Subhash Chander Vs. State & Ors
[1979] INSC 240 (15 November 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1980 AIR 423 1980 SCR (2) 44 1980
SCC (2) 155
CITATOR INFO :
RF 1980 SC1510 (12) RF 1987 SC 877
(21,25,28,76)
ACT:
Criminal Procedure Code, Sections 321,
494-Scope of.
HEADNOTE:
The petitioner alleged that his house had
been burgled and that many valuables were lost. The police recovered the
property. Eventually, charges were also framed by the trial court against two
other persons who were said to be collaborators.
During the pendency of the criminal case, the
Asstt. Public Prosecutor applied for withdrawal from prosecution under section
321, Cr. P.C. on the ground that on fresh investigation by a senior officer the
alleged search and seizure were discovered to be a frame-up by the concerned
police officer in order to pressurise the accused to withdraw a certain civil
litigation. The court required a fuller application, the Assistant Public
Prosecutor made a fresh and more detailed petition for withdrawal which was
eventually granted by the trial court, despite the petitioner's remonstrance
that the withdrawal was prompted by political influence wielded by the jeweller
leading to instructions from high quarters to the Assistant Public Prosecutor
to withdraw from the case concerning that accused. It was alleged that the
Assistant Public Prosecutor did not apply an independent mind in carrying out
the said instructions. The trial court nevertheless accepted the request of the
Assistant Public Prosecutor and directed acquittal of the jeweller, while
continuing the case against the remaining two accused. The order was
unsuccessfully assailed in revision before the High Court by the petitioner.
By special leave to appeal under Article 136
of the Constitution, it was argued on behalf of the petitioner that (i) a case
which pends in court cannot be subject to a second police investigation without
the judge even knowing about it, (ii) political considerations of the Executive
vitiate the motion for withdrawal of pending proceeding, and (iii) the District
Magistrate's order to withdraw from a case communicated to the Public
Prosecutor and carried out by him, is compliance with section 494.
Dismissing the petition,
HELD: When a crime is committed, the
assessment of guilt and the award of punishment or, alternatively, the
discharge or acquittal of the accused are part of the criminal justice process
administered by the courts of the land. It is not the function of the executive
to administer criminal justice and in our system, judges are not fungible.
[47 A] When a case is pending in a criminal
court, its procedure and progress are governed by the Criminal Procedure Code
or other relevant statute. To intercept and recall an enquiry or trial in a
court, save in the manner and to the extent provided for in the law, is itself
a violation of the law. Whatever needs to be done must be done in accordance
with the law. The function of administering justice, under our constitutional
order, belongs to those entrusted with judicial power. One of the few
exceptions to the uninterrupted flow of the 45 court's process is section 321,
Cr. P.C. But even here it is the Public Prosecutor and not any executive
authority, who is entrusted by the Code with the power to withdraw from a
prosecution, and that also with the consent of the court. To interdict,
intercept or jettison an enquiry or trial in a court, save in the manner and to
the extent provided for in the Code itself, is lawlessness. The even course of
criminal justice cannot be thwarted by the executive, however high the accused,
however sure Government feels a case is false, however, unpalatable the
continuance of the prosecution to the powers-that-be who wish to scuttle court
justice because of hubris, affection or other noble or ignoble consideration.
Among the very few exception to this uninterrupted flow of the court process is
section 494, Cr. P.C. Even here, the Public Prosecutor is entrusted by the Code
with a limited power to withdraw from a prosecution with the court's consent
whereupon the case comes to a close. What the law has ignited, the law alone
shall extinguish. [47 D-H, 48 A] The promotion of law and order is an aspect of
public justice. Grounds of public policy may call for withdrawal of a
prosecution. A prosecution discovered to be false and vexatious cannot be
allowed to proceed. But the power must be cautiously exercised, and the
statutory agency to be satisfied is the Public Prosecutor in the first
instance, not the District Magistrate or other executive authority.
Finally, the consent of the court is
imperative. [48 G-H] There was no evidence to support the allegation of
political influence. At the same time, the District Magistrate acted illegally
in directing the Assistant Public Prosecutor to withdraw. It has been alleged
that the second investigation of the case on the executive side, which led to
the discovery that the earlier investigation was motivated, was vitiated by the
omission to question the first informant. That was a matter for the Assistant
Public Prosecutor to consider when deciding whether or not to withdraw from the
prosecution. It is abundantly clear that the Assistant Public Prosecutor made
an independent decision on the material before him and did not act in blind
compliance with the instructions of the District Magistrate.
[50 F-H, 51 A] The rule of law warns off the
executive authorities from the justicing process in the matter of withdrawal of
cases. Since the courts were satisfied that the Public Prosecutor did not yield
to the directive of the District Magistrate but made an independent study of
informing himself of the materials placed before the court and then sought
permission to withdraw from the prosecution, this court declined to reverse the
order of the courts below. [51 F-H] M.N. Sankaranarayana Nair v. P.V. Bala
Krishna & Ors.
AIR 1972 SC 496: Bansi Lal v. Chandan Lal,
AIR 1976 SC 370:
Balwant Singh & Ors. v. Bihar, AIR 1977
SC 2265, affirmed.
CRIMINAL APPELLATE JURISDICTION: Special
Leave Petition (Criminal) No. 2076 of 1978.
From the Judgment and Order dated 17-3-1978
of the Punjab and Haryana High Court in Criminal Revision No. 181/77) R.L.
Kohli, S.K. Sabharwal and Subhash Chander for the Petitioner.
46 R.N. Sachthey for Respondent No. 1.
Prem Malhotra for Respondent No. 2.
The Order of the Court was delivered by
KRISHNA IYER, J.-What constrains us to explain at some length our reasons for
rejection of leave to appeal in this case is the desideratum that every
executive challenge to justice-in-action is a call to the court to strengthen
public confidence by infusing functional freshness into the relevant law
sufficient to overpower the apprehended evil.
The house of the petitioner is said to have
been burgled and he alleges that he lost many valuables. The police, on
information being laid, searched and recovered the property. Eventually,
charges were framed by the trial court against one Hussan Lal, a jeweller, and
one Madan Lal, an alleged collaborator (respondents Nos. 2 and 3 in this
petition) under s. 411 I.P.C. and one Ashok Kumar under s. 380, I.P.C. During
the pendency of the criminal case, the Assistant Public Prosecutor applied for
withdrawal from prosecution under s. 321, Cr.P.C. on the ground that on fresh
investigation by a senior officer the alleged search and seizure were
discovered to be a frame-up by the concerned police officer in order to
pressurise the accused Hussan Lal to withdraw a certain civil litigation. On
the court requiring a fuller application the Assistant Public Prosecutor made a
fresh and more detailed petition for withdrawal which was eventually granted by
the trial court, despite the petitioner's remonstrance that the withdrawal was
prompted by the political influence wielded by Hussan Lal leading to instructions
from high quarters to the Assistant Public Prosecutor to withdraw from the case
concerning that accused. It was alleged that in carrying out the instructions
the Assistant Public Prosecutor did not apply an independent mind. The court
nevertheless accepted the request of the Assistant Public Prosecutor and
directed acquittal of Hussan Lal, while continuing the case against the
remaining two accused. The order was unsuccessfully assailed in revision before
the High Court by the petitioner. Undaunted by that dismissal, he has moved
this court under Art. 136 of the Constitution. In view of the startling
disclosures on either side we have listened at some length to the oral
submissions in supplementation of the affidavits in the record.
The three focal points of arguments are
whether (i) a case which pends in court can be subject to a second police
investigation without the judge even knowing about it, (ii) political
considerations of the Executive vitiate the motion for withdrawal of pending
proceeding, and (iii) the District Magistrate's order to withdraw from a case
communicated to the Public Prosecutor and carried out by him, is compliance
with s. 494.
47 When a crime is committed in this country,
the assessment of guilt and the award of punishment or, alternatively, the
discharge or acquittal of the accused are part of the criminal justice process
administered by the courts of the land. It is not the function of the executive
to administer criminal justice and in our system, judges are not fungible, as
Justice Dougles in Chandler,(1) asserted:
Judges are not fungible; they cover the
constitutional spectrum; and a particular judge's emphasis may make a world of
difference when it comes to rulings on evidence. the temper of the courtroom,
the tolerance for a proffered defense, and the like.
Lawyers recognize this when they, talk about
'shopping' for a judge; Senators recognize this when they are asked to give
their 'advice and consent' to judicial appointments; laymen recognize this when
they appraise the quality and image of the judiciary in their own
community." When a case is pending in a criminal court its procedure and
progress are governed by the Criminal Procedure Code or other relevant statute
To intercept and recall an enquiry or trial in a court, save in the manner and
to the extent provided for in the law, is itself a violation of the law.
Whatever needs to be done must be done in
accordance with the law. The function of administering justice, under our
constitutional order, belongs to those entrusted with judicial power. One of
the few exceptions to the uninterrupted flow of the court's process is s. 321,
Cr.
P.C. But even here it is the Public
Prosecutor, and not any executive authority, who is entrusted by the Code with
the power to withdraw from a prosecution, and that also with the consent of the
court. We repeat for emphasis. To interdict, intercept or jettison an enquiry
or trial in a court, save in the manner and to the extent provided for in the
Code itself, is lawlessness. The even course of criminal justice cannot be
thwarted by the Executive, however high the accused, however sure Government
feels a case is false, however unpalatable the continuance of the prosecution
to the powers-that-be who wish to scuttle court justice because of hubris,
affection or other noble or ignoble consideration. Justicing, under our
constitutional order, belongs to the judges. Among the very few exceptions to
this uninterrupted flow of the court process is s. 494, Cr.P.C.
Even here, the Public Prosecutor--not any
executive authority-is entrusted by the Code with a limited power to withdraw
from a prosecution, with the (1) Chandler v. Judicial Council of the Tenth
Circuit of the U.S. 308 U.S. 74, 1970.
48 court's consent whereupon the case comes
to a close. What the law has ignited, the law alone shall extinguish.
Although skeletal, the conditions for such
withdrawal are implicit in the provision, besides the general principles which
have been evolved through precedents. Once a prosecution is launched, its
relentless course cannot be halted except on sound considerations germane to
public justice. All public power is a public trust, and the Public Prosecutor
cannot act save in discharge of that public trust, a public trust geared to
public justice. The consent of the court under s. 321 as a condition for
withdrawal is imposed as a check on the exercise. of that power. Consent will
be given only if public justice in the larger sense is promoted rather than
subverted by such withdrawal. That is the essence of the nolle prosequi
jurisprudence.
We wish to stress, since impermissible
influences occasionally infiltrate into this forbidden ground, that court
justice is out of bounds for masters and minions elsewhere. We do not truncate
the amplitude of the public policy behind s. 494 Cr.P.C. but warn off tempting,
adulteration of this policy, taking the public prosecutor for granted. Maybe,
the executive, for plural concerns and diverse reasons, may rightfully desire a
criminal case to be scotched. The fact that broader considerations of public
peace, larger considerations of public justice and even deeper considerations
of promotion of long-lasting security in a locality, of order in a disorderly
situation or harmony in a factious milieu, or halting a false and vexatious
prosecution in a court, persuades the Executive, pro bono pulico, sacrifice a
pending case for a wider benefit, is not ruled out although the power must be
sparingly exercised and the statutory agency to be satisfied is the public
prosecutor, not the District Magistrate or Minister. The concurrence of the
court is necessary. The subsequent discovery of a hoax behind the prosecution
or false basis for the criminal proceeding as is alleged in this case, may well
be a relevant ground for withdrawal. For the court should not be misused to
continue a case conclusively proved to be a counterfeit. This statement of the
law is not exhaustive but is enough for the present purpose and, indeed, is
well-grounded on precedents.
The promotion of law and order is an aspect
of public justice. Grounds of public policy may call for withdrawal of the
prosecution. A prosecution discovered to be false and vexatious cannot be
allowed to proceed. The grounds cover a large canvas. But the power must be
cautiously exercised, and the statutory agency to be satisfied is the Public
Prosecutor in the first instance, not the District Magistrate or other
executive authority. Finally, the consent of the court is imperative. The law
was explained by this Court in M. N. Sankaranarayana Nair v. P. V. Bala
Krishina & Ors.(1) "A reading of Sec. 494 would show that it is the
public prosecutor who is in-charge of the case that must ask for permission of
the Court to withdraw from the prosecution of any person either generally or in
respect of one or more 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 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 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 prosecutor
offenders under the law directs the Public Prosecutor to withdraw from the
prosecution and the Public Prosecutor merely does so at its behest." The
position was confirmed in Bansi Lal v. Chandan Lal(2) and Balwant Singh &
Ors. v. Bihar(3). The law is thus well settled and its application is all that
calls for caution.
In the special situation of this case, two
principles must be hammered home. The decision to withdraw must be of the
Public Prosecutor, not of other authorities, even of those whose displeasure
may affect his continuance in office.
(1) A.I.R. 1972 S.C. 496.
(2) A.I.R. 1976 S.C. 370.
(3) A.I.R. 1977 S.C. 2265.
50 The court is monitor, not servitor, and
must check to see if the essentials of the law are not breached, without, of
course, crippling or usurping the power of the public prosecutor. The two
matters which are significant are (a) whether the considerations are germane,
and (b) whether the actual decision was made or only obeyed by the Public
Prosecutor.
In the setting of the present facts, the
enquiry must be whether the considerations on which withdrawal was sought by
the Assistant Public Prosecutor were germane and pertinent, and whether the
actual decision to withdraw was made by the Assistant Public Prosecutor or was
the result of blind compliance with executive authority. If it appears from the
material before the Court that germane or relevant considerations did not
prompt the motion for withdrawal but it was the pressure of political influence,
the Court will withhold its consent.
The functionary clothed by the Code with the
power to withdraw from the prosecution is the Public Prosecutor. The Public
Prosecutor is not the executive, nor a flunkey of political power. Invested by
the statute with a discretion to withdraw or not to withdraw, it is for him to
apply an independent mind and exercise his discretion. In doing so, he acts as
a limb of the judicative process, not as an extension of the executive.
In the present case, it appears that when the
court commenced proceedings, the accused Hussan Lal complained to higher police
officers that the concerned Assistant Sub- Inspector had initiated the case
merely for the purpose of putting pressure on him to compromise a suit against
a close relative. The allegations were enquired into by a senior officer and
the District Magistrate, on the basis of the material coming to light, directed
disciplinary action against the Assistant Sub-Inspector and instructed the
Assistant Public Prosecutor to withdraw from the case against Hussan Lal. We
find no evidence to support the allegations of political influence. At the same
time, it is necessary to point out that the District Magistrate acted illegally
in directing the Assistant Public Prosecutor to withdraw. It has been alleged
that the second investigation of the case on the executive side, which led to
the discovery that the earlier investigation was motivated, was vitiated by the
omission to question the first informant.
That was a matter for the Assistant Public
Prosecutor to consider when deciding whether or not to withdraw from the
prosecution.
On the principal question arising in this
case, the record shows that the Public Prosecutor applied his mind to the
disclosures emerging from the second enquiry, and he found that "even the
recovery wit- 51 nesses Sarvashri Mato Ram and Phool Singh did not support that
they had witnessed the recovery or any disclosure statement was made in their
presence by Madan Lal accused." He found that Phool Singh at the relevant
time was bed- ridden and had since expired. He also discovered that Mato Ram
had stated that nothing had happened in his presence but his signatures were
obtained by the Investigating Officer.
It is abundantly clear that the Assistant
Public Prosecutor made an independent decision on the material before him and
did not act in blind compliance with the instructions of the District
Magistrate.
We cannot dispose of this petition without
drawing attention to the very disturbing presence of the District Magistrate in
the withdrawal proceedings. The jurisprudence of genuflexion is alien to our
system and the law expects every repository of power to do his duty by the
Constitution and the laws, regardless of commands, directives, threats and
temptations. The Code is the master for the criminal process. Any authority who
coerces or orders or pressurises 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.
The District Magistrate who is an Executive
Officer is not the Public Prosecutor and cannot dictate to him either.
Maybe, the officer had not apprised himself
of the autonomous position of the Public Prosecutor or of the impropriety of
his intrusion into the Public Prosecutor's discretion by making an order of
withdrawal. Similar mistakes are becoming commoner at various levels and that
is why we have had to make the position of law perfectly clear.
We emphasise that the rule of law warns off
the executive authorities from the justicing process in the matter of
withdrawal of cases. Since we are satisfied that the Public Prosecutor did not
yield to the directive of the District Magistrate but made an independent study
of informing himself of the materials placed before the court and then sought
permission to withdraw from the prosecution, we decline to reverse the order
passed by the courts below.
52 This trial court was satisfied that the
Assistant Public Prosecutor had not exercised the power of withdrawal for any
illegitimate purpose and the High Court endorsed that conclusion. We are not
disposed to interfere with the order of the High Court.
One obvious grievance of the petitioner
deserves to be remedied. He is interested in getting back his stolen goods.
The accused claims no property in the goods.
In the event of the complainant identifying them as his property, the trial
court will consider passing appropriate orders for their return to him. Surely,
criminal justice has many dimensions beyond conviction and sentence, acquittal
and innocence. The victim is not to be forgotten but must be restored to the extent
possible.
The petition is rejected.
N.K.A.
Petition dismissed.
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