R.M Tewari,
Advocate Vs. State (NCT of Delhi) &
Ors [1996] INSC 294 (20
February 1996)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Venkataswami K. (J) J. S. Verma. J.
:
CITATION:
1996 AIR 2047 1996 SCC (2) 610 JT 1996 (2) 657 1996 SCALE (2)389
ACT:
HEAD NOTE:
AND
CRIMINAL APPEAL No. 250 OF 1996 (arising out of Special Leave Petition (Crl.)
No 701 of 1995) Govt. of N.C.T., Delhi V. Judge, Designated Court II (TADA) AND
CRIMINAL APPEAL NO. 251 OF 1996 (arising out of Special Leave Petition (Crl.)
No. 1268 of 1995) Mohd. Mehfooz V. Chief Secretary & Anr.
Leave
granted in special leave petitions.
In Kartar
Singh etc. vs. State of Punjab etc., (1994) 3 SCC 569, the Constitution Bench
while upholding the constitutional validity of the provisions in the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA
Act") except Section 22 therein, noticed the general perception that there
was some misuse of the stringent provisions by the authorities concerned. To
prevent any possible misuse of the stringent provisions, the Constitution Bench
suggested a strict review of these cases in its observations made as under :
"In
order to ensure higher level of scrutiny and applicability of TADA Act, there
must be a screening Committee or a Review Committee constituted by the Central
Government consisting of the Home Secretary, Law Secretary and other
secretaries concerned of the various Departments to review all the TADA cases
instituted by the Central Government as well as to have a quarterly administrative
review, reviewing the States' action in the application of the TADA provisions
in the respective States, and the incidental questions arising in relation
thereto. Similarly, There must be a Screening or Review Committee at the State
level constituted by the respective States consisting of the Chief Secretary,
Home Secretarys Law Secretary,Director General of Police (Law and Order) and
other officials as the respective Government may think it fit, to review the
action of the enforcing authorities under the Act and screen the cases
registered under the provisions of the Act and decide the further course of
action in every matter and so on." ( at page 683 ) It appears that in
compliance with the above observations of this Court in Kartar Singh (supra), a
Screening Committee or a Review Committee was constituted by the Government in
several States including Delhi. A High Power Committee under the
Chairmanship of the Chief Secretary of Delhi reviewed the prosecutions made under the TADA Act and the Government of
Delhi conveyed its approval to the Director of Prosecution, Delhi for deletion of the charges under
the TADA Act in the specified criminal cases pending before the Designated Court. The learned Special Additional
Public Prosecutor filed applications in the Designated Court for withdrawal of charges under the TADA Act in all those
cases pending in the Desionated
Court. It appears
that the only reason assigned for withdrawal of charges under the TADA Act by
the learned Public Prosecutor was the recommendation of the High Power
Committee which was constituted to review the cases in accordance with the
observations of this Court in Kartar Singh. The Deasignated Court dismissed those applications taking ths view that
administrative decisions cannot interfere with the working of the judicial
system. Apparently, the view taken is that a mere administrative decision taken
on the basis of the recommendation of the Review Committee is not sufficient to
permit withdrawal of a criminal prosecution pending in a court of law.
The
appeals by special leave challenge the orders of the Designated Court and the writ petition by an
advocate, in public interest, is for a direction to the Designated Court to permit withdrawal of all
prosecutions recommended by the Review Committee.
The
scope of Section 321 of Code of Criminal Procedure, 1973 (Cr P.C.) dealing with
withdrawal from prosecution is settled by decisions of this Court. In State of Orissa vs. Chandrika Mohapatra and Others,
(1976) 4 SCC 250, the scope was indicated as under :
"Now
the law as to when consent to withdrawal of prosecution should be accorded
under Section 494 of the Code of Criminal Procedure is well settled as a result
of several decisions of this Court. The first case in which this question came
up for consideration was State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 ...
It was
pointed out by this Court in that case that in granting consent to withdrawal
from prosecution the court undoubtedly exercises judicial discretion, but it
does not follow that the discretion is to be exercised only with reference to
material gathered by the judicial method. . ...." ( at pase 252 ) "It
will, therefore, be seen 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 sousht 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. The ultimate guiding consideration must
always be the interest of administration of justice and that is the touchstone
on which the question must be determined whether the prosecution should be
allowed to be withdrawn." ( at Page 253 ) In Sheonandan Paswan vs. State
of Bihar & Others, [1983] 2 SCR 61, it was reiterated as under :
"From
the aforesaid enunciation of the legal position governing the proper exercise
of the power contained in s. 321, three or four things become amply clear. In
the first place though it is an executive function of the Public Prosecutor for
which statutory discretion is vested in him, the discretion is neither absolute
nor unreviewable but it is subject to the Court's supervisory function.
In
fact being an executive function it would be subject to a judicial review on
certain limited grounds like any other executive action, the authority with
whom the discretion is vested "must genuinely address itself to the matter
before it, must not act under the dictates of another body must not do what it
has been forbidden to do, must act in good faith, must have regard to all
relevant considerations and must not be swayed by irrelevant considerations,
must not seek to promote purposes alien to the letter or to the spirit of the
legislation that gives it power to act and not must act arbitrarily or capriciously
... These several principles can conveniently be grouped in two main categories
:
failure
to exercise a discretion, and excess or abuse of discretionary poser. The two
classes are not, however, mutually exclusive." (vide de Smith's Judicial
Review of Administrative Action 4th Edition pp. 285-86)." ( at pages 81-82
) "Fourthly, the decision in R.K. Jain's case (supra) clearly shows that
when paucity of evidence or lack of prospect of successful prosecution is the
ground for withdrawal the court has not merely the power but a duty to examine
the material on record without which the validity and propriety of such ground
cannot be determined. ' (at page 83) It is, therefore, clear that the
Designated Court was right in taking the view that withdrawal from prosecution
is not to be permitted mechanically by the court on an application for that
purpose made by the Public Prosecutor.
It is
equally clear that the Public Prosecutor also has not to act mechanlcally in
the discharge of his statutory function under Section 321 Cr.P.C. on such a
recommendation being made by the Review Committee; and that it is the duty of
the Public Prosecutor to satisfy himself that it is a fit case for withdrawal
from prosecution before he seeks the consent of the court for that purpose.
It
appears that in these matters, the Public Prosecutor did not fully appreciate
the requirements offection 321 Cr.P.C. and made the applications for withdrawal
from prosecution only on the basis of the recommendations of the Review
Committee. It was necessary for the Public Prosecutor to satisfy himself in
each case that the case is fit for withdrawal from prosecution in accordance
with the settled principles indicated in the decisions of this Court and then
to satisfy the Designated Court of the existence of a ground which permits
withdrawal from prosecution under Section 321 C P Cr .
It
would now be open to the Public Prosecutor to apply for withdrawal from
prosecution under Section 321 Cr.P C in accordance with law on any ground
available according to the settled principles; and on such an application being
made, the Designated
Court would decide
the same in accordance with law.
The
observations in Kartar Sinsh have to be understood in the context in which they
were made It was observed that a review of the cases should be made by a High
Power Committee to ensure that there was no misuse of the stringent provisions
of the TADA Act and any case in which resort to the TADA Act was found to be
unwarranted, the necessary remedial measures should be taken. The Review
Committee is expected to perform its functions in this manner. If the
recommendation of the Review Committee, based on the material present, is,that
resort to provisions of the TADA Act is unwarranted for any reason which
Permits withdrawal from prosecution for those offences, a suitable application
made under Section 321 Cr.P.C. on that ground has to be considered and decided
by the Designated Court giving due weight to the opinion formed by the Public
Prosecutor on the basis of the recommendation of the High Power Committee.
It has
also to be borne in mind that the initial invocation of the stringent
provisions of the TADA Act is itself subject to sanction of the Government and,
therefore, the revised opinion of the Government formed on the basis of the
recommendation of the High Power Committee after scruting of each case should
not be lightly disregarded by the court except for weighty reasons such as malafides
or manifest arbitrariness. The worth of the material to support the charge
under the TADA Act and the evidence which can be produced, is likely to be
known to the prosecuting agency and, therefore, mere existence of Prima facig
material to support the framing of the charge should not by itself be treated
as sufficient to refuse the consent for withdrawal from prosecution. It is in
this manner an application made to withdraw the charges of offences under the
TADA Act pursuant to review of a case by the Review Committee has to be
considered and decided by the Designated Courts.
The
applications made under Section 321 Cr.P.C. not having been decided on the
basis indicated above, fresh applications made in all such cases pursuant to
the recommendations of the Review Committee or the revised opinion of the
Government have to be considered and decided by the Designated Courts in the
manner indicated above.
By an
order dated 4.5.1995 made by this Court in these matters, it was directed that
the Designated Court would consider the bail applications of all accused
persons in respect of whom a prayer had been made for withdrawal of charges
framed under the provisions of the TADA Act on merits in accordance with law,
after excluding from consideration the accusation relating to charges under the
provisions of the TADA Act. The bail granted to all such accused persons
pursuant to that order would continue till conclusion of the trial in each
case.
The
writ petition and the appeals are disposed of accordingly.
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