M. N. Sankarayarayanan Nair Vs. P. V.
Balakrishnan & Ors [1971] INSC 326 (26 November 1971)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
PALEKAR, D.G.
CITATION: 1972 AIR 496 1972 SCR (2) 599 1972
SCC (1) 318
CITATOR INFO:
R 1976 SC 370 (4) F 1977 SC 903 (5) R 1980 SC
423 (7) RF 1980 SC1510 (10) R 1983 SC 194 (14,17,55,79,84) R 1987 SC 188 (2) R
1987 SC 877 (22,23,28,32,75,76) F 1992 SC 248 (44)
ACT:
Code of Criminal Procedure (Act 5 of 1898),
s. 494--Grant of permission to Public Prosecutor to withdraw from
prosecution---Criteria.
HEADNOTE:
The respondents were committed to trial
before the Sessions Court for offences of forgery, cheating, etc. They
challenged the committal order but the High Court held that there was a prima
facie case. Thereafter, the trial judge split up the charges and this was again
questioned but the High Court held that there was no illegality. The Public
Prosecutor then applied under s. 494, Cr. P.C., under instructions from the
Government, for permission to withdraw from the prosecution, on the grounds,
that the transaction relating to the offence arose out of a contract and was of
a civil nature, that there had been enormous delay in proceeding with the
trial, and that the securing the evidence of witnesses would involve heavy expense
for the State as the witnesses were in far off places. 'Material judge gave the
permission and the order was confirmed by the High Court.
Allowing the appeal to this Court,
HELD : (1) Section 494 of the Code is not in
pari materia with s. 333 under which the Advocate General may enter a nolle
prosequi at any stage of a trial. It only gives power to the Public Prosecutor
to withdraw from the prosecution subject to the consent of the Court. Though
the section is in general terms and does not circumscribe the powers of the
Public Prosecutor the essential consideration which is implicit in the grant of
the power is that it should be exercised in the interests of justice which may
be, either that it may not be possible to produce sufficient evidence to sustain
the charge, or that subsequent information before the prosecuting agency
falsifies the prosecution evidence, or other similar circumstances depending on
the facts and circumstances of each case. The power is subject to the
permission of the Court and it is the duty of the Court to see that the
permission is not sought on grounds extraneous to the interests of justice or
that offences against the State do not go unpunished merely because the
Government as a matter of general policy or expediency unconnected with its
duty to prosecute offenders directs a Public Prosecutor to withdraw from the
Prosecution and the Public Prosecutor merely does so at its behest. The court,
while considering the request to grant permission, should not do so as a
formality for the mere a-.king. it may grant permission only if it is satisfied
on the materials placed before it that the grant of it sub serves the
administration of justice and that the permission was not sought covertly with
an ulterior purpose unconnected with the vindication of the law. [603 EH; 604
A-D; 606 E] State of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279, followed.
Devendra Kumar Roy v. Syed Yar Bakht
Chaudhury & Ors.
A.I.R. 1939 Cul. 220, The King v. Parmanand
& Ors., A.I.R.
1949 Pat. 222 and Dy. Accountant General
(Admn.) Office of Accountant General, Kerala Trivandrum v. State of Kerala
& Ors., A.I.R. 1970 Kerala 158, referred to.
(2) In the present case none of the grounds
alleged or even their cumulative effect would justify, the withdrawal from the
prosecution. [906 G] 600 (a) It may be that the acts of the respondents may
make them both liable under the civil as well as the criminal laws. But that
does not justify either the seeking of the permission to withdraw from the
prosecution or the granting of it unless the matter before the criminal court
is of a purely civil nature. The committal order and the judgments of the High
Court at the prior two stages show that there was a prima facie case against
the accused with respect to the charges framed against them. [906 G-H; 907 G-H]
(b) Neither the ground of delay nor the question of expenditure involved by
themselves, could be a proper ground for granting permission to the Public
Prosecutor for withdrawing from the case [608 B-C, F-G]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 12 of 1969.
Appeal by special leave from the judgment and
order dated June 25, 1968 of the Kerala High Court in Criminal M.P. Nos. 175,
177 and 179 of 1968.
A. Sreedharan Nambyar, for the appellant.
Lily Thomas, for respondent No. 2.
A. G. Pudissery, for respondent No. 3.
The Judgment of the Court was delivered by P.
Jaganmohan Reddy, J. Respondent 1 and Respondent 2 were committed on 15th June
1965 by the Second Class Magistrate, Cannanore to stand trial before the
Assistant Sessions Judge, Tellichery, the former for offences under Sections
467, 478 and 420 read with Section 109 of the Indian Penal Code while the
latter under Sections 467 read with 109, 471 and 420. While the case was
pending before the Assistant Sessions Judge, the Public Prosecutor of
Tellicherry filed a Memo on 30-11-67 under Sec. 494 of the Criminal Procedure
Code for permission to withdraw from the prosecution which permission was
accorded by the Assistant Sessions Judge on 2-12-67. The Appellant who was the
Managing Partner of Shree Narayana Transport Company, Calicut filed a Criminal
Miscellaneous Petition on 19-2-68 in the High Court of Kerala against the order
of the Assistant Sessions Judge according permission to the Public Prosecutor
for withdrawing from the prosecution. The High Court held that the Public
Prosecutor was justified when he applied for the withdrawal of the case and
accordingly dismissed the petition against which this appeal comes up before us
by Special Leave.
The 1st Respondent was the Agent of Shree
Narayana Transport Company of one of its Branches namely at Baliapattom and in
that capacity it was one of his duties to accept goods from the Public for
transporting them by lorry service of the Company and issue Way Bills. These
Way Bills contained an undertaking that in the event of any of the Banks
discounting them and if goods are 601 lost or damaged during transport,, the
Transport Company will be responsible to the Bank. It is alleged that the 1st
Respondent issued nine Way Bills on different dates in favour of the 2nd
Respondent, as if the goods were received but in fact no such goods were
accepted for transport nor were any such goods dispatched. These Way Bills_
were duly discounted by the second Respondent the consigner who drew about Rs.
84,000 against, them from his Bank-. This fraud was detected on a check made by
the General Manager of Shree Narayana Transport Co., Kozhikode and it appears
that the 1st accused (1st Respondent) executed an agreement in favour of the
Transport Company undertaking to make good the loss suffered by it, after which
he was suspended on 10-4-63. On the same day a complaint was filed before
Baliapattom Police and a case was accordingly registered against both Accused 1
and Accused 2. After _investigation the Sub-Inspector of Police, Baliapattom
filed a charge-sheet. The Magistrate on the materials disclosed in the report
under Sec. 173 committed the accused to stand trial before the Assistant
Sessions Court on 15-6-65 against which a Revision was filed in the High Court
of Kerala on 9-7-65. It was contended before the High Court that the committal
was illegal as no evidence had been adduced in the case, as such it would be
premature at that stage to say whether any and if so, what offence could be disclosed
The High Court dismissed this Revision Petition on 20-10-66 holding that the
procedure adopted in the committal proceedings instituted on a Police report is
prescribed in Sec. 207-A of the Criminal Procedure Code under which the
Magistrate had the power to commit even without recording the evidences of
witnesses. The High Court drew support for this conclusion from a decision of
this Court in Ramanarayan Mor & Anr., v. State of Maharashtra (1) where it
was held that though normally in a criminal trial, the Court can proceed on
documents which are duly proved, or by the rules of evidence made admissible
without formal proof, the Legislature had under the amended code in Sec. 207-A
prescribed a special procedure for commitment of the accused. The record under
the said provision consists of the oral evidence recorded under-sub-& (4)
of Sec. 173, and it would be difficult to regard only those documents which are
duly proved or which are admissible without proof as "evidence' within the
meaning of Cl. (6) and not the rest. On this view it was observed that there
was no legal impediment in the Magistrate using the case diary for the purpose
of deciding whether there was a case for committal and accordingly dismissed
the Revision Petition. After this Revision was disposed of the Assistant
Sessions Judge to whom the case stood committed ordered the splitting up the
charges into 8 cases against which the second respondent filed a Revision in
the High Court under Sec. 561-A Criminal Procedure Code where it (1) [1964] (5)
S. C.R. 1064.
602 was contended that .-It the 8 charges
should have been consolidated into one case as otherwise there would be 8
distinct offences leading to multiplicity of trials. The High Court by its
Judgment dated 30-10-67, following a decision of this Court in Ranachhodlal V.
State of Madhya Pradesh(1), said that the order of the Magistrate splitting up
the charge into 8 cases was proper and while it does not call for any
interference, it left it open for the prosecution as provided under Sec.
240'Criminal Procedure Code to withdraw the other charges if one of the trials
should end in a conviction.
After this petition was dismissed the
Respondents seem to have moved the State Government to withdraw the prosecution
and accordingly, as would appear from the Memo. filed by the Public Prosecutor
on 30-11-67, the Government passed an order G.O. Rt. No. 1589/67 Home (B) dated
22-11-67 directing the withdrawal of the case with the sanction of the Court,
in the interest of public policy as also because there was no likelihood of the
case being pursued to a successful issue. It was stated in the Memo. filed by
the Public Prosecutor that the alleged offences charged against the accused
arose out of a contract agreed to between the accused and the defacing complainant
viz., the General Manager, Shree Narayana Transport; that the subject matter of
the case had been decided by the Subordinate Judge's Court, Calicut in a Civil
suit; that the case was registered as early as 1963 and the trial has not yet
begun; that the witnesses from far off places such as Bombay and Calcutta are
cited and the securing of their evidence would involve heavy expenses for the
State and that the case is one of Civil nature.
It is contended before us that under Sec. 494
Criminal Procedure Code it is the Public Prosecutor and the Public Prosecutor
alone who should make up his mind to withdraw from the prosecution without any
reference to the State Government, that it was the State Government which
directed the Public Prosecutor to seek permission as such the Public Prosecutor
has not adverted his mind nor did he exercise his independent judgment in
deciding whether the case is one in which permission of the Court to withdraw
from the prosecution ought to have been asked for. In any case it is submitted
on the grounds disclosed in the Memo filed by the Public Prosecutor that no
permission ought to have been given as even prior to the filing of the said
Memo. the High Court had said that there was a prima facie case for the trial
to go on and therefore the present order directing the Public Prosecutor to
withdraw from the prosecution is manifestly contrary to the views earlier
expressed by it.
The Appellants Advocate later during the
course of the argument conceded that there is no force in the first of his
contentions (1) [1965](2) S.C.R. 283.
603 namely that the Public Prosecutor cannot
either be asked by the State Govt., to consider the filing of a petition under
Sec. 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. , Sec. 494 which empowers the Public Prosecutor with the
consent of the Court to withdraw from the prosecution is as follows:
"Any Public Prosecutor may, with the
consent of the Court, in cases tried by jury before the return of the verdict,
and in other cases 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".
The power contained in the Section gives a
general executive direction to withdraw from the prosecution subject to the
consent of the Court which may be determined on many possible grounds and is
therefore wide and uncontrolled by any other provision in the Code nor is it in
parimateria with Sec. 333 which enables the Advocate General at any stage in a
Trial by the High Court and before the return of the verdict to inform the
Court if he thinks fit on behalf of the Government that he will not further
prosecute the Defendant upon the charge and on such information being given the
case against the accused comes to an end. This power of entering a noble
prosecution under Sec. 333 Criminal Procedure Code is not dependent upon any
permission of the Court. A reading of Sec. 494 would show that it is the Public
Prosecutor who is incharge of the case that must ask for permission of the
Court to withdraw from the prosecution of any person either generally or in
respect of one or more of the offences for which he is tried. This permission
can be sought by him at any stage either during the enquiry or after committal
or even before the Judgment is pronounced. The section does not, however,
indicate the reasons which should weigh with the Public Prosecutor to move the
Court for permission nor the grounds on which the Court will grant or refuse
permission. Though the Section is in general terms and does not circumscribe
the powers 604 of the Public Prosecutor to seek permission to withdraw from the
prosecution the essential consideration which is implicit in the grant of the
power is that it should be in the interest of administration of justice which
may be either that it will not be able to produce sufficient evidence to
sustain the charge or that subsequent information before prosecuting agency
would falsify the prosecution evidence or any other similar circumstances which
it is difficult to predicate as they are dependent entirely on the facts and
circumstances of each case.
Nonetheless it is the duty of the Court also
to see in furtherance of justice that the permission is not sought on grounds
extraneous to the interest of justice or that offences which are offences
against the State go unpunished merely because the Government as a matter of
general policy or expediency unconnected with its duty to prosecute offenders
under the law, directs the public prosecutor to withdraw from the prosecution
and the Public Prosecutor merely does so at its behest. A large number of cases
have, been referred to but it is unnecessary to consider them, except for a few
as typifying the approach in cases where permission to withdraw from the
prosecution was sought on grounds extraneous to and not germane to the
maintenance and enforcement of the law and which permission though given by the
Trial Court was quashed by the High Court.
A Special Bench of the Calcutta High Court in
Devendra Kumar Roy v. Syed Yar Bakht Chaudhury & Ors. (1), was considering
the validity of the permission granted by the Magistrate to the Government
Pleader to withdraw from the prosecution in a case where the accused were
charged with offences under Sections 193, 467, 477, 109 and 120-A of the Penal
Code. The prosecution had been started and after some evidence had been
recorded, the record of the case was called for by the Government which having
kept it for six months returned it to the Government Pleader who filed a
petition for withdrawal from the prosecution under Sec. 494 Criminal Procedure
Code on certain grounds which were not substantial namely that the original
complainant had withdrawn from the prosecution; that on an independent
examination of the records of the Provincial Government considered that the
evidence was insufficient to warrant further proceeding with the case; and that
the Provincial Government would not in view of the uncertainty of a successful
'prosecution be justified in incurring heavy expenses. in the fees, the
travelling allowances of the handwriting expert and in lawyers' expenses. The
Magistrate though considering that these grounds are not sufficient for not
committing the accused persons but on the other hand was of the view that there
was ample substantial evidence to show that serious offences were actually
committed, (1) AIR 1939 Calcutta 220.
605 nonetheless granted permission to the
Government Pleader to withdraw from the prosecution. It was held by the High
Court that the consent of the Trying Magistrate for the discharge had not been
properly given and therefore quashed the proceedings. It also appeared that
some of the accused in the case were related to one of the Minister's as found
proved by the High Court and the action of the Government in calling for the
record of the case from the Magistrate while it was still proceeding and
retaining it for six months was quite illegal and utterly improper. A Full
Bench of the Patna High Court in The King v. Parmanand & Ors.(1) also hold
that there was no justification whatever for the view that the Prime Minister
or any other Minister or executive officer has the power to usurp the functions
of the Court or to take the case out of the sensing of the Magistrate before
whom it is pending for trial and that where the Trying Magistrate makes no
attempt to exercise his discretion at.
all and permits the withdrawal of the
prosecution merely in consequence of the order of the Government the High Court
will interfere. At the same time it was observed that the High Court would be
reluctant to direct the prosecution of persons against whom Government does not
desire to proceed, unless there is evidence which requires judicial
consideration. The permission granted by the Magistrate in that case was held
to be wrong, so also was the action of the Government in a case which is sub judice
irrespective of the question whether the prosecution is likely to end in
conviction as interfering with the even and ordinary course of justice, by
usurping the function of the Court and taking it out of its seisin.
In a recent case the Full Bench of the Kerala
High Court in Deputy Accountant General (Admn.) Office of Accountant General,
Kerala Trivandrum v. State of Kerala and Ors.(2), was considering the application
for withdrawal filed by the Public Prosecutor under the directions of the
Government to withdraw from the prosecution against the strikers for offences
under Sections 4 & 5 of the Essential Services Maintenance Ordinance, 1968,
and other laws such as the Penal Code and Telegraph Act mentioning as a ground
the withdrawal order of the State Government which stated, that consistent with
the Policy of the Government in relation to mass agitation and strike it has
been decided to withdraw with the leave of the Court, the cases registered in
connection with the Central Government Employees strike on the 19th September,
1968 except those involving serious personal violence or destruction of
property. It was held that the policy set out therein being a policy opposed to
the law could not be taken into consideration. Apart from the order being in
(1) AIR 1949 Patna 222.
(2) AIR 1970 Kerala 153.
606 disregard of the duty and the
responsibility of the State Government to enforce the law, the Full Bench said
there could be no question of the executive policy in a region covered by the
law. In that view it quashed the permission granted by the Trial Court. In the
State of Bihar v. Ram Narash Pandey (1), it was pointed out by this Court that
though the Section does not give any indication as to the ground on which the
Public Prosecutor may make an application on the consideration of which the
Court is to grant its consent, it must nonetheless satisfy itself that the
executive function of the Public Prosecutor has not been improperly exercised
and that it is not an attempt to interfere with the normal course of justice
for illegitimate reasons or purposes.
It appears to us that the wide and general
powers which are conferred under Sec. 494 on the Public Prosecutor to withdraw
from the prosecution though they are subject to the permission of the Court
have to be exercised by him in relation to the facts and circumstances of that
case in furtherance of, rather than as a hindrance to the object of the law and
justified on the material in the case which substantiate the grounds alleged,
not necessarily from those gathered by the judicial method but on other
materials which may not be strictly on legal or admissible evidence. The Court
also while considering the request to grant permission under the said Section
should not do so as a necessary formality the grant of it for the mere asking.
It may do so only if it is satisfied on the materials placed before it that the
grant of it sub serves the administration of justice and that permission was
not being sought covertly with an ulterior purpose unconnected with the
vindication of the law which the executive organs are in duty bound to further
and maintain.
What then are the circumstances in which the
permission has been sought in this case and the considerations that weighed
with the Courts in granting that permission. The Public Prosecutor as we have
seen thought that the matter was of a civil nature, that the subject matter of
the case before the Magistrate had been decided in a Civil suit, that witnesses
are from far off places and their evidence will incur huge expenses for the
State; that the case was registered as early as 1963 and the trial has not yet
begun. It is clear that prima facie none of these grounds or even the cumulative
effect of all these grounds would justify the withdrawal from the prosecution.
It may be that the acts of the Respondent may make them both liable under the
Civil law as well as under the Criminal law but it does not justify either the
seeking of the permission to withdraw from the prosecution or granting of it
unless the matter before the Criminal Court is of a purely civil nature. The
accused in this case have been (1) [1957] S.C.R. 279.
607 charged with offences of cheating, of the
forgery of valuable securities with the intention that the documents forged
shall be used for the purpose of cheating, and/or also for using them as
genuine which they know or have reason to believe to be forged documents. The
case of the Respondents was that all this was done with the knowledge of the
complainant with a view to further the practice prevailing to popularise the
transport business. It appears that after the complaint was filed and the
police took cognizance of the offence and investigated it but before the charge-sheet
was filed the Public Prosecutor seems to have expressed the view on 8-6-63 that
a successful prosecution may not be possible under Sec. 467 and 420 because the
matter for which the Respondents were sought to be charged related to a
practice which seems to have prevailed in that Transport Company and in other
Companies as well and in the light of that practice mens rea may not be
established but this opinion did not prevail as he' was directed to file the
charge sheet and accordingly the case proceeded.
A perusal of the committal order will make
this conclusion of ours clear. Before the Magistrate, the learned Advocate had
contended that there was a normal practice that the Company used to issue way
bills without obtaining the goods from the party for the sake of popularising
the Company and that in the circumstances Respondent 1 while issuing the way
bill had no intention to cause damage or to cheat. The Magistrate negatived
this contention and said that he was not able to believe that the Company will
resort to these practices for the sake of such popularity and that it was the
way bills that were issued in Accused 2's name and it was Accused 2 who
obtained the money from the Bank.
Therefore, there was prima facie evidence to
show that goods were not produced at the time of issuing way bills by
Respondent 1 to Respondent 2 and that Respondent 2 was well aware of it when he
drew the money on the way bills from the Bank for the goods he had never
produced for booking.
Knowing that these receipts were forged one
Respondent 2 had got them discounted. It also appears from the committal order
that the prosecution had produced a letter alleged to have been written by
Respondent 2 to Respondent 1 requesting him to issue the way oil mills, a
reading of which the Magistrate said shows that it was a letter written with
the intention of obtaining them. In this view he thought that there was a prima
facie case against the accused and accordingly he framed the charges.
The High Court ignoring the view taken by it in
its previous two Revisions referred to earlier that there was prima facia case
and that there was no illegality in the prosecution, thought that the Public
Prosecutor was right when he applied to the Court for 608 sanction to withdraw
the prosecution on the ground that it might not result in a conviction to which
it further added that there was a long delay of five years and that the
witnesses were not in the locality and have to be brought to Court from
different places. Though it thought that this latter reason may not justify the
abandonment of the prosecution but nevertheless it is said that in view of the
practice prevailing in this Transport Company as well as in other Transport
Companies the chances of successful prosecution were remote. It further thought
that the question of expenses would also become relevant. We think that these
grounds are flimsy and do not justify the granting of permission to withdraw
from the prosecution. In the first place there is nothing to indicate what that
practice was, how it was resorted to and what elements were definition to
constitute the offences for which the Respondents were entitled to be charged
and in the second place nothing had happened since the committal order except
that the several revisions filed by Respondent 1 and Respondent 2 had delayed
the trial which delay by itself cannot be made a ground for according
permission. On the other consideration which weighed with the High Court that a
prosecution would involve a huge expenditure there is no material to show what
amount would be involved if the case was prosecuted nor how many witnesses
would be required to be called from Calcutta and Bombay. On the other hand the
case appears to be mostly hinged on the issue of the Way Bills to Respondent 2
bay Respondent 1 without receipt of goods from Respondent 2 which the
Respondents say was due to the practice followed by the complainant to
popularise its transport business. The execution of the Way Bills by Respondent
1, their issue by him without receipt of the goods and the obtaining of money
by the second Respondent from the Bank by discounting them with it are some of
the elements and except perhaps for the non-receipt of the goods by the people
to whom they were alleged to have been booked, are all dependent on local
witnesses. In any case the expenditure involved is not the sole criterion for
granting permission.
In the view we have taken this appeal is
allowed, the permission granted by the Trial Court and confirmed by the High
Court in Revision is set aside and we direct that the trial do proceed in
accordance with law.
V.P.S.
Appeal allowed.
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