TMI Blog1986 (12) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... de so that the prosecution can continue against Dr. Jagannath Mishra. 2. The fact-situation out of which this case arises relates to the affairs of a Cooperative Bank called the 'Patna Urban Cooperative Bank' (hereinafter referred to as the 'Co-operative Bank'). The Co-operative bank was registered in May 1970 and it commenced its banking business with Nawal Kishore Sinha as its Chairman, K. P. Gupta as its Honorary Secretary, M. A. Hydari as its Manager and A. K. Singh as a loan clerk. It was not seriously disputed that most of the members of the Co-operative Bank were closely associated with Nawal Kishore Sinha. The object of the Co-operative Bank was to help people financially to set up small industries and businesses and to assist people in ordinary circumstances to carry on their vocation or business. There was a subcommittee formed, called Loan Sub Committee , consisting of Nawal Kishore Sinha, K. P. Gupta and one Purnendu Narain, an Advocate, to attend to the work of sanctioning and granting of loans. The Chairman, i.e., Nawal Kishore Sinha, was according to the bye-laws the ultimate deciding authority in regard to all the functions of the Co-operative Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Societies followed up this action by putting up a note dated 4th November 1974 to the Secretary, Co-operation pointing out that, according to the audit reports, prima facie charges of defalcations, embezzlement of funds, conspiracy, etc., were made out against the officials of the Co-operative Bank and legal action should be taken against them after taking the Opinion of the Public Prosecutor. The Secretary, Co-operation, by his note dated 7th November 1974 sought the opinion of the Law Department in regard to the action to be taken as suggested in the note of the Registrar, Co-operative Societies. The Law Department recorded its opinion in the relevant file on 18th November 1974 that a prima facie case of conspiracy and criminal breach of trust was made out against the loanees and the office bearers of the Cooperative Bank. On the basis of this opinion, a draft complaint was prepared on 16th December 1974 by the Asstt. Public Prosecutor, Patna, for being filed in the Court of the Chief Judicial Magistrate, Patna, and on the same day, an office noting was made on the file suggesting that the advice of the Law Department on the draft complaint be obtained. This course of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the file on 31st January 1975 pointing out various instances of criminal conspiracy criminal breach of trust and misappropriation of public funds which had come to light against the Directors of the Co-operative Bank and sent the file to Dr. Jagannath Mishra en route to the Chief Minister since they wanted to see the file before the complaint was actually lodged. It does not appear from the record as to when the file was actually sent to Dr. Jagannath Mishra but in any event the file was in the hands of Dr. Jagannath Mishra on 24th February 1975. The file remained with Dr. Jagannath Mishra for over two and a half months and no endorsement was made by him on that file until the middle of May 1975 with the result that prosecution could not be filed against Naval Kishore Sinha and the other Directors. Meanwhile on 11th April 1975, Shri Abdul Ghafoor was thrown out and in his place Dr. Jagannath Mishra became Chief Minister. Dr. Jagannath Mishra made an Order in his own hand in Hindi in the file on 16th May 1975 regarding the action to be taken against Nawal Kishore Sinha and others and the English translation of this Order ran as follows: Much time has passed. On perusal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on 16th May 1975 and subsequently came back to the office, it is indisputable that Dr. Jagannath Mishra passed another Order in his own hand on a piece of paper in Hindi under his signature and had it pasted over the earlier order dated 16th May 1975 so as to efface the same completely and this subsequent Order was ante-dated to 14th May 1975. The date of despatch namely, 16th May 1975 in the despatch entry appearing in the margin was also altered to 14th May 1975 by over-writing. The English translation of this second Order addressed to the Minister, Co-operation was in the following term: Please issue order for restoring the normal condition in the Bank after holding Annual General Meeting. May 14, 1974 Sd/- Jagannath Mishra The explanation given on behalf of Dr. Jagannath Misra was that, as Chief Minister, he had authority and power to revise or review his earlier order and that it is the usual practice prevailing at 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 order. But even with this explanation, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions from Dr. Jagannath Misra as to what should be the next course of action in the matter of filing of the complaint. Dr. Jagannath Misra in response to this query passed the following Order in the file on 30th June 1975: Discussion has been held. There is no need to file the prosecution. This clearly shows that Dr. Jagannath Misra did not want any prosecution to be filed against Nawal Kishore Sinha and others and wanted to protect Nawal Kishore Sinha against any such criminal prosecution. It appears that in July 1975 there were questions and call attention motions in the Bihar Legislative Assembly and in the course of the proceedings, the propriety of not filing prosecution against Nawal Kishore Sinha and others connected with the affairs of the Co-operative Bank, despite the advice of the Law Department, was discussed and the Speaker referred to matter to the Estimates Committee of the House. The next event which happened in chronological sequence was that the annual general meeting of the Co-operative Bank was held and the associates of Nawal Kishore Sinha were elected in November, 1975. The management of the Co-operative Bank was handed over to the elected directors. But, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted to the Commissioner of Cooperative Department for obtaining the approval of the Chief Minister, that is, Dr. Jagannath Misra. Since Dr. Jagannath Misra had earlier made an order restricting the filing of criminal cases against some of the office bearers and loanees and excluded Nawal Kishore Sinha from the prosecution, the Superintendent of Police in charge of cooperative vigilance cell categorically stated in his note that the draft first information report against Nawal Kishore Sinha had Been netted by the Deputy Secretary, Intelligence CID, as well as by Inspector General of Police. The Commissioner of Co-operative Department after examining the entire material carefully and obtaining clarifications on certain points put up a lengthy note on 15th January 1977, to the Minister Cooperation in which he specifically placed the proposal of the Superintendent of Police (Cooperative Vigilance Cell) for launching first information report against Nawal Kishore Sinha for his approval and also suggested that the Hon'ble Minister may obtain, the approval of the Chief Minister. The Minister Co-operation in his turn endorsed the file on 20th January, 1977 to the Chief Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding irregularities in the affairs of the Co-operative Bank. The inquiry was entrusted to the then Secretary Shri D. N. Sahay. Meanwhile a Commission of Inquiry had already been instituted by the State Government and Shri D. N. Sahay therefore addressed a communication dated 1st September, 1977 to the Special Secretary in regard to the charge relating to the affairs of the Co-operative Bank and he pointed out that since an inquiry had already been instituted, it may not be desirable to proceed with a vigilance inquiry. Shri Karpoori Thakur however directed that the vigilance inquiry might continue as the materials collected as a result of the vigilance inquiry could be made use of by the Commission of Inquiry. The vigilance inquiry was thereafter entrusted to Shri D. P. Ojha who was posted as Superintendent of Police, Vigilance, by Shri Karpoori Thakur and all the cases relating to the affairs of the Co-operative Bank were transferred to the vigilance department. M. A. Hyderi who was already an accused in the previously instituted cases was rearrested in connection with those cases and in the course of the fresh investigation started by the vigilance department, M. A. Hyderi made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constituted a Cabinet Sub-Committee on 15th September, 1980 to consider the expediency of the withdrawal of the prosecution and on 20th February, 1981 the Cabinet sub-Committee recommended that the cases against Dr. Jagannath Misra and others should be withdrawn. This recommendation of the Cabinet sub-Committee was placed before the Cabinet presided over by Dr. Jagannath Misra and it was approved by the Cabinet on 24th February, 1981. On the same day on which the recommendation of the Cabinet sub-Committee was approved, a decision was taken that the two cases against Dr. Jagannath Misra and others should be withdrawn and the State Government cancelled the panel of lawyers which had been constituted by the previous Government for conducting cases ; pertaining to the vigilance department and in its place constituted a new panel consisting of four lawyers including one Lallan Prasad Sinha. The Secretary to the Government of Bihar thereafter addressed a letter dated 25th February, 1981 to the District Magistrate which was in the following terms: Government of Bihar Law (Justice) Department From :Shri Ambika Prasad Sinha, Secretary to Government, Bihar, Patna To : The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest of public justice. I crave leave to place materials in support of the above submission and conclusion at the time of moving this petition. That it is in public interest that the prosecution, which has no reasonable chance of success and has been launched as a result of political vendetta unconnected with the advancement of the cause of public justice should not 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.... The application for withdrawal was opposed by Sheonandan Paswan, a member of the Bihar Legislative Assembly and its Deputy Speaker at the material time. The locus standi of Sheonandan Paswan to object to the application for withdrawal was challenged by Shri Lallan Prasad Sinha and this challenge was upheld by the learned Chief Judicial Magistrate and it was held that Sheonandan Paswan had no locus standi to oppose the application for withdrawal. The learned Chief Judicial Magistrate then considered the application for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground urged on behalf of the State Government that there was not sufficient evidence which could lead to the conviction of Dr. Jagannath Misra and others, was not well founded. The learned Judge took this view on a detailed consideration of the material which was on record and held that the withdrawal of the prosecution was not justified either on merits or in law and being illegal had to be quashed. Baharul Islam and R. B. Misra, JJ., on the other hand, took the view that the entire investigation was vitiated and no person could be convicted on the basis of evidence procured as a result of such investigation and the withdrawal of the prosecution was, therefore, justified. Having regard to the majority judgment of Baharul Islam and R. B. Misra, JJ. the appeal was dismissed. 11. Sheo Nandan Paswan thereupon filed a Review application before this Court. But on the date when the Review application was filed, Baharul Islam, J. had already resigned his office as a Judge of this Court. Now, under the Rules of this Court the Review application had to be heard by the same Bench but since Baharul Islam, J. had ceased to be a Judge, A. N. Sen, J. was asked to join Tulzapurkar and R. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of course not strongly pressed by Mr. Nariman but in any event we do not think that it has any substance. It is undoubtedly true that the order of the Review Bench did not in so many terms set aside the order of the Original Bench and used a rather unhappy expression, namely, I...admit the Review Petition . But it is clear that when the Review Bench used the expression I...admit the Review Petition it plainly unequivocally meant that it was allowing the Review Petition and setting aside the order of the Original Bench, otherwise it is difficult to understand how it could possibly direct the rehearing of the appeal . The appeal could be reheard only if the Review Petition was allowed and the order of the Original Bench was set aside and therefore obviously when the Review Bench directed rehearing of the appeal, it must by necessary implication be held to have allowed the Review petition and set aside the Order of the original Bench. We cannot allow the true meaning and effect of the order of the Review Bench to be obfuscated by a slight ineptness of the language used by the Review Bench. We must look at the substance of the Order rather than its apparent form. We must therefore p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the Review Petition and directing rehearing of the appeal. It is significant to note that all the three Judges of the Review Bench were unanimous in taking the view that any decision of the facts and circumstances which...constitute errors apparent on the face of record and my...reasons for the finding that these facts and circumstances constitute errors apparent on the face of record resulting in the success of the Review Petition may have the possibility of prejudicing the appeal which as a result of my decision has to be reheard . This contention of Mr. Nariman must therefore be rejected. 14. The learned Counsel on behalf of Dr. Jagannath Misra also raised another contention of a preliminary nature with a view to displacing the locus standi of Sheonandan Paswan to prefer the present appeal. It was urged that when Shri Lallan Prasad Sinha applied for permission to withdraw the prosecution against Dr. Jagannath Misra and others, Sheonandan Paswan had no locus to oppose the withdrawal since it was a matter entirely between the Public Prosecutor and the Chief Judicial Magistrate and no other person had a right to intervene and oppose the withdrawal and since Sheonandan Pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawal of such prosecution if it is already instituted. We must therefore reject the contention urged on behalf of Dr. Jagannath Misra that Sheonandan Paswan had no locus standi to oppose the withdrawal of the prosecution. If he was entitled to oppose the withdrawal of the prosecution, it must follow a fortiori that on the turning down of his opposition by the learned Chief Judicial Magistrate he was entitled to prefer a revision application to the High Court and or the High Court rejecting his revision application he had standing to prefer an appeal to this Court. We must, therefore, reject this contention of the learned Counsel appearing on behalf of Dr. Jagannath Misra. 15. There was also one other contention urged on behalf of Dr. Jagannath Misra with a view to bunking an inquiry by this Court into the merits of the appeal. It was argued on behalf of Dr. Jagannath Misra that this was not a fit case in which the Court should interfere in the exercise of its extraordinary jurisdiction under Article 136 of the Constitution since the permission granted by the learned Chief Judicial Magistrate for withdrawal of the prosecution had resulted in discharge of Dr. Jagannath Misra in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower can satisfy itself as to the correctness, legality or propriety of any order passed by the Magistrate or as to the regularity of any proceedings of such Magistrate. When this Court is hearing an appeal against an order made by the High Court in the exercise of its revisional power under Section 397 it is the same revisional power which the Court would be exercising and this Court therefore certainly can interfere with the order made by the Magistrate and confirmed by the High Court if it is satisfied that the order is incorrect, illegal or improper. In fact, in a case like the present where the question is of purity of public administration at a time when moral and ethical values are fast deteriorating and there seems to be a crisis of character in public life,this Court should regard as its bounden duty - a duty owed by it to the society - to examine carefully whenever it is alleged that a prosecution for an offence of corruption or criminal breach of trust by a person holding high public office has been wrongly withdrawn and it should not matter at all as to how many Judges in the High Court or the lower Court have been party to the granting of such consent for withdrawal. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fides or political vendetta of the first informant or the complainant. It was rightly observed by Krishna Iyer, J. in State of Punjab v. Gurdial Singh [1980]1SCR1071 : If the use of power is for the fulfilment of a legitimate object, the actuation or catalisation by malice is not regicidal . The same principle must obviously apply where a person is opposing withdrawal of prosecution against an accused. His political motivation or vendetta cannot justify grant of consent for withdrawal if otherwise it is not legitimate or justified. 17. It is undoubtedly true that the prosecution against Dr. Jagannath Misra was initiated by the successor Government of Karpoori Thakur after Dr. Jagannath Misra went out of power. But that by itself cannot support the inference that the initiation of the prosecution was actuated by political vendetta or mala fides because it is quite possible that there might be material justifying the initiation of prosecution against Dr. Jagannath Misra and the successor Government might have legitimately felt that there was a case for initiation of prosecution and that is why the prosecution might have been initiated. There would be nothing wrong on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of action to be adopted and it cannot be said that if a prosecution is initiated without an inquiry being held by a Commission of Enquiry set up for that purpose, the prosecution would be bad or that on that ground alone the prosecution could be allowed to be withdrawn. The criminal process in India is quite tardy and slow moving and as it is, it takes considerable time for a prosecution to ultimately come to an end and if a requirement were super-imposed that no prosecution shall be launched against a person holding high political office under an earlier regime without first setting up a Commission of Enquiry and the Commission coming to a prima facie conclusion that such person has committed acts which would constitute offences, the entire criminal process would be reduced to a mockery because the Commission of Enquiry itself might go on for years and after the inquiry is concluded the prosecution will start where the entire evidence will have to be led again and it would be subject to cross-examination followed by lengthy arguments. It would, in our opinion, be perfectly legitimate for the successor Government to initiate a prosecution of a former Chief Minister or a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,- (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required he shall be acquitted in respect of such offence or offences: Provided that where such offence- (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Police Establishment Act, 1946 (25 of 1946), or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw from the prosecution and how it is controlled and regulated. When a First Information Report relating to the commission of a cognizable offence is lodged in a Police Station under Section 154 or an order is made by a Magistrate directing the police to investigate a non-cognizable case under Section 155, the police is bound to investigate the offence alleged to have been committed. The powers of the police in regard to investigation and the procedure to be followed by them in such investigation are set out in Sections 157 to 172. Section 173, Sub-section (1) casts an obligation on the police to complete the investigation without unnecessary delay and Sub-section (2), Section 173 then proceeds to state that as soon as the investigation is completed, the officer in charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-section. Section 190 confers power on the Magistrate to take cognizance of an offence and there are three different ways in which cognizance of an offence may be taken by a Magistrate. This section states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate can decline to take cognizance of the offence. The discretion of the police to prosecute is thus 'cabined and confined' and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question. The Legislature has in its wisdom taken the view that it would be safer not to vest absolute discretion to prosecute in the police which is an Executive arm of the Government but to subject it to the control of the judicial organ of the State. 21. The same scheme has been followed by the Legislature while conferring power on the Public Prosecutor to withdraw from the prosecution. This power can be exercised only with the consent of the Court so that the Court can ensure that the power is not abused or misused or exercised in an arbitrary or fanciful manner. Once the charge-sheet is filed and the prosecution is initiated, it is not left to the sweet will of the State or the Public Prosecutor to withdraw from the prosecution. The Court is entrusted with control over the prosecution and as pointed out by Krishna Iyer, J. in Subhash Chander v. State 1980CriLJ324 . The even course of criminal justice cannot be thwarted by the Executive however h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must always be the interest of administration of justice. That is the broad principle under which the Public Prosecutor must bring his case in order to be able to justify his application for withdrawal from the prosecution. What are the different grounds which may possibly come within this principle is a matter which we shall presently discuss but whatever be the grounds on which the application is made it can be sustained only if these grounds are relatable to furtherance of public justice. 23. There was one major question debated before us in regard to the position of the Public Prosecutor in relation to an application for withdrawal from the prosecution and the issue was as to what is the degree of autonomy conferred on the Public Prosecutor vis-a-vis the Government whilst filing an application for withdrawal. This issue can be operationalised into three different questions : (1) Does Section 321 permit a Public Prosecutor to withdraw from a case without seeking the opinion of the Government (2) whether Section 321 empowers a Public Prosecutor to refuse to withdraw from the prosecution despite the advice of the Government to withdraw and (3) where a public prosecutor with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked by the State Government to consider the filing of a petition under Section 494 nor would it be proper for him if he was of the opinion that the prosecution ought not to proceed to get the consent of the Government to the filing of a petition under that section for obtaining permission of the Court to withdraw from the prosecution. This Court also seemed to accept in State of Orissa v. C. Mohapatra 1977CriLJ773 (supra) that the policy decision for withdrawal from the prosecution can be made by the State though the application for withdrawal was to be made by the Public Prosecutor. This is what the Court said in that case: We cannot forget that ultimately every offence has social or economic cause behind it and if the State feels that elimination or eradication of the social or economic cause behind it would be better served by not proceeding with the prosecution the State should be at liberty to withdraw. (italics are ours). This position seems to obtain until 1978 so far as the decided cases are concerned. 24. But in 1978 the trend changed when in Balwant Singh v. State of Bihar 1977CriLJ1935 the view that found favour was that the Public Prosecutor is the prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty who coerces or orders or pressurises a functionary like a public prosecutor, in the exclusive province of his discretion violates the rule of law and any public prosecutor who bends before such command betrays the authority of his office. May be, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the public prosecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of Government, which in the last analysis, has to maintain public order and promote public justice. But the decision to withdraw must be his. This case also, like the earlier one in Balwant Singh v. State of Bihar 1977CriLJ1935 (supra), introduced the concept of independent application of mind by the Public Prosecutor on the question of withdrawal from the prosecution and insisted that the Executive cannot direct or pressurise the Public Prosecutor to withdraw from the prosecution an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court elaborated this view in the following words: Where large and sensitive issues of public policy are involved he must if he is right minded the Public Prosecutor seek advice and guidance from the policy-makers. His sources of information and resources are of a very limited nature unlike those of the policy makers. If the policy-makers themselves move in the matter in the first instance as indeed it is proper that they should where matters of momentous public policy are involved and if they advice the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. (Emphasis ours) The majority Judges however took a different view in the present appeal when it was heard by the earlier Bench, Baharul Islam, J. stated the view of the majority in the following terms: Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State (see Sections 24 and 25, Cr.P.C.), appointed for conducting in Court any prosecution or other proceedings on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lely within the responsibility of the Executive. When the prosecution is initiated by filing a charge-sheet the Public Prosecutor comes into the picture. Of course, even before the charge-sheet is filed, the investigating authorities may seek the advice of the Public Prosecutor in regard to the prosecution of the accused but it is not obligatory on the investigating authorities to do so. The Public Prosecutor comes on the scene as soon as the charge-sheet is filed and he appears and argues the case on behalf of the prosecution. It is the State through the investigating authorities which files a charge-sheet and initiates the prosecution and the Public Prosecutor is essentially counsel for the State for conducting the prosecution on behalf of the State. The expression Public Prosecutor is defined in Section 2, Clause (u) to mean any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. Section 24 provides for the appointment of a Public Prosecutor :sub-s. (1)of Section 24 states that for every High Court the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds which have weighed with the Government are not valid and that he should be relieved from the case and if this request of his is not granted, he may tender his resignation, or else, he may make an application for withdrawal from the prosecution as directed by the Government and at the hearing of the application he may offer his considered view to the Court that the application is not sustainable on the grounds set out by him and leave it to the Court to reject the application. We do not think there is anything wrong in the Public Prosecutor being advised or directed by the Government to file an application for withdrawal from the prosecution and the application for withdrawal made by him pursuant to such direction or advice is not necessarily vitiated. The Public Prosecutor can of course come to his own independent decision that the prosecution should be withdrawn but ordinarily if he is wise and sensible person he will not apply for withdrawal without consulting the Government because it is the Government which has launched the prosecution and is prosecuting the accused. Theoretically, of course, he can make an application for withdrawal from the prosecution without consulting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of each case.this Court also pointed out in State of Orissa v. C. Mohapatra 1977CriLJ773 (supra) that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. It was also emphasised by this Court in Subhash Chander v. State 1980CriLJ324 (supra) that justice cannot be allowed to be scuttled by the Public Prosecutor or the State because of hubris affection or other noble or ignoble considerations. this Court also observed in R. K. Jain v. State 1980CriLJ1084 (supra): In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that a prima facie case has been made out against the accused and the charge should therefore be framed. When the Court has come to this conclusion after full consideration and framed a charge, it is difficult to see how on the same material the Court can be persuaded to hold that there is not sufficient evidence to sustain the prosecution. How can the Public Prosecutor be permitted to make a volte face on the basis of the same material ? That would be mockery of justice and it would shake the confidence of the Court in the purity and integrity of the administration of justice. That is why this Court pointed out in Bansi Lal v. Chandan Lal 1976CriLJ328 that if the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the prosecution case. ; So also in Balwant Singh v. State 1977CriLJ1935 (supra)this Court reiterated that the State should not stultify the Court by first stating that there is a true case to be tried and then make volte face to the effect that on a second investigation the case has been discovered to be false . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report comes before the Court, the Court is required to consider only the police report and the documents sent along with it and the Court may make such examination, if any, of the accused as it thinks necessary and on the basis of such material if the Court, after giving the prosecution and the accused an opportunity of being heard, considers the charge against the accused to be groundless, the Court is bound to discharge the accused. What the Court, therefore, does while exercising its function under Section 239 is to consider the police report and the document sent along with it as also any statement made by the accused if the Court chooses to examine him. And if the Court finds that there is no prima facie case against the accused the Court discharges him. But that is precisely what the Court is called upon to do when an application for withdrawal from the prosecution is made by the public prosecutor on the ground that there is insufficient or no evidence to support the prosecution. There also the Court would have to consider the material placed before it on behalf of the prosecution for the purpose of deciding whether the ground urged by the public prosecutor for withdrawal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of the application for withdrawal that there is insufficient or no evidence in support of the prosecution. The Court in such a case should be left to deckle under Section 239 whether the accused should be discharged or a charge should be framed against him. 31. We may also reiterate what was pointed out by this Court in State of Orissa v. C. Mohapatra 1977CriLJ773 (supra) that in a given case it may not be conducive in the interest of justice to continue the prosecution...since the prosecution with the possibility of conviction may rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere which has been restored. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution. This was the ground on which the Court in State of Orissa v. C. Mohapatra (supra) allowed withdrawal of the prosecution in a case where the incident resulting in the commission of the offence had arisen o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for withdrawal are legitimate grounds in furtherance of public justice. The discretion has not to be exercised by the Court mechanically and the consent applied for has not to be granted as a matter of formality or for the mere asking. The Court has to consider the material placed before it and satisfy itself that the grant of consent would serve-the interest of justice. That is why this Court in State of Bihar v. Ram Naresh (supra) examined the entire material which was available to it for the purpose of coming to the conclusion that there was no evidence worth the name on the basis of which the prosecution could be sustained against the accused Mahesh Desai.this Court pointed out that consent is not to be lightly given on the application of public prosecutor without a careful and proper scrutiny of the grounds on which the application for consent is made . It was emphasised by this Court that in these matters the public prosecutor exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is that of the Court.this Court again reiterated in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan 1972CriLJ301 (supra), that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be justified in granting consent to withdrawal from the prosecution. 33. If we apply these principles to the facts of the present case, it is clear that the Court of the Chief Judicial Magistrate, Patna, also the High Court were clearly in error in granting consent to the withdrawal from the prosecution against Dr. Jagannath Misra and others. We do not propose to go into the question whether the material available to the Court could be regarded as sufficient for sustaining the prosecution of Mr. Jagannath Misra and others because if we consider this question and make any observations in regard to the sufficiency of the material, such observations may tend to prejudice Dr. Jagannath Misra and the other accused. Of Course, if there were no other reasons which would persuade the Court not to grant consent to the withdrawal of the prosecution, we would have had to go into the question whether the material produced before the Court was sufficient prima facie to sustain the prosecution. But. there are two very strong and cogent reasons why consent to the withdrawal of the prosecution must be refused. In the first place, the learned Chief Judicial Magistrate could have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh political personages accused of offences should face the judicial process and get discharged rather than seem to manoeuvre the judicial system and thus endanger the legitimacy of the political as well as the judicial process. It is possible that in a particular case personal harassment or inconvenience may be caused by non-withdrawal of the prosecution, if the accused is really innocent and is ultimately liable to be discharged, but such harassment or inconvenience must be considered as an inevitable cost of public life, which the repositories of public power should have no hesitation to pay, as justice must not only be done but must also appear to be done. 35. We accordingly allow the appeal, set aside the Order made by the Chief Judicial Magistrate and confirmed by the High Court and direct that the prosecution may proceed against Dr. Jagannath Misra and the other accused in accordance with law. E.S. Venkataramiah, J. (Majority view) 36. I have gone through the judgments of Bhagwati, C.J. and Khalid, J. which are pronounced today. 1 have also gone through the orders of the Special Judge who permitted the withdrawal of the prosecution, the judgment of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heonandan Paswan v. State of Bihar 1983CriLJ348 who has held against the accused to decide whether there are sufficient incriminating circumstances which compel this Court to set aside the order permitting withdrawal of the prosecution. In his judgment at pages 101 to 103 Tulzapurkar, J. summarises the case against Dr. Jagannath Misra thus: It will appear clear from the above discussion that the documentary evidence mentioned above, the genuineness of which cannot be doubted, clearly makes out a prima facie case against Respondent No. 2 sufficient to put him on trial for the offence of criminal misconduct under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. Similar is the position with regard to the incidental offence of forgery under Section 466 I.P.C. said to have been committed by him, for, ante-dating of the second order by him is not disputed; and it is on record that in regard to such ante-dating no explanation was offered by him during the investigation when he was questioned about it in the presence of his lawyers and there has been no explanation of any kind in any of the counter-affidavits filed before us. But during the course of ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 funds of the Patna Urban Co-operative Bank or not and whether they were really paid as bribe amounts or not would be aspects that will have to be considered at the trial. However, as pointed out earlier the offence under Section 5(1)(d) would even otherwise be complete if pecuniary advantage (by way of scuttling the civil liability of surcharge) was conferred on Nawal Kishore Sinha and others. If Respondent No. 2 has to face the trial then in a case where conspiracy has been charged no withdrawal can be permitted against Respondent No. 3 and Respondent No. 4. In arriving at the conclusion that paucity of evidence is not a valid ground for withdrawal from the prosecution in regard to Respondents Nos. 2, 3 and 4. I have deliberately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not and whether they were really paid as bribe amounts or not would be aspects that will have to be considered at the trial . On this observation, it has to be stated, that it has not been shown by any extract of bank account that the said two sums came from the Patna Urban Co-operative Bank. If that was so there would have been entries in the Bank accounts. Mere crediting of two sums, without any other reliable evidence, in a bank account by a political ally or a friend does not by itself show that the sums were either bribe amounts or any official favour had been shown. This fact by itself is not conclusive about the guilt of the accused. 41. As regards the ante-dating of the order dated 16-5-1975 it may be noticed that Tulzapurkar, J. himself observes in the course of his order It is true that a mere ante-dating a document or an order would not amount to an offence of forgery but if the document or the order is ante-dated with the oblique motive or fraudulent intent indicated above (without the same actually materialising) it will be a forgery . 42. The passing of the two orders one on 16-5-1975 on the note sheet and the other on buff paper which is dated 14-5-1975 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Chinnappa Reddy, J. has summarised the true legal position thus: 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Berger v. United States (1934) 295 US 78. It is a privilege of an accused that he should be prosecuted by a Public Prosecutor in all cases involving heinous charges whenever the State undertakes prosecution. The judgment of a Public Prosecutor under Section 321 of the Criminal P.C., 1973 cannot be lightly interfered with unless the Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide. 6. A person may have been accused of several other misdeeds, he may have been an anathema to a section of the public media or he may be an unreliable politician. But these circumstances should not enter into the decision of the Court while dealing with a criminal charge against him which must be based only on relevant material. 47. Judged by the well-settled principles laid down by this Court in State of Bihar v. Ram Naresh Pandey, 1957CriLJ567 and R. K. Jain's case 1980CriLJ1084 (supra), it is seen that the averments in the application are similar to the averments in the application made for withdrawal in the case relating to Fernandes which are to be found in R. K. Jain's case (supra), I feel that no case has been made out in this case fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed against the judgment of the High Court. V. Khalid, J. (On behalf of himself and S. Natarajan, J.) (Majority view) 51. I regret I cannot persuade myself to agree with the Judgment now pronounced by the learned Chief Justice, the last portion of which was received by me on 18-12-1986. It is unfortunate that a discussion could not be held about this case by the Judges who heard this case, after it was reserved for Judgment in September, 1986. It was by a sheer accident that this appeal came before a Constitution Bench. Criminal Appeals Nos. 48 49 of 1983 were originally directed to be posted before a Constitution Bench and this Appeal was also directed to (be) heard by a Constitution Bench because the same points were involved. Judgments are being pronounced today in those appeals dismissing them. I have agreed with the conclusion but not with the reasoning. Due to paucity of time I have written only a short Judgment there. This appeal has been pending for a long time. I am, therefore, pronouncing a Judgment of my own hurriedly prepared so that this matter can be given a quietus. 52. This appeal had an unpleasant history. I am grieved at the turn of events in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errors apparent on the face of the record resulting in the success of the review petition may have the possibility of prejudicing the appeal which as a result of my decision has to be re-heard. In paragraph 15, the learned Judge directed as follows: Accordingly, I further direct that the appeal be re-heard immediately after the decision of Nandani Satpathy case. The other Judges agreed with this. 53. Thus the Bench that heard the review petition did not disclose in the order the reasons why re-hearing of the appeal was ordered nor did it outline in the order, what constituted errors apparent on the face of the record to justify the order passed. By this order, the Bench did not set aside the earlier judgment. All that was done was to admit the review petition and to direct re-hearing of the appeal. The one question seriously debated at the bar is whether the Judgment sought to be reviewed was set aside or not. It was forcefully contended that the earlier judgment was not set aside and was still at large. This was met with the plea that if it was not set aside, what is it that the Court now hears? I will examine this contention presently. 54. One incontrovertible fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered since the matter has been placed before a bench of five Judges. 56. The appeals referred to this Bench do not raise any questions of constitutional law. There are decisions rendered by Benches of three Judges and two Judges of this Court wherein the scope of Section 321 of Criminal P.C. (S.494 of old Criminal P.C.) has been discussed at length. Two criminal appeals 48 and 49 of 1983 were referred to a Constitution Bench, originally. The Bench that referred these appeals did not doubt the correctness of such earlier Judgments. The reference order reads as follows: Special leave granted in both the matters. In view of certain decisions referred to at the time of the hearing of the petitions with differing interpretations, it appears that in order to clarify the legal issues connected with power of withdrawal of criminal cases and put them beyond pale of controversy, it is better the matter be placed before Hon'ble the Chief Justice to place the matter before a larger Bench of five Judges. It is this order of reference and the direction by the Bench that heard the review petition, to re-hear this appeal immediately after the decision in Nandini Satpathy's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Corruption Act, 1947. The charge against the second respondent was that he, who at all material times, was either a Minister or the Chief Minister of Bihar abusing his position as a public servant, in conspiracy with the other accused, sought to interfere with the criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others with a view to obtain to himself and to the other respondents pecuniary advantage to the detriment of Patna Urban Co-operative Bank. The Chief Judicial Magistrate took cognizance of the case on 29-7-1979. 60. There was a change of Ministry in Bihar in June, 1980 and the second respondent became the Chief Minister again, A policy decision was taken on 10-6-1980, that criminal cases launched out of political vendetta and cases relating to political agitation be withdrawn. On 24-2-1981, the Government appointed Shri L. P. Sinha as a Special Public Prosecutor. On 25-2-1981, the secretary to the Government of Bihar wrote a letter to the District Magistrate informing him of the policy decision taken by the Government to withdraw from prosecution of two vigilance cases including the case with which we are concerned. He was requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and reject the plea repeated before us. 63. The real question that has to be answered in this case is whether the executive function of the public prosecutor in applying for, and the supervisory functions of the Court in granting consent to, the withdrawal have been properly performed or not. The four remaining points enumerated above virtually revolve around this question. 64. Section 321 needs three requisites to make an order under it valid : (1) the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal (2) he must be in charge of the case (3) the application should get the consent of the Court before which the case is pending. I find that all the three requisites are satisfied here. The question is whether the functions by the public prosecutor and the Court were properly performed. At no stage was a case put forward by any one that the application made by the public prosecutor was either mala fide or that it was not in good faith. There is no allegation of bias against the Special Judge. The application filed by the public prosecutor discloses the fact that he had gone through the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court would justify only an order of dismissal and not an order ordering re-trial. 67. Section 321 gives the public prosecutor, the power for withdrawal of any case at any stage before judgment is pronounced. This pre-supposes the fact that the entire evidence may have been adduced in the case, before the application is made. When an application under Section 321, Cr. P.C, is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the Court when it exercises its limited power of giving consent under Section 321 has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to re-write Section 321, Cr. P.C. and would be to concede to the Court a power which the scheme of Section 321 does not contemplate. The acquittal or discharge order under Section 321 is not the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of acquittal or absence of prima facie case or ground lessness in the case of discharge. All that the Court has to see is whether the application is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original criminal trials in the High Court, has still a bearing, while considering the scope of Section 321 corresponding to Section 494 of the earlier Code and a comparative study of the two sections and their scope will be appropriate. Both the Sections pertain to withdrawal of prosecutions though at different level. A harmonious view should, in my view, prevail in the reading of the two sections. Section 333 does not give any discretion or choice to the High Court when a motion is made under it. Such being the case, Section 321 must also be construed as conferring powers within circumscribed limits to the Court to refuse to grant permission to the public prosecutor to withdraw the prosecution. If such a harmonious view is not taken it would then lead to the anomalous position that while under Section 333, a High Court has to yield helplessly to the representation of the Advocate General and stop the proceedings and discharge or acquit the accused, the subordinate courts when moved under Section 321, Cr. P.C. would have a power to refuse to give consent for withdrawal of the prosecution if it is of opinion that the case did not suffer from paucity of evidence. The legislature wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. 71. The Court's function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. The section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld. 72. It would be useful to compare the scope of the Court's power under Section 321 with Some other sections of the Code. There are some provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been taken. Here again the order of discharge by Magistrate has to be supported with reasons for discharge. Section 245(2) reads as follows: Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. An order of discharge under either of the two sub-sections can be sustained only if the Magistrate has recorded his reasons for discharge. Section 257 in Chapter 20, deals with trial of summons cases by a Magistrate and provides for the withdrawal of complaints. It reads as follows: 257. Withdrawal of complaint - If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn. The wording of this section is also significantly different from Section 321. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. It is thus clear that the scheme of the above Sections differ from Section 321. The scope of Section 321 can be tested from another angle and that with reference to Section 320 which deals with compounding of offences . Both these Sections occur in Chapter 24 under the heading General Provisions as to Enquiries and Trials . Section 320(1) pertains to compounding of offences, in the table, which are not of a serious nature while Section 320(2) pertains to offences of a slightly serious in nature but not constituting grave crimes. The offences in the table under Section 320(1) may be compounded by the persons mentioned in the third column of the table without the permission of the Court and those given in the table-II, under Section 320(2) can be compounded only with the permission of the Court. Under Sub-section (4)(a), when a person who would otherwise be competent to compound an offence under Section 320, is under the age of 18 years o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it uses, enables the public prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insist upon a reasoned order by the Magistrate while giving consent. All that is necessary to satisfy the section is to see that the public prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the public prosecutor is proper. 73. There is no appeal provided by the Act against an order giving consent under Section 321. But the order is revisable under Section 397 of the Criminal P.C. Section 397 gives the High Court or the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior Court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising Court does not dwell at length into the facts and evidence of the case. The Court in revision considers the materials only to satisfy itself about the correctn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in all its aspects in some of its decisions. Suffice it to say that in the judgments rendered by various High Courts, public policy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases depending upon the peculiar facts and circumstances of the cases in those decisions. AIR1932Cal699 Giribala Dasi v. Mader Gazi AIR 1943 Sind 161 Emperor v. Sital Das AIR1936Cal356 Harihar Sinha v. Emperor AIR1949Pat233 (FB) The King v. Moule Bux are some of the cases which were brought to our notice. Ram Naresh Pandey's case reported in 1957CriLJ567 is a land mark case which has laid down the law on the point with precision and certainty. In this decision the functions of the Court and the Public Prosecutor have been correctly outlined. While discussing the role of the Court,this Court observed: His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds: (i) that it was considered inexpedient to proceed with the case; (ii) that the evidence collected during investigation was meagre and no useful purpose would be served by proceeding with the case against the accused. The Magistrate gave consent holding that compelling the State to go on with the prosecution would involve unnecessary expenditure and waste of public time this Court upheld the consent and held that meagre evidence was a legitimate ground for withdrawal. The following observation at page 338 (of SCR): (at p. 906 of AIR) is useful for our purpose on an important aspect. In that case, as in this case, the Magistrate had clearly stated in his order that he was giving consent after going through the materials placed before him. This is how the Court summed up its finding: It is difficult for us to understand how the High Court could possibly observe in its order that the Magistrate had not perused the case diary when in terms the learned Magistrate has stated in his order that he had read the case diary and it was after reading it that he was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill-founded. Then again it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles settled in that decision were not doubted. It is in the light of these decisions that the case on hand has to be considered. I find that the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by the Magistrate was also after due consideration of various details, as indicated above. It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct re-trial for that would be destructive of the object and intent of the Section. Now, I propose to quickly rush through the facts of the case to make the discussion complete. 78. When the matter was first heard by this Court, the documents produced were profusely referred to by counsel on both sides. This consisted of also affidavits filed by both sides. Baharul Islam, J. after discussing the questions of law examined the factual aspect also. Referring to Shri Venugopalan's arguments (the appellants' counsel then), on facts, the learned Judge observed as follows: The learned Counsel fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second respondent been named either as a conspirator in any offence or as an offender in relation to the affairs of the bank. These three documents, therefore, will not help the appellant to press a case against the second respondent before a Criminal Court. The Accusation against the second respondent was that he was trying to shield N. K. Sinha. But it is useful to remember that 17 criminal cases had been filed against him and they are still pending. 80. One important piece of evidence that is pressed into service against the second respondent is the confessional statement of Haidari. There were two cases against Haidari, the case on hand and another case. In this case he was granted pardon. He turned an approver and became a prosecution witness. He has been prosecuted in several other cases on the basis of orders passed by respondent No. 2 on 4-8-1976. His first confessional statement was on 4-11-1976. Then he did not implicate respondent No. 2. He was re-arrested on 22-1-1978. He made a second confessional statement on 24-1-1978. This time he implicated the second respondent for the first time for the alleged offence said to have been committed in the years 1973-75. What is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any one was unduly favoured or that any one secured undue advantage by use of such over-writing. 82. The appellant is admittedly a political rival of respondent No. 2. There is no love lost between them. It is at the instance of such a highly interested person that this Court is called upon to direct re-trial of the case, setting aside the consent given by the Special Judge. The second respondent is a leader of a political party. He was a rival to the Chief Minister who followed him after the 1977 at the time of institution of the case. In 1977, when the second respondent was the Chief Minister, a warrant of arrest was issued against Shri Karpoori Thakur for his arrest and detention. It has been suggested that Shri Thakur had grudge against the second respondent. Viewed against this background, in my view, it would not advance either the interests of justice or public interest, on the unsatisfactory factual details of the case, to accept the appeal and direct re-trial. 83. I have deliberately refrained from considering the factual details of the case because the details are available in the three judgments rendered by three Judges of this Court reported in 1983CriLJ348. I h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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