdraw from (?) 26th March, 1977. Sd/- (N.S. Mathur) Special Public Prosecutor for the State, New Delhi 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 consent for withdrawal from the prosecution on the ground that it 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 application stating Government's desire to withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this Court 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 the Police Diary to see whether adequate materials 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 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 according 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank after holding Annual General Meeting. Sd/- Jaganath Mishra 14-5-75 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 16-5-1975 to 14-5-1975. These facts have not been denied by Respondent No. 2 before us. The appellant's submission was that by the above act of antedating by over-writing. Respondent No. 2 committed forgery, and by pasting over the earlier order committed an offence under section 5 (1) (d) of the Prevention of Corruption Act as by that latter act he obtained pecuniary advantage to Shri Nawal Kishore Respondent No. 3, by stopping the surcharge proceedings. 28. Before proceeding further, it is pertinent to mention that 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. His only contention was that an attempt was being made by the Public Prosecutor to scuttle the case and that the Court should apply its independent mind before according consent to the withdrawal and that he should be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceedings 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 submitted that the motive was to obliterate any possible action on the first order, The submission is highly speculative and cannot be accepted. In any view, if two interpretations are possible, one indicating criminal intention and the other innocent, needless to say that the interpretation beneficial to the accused must be accepted. 30. Confessional Statement of Haidari 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 Bank. It was being investigated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituting 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 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 (iii) Enquiries Report submitted 28-1-78 (iv) Report forwarded by the D.I.G. of Police to the I.G. 29-1-78 (v) The same was forwarded to the Chief Secretary 30-1-78 (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 passed order for prosecution of Dr. Mishra. 31-1-78 (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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kur had his own political animosity against Dr. Mishra but Shri Ojha had to work under the influence of the Chief Minister. It has been suggested that he has been instrumental in directing the investigation in such a way that a case was made out against Dr. Mishra and others by collecting false evidence. The suggestion cannot be ruled out as frivolous or unreasonable. Shri Karpoori 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 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 Commission of Enquiry into the Bank matter, and directed the investigation. This shows active interest of Shri Karpoori Thakur in the prosecution of Respondent No. 2. (iii) The third circumstance pointed out is that although Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court 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 Jha) and three others (K.P. Gupta, since deceased, M.A. Haidari and A.K. Singh) who later became approvers, for offences under ss. 420/466/471/109/120-B Indian Penal Code and under s.5 (1) (a), 5 (1) (b) and 5 (1) (d) of the Prevention of Corruption Act, 1947. 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 application. 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 have its consequences of wide magnitude affecting the large 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) lack of prospect of successful prosecution in the light of evidence, (b) the implication o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though there is certainty of obtaining a conviction, no question of public policy, public interest or reasons of State could every arise in a prosecution for a Common Law offence or a common case of bribery or forgery. (b) Similarly, no question of political or personal vendetta 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 withdrawal 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. 5 (1) (d) of the Prevention of Corruption Act primarily based upon indisputed documentary evidence make out a prime facie case. 2. If the Court chooses to give consent to the withdrawal of a criminal case on the ground of paucity of evidence or absence of a successful prosecution, the court has to examine the material or evidence already 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 the case was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by the Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue, for instance the discharge that results therefrom need not always conform to the standard of no prima facie case under ss. 209 (1) and 253 (1) 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 consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecutions. ...If so, it is clear that, what the Court has to determine, for the exercise of its discretion in granting or withholding `consent' is not a triable issue on judicial evidence. Again in M.N.S. Nair v. P.V. Balkrishnan(1) this Court after reviewing various cases from different High Courts laid down the following guidelines: Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is the touch-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 the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because, the objective of every judicial process must be the attainment of justice. (Emphasis supplied) In Balwant Singh v. State of Bihar(1) this Court laid down: The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may above him on the administrative side ..the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The last in the series is the case of Rajendra Kumar Jain v. State(2). After review of the various cases of this Court, the Court laid down the following propositions: 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution not only on the ground of paucity of evidence but on other 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, economic and political purposes. In M.N.S. Nair's case (supra) this Court after enumerating certain grounds further observed: .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 contention 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that in the circumstances prevailing at the time of institution of the case and the investigation thereof it 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 only to see that the Public 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 conclusion on the question whether there is a triable issue to be investigated by the Court. 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 31st of January 1978 passed by Shri Karpoori Thakur, the then Chief Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the then Chief Minister and placed under the Inspector, Shri Reghubir Singh. On 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 he brought allegations against Dr. Mishra. The confession of Shri A.K. Sinha was secured . on 26th of January, 1978. On 28th January 1978 Shri D.P. Ojha. 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 30th 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 appointed as Advocate General by Shri Karpoori Thakur. On 31st of January, 1978 the Chief Secretary sent the file to the Chief Minister of Bihar. On the same day the Chief Minister, Bihar approved it and handed over the file direct to Shri S.B. Sahay, DIG. On 1st of February, 1978 the file was endorsed by S.P. Vigilance, Shri D.P.Ojha to Addl. S.P., R.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw from the case on the grounds given by him in his application for withdrawal cannot be said to be actuated by improper 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 and far between. In the circumstances instead of serving the public cause of justice it will be to the detriment of public interest. 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 consider whether the public prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous or oblique considerations 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 prosecution. The Court's duty is to see in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence itself, which is not in dispute, an offence under s. 466 of the Indian Penal Code and s. 5 (1) (d) of the Prevention of Corruption Actis prima facie made out and the Public Prosecutor was not justified in moving the application for withdrawal on this ground. He referred to the antedating of an order. Dr. J.N. 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. 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. 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: Please issue orders for restoring the normal condition's in the Bank after ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooked into. In the circumstances the Public Prosecutor was not justified in coming to the conclusion that there was no prospect of conviction of respondent No. 2. I am afraid this contention cannot be accepted for obvious reasons. The earlier order dated 16th May, 1975 no doubt contemplated four things: (1) that there is no allegation of defalcation against the Chairman and Members of the Board of the Bank; (2) stern action should be taken for realisation of the loans from the loanees; (3) if there are difficulties in the realisation from the loanees surcharge proceedings should be initiated against the Board of Directors, and (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 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntage was given to Nawal Kishore Sinha or others by the order of 14th May, 1975. From the affidavit of Jiwanand Jha, Respondent No. 4 it appears that an amount of ₹ 33,96,024.90 was given as loans to 180 persons. Out of the total amount given by way of loans an amount of ₹ 25,64,682.23 has already been realised from 106 persons. The unrealised amount is only ₹ 8,31,337.67 for which decrees have been passed against 64 persons and as against the remaining 10 persons proceedings for realisation are going on. About the offence of forgery under s. 466 of the Indian Penal 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 fraudulently makes a document or part of a document ...at a time at which he knows that it was not made, signed, 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 thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Public Prosecutor has 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 has applied his own mind and came to his own conclusions. The last but not the least in importance was the point raised 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 filing of the complaint; and secondly that he ordered for not pro 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 Ist 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r improper considerations while moving the application for withdrawal from the prosecution. 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 this 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 circumstances of the case, and has simply acted at the behest of the Government or has been actuated by extraneous and improper considerations. On the facts and circumstances of the case it is not possible for me to hold 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 no prima facie case of forgery or misconduct is made out on the materials on the record, that the Court's jurisdiction in dealing 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 Justice, or he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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