Abdul Karim Vs. The State of Karnataka & Ors  INSC 537 (7 November
I have gone through the elaborate and learned judgment prepared by my brother
Justice S.P. Bharucha. I respectfully agree that the orders granting consent on
the special Public Prosecutor's Applications do not meet the requirements of
Section 321 of the Code of Criminal Procedure (for short, `Cr.P.C.') and the
orders are bad in law. The questions raised in these matters have wide ranging
repercussions regarding the scope of Section 321 Cr.P.C. and what is required
to be considered by the Public Prosecutor before consent of court is sought
under Section 321 to withdraw from the prosecution of any person. I record
these additional reasons for concurring with decision arrived at by Justice Bharucha
and Justice Mohapatra.
facts in detail have been set out in the judgment of Justice Bharucha and it is
unnecessary to repeat them except to briefly notice the broad admitted and/or
well established facts for appreciating the points involved. They are as under
is a dreaded criminal and despite various attempts over a number of years could
not be apprehended.(B) Veerappan and his associates are alleged to be responsible for killing of a large number
of people (over 100) including Police personnel, Forest personnel and others
besides being responsible for causing injuries to a large number of people and
loss of property to the tune of crores of rupees.
and his gang members hatched a conspiracy to kill Superintendent of Police, Mysore
District, Shri Harikrishna and Sub-Inspector of Police of MM Hills Shri Shakeel
Ahmed and other Police personnel who had been to nab Veerappan with a view to terrorise
the Police force and to put fear of death into the minds of Policemen who were
performing duty in attempting to arrest the wanted persons.
charges relating to murder, ambush, attempt to overawe the Government of
Karnataka, killing of elephants, smuggling of Sandal wood etc. from the forest,
possession of arms and ammunition, opening of fire on task force personnel,
have been framed against accused who are said to be the associates of Veerappan.
Cases filed against them are under the provisions of Terrorist and Disruptive
Activities Act (TADA) and other penal provisions, i.e., Indian Penal Code, Arms
Act and Explosive Substances Act.
their source information police authorities had learnt that Veerappan intended
to kidnap Rajkumar during his visit to his farmhouse in Gajanoor. More than a
year back, Director General of Police of the State of Karnataka had informed the Inspector General
of Police of the State of Tamil Nadu
requesting for adequate security arrangements being made for Rajkumar whenever
he visited the said farm house.
is a very popular film actor of Karnataka.
case any harm is caused to Rajkumar, there may be backlash on Tamils in
Karnataka and it may lead to problems between the two linguistic communities in
the States. The people may indulge in acts of violence.
30th July, 2000, Veerappan abducted Rajkumar from
his farm house along with three others. As of today, Rajkumar and one Nag esh
are still in Veerappan's custody.
Police protection or security was provided when Rajkumar visited the farm
Soon after the abduction of Rajkumar and others, the two State Governments
decided to accept the demands of Veerappan to release those in respect of whom
TADA charges and detention orders under the National Security Act have been
withdrawn. The decision was taken in the meeting held on 4/5th August, 2000 between the Chief Ministers of the
Applications under Section 321 Cr.P.C. seeking consent of court to withdraw
TADA charges were filed to facilitate ultimately the release of accused persons from judicial
custody so as to meet Veerappan's demand. The arrangement was that once TADA
charges are withdrawn, the accused in judicial custody will move bail
applications in cases of offences under IPC and other penal enactments. The
Public Prosecutor will concede and will not oppose the grant of bail. The court
will grant the bail and, thus, accused will come out from judicial custody and,
thus, this demand of Veerappan would be met.
in view the aforesaid facts, let me now revert to application filed under
Section 321 Cr.P.C. The application filed under Section 321 has been reproduced in extenso in the
judgment of Justice Bharucha. The application makes no reference whatsoever to
any such arrangement as mentioned at (I) above. The main ground stated in the
application is that in order to restore the peace and normalcy in the border
area and among the people living in the border area and to maintain peace among
the public at general and inhabitants of the particular village, the Prosecutor
has decided to withdraw from the prosecution the accused charged of the
offences punishable under Sections 3, 4 and 5 of the TADA. Abdul Karim, father
of Shakeel Ahmed, opposed the application on various grounds, inter alia,
stating in the objection petition that if the cases against the hardcore
criminals are withdrawn or if they are released on bail that may expose the
families of the victims to terror unleashed by the TADA detenus, who may
unleash terror and jeopardize public order and cause detriment to the general
public interest. In reply to the said objections, instead of admitting that
TADA charges are being withdrawn to facilitate grant of bail, the stand taken
by the Public Prosecutor, inter alia, is that Veerappan and his associates will
not be let out freely as they will be facing prosecution for other offences
and, therefore, the submission that the State Government has yielded to
blackmail tactics of outlaw Veerappan is not correct.
Public Prosecutor has to be straight, forthright and honest and has to admit
the arrangement and inform the court that the real arrangement is to ultimately
facilitate the release of these accused from judicial custody by not opposing
the bail applications after the withdrawal of TADA charges. The arrangement as
set out above has neither been disputed nor is it capable of being disputed. It
is well established that real purpose for withdrawal of TADA charges was to
facilitate the grant of bail to the accused. In such circumstances, why the
camouflage? Why it is not so stated in the application filed under Section 321?
In fact, it is a deceit. These are the questions for which there is no
plausible answer. No court of law can be a party to such a camouflage and
deceit in judicial proceedings. The answer to these basic questions cannot be
that the judge knew about it from the very nature of the case. Under these
circumstances, it cannot be said that the application was made in good faith.
The satisfaction for moving an application under Section 321 Cr.P.C. has to be
of the Public Prosecutor which in the nature of the case in hand has to be
based on the material provided by the State. The nature of the power to be
exercised by the Court while deciding application under Section 321 is
delineated by the decision of this Court in Sheonandan Paswan v. State of Bihar
& Ors. [(1987) 1 SCC 288]. This decision holds that grant of consent by the
court is not a matter of course and when such an application is filed by the
Public Prosecutor after taking into consideration the material before him, the
court exercises its judicial discretion by considering such material and on
such consideration either gives consent or declines consent. It also lays down
that the court has to see that the application is made in good faith, in the
interest of public policy and justice and not to thwart or stifle the process
of law or suffers from such improprieties or illegalities as to cause manifest
injustice if consent is given. True, the power of the court under Section 321
is supervisory but that does not mean that while exercising that power, the
consent has to be granted on mere asking.
court has to examine that all relevant aspects have been taken into
consideration by the Public Prosecutor and/or by the Government in exercise of
its executive function.
the eight questions noticed in the main judgment, the question and aspect of
association of Veerappan with those having secessionist aspirations were also
not considered. Further though it may have been considered as to what happened
on 1st August, immediately after the abduction of Rajkumar, but what does not
seem to have been considered is that those were spontaneous outburst and the
authorities may have been taken unaware but what would be the ground realities
when the law enforcing agencies have sufficient time to prepare for any
application and order under Section 321 is a result of panic reaction by
overzealous persons without proper understanding of the problem and
consideration of the relevant material, though they may not have any personal
motive. It does not appear that anybody considered that if democratically
elected governments give an impression to the citizens of this country of being
lawbreakers, would it not breed contempt for law; would it not invite citizens
to become a law onto themselves. It may lead to anarchy. The Governments have
to consider and balance the choice between maintenance of law and order and
anarchy. It does not appear that anyone considered this aspect. It yielded to
the pressure tactics of those who according to the Government are out to terrorise
the Police force and to overawe the elected Governments. It does not appear
that anyone considered that with their action people may lose faith in the
democratic process, when they see public authority flouted and the helplessness
of the Government.
aspect of paralysing and discrediting the democratic authority had to be taken
into consideration. It is the executive function to decide in public interest
to withdraw from prosecution as claimed. But it is also for the Government to
maintain its existence. The self-preservation is the most pervasive aspect of
sovereignty. To preserve its independence and territories is the highest duty
of every nation and to attain these ends nearly all other considerations are to
be subordinated. Of course, it is for the State to consi der these aspects and take
a conscious decision. In the present case, without withdraw consideration of
these aspects the decision was taken to the TADA charges. It is evident from
material now placed on record before this Court that Veerappan was acting in
consultation with secessionist organisations/groups which had the object of
liberation of Tamil from India. There is no serious challenge to
this aspect. None of the aforesaid aspects were considered by the Government or
the Public Prosecutors before having recourse to Section 321 Cr.P.C.
these additional reasons, I am in complete respectful agreement with the
conclusion and opinion of my senior colleague Hon'ble Mr.Justice S.P. Bharucha.