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PETITIONER: SHEONANDAN PASWAN

       Vs.

RESPONDENT: STATE OF BIHAR & OTHERS

DATE OF JUDGMENT16/12/1982

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. ISLAM, BAHARUL (J) MISRA, R.B. (J)

CITATION:  1983 AIR  194            1983 SCR  (2)  61  1983 SCC  (1) 438        1982 SCALE  (2)1241  CITATOR INFO :  APL        1987 SC 877  (38,52,62,83)  RF         1992 SC 604  (140)

ACT:      A.   Nolles Prosequi-Nature  and scope  of power  under           section 321  of the  Code of  Criminal  Procedure,           1973-In the  discharge of  his duties,  whether  a           public prosecutor, who is always instructed by the           Government can be said to be free and independent.      B.   Special   Public   Prosecutor,   appointment   of-           Appointment  of   Special  Public   Prosecutor  to           conduct the  case in  question without  cancelling           the appointment of an earlier appointee-Competency           of the latter appointee applying for withdrawal of           the  case,   Code  of  Criminal  Procedure,  1973,           Sections 24 (8) and 321.      C.   Code  of  Criminal  Procedure,  1973-Section  321-           Grounds for  withdrawal  from  prosecution-Whether           the grounds like (a) implication of the accused as           a result  of personal  and political vendetta, (b)           inexpediency of  prosecution for  reasons of State           and Public  policy, and  (c) adverse effects which           the  continuance  of  prosecution  will  bring  on           public  interest   etc.  would   be  relevant  for           withdrawing from the prosecution.      D.   Nolles Prosequi-Accused  charged with  offences of           criminal  misconduct   and  forgery-Permission  to           withdraw on  an application  made on the ground of           lack of  prospect of successful prosecution in the           light  of   the  evidence   on  record-High  Court           confirming  the  said  order-Interference  by  the           Supreme Court under Article 136.

HEADNOTE:      After  obtaining   the  requisite   sanction  from  the Governor on  19th February, 1979, a chargesheet in Vigilance P.S. case  no. 9  (2) 78  was filed  by the  State of  Bihar against Respondent  No 2  (Dr. Jagannath Mishra), Respondent no. 3 (Nawal Kishore Sinha), Respondent no. 4 (Jiwanand Jha) and three  others (K.P.  Gupta since  deceased, M.A. Haidari and A.K.  Singh who  later became  approvers)  for  offences

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under  Sections   420/466/471/109/120-B  I.P.C.   and  under Section 5 (1) (a), 5 (1) (b) and 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge against the respondent no. 2, was that all  times material  he was  either a  Minister or  the Chief Minister  of Bihar and in that capacity by corrupt and or illegal  means or  by otherwise abusing his position as a public servant, he, in conspiracy with the other accused and with a  view to  protect Nawal Kishore Sinha, in particular, sought to subvert criminal prosecution and surcharge 62 proceedings against  Nawal Kishore  Sinha  and  others,  and either obtained  for himself  or conferred on them pecuniary advantage to the detriment of Patna Urban Co-operative Bank, its members,  depositors and creditors and thereby committed the offence  of criminal  misconduct under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and  in  that  process  committed  the  other  offences specified in  the charge-sheet,  including the  offences  of forgery under  section 466 I.P.C. Cognizance of the case was taken on  21st November,  1979 by the learned Chief Judicial Magistrate-cum-Special Judge  (Vigilance)Patna,  who  issued process against  the accused, but before the trial commenced the State  Government, at  the instance of Respondent no. 2, who in  the meantime  had come  to power  and had become the Chief Minister; took a decision in February 1981 to withdraw from the prosecution for reasons of State and Public Policy. Though initially  Shri Awadesh  Kumar Dutt,  Senior Advocate Patna High  Court, had  been appointed  as a  Special Public Prosecutor by  the previous  Government for  conducting  the case, the  State Government (now headed by Respondent no. 2) without cancelling Shri Dutt’s appointment as Special Public Prosecutor, on  24th February 1981 constituted a fresh panel of lawyers  for conducting  cases  pertaining  to  Vigilance Department. Sri  Lalan Prasad Sinha, one of the Advocates so appointed on  the fresh panel was allotted the said case and was informed  of the  Government’s said decision and on 26th March, 1981,  he was  further requested  to take  steps  for withdrawal of  the case  after he  had considered the matter and satisfied  himself about  it. On  17th June,  1981,  Sri Lalan Prasad  Sinha made  an application  under Section  321 Crl. P.C.  1973 to  the Special  Judge seeking permission to withdraw from  the prosecution of Respondent Nos. 2, 3 and 4 in the case on four grounds: namely, (a) Lack of prospect of successful prosecution  in the  light of  the evidence,  (b) Implication of  the persons  as a  result of  political  and personal vendetta,  (c) Inexpediency  of the prosecution for the reasons  of the State and Public Policy; and (d) Adverse effects that  the continuance  of the prosecution will bring on public  interest in  the light  of the changed situation. The learned  Special Judge by his order dated 20th June 1981 granted the  permission.  A  Criminal  Revision  No.  874/81 preferred by  the  appellant  against  the  said  order  was dismissed in  limine by  the High  Court on  14th September, 1981. Hence the approval by Special Leave of the Court.      Allowing the Appeal, the Court ^      HELD: (i)  Lalan Prasad Sinha was the competent officer entitled to  apply for  the withdrawal from the prosecution, there being no infirmity in his appointment. [155 B-C]      (ii) He  did  apply  his  mind  and  came  to  his  own conclusions before making the application for the withdrawal from the prosecution. [149 G]      Per majority (Baharul Islam and Misra JJ, Tulzapurkar J dissenting)

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    The executive  function of the Public Prosecutor and or the supervisory  function of the trial court in granting its consent to  the withdrawal  have been properly performed and not vitiated by reason of any illegality. [143E-158A] 63      Per Tulzapurkar  J (Concurring  with Baharul  Islam and Misra JJ.)      1:1 Sri  Lalan Prasad  Sinha was  the competent officer entitled to  apply for  the withdrawal from the prosecution. [84 E. 85 F]      2:2 It  is true  that the  appointment  of  the  former prosecutor, in  the  instant  case,  made  by  the  previous government to  conduct the  case in  question had  not  been cancelled, though  in fitness  of things it should have been cancelled but  that did  not prevent  the new  government to make a  fresh appointment  of a Public Prosecutor and to put him  in   charge  of   the  case.   Appointments  of  Public Prosecutors generally  fall under Section 24 (3) of the Code of  Criminal   Procedure,  but  when  the  State  Government appoints public  prosecutors for  the purpose of any case or class  of   cases,  the  appointees  became  Special  Public Prosecutors under Section 24 (8) of the Code. [85 B-D]      1:2 Further  it cannot  be  disputed  that  the  former prosecutor not  having appeared  before the Special Judge at any stage  of the hearing was never incharge of the case not in the  actual conduct of the case; on the other hand, after the allotment  of this  case to him, the latter was incharge of the  case and  was actually conducting the case he having admittedly appeared  in the  case at least on four occasions before the Special Judge. [85 D-F]      State of  Punjab v.  Surjeet Singh  and Anr.,  [1967] 2 S.C.R. 347;  M.N.S. Nair v. P.V. Balakrishnan and Ors [1972] 2 S.C.R. 599, followed.      1:3 It  is true  that, in  the instant  case, the State Government had  taken its  own decision to withdraw from the prosecution in  the case  against the accused persons and it is also  true that the said decision was communicated to the Public Prosecutor,  but if  the  letters  communicating  the decision are  carefully scrutinised,  it will  be clear that the State  Government merely  suggested him  (which  it  was entitled to  do) to withdraw from the prosecution but at the same time  asked him  to consider  the matter on his own and after  satisfying   himself  about  it  make  the  necessary application which  he did, and there is no material to doubt the recital  that is  found in  the application  that he had himself considered  relevant materials  connected  with  the case and had come to his own conclusions in that behalf. [86 D-F]      2. From  the Supreme  Court’s enunciation  of the legal position  governing   the  proper   exercise  of  the  power contained in  Section 321, three or four things became clear :      (i) Though  withdrawal from prosecution 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

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the letter  or the  spirit of  the legislation that gives it power to act arbitrarily or capriciously." [81 E-H, 82A] 64      (ii) Since  the trial  court’s supervisory  function of either granting  or refusing  to grant  the permission  is a judicial function  the same  is liable  to correction by the High Court  under its  revisional powers  both under the old and present  Code of  Criminal Procedure,  and naturally the Supreme Court  would have  at least coextensive jurisdiction with the  High Court in an appeal preferred to it by special leave or upon a certificate by the High Court. [82 B-D]      (iii) No  dichotomy as  such between political offences or the  like on  the one  hand and  common law crimes on the other could  be said  to have been made by the Supreme Court for purposes  of Section  321, for,  even in what are called political  offences  or  the  like,  committing  common  law crimes, is implicit, for the withdrawal from the prosecution of which  the power under Section 321 has to be resorted to. But the  decisions do  lay down  that when common law crimes are motivated  by political  ambitions or  considerations or they  are   committed  during   or  are   followed  by  mass agitations, communal frenzies, regional disputes, industrial conflicts,  student  unrest  or  like  situations  involving emotive issues  giving rise to an atmosphere surcharged with violence, the  broader cause of public justice, public order and peace  may outweigh the public interest of administering criminal justice  in a  particular litigation and withdrawal from  the   prosecution  of  that  litigation  would  become necessary, a  certainty of  conviction notwithstanding,  and persistence in  the prosecution  in the  name of vindicating the law  may prove  counter-productive. In  other words,  in case of  such conflict  between  the  two  types  of  public interests, the  narrower public interest should yield to the broader public  interest, and, therefore, an onerous duty is cast upon  the  court  to  weigh  and  decide  which  public interest should  prevail in  each  case  while  granting  or refusing to  grant its  consent to  the withdrawal  from the prosecution. For,  it is  not invariably that whenever crime is politically  motivated or  is committed in or is followed by any  explosive situation involving emotive issue that the prosecution must  be withdrawn. In other words, in each case of  such   conflict  the  court  has  to  weigh  and  decide judiciously. But  it is  obvious that  unless the  crimes in question are  per se political offences like sedition or are motivated  by  political  considerations  or  are  committed during  or   are  followed   by  mass  agitations,  communal frenzies, regional  disputes, industrial  conflicts, student unrest or  the  like  situations  involving  emotive  issues giving rise  to an  atmosphere surcharged  with violence, no question of  serving any  broader cause  of public  justice, public order or peace would arise and in the absence thereof the public  interest of  administering criminal justice in a given  case   cannot  be   permitted   to   be   sacrificed, particularly  when  a  highly  placed  person  is  allegedly involved in  the crime,  as otherwise the common man’s faith in the rule of law and democratic values would be sheltered. [82 D-H, 83 A-D]      (iv) 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. [83 D-E]      State of  Bihar v.  Ram Naresh  Pandey, [1957] SCR 279; State of  Orissa v.  Chandrika Mohopatra  and Ors., [1977] 1 SCR 335;  Balwant Singh and Ors. v. State of Bihar, [1978] 1

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SCR 604;  R.K. Jain  v. State, [1980] 3 SCR 982; M.N.S. Nair v. P.V.  Balakrishnan and  Ors, [1972]  2 S.CR 599, referred to. 65      3:1 In  the light  of the legal principles, it would be clear, that  this Vigilance  P.S. case  9 (2)  (78) being an ordinary criminal  case involving  the commission  of common law  crimes  of  bribery  and  forgery  in  ordinary  normal circumstances with self-aggrandisement or favouritism as the motivating forces,  grounds (b),  (c) and  (d) stated in the application for withdrawal were irrelevant and extraneous to the issue  of withdrawal and since admittedly these were the considerations which  unquestionably influenced the decision of the  Public Prosecutor  in seeking the withdrawal as well as the  decision of the trial court to grant the permission, the impugned withdrawal of Vigilance P.S. case 9 (2) 78 from the prosecution would stand vitiated in law. [87 H, 88 A, G- H, 89 A-B]      3:2  Admittedly,  the  offences  of  bribery  (criminal misconduct)  and   forgery  which  are  said  to  have  been committed by  Respondent No.  2 in conspiracy with the other accused  are   ordinary  common  law  crimes  and  were  not committed  during   nor  were  they  followed  by  any  mass agitation  or   communal  frenzy   or  regional  dispute  or industrial conflict  or student unrest or the like explosive situation involving  any emotive  issue giving  rise to  any surcharged atmosphere  of violence;  further  it  cannot  be disputed that  these are  not per  se political offences nor were  they   committed  out   of  any  political  motivation whatsoever; in  fact the  motivating force  behind them  was merely to  give protection  to and  shield Sri Nawal Kishore Sinha, a  close friend,  from  criminal  as  well  as  civil liability-a favouritism  amounting  to  criminal  misconduct allegedly indulged  in by  Respondent No.  2 by  abusing his position as  a Minister  or  Chief  Minister  of  Bihar.  If therefore, the  offences did  not partake  of any  political character  nor   were  committed  in  nor  followed  by  any explosive situation  involving emotive  issue giving rise to any surcharged  atmosphere of  violence, no question serving any broader  cause of  public justice, public order or peace could arise  and in  absence thereof  the public interest of administering criminal justice in this particular case could not be permitted to be sacrificed. [88 C-F]      3:3. No  results of  any election,  howsoever sweeping, can be  construed as  the people’s  mandate  to  condone  or compound the  common law crimes allegedly committed by those who have been returned to power; in fact such interpretation of the  mandate would  be contrary to all democratic canons. Success at  hustings is  no licence  to sweep all dirt under the carpet and enjoy the fruits nonchalantly. Therefore, the plea of  change  in  the  situation  brought  about  by  the elections  putting  Respondent  No.  2  in  power  as  Chief Minister and  prosecution against  the head  of State  would have had adverse effects on public interest including public order and  peace is  misplaced. At  the worst,  all that can happen is  that Respondent  No. 2 will have to step down and nothing more.  Any fear of destabilisation of the Government is entirely  misplaced. On  the other  hand, withdrawal from the prosecution  of such  offences would  interfere with the normal course  of administration  of  criminal  justice  and since Respondent  No. 2  is placed  in a  high position, the same is  bound to  affect the common man’s faith in the rule of law  and administration  of justice. Further if the proof of the  offences said  to have  been committed by Respondent No. 2,  in  conspiracy  with  the  other  accused  based  on

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undisputed and  genuine documentary evidence, no question of political and  personal vendetta  or unfair  and overzealous investigation would arise. [89 D-H, 90 A] 66      3:4 The  documentary  evidence,  comprising  the  Audit Reports, the  relevant notings in the concerned file and the two orders of the Respondent No. 2, 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  incidental offence  of forgery  under Section 466  I.P.C. for  antedating the  second  order.  The question of  "paucity  of  evidence",  therefore,  does  not arise. The  trial court  failed, therefore,  in its  duty to examine  this   before  permitting   the   withdrawal   from prosecution. [101 C-E, H, 102 A]      3:5  Yet  another  legal  infirmity  attaching  to  the executive function  of the  Public Prosecutor as well as the supervisory judicial function of the trial court which would vitiate the  final order  is that  while the charge-sheet is under sub-clauses  (a), (b)  and (d)  of Section  5 (1) read with Section 5 (2) of the Prevention of Corruption Act along with other offences under the Penal Code, in the application for withdrawal  and during  the submission  made before  the Court as  well as in the order of the trial Court permitting the withdrawal the reference is to Section 5 (1) (c) and not 5 (1) (d). Obviously the permission granted must be regarded as having  been given  in respect  of an  offence with which Respondent No.  2 had  not been charged, completely ignoring the offence  under Section  5 (1) (d) with which he had been mainly charged. This state of affairs brings out a clear and glaring non-application  of mind  both on  the part  of  the Public Prosecutor  and also  the learned  special Judge with the issue  of withdrawal; in the High Court also there is no improvement in the situation. [103 B, D, E, F, H, 104 A-C]      Per Baharul Islam, J.      1:1 In view of the definition of "Public Prosecutor" in Section 2  of the  Code  of  Criminal  Procedure  read  with Section 24  (8) of the Code and in the light of the decision of the  Supreme Court  in State  of Punjab  v. Surjeet Singh [1967] 2.  SCR 347, there cannot be any doubt, that Sri L.P. Sinha was  a Public Prosecutor validity appointed under sub- section (8) of Section 24 of the Code. [115 D-E]      State of  Punjab v.  Surjeet Singh,  [1967] 2 SCR, 347, followed.      1:2 The  appointment  of  Shri  L.P.  Sinha  cannot  be collaterally challenged particularly in an application under Article 136  of  the  Constitution.  Shri  A.K.  Dutta,  the earlier appointee  had at  no point  of time came forward to make any  grievance at  any stage of the case, either at the appointment of  Sri L.P.  Sinha as Special Public Prosecutor or in  the latter’s  conduct of the case; nor Sri L.P. Sinha whose appointment  and right  to make  an application  under Section 321  of the  Code have been challenged is before the Supreme Court. [115 E-G]      1:3 The  appointment of  the latter  prosecutor without the termination  of the appointment of the earlier one might at best  be irregular  or improper,  but cannot  said to  be legally invalid. The doctrine of de facto jurisdiction which has been recognised in India will operate in this case. [115 G-H, 116A] 67      Gokaraju Rangaraju v. State of Andhra Pradesh, [1981] 3 S.C.R. 474, followed.

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    Newzealand and Norton v. Shelly Country p. 1886; 118 US 425 quoted with approval.      1:4 Shri  L.P. Sinha  was both  de jure  and  de  facto Public Prosecutor  in the  case. If  he  fulfilled  the  two conditions as  required by  Section 321, namely, (i) that he was the  Public Prosecutor;  and (ii)  was incharge  of  the case, he was competent to supply for withdrawal of the case, even if he were appointed for that purpose only. [118 H, 119 A-C]      2:1  Section  321  enables  the  Public  Prosecutor  or Assistant Public  Prosecutor incharge  of a case to withdraw from the  prosecution with  the consent of the court. Before an  application  is  made  under  Section  321,  the  Public Prosecutor has  to apply  his mind  to the facts of the case independently  without   being  subject   to  any  out  side influence. But  it cannot be said that a Public Prosecutor’s action will  be illegal  if he receives any communication or instruction from  the  Government.  Unlike  the  Judge,  the Public Prosecutor  is not an absolutely independent officer. He is  an appointee  of the  Government, Central  or  State. appointed conducting in Court any prosecution or proceedings on behalf  of the Government. A public prosecutor cannot act without instructions  of the Government; a public prosecutor cannot conduct  a case absolutely on his own, or contrary to the instructions  of his  client,  namely,  the  Government. Section 321 does not lay any bar on the public prosecutor to receive any  instruction from the Government before he files an application  under that Section. If the public prosecutor receives such  instructions, he  cannot be said to act under extraneous influence. On the contrary, the public prosecutor cannot file  an application  for withdrawal of a case on his own without  instruction from  the Government. [119 D-H, 120 B-C]      2:2 A  mere perusal  of the  application  made  by  the public prosecutor  abundantly shows  that he  did apply  his mind to the facts of the case; he perused the case Diary and the relevant  materials connected  with the case", before he made the  application. He  did not  blindly quote  from  the Government letter  which contained  only one ground, namely, "inexpediency of prosecution for reasons of state and public policy". A  comparison of  the contents  of this letter with the contents of the application under Section 321 completely negatives the  contention that  he did not himself apply his mind independently  to the  fact of  the case  and  that  he blindly acted on extraneous considerations. [112 F-H]      3:1 The  object of Section 321 appears to be to reserve power to  the Executive  Government to withdraw any criminal case  on   larger  grounds   of  public   policy,  such  as, inexpediency of  prosecutions for  reasons of State; broader public  interest   like  maintenance   of  law   and  order; maintenance of  public peace  and harmony,  social, economic and  political;  changed  social  and  political  situation; avoidance of  destabilisation of  a State Government and the like. And  such powers  have been  rightly reserved  for the Government; for,  who but  the Government  is in the know of such conditions  and situations  prevailing in a State or in the country.  The Court  is not  in a  position to know such situations.                                                    [126 D-F] 68      3:2 The withdrawal from the prosecution is an executive function of  the public prosecutor and the ultimate decision to withdraw  from the prosecution is his; the Government may only suggest to the Public Prosecutor that a particular case may not  be proceeded  with, but nobody can compel him to do

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so; not  merely inadequacy  of evidence,  but other relevant grounds such as to further the broad ends of public justice, economic and  political; public  order and  peace are  valid grounds for  withdrawal. The exercise of the power to accord or withdraw  consent  by  the  court  is  discretionary.  Of course, it  has to  exercise the  discretion judicially. The exercise of the power of the Court is judicial to the extent that the  Court in according or refusing consent has to see: (i) whether  the grounds  of withdrawal  are valid; and (ii) whether the  application is  bonafide and  not collusive. It may be  remembered that  an order  passed by the Court under Section 321 is not appealable. [128 D-G]      3:3 A mere perusal of the impugned order of the Special Judge granting  permission to  withdraw from the prosecution of accused  persons, in  the case  in question shows that he has applied his mind to the relevant law. What the court has to do  under section  321 is  to see whether the application discloses valid  grounds of  withdrawal-valid as  judicially laid down by the Supreme Court.                                                    [128 G-H]      3:4 A  criminal proceeding  with a prima facie case may also be  with drawn.  Besides, the  normal practice  of  the Supreme Court  in a  criminal appeal  by Special Leave under Art. 136  of the  Constitution directed  against an order of conviction or  acquittal is  that it  does  not  peruse  the evidence  on  record  and  appreciate  it  to  find  whether findings of  facts recorded  by the courts below are correct or erroneous,  far less  does it  peruse the police diary to see  whether   adequate  materials  were  collected  by  the investigating agency.  It accepts the findings of the Courts below unless  it is  shown that the findings are the results of a wrong application of the principles of law and that the impugned order has resulted in grave miscarriage of justice. [129 A-C]      R.K. Jain v. The State, [1980] 3 S.C.R. 982, followed.      3:5 An  order under  Section 321  of the  Code does not have the  same status as an order of conviction or acquittal recorded by  a Trial  Court or appellate court in a criminal prosecution, in  as much  as the  former has  not been  made appealable. An  order under  Section 321  of the  Code has a narrower scope. As an order under Section 321 of the Code is judicial, what  the trial court is expected to do is to give reasons  for  according  or  refusing  its  consent  to  the withdrawal. The duty of the Court is to see that the grounds of withdrawal  are legally valid and the application made by the public  prosecutor is  bonafide and  not  collusive.  In revision of an order under Section 321 of the Code, the duty of the  High Court  is to  see that the consideration by the trial court  of the  application under  Section 321  was not misdirected and  that the  grounds of withdrawal are legally valid. In  this case  the trial court elaborately considered the grounds  of withdrawal  and found  them to  be valid and accordingly accorded its consent for withdrawal. In revision the High  Court affirmed the findings of the trial court. In this  appeal  by  special  leave,  therefore,  there  is  no justification to  disturb the  findings of  the courts below and peruse  the statements  of witnesses  recorded or  other materials collected by the investigating officers during the course of investigation. [129 C-H] 69      3:6 A  question of fact that needs investigation cannot be allowed  to be  raised for the first time in an appeal by special leave  under Article 136 of the Constitution. In his application before  the special  Judge the appellant did not find fault  with any  of the  grounds of  withdrawal in  the

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application filed  by the  Public Prosecutor  under  Section 321. There was no mention of any forgery by antedating or by pasting of  any earlier order and thereby making any attempt at shielding  of any  culprit. He thus prevented the special Judge and  the High Court from giving any finding an alleged forgery and  thereby depriving  the Supreme  Court also from the benefits of such findings of the courts below.                                                    [131 C-E]      3:7 There is no prima facie case of forgery or criminal misconduct made out on the materials on record. If the Chief Minister found  that his first order was unwarranted by law, it was but right that he cancelled that order. Pasting order by a  piece of  paper containing  another order  prima facie appears suspicious,  but pasting  is the  common practice in the Chief  Minister’s Secretariat. Antedating simpliciter is no offence. [132 C,E,F]      3:8 If two interpretations are possible, one indicating criminal intention  and the  other innocent, needless to say that the  interpretation beneficial  to the  accused must be accepted. [132 G]      3:9 Remand for trial if made will be a mere exercise in futility and it will be nothing but an abuse of the Court to remand the  case to the trial court in view of the following circumstances, namely,  (1) the  occurrence  took  place  as early as  1970; it  is already  more than twelve years; (ii) Respondent No.  2 is  the  Chief  Minister  in  his  office. Knowing human  nature, as  it is,  it can hardly be expected that the  witnesses, most  of whom  are officials, will come forward and  depose against a Chief Minister; and (iii) Even after the  assumption of  office by  Respondent No. 2 as the Chief Minister  is  in  the  court  of  Special  Judge,  the prosecution was pending on several dates but the Prosecutor, Sri A.K.  Dutta, did  not take  any interest  in the case at all.  It   cannot  be  accepted  that  a  Public  Prosecutor appointed by the Government in power, will now take interest and conduct  the case  so as to secure conviction of his own Chief Minister. [136 F-H, 137 A-B]      Per R.B. Misra J.      1:1 A  bare perusal  of Section  321  of  the  Criminal Procedure Code  shows that  it does  not put  any embargo or fetter on  the power  of the  Public Prosecutor  to withdraw from prosecuting  a particular  criminal case pending in any court. All  that he  requires is that he can only do so with the consent  of the  court where  the case is pending in any court. [140 C-D]      1:2 In  this country,  the scheme  of criminal  justice places  the  prime  responsibility  of  prosecuting  serious offences on  the  executive  authority.  The  investigation, collection of requisite evidence and the prosecution for the offences with  reference to  such evidence are the functions of the  executive. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court in according its consent to withdrawal is, however,  a judicial  function. It,  therefore,  becomes necessary for the court before 70 whom the  application for  withdrawal is filed by the public prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as  a matter  of course  but has applied its mind to the grounds  taken in  the  application  for  withdrawal  by Public Prosecutor. [140 E-G]      State of  Bihar v.  Ram Naresh Pand ey, [1957] SCR 297; M.N.S. Nair  v. P.V.  Balakrishnan & Ors., [1972] 2 SCR 599, State of  Orissa v.  C. Mohapatra, [1977] 1 SCR 355; Balwant

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Singh v.  State of  Bihar, [1978]  1 SCR  604; R.K.  Jain v. State; [1980] 3 SCR 982, referred.      2:1 Section  321 is  in very  wide terms and in view of the decisions  of the Supreme Court, it will not be possible to confine  the grounds of withdrawal of criminal proceeding only to  offences which  may be termed as political offences or offences  involving  emotive  issues.  The  only  guiding factor which  should  weigh  with  Public  Prosecutor  while making  the   application  for   withdrawal  and  the  court according its  permission for  withdrawal is  to see whether the  interest   of  public   justice  is  advanced  and  the application for  withdrawal is not moved with oblique motive unconnected with  the vindication  of the  cause  of  public justice. [145 E-G]      2:2 The  Indian Penal  Code or  the  Code  of  Criminal Procedure  does   not  make  any  such  distinction  between political offences  and offences  other than political ones. Even if  it is  accepted that political offences are unknown to jurisprudence  and other  Acts do  contemplate  political offences, the  fact remains that Section 321 Cr. P.C. is not confined only  to political  offences, but it applies to all kinds of  offences and the application for withdrawal can be made by  the Public  Prosecutor on  various grounds. [145 H, 146 A-B]      2:3 To  say that  unless the  crime allegedly committed are per  se political offences or are motivated by political ambition or  consideration  or  are  committed  during  mass agitation, communal frenzies, regional disputes, no question of serving  a broader  cause of public justice, public order or peace  can arise  is to put limitation on the broad terms of Section 321 of the Code. [148 F-G]      3:1  The   Public  Prosecutor  may  withdraw  from  the prosecution not  only on  the ground  of paucity of evidence but on  the other  relevant grounds  as  well  in  order  to further broad aims of justice, public order and peace. Broad aim of  public justice  will certainly  include  appropriate social, economic and political purposes. [143 G-H]      3:2 An  application for withdrawal from the prosecution can be  made on  various grounds  and it  is not confined to political offences.  Therefore, it  cannot be  said that the grounds mentioned in the application for withdrawal, namely:      (i)  implication of  the accused persons as a result of           political and personal vendetta,      (ii) inexpediency of the prosecution for the reasons of           State and Public policy, and 71      (iii)adverse  effects   that  the  continuance  of  the           prosecution will  bring on  public interest in the           light of the changed situation, are irrelevant. are not liable grounds for withdrawal. [145 G-H]      3:3 Further,  the decision  of the public prosecutor to withdraw from  the case  on the  grounds given by him in his application for  withdrawal cannot be said to be actuated by improper oblique  motive. He  bonafide thought  that in  the changed circumstances  it would  be inexpedient  to  proceed with the case and would be a sheer waste of public money and time to  drag on with the case if the chances for conviction are few  and far  between. In  the circumstances, instead of serving the  public cause  of justice,  it will  be  to  the detriment of public interest. [149 B-D]      3:4 The  letter sent  by the  Government to  the public prosecutor did  not indicate  that the  Government wants him not to  proceed with  the case,  but the  letter  gave  full discretion to  the Public  Prosecutor, to apply his own mind and to  come to  his own  conclusion. Consultation  with the

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Government or  high officer  is not improper. But the Public Prosecutor has  to apply  his own  mind  to  the  facts  and circumstances of the case before coming to the conclusion to withdraw from  the prosecution.  From the  materials on  the record, it  is clear  that the Public Prosecutor has applied his own mind and came to his own conclusions. [155 D-F]      3:5   The   statutory   responsibility   for   deciding withdrawal squarely  rests upon the public prosecutor. It is non-negotiable and cannot be bartered away. The court’s duty in dealing  with the application under Section 321 is not to reappraise the  materials which led the public prosecutor to request withdrawal  from the  prosecution  but  to  consider whether public  prosecutor applied  his mind as a free agent uninfluenced  by   irrelevant  and   extraneous  or  oblique considerations, as  the court  has a  special duty  in  this regard in  as much  as it  is  the  ultimate  repository  of legislative  confidence   in  granting  or  withdrawing  its consent to withdrawal from prosecution. [149 D-E]      3:6 If  the view of the Public Prosecutor is one, which could in  the circumstances  be taken by any reasonable man, the court  cannot substitute its own opinion for that of the Public Prosecutor.  If the Public Prosecutor has applied his mind on  the relevant  materials  and  his  opinion  is  not perverse and which a reasonable man could have arrived at, a roving enquiry into the evidence and materials on the record for the  purpose of finding out whether his conclusions were right or wrong would be incompetent. [154 H, 155 A]      In the  view taken  that no  prima facie  case has been made out  under Section  466 of  the Indian  Penal Code  and Section 5  (1) (d)  of the  Prevention of Corruption Act and the fact  that the  High Court  in revision  agreed with the view of  the Special  Judge giving consent to the withdrawal from the  prosecution  on  the  application  of  the  Public Prosecutor under Section 321 I.P.C. this Court cannot make a fresh  appraisal   of  evidence  and  come  to  a  different conclusion. 72 All that this Court has to see is that the Public Prosecutor was not  actuated by  extraneous or  improper considerations while  moving   the  application  for  withdrawal  from  the prosecution. Even  if it  is possible  to have  another view different from  the one taken by the Public Prosecutor while moving the  application for  withdrawal from prosecution the Supreme Court  should be  reluctant to  interfere  with  the order unless  it comes  to the  conclusion that  the  Public Prosecutor has  not  applied  his  mind  to  the  facts  and circumstances of  the case,  and has  simply  acted  at  the behest of  the Government or has been actuated by extraneous and improper  considerations. On the facts and circumstances of the  case, it  is clear  that the  Public Prosecutor  was actuated by oblique or improver motive. [157 B-F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 241 of 1982.      Appeal by  Special leave  from the  judgment and  order dated the  14th September,  1981 of  the Patna High Court in Criminal Revision No. 874 of 1981.      K.K. Venugopal,  S.K. Sinha,  S.K. Verma,  V.N.  Singh, L.K.  Pandey,   M.N.  Krimanani   and  V.N.  Sinha  for  the Appellants.      K.  Parasaran,  Soliciter  General,  K.P.  Verma,  P.S. Mishra and R.P. Singh for Respondent No. 1.

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    A.K. Sen,  O.P. Malhotra  and R.K.  Jain for Respondent No. 2.      Rajendra Singh, R.P. Singh Ranjit Kumar and S. Goswami, for Respondent No 3.      S.N. Kacker and M.P. Jha for Respondent No. 4.      Jaya Narayan and Smt. Nirmala Prasad for Intervenor.      The following Judgments were delivered      TULZAPURKAR, J.  By this appeal, preferred on the basis of the  special leave  granted  to  him,  the  appellant  is challenging  the   withdrawal  from   the   prosecution   of Respondents Nos.  2, 3 and 4 in a criminal case under s. 321 of the Criminal Procedure Code, 1973.      After  obtaining   the  requisite   sanction  from  the Governor on  19th February, 1979 a charge-sheet in Vigilance P.S. Case  9 (2)  78 was filed by the State of Bihar against Respondent No.  2 (Dr.  Jagannath Misra),  Respondent No.  3 (Nawal Kishore  Sinha), Respondent  No. 4 (Jiwanand Jha) and three other (K.P. Gupta, since 73 deceased, N.A.  Haidari and  A.K. Singh,  who  later  became approvers)  for  offences  under  ss.  420/466/471/109/120-B I.P.C. and  under s.  5(1) (a),  5(1) (b)  and 5(1) (d) read with s.  5(2) of  the Prevention  of Corruption  Act,  1947. Inter  alia,   the  gravamen   of  the  charge  against  the respondent No.  2 was  that at  all times  material  he  was either a Minister or the Chief Minister of Bihar and in that capacity by corrupt or illegal means or by otherwise abusing his position  as a public servant, he in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha in particular,  sought to  subvert criminal  prosecution and surcharge  proceedings   against  Nawal  Kishore  Sinha  and others, and either obtained for himself or conferred on them pecuniary  advantage   to  the   detriment  of  Patna  Urban Cooperative Bank,  its members, depositors and creditors and thereby committed  the offence of criminal mis-conduct under s. 5(1) (d) read with s.5(2) of the Prevention of Corruption Act, 1947  and in  that process committed the other offences specified in  the charge-sheet,  including  the  offence  of forgery under s. 466 I.P.C. cognizance of the case was taken on  21st  November,  1979  by  the  learned  Chief  Judicial Magistrate-cum-Special Judge  (Vigilance), Patna, who issued process against  the accused  but before the trial commenced the State  Government, at  the instance  of Respondent No.2, who in  the mean  time had  come to power and had become the Chief Minister, took a decision in February 1981 to withdraw from the prosecution for reasons of State and Public Policy. Though initially  Shri Awadhesh Kumar Dutt, Senior Advocate, Patna High  Court, had  been appointed  as a  Special public prosecutor by  the previous  Government for  conducting  the said case,  the State  Government (now  headed by Respondent No.  (2)  without  cancelling  Shri  Dutt’s  appointment  as Special  Public   prosecutor,   on   24th   February,   1981 constituted a  fresh panel  of lawyers  for conducting cases pertaining to  Vigilance Department  and Shri  Lalan  Prasad Sinha, one  of the Advocates so appointed on the fresh panel was  allotted   the  said  case  and  was  informed  of  the Government’s said  decision and  on 26th  March 1981  he was further requested  to take  steps for  the withdrawal of the case after  he  had  considered  the  matter  and  satisfied himself about it. On 17th June, 1981 Shri Lalan Prasad Sinha made an application under s. 321 Cr.P.C. 1973 to the Special Judge seeking permission to withdraw from the prosecution of Respondent Nos.  2, 3  and 4  in the  case on  four grounds, namely, (a)  Lack of  prospect of  successful prosecution in the light of the evidence, (b) Implication of the persons as

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a  result   of  political   and   personal   vendetta,   (c) Inexpediency of the prosecution for the reasons of the State and public policy 74 and  (d)   Adverse  effects  that  the  continuance  of  the prosecution will  bring on  public interest  in the light of the changed  situation; and the learned Special Judge by his order dated  20th  June,  1981  granted  the  permission.  A Criminal Revision  (No. 874/1981) preferred by the appellant against the  said order  was dismissed in limine by the High Court on  14th September,  1981. It  is this withdrawal from the prosecution  permitted by  the learned Special Judge and its confirmation by the High Court that are being challenged in this appeal.      Counsel  for   the  appellant   raised  three  or  four contentions in  support of the appeal. In the first place he contended  that   the  impugned   withdrawal   was   utterly unjustified on merits and also illegal being contrary to the principles enunciated  by this  Court governing the exercise of the  power under  s. 321  Cr. P.C.  According to  him the decisions of  this Court  bearing on the nature and scope of the  power  under  the  section  clearly  suggest  that  for purposes  of   that  section   a  dichotomy  exists  between political offences  and common  law offences  and  that  the considerations of public policy, public interest, reasons of State or political and personal vendetta may become relevant in the  case the  former cateorgy  but are  irrelevant while withdrawing from  the prosecution of common law offences and since in  the instant  case  the  offences  with  which  the accused and  particularly Respondent  No. 2 had been charged were  common   law  offences,   namely,  bribery   (criminal misconduct) and  forgery and  not with any political offence the grounds at (b), (c) and (d) mentioned in the application seeking  permission   for  withdrawal  were  irrelevant  and extraneous and  non-germane  considerations  influenced  the Public Prosecutor  as  also  the  Court  the  withdrawal  is vitiated and  is bad  in law  and  as  regards  ground  (a), namely, insufficiency  of evidence  or lack  of prospect  of successful prosecution  the same was clearly untenable being in teeth  of undisputed  and  genuine  documentary  evidence including the  orders admittedly  passed by respondent No. 2 in his  own hand that was available to prove the charges; he also urged  that in  a case  where the proof of the offences was primarily based on documentary evidence, the genuineness of which  was not  in dispute  no question  of political and personal  vendetta   or   unfair   and   over   enthusiastic investigation   could   arise;   therefore,   the   impugned withdrawal  deserved   to  be   quashed.  Secondly,  counsel contended that Shri Lalan Prasad Sinha was not the competent officer to  apply for withdrawal from the prosecution of the case under  s. 321 Cr P.C. inasmuch as that Shri A.K. Dutt’s appointment as Special 75 public Prosecutor  made under  s. 24(8)  Cr. P.C. to conduct this case had not been cancelled and as such the application for permission to withdraw as well as the permission granted thereon were unauthorised, incompetent and illegal. Thirdly, it was urged that on the facts and circumstances of the case Shri Lalan  Prasad Sinha did not function independently as a free agent  but was  influenced  and  guided  by  the  State Government’s  decision   in  the  matter  and  as  such  the withdrawal at  the behest  of the  Government was  vitiated. Counsel also  urged that  Shri Lalan Prasad Sinha’s decision (if at  all it was his own) to withdraw from the prosecution as well  as the Special Judge’s decision to grant permission

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were vitiated by non-application of mind.      On the  other hand, Counsel for the Respondents refuted all the contentions urged on behalf of the appellant. It was denied that  the withdrawal  in question  was unjustified on merits or  illegal or  contrary to  the principles governing the exercise  of the  power s.  321; on the Contrary counsel for the  Respondents urged  that the decisions of this Court had clarified  the position that under the Code a withdrawal from the prosecution was an executive function of the Public Prosecutor or  that the  discretion  to  withdraw  from  the prosecution was  that of the Public Prosecutor and none else and that  he could  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 and the broad ends of public justice  would  include  appropriate  social,  economic  and political purposes,  and  what  was  more  in  granting  its consent to  the withdrawal  the  Court  merely  performed  a supervisory function  and in  discharging such  function the Court was  not to  reappreciate the  grounds which  led  the public prosecutor to request withdrawal from the prosecution but to  consider whether  the Public  prosecutor had applied his mind  as a  free agent,  uninfluenced by  irrelevant  or extraneous consideration.  It was  disputed that the grounds (b), (c)  and  (d)  mentioned  in  the  application  seeking permission to withdraw were irrelevant or extraneous or that ground (a)  was  untenable.  According  to  Counsel  in  the instant case  Shri Lalan  Prasad Sinha,  being in  charge as well as in the conduct of the case was competent to make the application  for   withdrawal  and  he  had  done  so  after considering  all  the  relevant  factors  and  circumstances bearing on the issue and satisfying himself about it and not at  the  behest  of  the  Government  as  contended  by  the appellant and  the learned  Special Judge also performed his supervisory function in granting the requisite 76 permission on  relevant considerations. Counsel emphatically denied that  either  the  public  prosecutor’s  decision  to withdraw  from   the  prosecution  or  the  special  Judge’s supervisory function  was  vitiated  by  non-application  of mind. Lastly  it was  contended that  this Court  should not interfere with  the impugned  orders of  the trial  Court as well as  the High Court in exercise of its powers under Art. 136 of the Constitution and the appeal be dismissed.      Having regard  to the  aforesaid rival contentions that were urged  before us  by the  learned Attorney  General and Council on  either side  it is  clear that principally three questions  arise  for  our  determination  in  this  appeal, namely, (1)  what is  the true scope and nature of the power under s.  321 of  Cr. P.C,  1973 ?  (2) whether  Shri  Lalan Prasad Sinha  was competent  officer entitled  to apply  for withdrawal  from  the  prosecution  and  if  so  whether  he discharged his  executive function  independently as  a free agent? And  (3) whether  the withdrawal from the prosecution of respondents  2, 3 and 4 in Vigilance P. S. Case No. 9 (2) 78 was unwarranted and unjustified on facts as also in law ? In other words, whether the executive function of the Public Prosecutor and  or the supervisory function performed by the Court was  vitiated on  account of extraneous considerations or non  application of  mind etc  deserving interference  by this Court ?      On  the  first  question  s.  321  in  terms  gives  no guidance; it  merely says  that "the  Public  Prosecutor  in charge of  a case may, with the consent of the Court, at any time before  the judgment  is pronounced,  withdraw from the

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prosecution of  any person either generally or in respect of any one  or more  of the offences for which he is tried" and goes on  to indicate  the  results  that  entail  upon  such withdrawal, namely, either a discharge of the accused if the withdrawal is  made  before  the  charge  is  framed  or  an acquittal of  the accused if it is made after the charge has been framed;  in other  words, it  gives  no  indication  or guideline as to in what circumstances or on what grounds the public  Prosecutor   may  apply   for  withdrawal  from  the prosecution nor  the considerations on which the Court is to grant its consent and hence the necessity to go to decisions of this  Court for ascertaining the true scope and nature of the power  contained in  it. In  this  behalf  quite  a  few decisions of  this Court  both  in  regard  to  the  earlier provision contained  in s. 494 Cr. P.C. 1898 and the present provision contained  in s.  321 (both being substantially in pari materia) were referred to by Counsel for the 77 parties but it is not necessary to deal with all of them and a reference to four decisions, namely, State of Bihar v. Ram Naresh Pandey,(1) State of Orissa v. Chandrika Mohapatra and Ors.,(2) Balwant  Singh and ors. v. State of Bihar(3) and R. K. Jain  v. The  State(4) having  a bearing  on the  aspects under consideration  will suffice.  These  decisions,  apart from enunciating  the  principles  which  would  govern  the exercise of  the power  under  the  section,  emphasise  the functional dichotomy  of the Public Prosecutor (who performs an executive  function) and  the  Court  (which  performs  a supervisory judicial function) thereunder.      In Ram  Naresh Pandey’s  case (supra)  the Court  while dealing with s. 494 of the old Code observed thus.           "The section  is an  enabling one and vests in the      Public Prosecutor  the discretion to apply to the Court      for its consent to withdraw from the prosecution of any      person. The  consent, if granted, has to be followed up      by his discharge or acquittal, as the case may be .....      There can  be no  doubt, however,  that  the  resultant      order on the granting of the consent, being an order of      ’discharge’   or   ’acquittal’,   would   attract   the      applicability of correction by the High Court under ss.      435, 436  and 439  or  417  of  the  Code  of  Criminal      Procedure. The  function of  the Court,  therefore,  in      granting its consent may well be taken to be a judicial      function. It  follows that  in granting the consent the      Court must  exercise a judicial discretion ........ The      initiative is  that of  the Public  Prosecutor and what      the Court has to do is only to give its consent and not      to determine  any matter  judicially  ..  The  judicial      function,  therefore,   implicit  in  the  exercise  of      judicial discretion  for  granting  the  consent  would      normally mean that the Court 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  .. ....  It (s. 494)      cannot  be   taken  to   place   on   the   Court   the      responsibility for  a prima  facie determination  of  a      triable 78      issue.  For   instance  the   discharge  that   results      therefrom need  not always  conform to  the standard of      ’no prima  facie case’ under ss. 209 (1) and 253 (1) or      of ’ground lessens’ under ss. 209 (2) and 253 (2). This      is not  to say that a consent is to be lightly given on      the application  of the  Public Prosecutor,  without  a

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    careful and proper scrutiny of the grounds on which the      application for consent is made." (Emphasis supplied).      In Chandrika Mohapatra’s case (supra) while setting out the principles  that should  be kept in mind by the Court at the  time   of  giving   consent  to   withdrawal  from  the prosecution under s. 494 the Court observed thus;           "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  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.      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." It may  be stated  that Criminal  Appeal No. 310 of 1975 was one of  the appeals  decided by  the Court  in that case. In that  appeal  the  incident,  during  the  course  of  which offences under  ss. 147,  148 149,  307 and  324 I.P.C. were said to  have been  committed, had  arisen  out  of  rivalry between two  trade unions and since the date of the incident calm and  peaceful atmosphere  prevailed in  the  industrial undertaking and  in those  circumstances the State felt that it would not be conducive to interest of justice to continue the  prosecution   against   the   respondents   since   the prosecution  with  the  possibility  of  conviction  of  the respondents  would   rouse  feelings   of   bitterness   and antagonism and  disturb the  calm  and  peaceful  atmosphere prevailing  in   the  industrial   undertaking   and   hence permission to withdraw 79 was sought  and granted.  Upholding the permission the Court observed thus:           "We cannot  forget that  ultimately every  offence      has a  social or  economic cause  behind it  and if the      state feels  that 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."      In Balwant Singh’s case (supra) the independent role of the  Public   Prosecutor  in   making  an   application  for withdrawal from the prosecution was emphasised and the Court pointed out  that the  sole consideration which should guide the Public Prosecutor before he decides to withdraw from the prosecution was  the larger  factor of the administration of justice and  not political  favours nor  party pressures nor the like  considerations; nor  should he allow himself to be dictated by  his administrative  superiors to  withdraw from prosecution, but  that the  consideration which should weigh with him must be whether the broader cause of public justice will  be   advanced  or   retarded  by   the  withdrawal  or continuance of  the prosecution.  The Court  also  indicated some instances  where withdrawal  from prosecution  might be resorted to  independently of  the merits  of the case where the broader cause of public justice would be served:           "Of course,  the interests of public justice being      the paramount  consideration  they  may  transcend  and

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    overflow  the   legal   justice   of   the   particular      litigation. For instance, communal feuds which may have      been amicably settled should not re-erupt on account of      one or two prosecutions pending. Labour disputes which,      might have  given rise to criminal cases, when settled,      might probably  be another instance where the interests      of  public  justice  in  the  broader  connotation  may      perhaps warrant  withdrawal from the prosecution. Other      instances may also be given where public justice may be      served by  withdrawal even apart from the merits of the      case."      In R.K.  Jain’s case (supra) after reviewing the entire case  law   on  the  subject  this  Court  enunciated  eight propositions as emerging 80 from the  decided cases  (page 996  of the  Report), out  of which the  following six  would be material for the purposes of the instant case:      "1.  The  withdrawal   from  the   prosecution  is   an           executive function of the Public Prosecutor.      2.   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.      3.   The  Government   may  suggest   to   the   Public           Prosecutor  that   he  may   withdraw   from   the           prosecution but none can compel him to do so.      4.   The  Public   Prosecutor  may  withdraw  from  the           prosecution not merely on the ground of paucity of           evidence but  no 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,  we  add,  political  purposes  Sans           Tammany Hall Enterprises.      5.   The Court performs a supervisory function granting           its consent to the withdrawal.      6.   The  Court’s  duty  is  not  to  reappreciate  the           grounds which led the Public Prosecutor to request           withdrawal from  the prosecution  but to  consider           whether the  Public Prosecutor applied his mind as           a  free  agent,  uninfluenced  by  irrelevant  and           extraneous considerations. The Court has a special           duty  in   this  regard  as  it  is  the  ultimate           repository of  legislative confidence  in granting           or withholding  its consent to withdrawal from the           prosecution." By way of elaborating proposition No. 4 above, the Court has gone on to observe thus:           "We have  referred to the precedents of this Court      where it  has been said that paucity of evidence is not      the only  ground on  which the  Public  Prosecutor  may      withdraw from  the prosecution.  In the  past  we  have      often known  how expedient  and necessary  it is in the      public interest for 81      the Public  Prosecutor to  withdraw  from  prosecutions      arising  out   of  mass   agitations,  communal  riots,      regional  disputes,   industrial   conflicts,   student      unrest, etc.  Whenever issues  involve the emotions and      there is  a surcharge  of violence in the atmosphere it      has  often   been  found  necessary  to  withdraw  from      prosecutions in  order to  restore peace,  to free  the      atmosphere from  the surcharge  of violence,  to  bring      about a  peaceful settlement  of issues and to preserve

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    the calm  which may  follow the  storm. To persist with      prosecutions where  emotive issues  are involved in the      name of vindicating the law may even be utterly counter      productive." Similarly, by way of elaborating proposition No. 6 above the Court has gone on to observe thus:      "We may  add  it  shall  be  the  duty  of  the  Public      Prosecutor to inform the Court and it shall be the duty      of the  Court to  apprise itself  of the  reasons which      prompt the  Public  Prosecutor  to  withdraw  from  the      prosecution. The Court has a responsibility and a stake      in the  administration of  criminal justice  and so has      the Public  Prosecutor, its ’Minister of Justice’. Both      have a  duty to  protect the administration of criminal      justice  against   possible  abuse  or  misuse  by  the      Executive  by  resort  to  the  provisions  of  s.  321      Criminal  Procedure   Code.  The  independence  of  the      judiciary requires  that once the case has travelled to      the Court,  the Court  and its officers alone must have      control over  the case and decide what is to be done in      each case."      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 82 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 power.  The   two  classes   are  not,   however,   mutually exclusive."   (vide    de   Smith’s   judicial   Review   of Administrative Action 4th Edition pp. 285-86)      Secondly, since  the trial Court’s supervisory function of either  granting or refusing to grant the permission is a judicial function  the same  is liable  to correction by the High Court under its revisional powers both under the old as well  as   the  present  Code  of  Criminal  Procedure,  and naturally  this  Court  would  have  at  least  co-extensive jurisdiction with  the High  Court in an appeal preferred to it by special leave or upon a certificate by the High Court.      Thirdly,  no   dichotomy  as   such  between  political offences or  the like  on the one hand and common law crimes on the  other could  be said to have been made by this Court for purposes  of s. 321 as con-tended for by Counsel for the appellant, for,  even in  what are called political offences or the  like, committing  common law  crimes is implicit for the withdrawal from the prosecution of which the power under s. 321  has to  be resorted  to. But  the decisions  of this Court do  lay down that when common law crimes are motivated by  political   ambitions  or  considerations  or  they  are committed  during   or  are  followed  by  mass  agitations, communal frenzies,  regional disputes, industrial conflicts,

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student unrest  or like  situations involving emotive issues giving rise  to an  atmosphere surcharged  with violence the broader cause  of public justice, public order and peace may out weigh  the public  interest  of  administering  criminal justice in  a particular  litigation and withdrawal from the prosecution of  that litigation  would become  necessary,  a certainty of  conviction notwithstanding  persistence in the prosecution in  the name  of vindicating  the law  may prove counter-productive. In other words, in case of such conflict between the  two types  of public  interests,  the  narrower public interest should yield to the broader public interest, and therefore,  an onerous  duty is  cast upon  the Court to weigh and  decide which  public interest  should prevail  in each case while granting or refusing to grant its consent to the  withdrawal   from  the  prosecution.  For,  it  is  not invariably that  whenever crime  is politically motivated or is committed  in or  is followed  by any explosive situation involving emotive 83 issue that the prosecution must be withdrawn. An instance in point would  be the  case of Mahatma Gandhi’s assassination, which was  in a sense politically motivated (due to transfer of Rs.  55 crores to Pakistan) and was followed by explosive situation involving  emotive issue  resulting in  widespread violence, arson  and incendiarism against members of a class in the  country  particularly  in  Maharashtra  but  no  one suggested any withdrawal and the prosecution of the persons, who also  included  a  political  personality,  was  rightly carried to  its logical  end resulting  in conviction of the guilty and  acquittal of the political personality. In other words, in  each case of such conflict the Court has to weigh and decide  judiciously. But  it is  obvious that unless the crime  in  question  are  per  se  political  offences  like sedition or are motivated by political considerations or are committed  during   or  are  followed  by  mass  agitations, communal frenzies,  regional disputes, industrial conflicts, student unrest  or the  like  situations  involving  emotive issues  giving   rise  to   an  atmosphere  surcharged  with violence, no question of serving any broader cause of public justice public order or peace would arise and in the absence thereof  the   public  interest  of  administering  criminal justice  in   a  given   case  cannot  be  permitted  to  be sacrificed, particularly  when a  highly  placed  person  is allegedly involved  in the  crime, as  otherwise the  common man’s faith  in the  rule of law and democratic values would be shattered.      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. In that case this  Court disposed  of two sets of appeals, one where the withdrawal from the prosecution against George Fernandes and others  was on  the ground  that the  offences  were  of political character  and the  other pertained  to withdrawal from the  prosecution in  four cases  against Choudhry Bansi Lal on the ground that the evidence available was meagre and in one  out of  the four cases the complainant (Shri Manohar Lal) had been suitably and profitable compensated. The Court upheld the  grant of  permission for  withdrawal in both the sets of  appeals-in the  first set  on the  ground that  the offences alleged  to have been committed by George Fernandes and  others  were  of  a  political  character,  the  motive attributed to  the accused  being that they wanted to change

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the Government led by Shrimati Gandhi and therefore with the change in the Government 84 the broad  ends of  public justice justified the withdrawal, while in  the  other  set  the  Court  examined  the  entire material available on record and came to the conclusion that the ground  put forward  had been made out and justified the withdrawal. It  may be  stated that  in M.N.S,  Nair v. P.V. Balakrishnan and  Ors (1)  the Sessions Court as well as the High Court  had permitted withdrawal from the prosecution of a case  involving offences of forgery, cheating, etc. On the ground that  the dispute  was of  a civil nature, that there had been  enormous delay in proceeding with a trial and that securing of  evidence would  involve heavy  expenses for the state as  witnesses were  in  far  off  places.  This  Court allowed the appeal, set aside the permission granted for the withdrawal and  directed the  trial to proceed in accordance with the  law after holding that none of the grounds alleged or even their cumulative effect would justify the withdrawal from the  prosecution  in  particular  after  examining  the material on  record this  Court came  to the conclusion that the finding  of the  lower courts  that the dispute was of a civil nature  was incorrect.  It is  thus  clear  that  when paucity of  evidence  or  lack  of  prospect  of  successful prosecution is  the ground for withdrawal this Court must of necessity examine  the material  in order  to determine  the validity or  propriety of  the ground. It is in the light of the aforesaid legal principles that two questions arising in this appeal will have to be decided.      The next  question raised  by Counsel for the appellant was whether  Shri  Lalan  Prasad  Sinha  was  the  competent officer entitled  to  apply  for  the  withdrawal  from  the prosecution and  if so  whether he  discharged his  function independently as a free agent ? In this behalf Counsel urged that the  initial appointment  of  Shri  A.K.  Dutt  as  the Special Public Prosecutor made by the State Government under s. 24  (8) Cr.  P.C. On  26th February, 1979 to conduct this case had  not been  cancelled, that  Shri Lalan Prasad Sinha could  merely   be  regarded  as  one  of  the  four  Public Prosecutors appointed  on the  fresh panel constituted under Law (Justice)  Department’s letter  No.C/Mis-8-43/78 J dated 24th February, 1981 and that though this particular case had been allotted  to him  by the  letter dated  25th  February, 1981, he  had no authority over the head of Shri A.K.Dutt to apply for  withdrawal from  the prosecution  and as such the application made  by him  would be  unauthorised and illegal and consequently  the Court’s  order dated  20th June,  1981 would be  vitiated. Counsel further contended that the State Government had already taken a decision to withdraw from the prosecution in this 85 case on  grounds of  inexpediency of prosecution for reasons of State  and public  policy, that  the  said  decision  was communicated to Shri Lalan Prasad Sinha, who was directed to take steps  in that  behalf and that it was pursuant to such direction that he made the application and not independently on his  own as  a free  agent and,  therefore, the executive function on  the part  of the Public Prosecutor (assuming he had the  authority to  make the  application) was improperly performed. It  is not  possible to  accept either  of  these contentions for the reasons we shall presently indicate.      It is  true that the appointment of Shri A.K. Dutt made by the  previous Government as the Special Public Prosecutor to conduct  this case  had not  been  cancelled,  though  in fitness of things the new Government should have done so but

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that did  not prevent  the new  Government to  make a  fresh appointment of  a Public Prosecutor and to put him in charge of the  case. Appointments  of Public  Prosecutors generally fall under  s. 24(3)  but when the State Government appoints Public Prosecutors  for the purposes of any case or class of cases the appointees become Special Public Prosecutors under s. 24(8)  and in  the instant  case under  the Law (Justice) Department’s letter  dated 24th February, 1981 a fresh panel of lawyers  consisting of  4 Advocates  including Shri Lalan Prasad  Sinha   was  constituted   "for   conducting   cases pertaining to  Vigilance Department  both at Headquarters at Patna as  also outside  Patna" and,  therefore,  Shri  Lalan prasad Sinha  will  have  to  be  regarded  as  having  been appointed as  Special Public  Prosecutor under s. 24(8). But apart from this aspect of the matter, on the facts obtaining in the  case, it  cannot be disputed that Shri A.K. Dutt not having appeared before the Special Judge at any stage of the hearing was  never defacto  incharge of  the case nor in the actual conduct  of the  case; on  the other  hand, after the allotment of  this case  to him  Shri Lalan Prasad Sinha was incharge of the case and was actually conducting the case he having admittedly  appeared  in  the  case  at  least  on  4 occasions (on  6th, April,  21st April,  27th April and 26th May, 1981)  before the Special Judge, and, therefore, in our view, he  was the proper person who could make the necessary application in  the matter of withdrawal. In this context it will be  useful to  point out  that s.  494 of  the old Code seemed to authorise "any Public Prosecuter" to withdraw from the prosecution with the consent of the Court but this Court in State of Punjab v. Surijit Singh & Anr. (1) had held that "the reasonable interpretation 86 to be placed upon s. 494, in our opinion, is that it is only the Public  Prosecutor, who is incharge of a particular case and is actually conducting the prosecution, that can file an application  under   that  section,  seeking  permission  to withdraw from the prosecution." The same view was reiterated by this Court in the Case of M.N.S. Nair v. P.V. Balkrishnan (supra). The  present  section  321  Cr.  P.  C.  has  given legislative recognition  to the aforesaid view of this Court inasmuch as it expressly provides that the Public Prosecutor "incharge of  a case" may withdraw from the prosecution with the consent  of the  Court. We  are satisfied that though he was appointed  as the  Special Public  Prosecutor to conduct this case  in February  1979  Shri  A.K.  Dutt  was  neither incharge of the case nor was actually conducting the same at the material  time and since Shri Lalan Prasad Sinha was not merely incharge  of the case but was actually conducting the case was the proper officer to apply for the withdrawal from the prosecution.      Similarly, there is no substance in the contention that Shri Lalan  Prasad Sinha  had sought the withdrawal from the prosecution at  the behest  of the  State Government.  It is true that the Government State had taken its own decision to withdraw from  the  prosecution  in  the  case  against  the respondents Nos.  2, 3  and 4  and it  is also true that the said decision  was communicated  to Shri  Lalan Prasad Sinha but if  the two  letters, one  dated 25th February 1981 from the Law  Secretary to  the District Magistrate and the other dated 26th  March 1981  from the  Addl. Collector,  Incharge Legal Section  to the  Special Public  Prosecutor,  Incharge Vigilance cases,  are carefully scrutinized it will be clear that the  State Government  merely suggested  to Shri  Lalan Prasad Sinha (which it was entitled to do) withdraw from the prosecution but  at the  same time asked him to consider the

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matter on his own and after satisfying himself about it make the necessary  application which  he did  on 17th June, 1981 and there  is no material to doubt the recital that is found in the  application that  he had himself considered relevant materials connected  with the  case and  had come to his own conclusion in  that behalf.  We are  not  impressed  by  the argument that the appointment of Shri Lalan Prasad Sinha was made only for applying for withdrawal and not for conducting the case.  The appellants  contention, therefore,  has to be rejected.      The   next   important   question   that   arises   for consideration is whether the withdrawal from the prosecution of Respondents Nos. 87 2, 3  and 4  in  Vigilance  P.S.  Case  No.  9  (2)  78  was unwarranted, unjustified or illegal on facts as also in law. In other  words, the  real question is whether the executive function of  the public  prosecutor and  or the  supervisory function of  the Trial  Court in granting its consent to the withdrawal have been improperly performed or are vitiated by reason  of  any  illegality  ?  This  will  necessitate  the consideration of  the four  grounds on  which the withdrawal was sought by the Public Prosecutor and granted by the trial Court under  s. 321  Cr. P.C. As stated earlier, pursuant to the suggestion of the State Government and after considering the matter  for himself  Shri  Lalan  Prasad  Sinha  in  his application dated  17th June,  1981 specifically set out for grounds for  withdrawal from  the prosecution  in the namely (a) lack  of prospect of successful prosecution in the light of evidence,  (b) the implication of the persons as a result of political  and personal vendetta, (c) the inexpediency of the prosecution  for the  reasons of  the State  and  Public policy and  (d) the adverse effects that the continuation of the prosecution  will bring on public interests in the light of the  changed situation.  Significantly enough the learned Special Judge  after summarising  the  submissions  of  Shri Lalan Prasad  Sinha, which  were in  terms of  the averments made and  the grounds  set out  in the application, passed a short reasoned order on 20th June, 1981 as follows:           Having considered  the legal position explained by      the Supreme Court (in R.K. Jain’s case) and submissions      made by the learned Special P.P. in charge of this case      and having  perused the  relevant records of the case I      am satisfied  that it  is a fit case in which prayer of      the learned  Special P.P. to withdraw should be allowed      and it is, therefore, allowed. Consequently the special      P.P. Shri  Lalan Prasad  Sinha is permitted to withdraw      from the prosecution and in view of section 321 (a) Cr.      P. C. the accused persons are discharged." In other  words, the  learned Special Judge accepted all the grounds on  which withdrawal  was  sought  and  granted  the permission  to   withdraw  from  the  prosecution  on  those grounds. The  question is  whether Vigilance P.S. Case No. 9 (2) 78 was such as would attract the grounds and even if the grounds were  attracted was  withdrawal from the prosecution justified ?      Out of  the four  grounds set  out above,  I shall deal with grounds (b), (c) and (d) first and ground (a) later. In the light of 88 the legal  principles discussed  above it cannot be disputed that grounds  like the  inexpediency of  the prosecution for the reasons  of State  or public  policy, implication of the accused persons  out of  political and  or personal vendetta and adverse  effects which  the continuance  of  prosecution

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will have  on public  interests  in  the  light  of  changed situation are  appropriate and have a bearing on the broader cause of public justice, public order and peace, which might in a  given case  outweigh or  transcend the narrower public interest of  administering criminal  justice in a particular litigation necessitating  the withdrawal of the latter, but, as observe  dearlier, no  question of  serving  and  broader cause of  public justice,  public order  or peace  can arise unless the  crimes allegedly  committed are per se political offences  or   are  motivated   by  political  ambitions  or considerations or  are committed  during or  are followed by mass  agitations,   communal  frenzies,  regional  disputes, conflicts, student  unrest or  like situations which involve emotive issues  giving rise  to a  surcharged atmosphere  of violence. Admittedly, the offences of bribery (criminal mis- conduct) and  forgery which  are said to have been committed by Respondent No. 2 in conspiracy with the other accused are ordinary common law crimes and were not committed during nor were they  followed by any mass agitation or communal frenzy or regional dispute or industrial conflict or student unrest or the  like explosive situation involving any emotive issue giving  rise  to  any  surcharged  atmosphere  of  violence; further it  cannot be  disputed that  these are  not per  se political offences  nor  were  they  committed  out  of  any political motivation  whatsoever;  in  fact  the  motivating force behind  them was  merely to  give  protection  to  and shield Shri  Nawal  Kishore  Sinha,  a  close  friend,  from criminal as  well as civil liability-a favouritism amounting to criminal  misconduct allegedly  indulged in by Respondent No. 2  by abusing  his position  as a  Minister or the Chief Minister of Bihar. If therefore the offences did not partake of  any  political  character  nor  were  committed  in  nor followed by  any explosive situation involving emotive issue giving rise  to any  surcharged atmosphere  of  violence  no question serving any broader cause of public justice, public order or  peace could  arise and  in absence  there  of  the public interest  of administering  criminal justice  in this particular case  could not  be permitted to be sacrified. In other words,  this being an ordinary criminal case involving the commission  of common  law crimes of bribery and forgery in ordinary normal circumstances with self-aggrandisement or favouritism as  the motivating  force, grounds  (b), (c) and (d)  were   irrelevant  and   extraneous  to  the  issue  of withdrawal and since admittedly these were 89 the  considerations   which  unquestionably  influenced  the decision of  the public prosecutor in seeking the withdrawal as well  as the  decision of  the trial  Court to  grant the permission, the  impugned withdrawal  from  the  prosecution would stand vitiated in law.      Counsel for  the respondents  urged that as a result of the elections  there was  a change  in the  situation,  that Respondent No.  2’s party  had received the peoples’ mandate and voted  to power,  that Respondent  No. 2  had become the Chief Minister of the State and that the prosecution against the head  of the  State would  have had  adverse effects  on public  interest  including  public  order  and  peace  and, therefore, its  continuation was regarded as inexpedient for reasons of State and public policy. I fail to appreciate the contention: for,  what  has  the  change  in  the  situation brought about  by the  elections putting  one or  the  other party  in   power  got   to  do  with  the  continuation  of prosecution  for  ordinary  common  law  crimes  of  bribery (criminal-mis-conduct)  and   forgery  especially  when  the offences were  not  actuated  by  any  political  motivation

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whatsoever nor had they been committed in or followed by any explosive situation  involving  emotive  issue?  No  emotive issue was  or is involved whatsoever. Surely, in the absence of  the  aforesaid,  aspects  no  result  of  any  election, howsoever sweeping, can be construed as the peoples’ mandate to condone  or compound  the  common  law  crimes  allegedly committed by  those who have been returned to power; in fact such interpretation  of the mandate would be contrary to all democratic canons,  Success at  hustings is  no  licence  to sweep  all   dirt  under   the  carpet   and  enjoy   fruits nonchalantly.  Moreover,   the  apprehension   that   public interest including public order and peace would be adversely affected by  the continuation  of the  prosecution of common law crimes  (which do not partake of any political character or are  not  committed  in  or  followed  by  any  explosive situation involving  emotive issue)  against the head of the State is  ill-founded, for,  all that  can  happen  is  that Respondent No.  2 will  have to  step down and nothing more. Any fear  of destabilisation  of the  Government is entirely misplaced.  On   the  other   hand,  withdrawal   from   the prosecution of such offences would interfere with the normal course of  administration  of  criminal  justice  and  since Respondent No.  2 is  placed in  a high position the same is bound to  affect the  common man’s  faith in the rule of law and administration of justice. Besides, as I shall point out later, if  the proof  of the  offences  said  to  have  been committed by  Respondent No.  2 in conspiracy with the other accused was  based on  documentary evidence, the genuineness of which is not in dispute, no 90 question of  political and  personal vendetta  or unfair and overzealous investigation  would arise.  In my  view, in all the facts  and circumstances,  grounds (b), (c) and (d) were not attracted  to the  instant case  and were irrelevant and extraneous to  the  issue  of  withdrawal  and  since  these grounds had  influenced the executive function of the Public Prosecutor as  well as  the supervisory judicial function of the trial  Court  the  performance  of  these  functions  is vitiated. The  High Court  has simply  put its  seal on  the trial Court’s  order accepting  these grounds.  The impugned withdrawal as  permitted by the trial Court and confirmed by the High  Court in  so far  as it  is based on these grounds would be bad in law.      I shall  now proceed  to deal  with the ground (a) that was put  forward for  withdrawal from  the  prosecution.  In substance the  ground was  that there  were  no  chances  of successful prosecution  in view  of paucity  of evidence  to prove the charges. As stated earlier when such is the ground it is  the duty  of the  Court to  examine the  material  to ascertain whether  the ground  was valid  one or whether the available material  was sufficient to make out a prima facie case against  the accused  to put him on trial ? And I shall approach the problem strictly from this angle.      The facts giving rise to the launching of the aforesaid prosecution against  respondent Nos.  2, 3  and 4  and three others may  be stated: The Patna Urban Co-operative Bank was registered in  May 1970  and commenced  its banking business with Nawal  Kishore Sinha as its Chairman, K.P. Gupta as its Honorary Secretary,  M.A. Haidari  as its  Manager and  A.K. Singh as a Loan Clerk (who also worked as the care-taker and Personal Assistant  to N.K.  Sinha).  A  Loan  Sub-Committee consisting of  N.K.  Sinha  the  Chairman,  K.P.  Gupta  the Secretary and  one Shri Purnendu Narain, an Advocate used to look after  the sanctioning and granting of loans. Under its bye-laws the  Chairman was  the ultimate authority in regard

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to all  the functions of the Bank and the Honorary Secretary along with  the Chairman had to exercise supervisory control over all  the activities  of the  Bank while the Manager was concerned with  its day  to  day  working.  Dr.  Jagan  Nath Mishra,  then  an  M.L.C.  and  who  subsequently  became  a Minister and  the Chief Minister in the Bihar Cabinet helped the Bank  and its  Chairman  (N.K.  Sinha  being  his  close associate  and   confidant)  in   several   ways   including mobilisation of resources for the Bank. Separate audits into the working of the Bank were conducted by 91 the Reserve  Bank of  India as  well as  by the Co-operative Department of the Bihar Government for the years 1972-73 and 1973-74 during  the  course  of  which  a  large  number  of irregularities (such  as non-maintenance  of cash books in a proper manner,  grant of over-draft facility without current account etc  ), illegal  practices, acts of defalcations and malversation  of  funds  of  the  Bank  came  to  light;  in particular the  Audit Reports  disclosed that  huge  amounts running into lakhs of rupees had been squandered away by (a) giving loans  to non-members,  (b) giving loans even without application, agreement  or pronote, (c) giving loans without hypothecations, (d)  giving  short  term  loans  instead  of realising cash on sale proceeds even for hypothecated goods, (e) giving  loans to the same persons in different names and (f) giving  loans to  fictitious  persons  and  non-existing firms or  industries etc.  and the audit team of the Reserve Bank in  its report came to the conclusion that the Chairman Shri Nawal  Kishore Sinha  and others  were responsible  and accountable for  ’bad loans’ to the tune of Rs. 12 lakhs and ’mis-appropriation and  embezzlement’ to  the tune of Rs. 25 lakhs. On  the basis  of these audit reports at the instance of the  Reserve Bank  the management of the Bank through its Board of  Directors was  superseded on  10th of  July,  1974 under the  orders of  the Registrar, Co-operative Societies, and Nawal  Kishore Sinha the Chairman and other Directors on the Board  were removed  and an  officer of the Co-operative Department,  Government  of  Bihar,  was  appointed  as  the Special Officer to look after the affairs of the Bank.      On the  strength of  the aforesaid  Audit  Reports  the Registrar, Co-operative  Societies, agreeing  with the Joint Registrar, put  up a  note dated 4.11.1974 to the Secretary, Co-operative   saying    that   prima   facie   charges   of defalcations, conspiracy,  etc. were  made out  against  the officials of the Bank and legal action be taken against them after taking  the opinion  of  the  Public  Prosecutor;  the Secretary by  his note dated 7.11.1974 sought the opinion of the Law Department on 18.11.1974 the Law Department recorded its opinion  in the  relevant file (being File No. IX/Legal- 9/75 of  the Department  of Co-operation)  that  a  case  of conspiracy and  criminal breach  of trust  against the loans and office  bearers of the Bank was prima facie made out. On 16.12.1974 a  draft complaint  was prepared by the Assistant Public Prosecutor,  Patna for  being filed  before the Chief Judicial Magistrate,  Patna; on the same day (16.12.1974) an office noting  was made by Shri Bimal on the file suggesting that the  Law Department’s  advice on the draft complaint be obtained,  which  course  of  action  was  approved  by  the Secretary, Co-operation on 16.12.1974, by the Minister for 92 Co-operative (Shri  Umesh Prasad  Verma) on  1.1.1975 and by the  then  Chief  Minister  (Shri  A.  Gaffoor)  on  2.1.75. Accordingly, the  file was  sent to the Law Department which reiterated its  earlier advice for launching the prosecution and on  the file  being  received  back  on  18.1.1975,  the

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Secretary Co-operation  endorsed the  file on  21.1.1975  to A.P.P. Shri  Grish Narain Sinha for necessary action i.e. to file the  prosecution (vide the several notings made in File No.IX/Legal-9/75-relied upon  by the  respondents). In other words by  21.1.1975  the  stage  was  set  for  launching  a criminal prosecution  against the loanees and the members of the Board  of Directors of the Bank with Nawal Kishore Sinha as the  principal accused  and a  complaint petition in that behalf duly  approved by  the Law  Department and  signed by Shri Jagdish  Narain Verma,  District Co-operative  Officer, Patna on  25.1.1975 was also ready with the A.P.P. for being filed in  the Court.  But before  the A.P.P.  could file the complaint, Respondent  No.2 (Jagan  Nath Mishra, Agriculture and Irrigation  Minister)  wrote  a  buff-sheet  note  dated 24.1.1975 asking  the Secretary,  Co-operation to  send  the concerned file  along with  Audit Reports  to him before the institution  of   the  Criminal   case.  Accordingly,  after obtaining the approval of the then Co-operative Minister and the then  Chief Minister  for sending the file to respondent No. 2, the Secretary recalled the file and other papers from the A.P.P. on 28.1.1975 and on 24.2.1975 he sent the file to the Law Minister en route the then Chief Minister. It may be stated that  under the  Notification dated  30th April, 1974 issued under Art. 166 (3) of the Constitution read with Rule 5 of  the Rules of Executive Business of the State of Bihar, the then  Chief Minister  Shri Abdul  Gaffoor was inter alia holding the  portfolio of  Law also  but  according  to  the affidavit of  Shri Neelanand  Singh dated 19th October, 1982 filed on behalf of Respondent No.1 before us Shri A. Gaffoor as per  his note  dated 29-8-1974  addressed  to  the  Chief Secretary and  circulated to various departments had, with a view to  lessen his heavy burden, requested Respondent No. 2 (Jagan Nath  Mishra) to  look after  the  work  of  the  Law Department and  as such  endorsing the file on 24.2.1975 ’to the Law  Minister en-route  the Chief  Minister’ would  mean that the  file must  have gone  to respondent No. 2 as there was no  other person holding the Law portfolio excepting the Chief Minister  himself under  the Notification  dated  30th April, 1974.  It is claimed by the appellant that Respondent No. 2  sat tight  over the file for over two and half months till he became the Chief Minister whereas it is suggested on behalf of  the Respondents  that though  the file was called for by 93 Respondent No.  2 on 24-1-1975 it did not actually reach him till middle  of May,  1975. However,  ignoring the aforesaid controversy,  the  fact  remains  that  the  filing  of  the complaint got  postponed from  24-1-1975 (the  date of Buff- sheet order  of Respondent  No. 2)  till middle of May, 1975 and in  the meantime  on 11.4.1975 Respondent No. 2 replaced Shri A.  Gaffoor as  the Chief Minister and in the middle of May 1975  as the  Chief Minister Respondent No. 2 passed two orders which are very eloquent.      On 16-5-1975  in the  File No. IX/Legal-9/75 respondent No. 2 wrote out an order in his own hand in Hindi concerning the action  to be  taken against  Nawal  Kishore  Sinha  and others, the  English rendering  of which,  according to  the respondents, runs thus:           "Much time  has passed.  On perusal of the File it      appears that  there is  no  allegation  of  defalcation      against the  Chairman and  the Members  of the Board of      the Bank.  Stern action should be taken for realisation      of loans from the loanees and if there are difficulties      in realisation  from the  loanees surcharge proceedings      should be initiated against the Board of Directors. The

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    normal condition  be restored in the Bank after calling      the Annual General Meeting and holding the election.                                       (Sd) Jagan Nath Mishra 16-5-1975      In  the  margin  opposite  the  above  order  the  seal containing the despatch entry originally showed 16-5-1975 as the date  on which  the file  was despatched  from the Chief Minister’s Secretariat  to the Co-operative Department after Respondent No.  2 had made the above order. It is clear that the first  part of  the above  order regarding  the criminal involvement is  in teeth of the Audit Reports of the Reserve Bank and  the Co-operative  Department and  contrary to  the opinion of  the Law  Department  it  thwarted  the  criminal prosecution against  Shri Nawal  Kishore Sinha  and  others, while under  the latter  part it still exposed them to civil liability by  way of  surcharge proceedings  to  be  adopted against them in default of realisations from the loanees but as even  the loans  had been  advanced mostly  in fictitious names and  were  actually  utilised  by  the  office-bearers themselves the  prospect of  civil  liability  loomed  large before  them.  Realising  this  position  Respondent  No.  2 irregularly-there being  no endorsement nor any seal showing inward receipt of 94 the File  by Chief  Minister’s Secretariat-got  hold of  the File again  and passed  another order in his hand on a piece of paper in Hindi under his signature but bearing an earlier date 14.5.1975  and had  it pasted  over the  earlier  order dated 16.5.1975  in the  File  so  as  to  efface  the  same completely, and the date of despatch 16.5.75 in the despatch seal appearing  in the  margin was  altered to  14 5.1975 by over writing;  an English  rendering of  this second  order, addressed to the Minister for Co-operation, runs thus:           "Please  issue  order  for  restoring  the  normal      condition in  the Bank  after  holding  Annual  General      Meeting.                                       (Sd) Jagan Nath Mishra                                             14-5-1975" It  is  undisputed  that  Respondent  No.  2  did  pass  the aforesaid two  orders in his own hand in Hindi, the first on 16-5-1975 and  the second  subsequently in point of time but ante-dated it  to 14-5-1975 and had it pasted over the first order completely  effacing that  order. Such  conduct on his part has  been explained only on the basis that as the Chief Minister he  had the authority and power to revise or review his  earlier  order  and  that  it  is  the  usual  practice prevailing in  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 orders (Para 8 of the counter affidavit of Shri Bidhu Shekhar Banerjee dated 17-3- 1982 filed  on behalf  of respondent  No. 1). Even with this explanation the  admitted position  that emerges is that the aforesaid two  orders were  passed by respondent No. 2, that the second  order was  ante-dated to  14-5-1975 and that the same was  pasted on  the file so as to efface completely the earlier order.  In other  words in substance and reality the entire order  passed by  Respondent No.  2 in  the concerned file on  16-5-1975 which  contained 4  directions; (a) there being no allegation of defalcation against the Chairman, the Members of  the Board no criminality was involved, (b) stern action for  realisation of  the loans  from the  loanees  be taken, (c)  failing which  surcharge proceedings against the Board of  Directors be  initiated  and  (d)  restoration  of normal condition  in the  Bank be  brought about  by calling

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Annual General  Meeting and  holding the election, was wiped out and  completely substituted  by the  second order  which merely retained  the last  direction (item (d) above) of the first order.  In effect  under the  second  order  both  the criminal as  well as  civil liability of Nawal Kishore Sinha and others 95 were given  a go-bye,  notwithstanding the  Audit Reports of the  Reserve   Bank  and  the  Co-operative  Department  and Respondent No.  2 merely  directed that the normal condition in the Bank be restored and this result was brought about by the second  order which  was  ante-dated  with  the  obvious fraudulent intent  of nullifying  or rendering  nugatory any action that  could have  been or might have been taken (even if not actually taken) pursuant to the first order after the file had left the Chief Minister’s Secretariat on 16.5.1975, that being the most natural consequence flowing from the act of ante-dating  the second  order. It  is not necessary that the fraudulent  intent should  materialise; it  is enough if act of  ante-dating is done with the fraudulent intent. This being a  case of  inter-departmental orders, the first order dated 16th  May, 1975  passed by  Respondent  No.  2  became operative as  soon as  the concerned  file  left  the  Chief Minister’s Secretariat and as such the same could be revised or reviewed  by Respondent No. 2 by officially and regularly calling  back   the  file  and  by  passing  a  fresh  order subsequent in  point of  time modifying  or  cancelling  the earlier order  but surely not by the crude method of pasting the subsequent order over the first so as to efface the same completely and  in no  event by  ante-dating it.  It is true that mere  ante-dating a  document or  an  order  would  not amount to  an offence  of forgery but if the document or the order is  antedated with oblique motive or fraudulent intent indicated above (without the same actually materialising) it will be forgery.      The   aforesaid    undisputed   documentary    evidence comprising the  Audit Reports,  the relevant  notings in the concerned file  and the  two  orders  of  Respondent  No.  2 clearly makes  out a  prima facie  case of the commission of two common  Law offences of criminal mis-conduct s. 5(1) (d) of Prevention of Corruption Act) and forgery (s. 466 I.P.C.) by Respondent  No. 2 without needing any further material to establish the  same. The  ingredients of  the former  can be said to  be prima facie satisfied in that by passing the two orders Respondent  No. 2  by corrupt  or illegal means or by otherwise  abusing   his  position  as  the  Chief  Minister subverted the criminal prosecution and surcharge proceedings against Nawal  Kishore Sinha  and others  and had thereby at any rate  obtained  for  them  pecuniary  advantage  to  the deteriment  of   the  Bank,   its  members,  depositors  and creditors. This is apart from the aspect as to whether while doing so he obtained pecuniary advantage for himself or not, for which  further material by way of confessional statement of the  approvers would  be required  to  be  considered  or appreciated but ignoring such further material 96 the ingredients of s. 5 (1) (d) get satisfied prima facie as indicated above. As regards the latter though Respondent No. 2 had  the authority  and power  to pass the second order in substitution of  the first,  by ante-dating the second order with fraudulent  intent the  ingredients  of  forgery  again prima  facie   satisfied.  In  other  words,  the  aforesaid material is  clearly sufficient  to put  Respondent No  2 on trial  for,  if  the  said  material  remains  unrebutted  a conviction would clearly ensue.

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    It   was   strenuously   contended   by   Counsel   for respondents, particularly  by counsel  for Respondent  No. 2 that if  the aforesaid two orders passed by Respondent No. 2 are properly understood it cannot be said that the effect of either of these two orders was to thwart or to scuttle or to subvert the  criminal prosecution  and surcharge proceedings against Nawal  Kishore Sinha  and others and that the effect of the  second order  was certainly  not to  countermand the directions contained  in the  first order in regard to items (b) and  (c) above  but in fact the effect was to facilitate recourse to surcharge proceedings against the office-bearers without the hurdle of being required to make the recovery of loans from  the loanees  first, which  was the import of the first order  dated 16-3-1978.  It was further contended that instead of  stifling the  criminal prosecution against Nawal Kishore Sinha and other office bearers Respondent No. 2 at a subsequent stage  had directed prosecution of office bearers including Nawal  Kishore Sinha and actually the Co-operative Department had  taken steps  to adopt  surcharge proceedings even against  Nawal Kishore  Sinha  by  issuing  show  cause notice  to  him  and  therefore,  the  charges  of  criminal misconduct and  forgery against  the  Respondent  No.  2  in conspiracy  with   others  were  clearly  unsustainable  and withdrawal  from   the  prosecution  sought  by  the  public prosecutor was proper and justified. In my view, however, as I shall  presently indicate, the further materials on record do not  bear out or support these submissions of counsel for the respondents.      On the  question as  to whether the effect of either of the aforesaid  two orders  was to thwart; scuttle or subvert criminal prosecution  and surcharge  proceedings or  not and what was  intended by  Respondent No. 2 when he passed those orders would  be clear  from his further conduct evidence by subsequent notings and orders passed by him till he went out of power in 1977 and in this behalf it would be desirable to delineate the  course which  the subsequent  events took  in regard to criminal prosecution as well as surcharge 97 proceedings separately.  As regards criminal prosecution, it appears that  the Co-operative Department wanted to go ahead with it  and in  that behalf  by his next noting dated 28-6- 1975 the  then Minister  for Co-operation  sought directions from the Chief Minister as to what should be the next course of  action  in  the  matter  of  filing  the  complaint  and Respondent No.  2 as the Chief Minister passed the following order on  the file  on 30-6-1975: "Discussion has been held. There is no need to file the prosecution." This clearly show what Respondent  No. 2  intended by his aforesaid two orders in the  matter of  criminal prosecution  and  the  direction clearly runs  counter to  the suggestion  that  he  did  not thwart, scuttle  or subvert the criminal prosecution against Nawal Kishore  Sinha and  others. It further appears that in July, 1975  there were  questions and call attention motions in the Bihar Legislative Assembly during the course of which the propriety  of non-prosecution  of the culprits concerned in the  Bank fraud,  despite Law  Department’s  advice,  was discussed, that  the Speaker  referred  the  matter  to  the Estimates Committee  of the  House, that  in June,  1976 the Estimates  Committee   submitted  its   Report  recommending prosecution of Nawal Kishore Sinha and others, that in July, 1976  a   debate  took   place  in   the  Assembly   on  the recommendations  contained   in  the  said  Report  and  the Government  was  forced  to  agree  to  launch  prosecutions against the culprits. In the wake of these events Respondent No. 2  as the Chief Minister passed an order on 4-8-1976 for

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launching criminal  prosecutions but  even there he directed that prosecutions  be launched  against some  of the office- bearers and  loanees of the Bank including Shri K. P. Gupta, the Hony, Secretary, Shri M.A. Haidary, the Manager and Shri K.P. Gupta,  the Loan  Clerk but  not against  Nawal Kishore Sinha who  was excluded  from being  arraigned as an accused and accordingly  23 criminal  cases were  filed against  the aforesaid office-bearers  and loanees. This order is another indication that  even with  all the  furore which  the Banks affairs had  created Respondent  No. 2  wanted  to  and  did protect and  save Shri  Nawal Kishore  Sinha  from  criminal prosecution by  excluding him  from  the  array  of  accused persons. As  regards the 23 criminal cases filed against the other office bearers and the loanees of the Bank there is on record in  the Co-operative  Department File  No.  12/Legal- 31/77 a Buff-Sheet order dated 2-2-1977 passed by Respondent No. 2  to the  following effect:  "In order  to recover  the money from  some of  the loanees  of  the  Patna  Urban  Co- operative Bank, criminal cases were instituted against them. Action should be taken immediately for the withdrawal of the cases against  those loanees  who have  cleared the  loan in full, and proper instalments for 98 payment of  loans should  be fixed against those who want to repay the  loan but due to financial handicaps are unable to make payment  at a  time, and  thereafter necessary  further action should  be taken."  It appears  that pursuant to this order after verifying that loans from three parties (Plastic Fabricators, Climaz  Plastic Udyog and K.K. Boolan) had been cleared the  criminal cases against them were directed to be withdrawn immediately. However, the protection given to Shri Nawal Kishore  Sinha against  criminal prosecution continued to benefit him.      In the  meanwhile in April, 1976 the Banking Licence of the Patna  Urban Co-operative  Bank  was  cancelled  by  the Reserve Bank  of India  and further  at the  instance of the Registrar, Co-operative  Societies, the  Bank was ordered to be liquidated.  It appears  that Shri T. Nand Kumar, I.A.S., Liquidator of  the Bank  addressed a  communication  to  the Registrar, Co-operative  Societies suggesting  that  besides the other  office-bearers Sri  Nawal Kishore  Sinha, the ex- Chairman of  the Bank  also deserve  to  be  prosecuted  for offences of  embezzlement, forfery,  cheating, etc.  but the matter was  kept pending for report of the Superintendent of Police (Co-operative Vigilance Cell); the S.P. (Co-operative Vigilance Cell)  after collecting  facts and evidence got it examined by  Deputy Secretary  (Law) in C.I.D., obtained the opinion that a criminal case was fully made out against Shri Nawal Kishore  Sinha and proposed that a fresh criminal case as per  draft F.I.R.  be filed  and that  Shri Nawal Kishore Sinha should  also be  made co-accused  in a number of cases already  under   investigation,   the   S.P.   (Co-operative Vigilance Cell)  obtained the  approval of D.I.G., C.I.D. on his said  proposal and  submitted the same to the Secretary, Co-operation, for  obtaining Chief Minister’s permission. In view of  the Chief  Minister’s earlier order restricting the filing of  criminal cases against some of the office-bearers and loanees  only the S.P’s noting categorically stated that the draft  F.I.R. (against  N.K. Sinha)  had been  vetted by D.I.G. C.I.D. as well as by I.G.. of Police. After examining the entire  material carefully  and obtaining clarifications on certain  points Shri  Vinod Kumar  Secretary Co-operation put up  a lengthy  note dated  15-1-1977 to the Minister for Co-operation in which he specifically placed the proposal of S.P.  (Co-operative   Vigilance  Cell)  for  lodging  F.I.R.

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against Shri  Nawal Kishore  Sinha for his approval and also suggested that  the Hon’ble  Minister may  also  obtain  the approval  of  the  Chief  Minister.  The  Minister  for  Co- operation in  his turn endorsed the file on 20-1-1977 to the Chief Minister  for the  latter’s  approval.  The  file  was received by  the Chief  Minister’s Secretariat  on 30-3-1977 and 99 Respondent No.  2 as  the Chief Minister on 9-4-1977 instead of indicating  his mind either way merely marked the file to "I.G. of  Police." which was meaningless as the prior noting had clearly indicated that a draft F.I.R. had been vetted by both,  D.I.G.,  C.I.D.  and  I.G.  of  Police.  Counsel  for Respondent No.  2 submitted that the endorsement made by the Chief Minister  meant that  he had  approved the  action  as proposed. It is impossible to accept the submission. Had the Chief Minister  merely put his signature or initials without saying anything  it might have been possible to suggest that he had  approved the proposal, but to mark the file to "I.G. of Police" without saying ’as proposed’ or something to that effect cannot  mean that  the Respondent  No. 2 had approved the proposal.  In fact,  with the knowledge that the I.G. of Police had approved and vetted the draft F.I.R. against N.K. Sinha, merely  marking the file to "I.G. of Police" amounted to putting  off the  matter  Meanwhile  Respondent  No.  2’s Government went  out of power and under the President’s Rule the matter  was dealt  with by  the Governor Shri Jagan Nath Kaushal (the  present Union  Law Minister)  who granted  the approval on  16-5-1977 as  a result  whereof a criminal case (being F.I.R.  Case No.  97 (5)  77) ultimately  came to  be filed at  Kadam Kuan  Police Station  on  30-5-1977  against Nawal Kishore  Sinha, for which Respondent No. 2 cannot take any credit  whatsoever. On  the other  hand, the  subsequent events show  that  so  long  at  it  lay  within  his  power Respondents No.  2 made  every effort  to protect  and  save Nawal Kishore Sinha from criminal prosecution by abusing his official position-a  criminal  prosecution  which  had  been proposed by  independent bodies  like the  Reserve  Bank  of India and  the Co-operative Department, agreed to by the Law Department,  recommended  by  the  Estimates  Committee  and ultimately approved by the Governor Shri Jagan Nath Kaushal.      As regards  the surcharge  proceedings the  position is very  simple.  As  discussed  earlier,  the  two  directions contained in  the first  order dated  16-5-1975  for  taking stern action  to realise  loans  from  the  loanees  and  in default to  initiate surcharge proceedings against the Board of Directors  were wiped  out by  the subsequent  ante-dated order 14-5-1977,  and  thereby  Respondent  No.  2  thwarted surcharge proceedings  and attempted to give a go bye to the civil liability  of Nawal  Kishore Sinha  and other  office- bearers of  the Bank. This conduct on the part of Respondent No 2  has been  explained in  the counter  affidavit of Shri Vinod Kumar  Sinha dated  8-10-1982  filed  before  us,  and counsel for Respondent No. 2 pressed it into service 100 during his  arguments and the explanation is that a separate file titled "Surcharge Proceedings" being File No. 3 of 1975 maintained in  the office  of Deputy Registrar, Co-operative Societies, Patna Division shows (a) that by his letter dated 30-4-1975 the  Deputy Registrar informed the joint Registrar that discussions  had already  been held  with the Registrar and that surcharge proceedings would be initiated as soon as possible (b)  that on  10-6-1975 the  necessary proposal for surcharge was drafted and filed by the District Co-operative Officer before  the Registrar under sec. 40 of the Bihar and

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Orissa  Co-operative   Society  Act   and  (c)  on  1-7-1975 Surcharged Case No. 3 of 1975 had been started against Nawal Kishore Sinha  and others  by directing  issuance  of  show- cause-notice to  them  and  that  in  view  of  these  facts Respondent No.  2 could  not be  said to have counter-manded the Surcharge  proceedings, it  is further  urged  that  the order dated  16-5-1975 directing  surcharge proceedings was, therefore,  unnecessary   and  irrelevant   as  the   proper authority, namely,  the Registrar  had  already  decided  to start surcharge  proceedings which  were started by issuance of show-cause notice to Nawal Kishore Sinha and others on 1- 7-1975 and, in fact, if the struck-out order dated 16-5-1975 had remained without being replaced by the order dated 14-5- 1975 the  surcharged proceedings  which were  filed on 10-6- 1975 would have been delayed and the effect of recalling the first order  dated 16-5-1975  (incidentally recalling of the first  order  by  the  second  order  is  admitted)  was  to facilitate  the  surcharge  proceedings  (which  were  being processed at  that time  in the  office of Deputy Registrar) without being  required to  adopt recovery  proceedings from the loanees  first. Counsel for Respondent No. 2 strenuously urged that  instead of  thwarting or  stalling the surcharge proceedings the subsequent order dated 14-5-1975 removed a - hurdle. The explanation to say the least is disingenuous for two  or   three  reasons  and  cannot  be  accepted.  First, admittedly and  this was  fairly  conceded  by  counsel  for Respondent No.  2, that  there is  no material  on record to show that  File No. 3/75 pertaining to surcharge proceedings was sent  to the  Chief Minister  (Respondent No.  2) or was seen by  him prior to 16-5-1975,indeed, it was never sent to him at  all with  the result  that Respondent  No. 2  had no knowledge of either the notings and orders contained therein or  what  was  being  done  in  the  office  of  the  Deputy Registrar, Co-operative  Societies, when he passed either of the two orders dated 16-5-1975 and 14-5-1975 and the explanation, therefore,  that Respondent  No. 2  facilitated the filing of the surcharge proceedings by the office of the Deputy Registrar, without the necessity of proceeding against the loanees first, is not candid. Secondly, the proposal for surcharge proceeding itself was submitted and 101 filed by  the District  Co-operative Officer  against  Nawal Kishore Sinha  and others  on 10-6-1975  and  the  surcharge proceedings actually could be said to have been initiated on 1-7-1975, when  show cause  notice was directed to be issued and served  on  Nawal  Kishore  Sinha  on  15-7-1975,  while thwarting of the surcharge proceedings against Nawal Kishore Sinha  and   others  was   already  complete,   having  been accomplished by Respondent No. 2 by his ante-dated order 14- 5-1975. Thirdly  it is  obvious that Respondent No. 2 cannot take credit  for the  action that was taken in the matter of surcharge proceedings against Nawal Kishore Sinha and others by   the   Office   of   Registrar,   Co-operative   Society independently of  and in  spite of Respondent No. 2’s action of subverting the surcharge proceedings.      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 s. 5 (1) (d) read with  s. 5  (2) of  the Prevention  of Corruption  Act, 1947. Similar  is the position with regard to the incidental offence of  forgery under  s. 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

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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 arguments his counsel offered the explanation that  could only  be ascribed  as  a  bona  fide mistake or slip (vide written arguments filed on 14.10.1982) but such  explanation does  not bear scrutiny, having regard to the  admitted fact  that after  the ante-dated  order was pasted over  the first  order the despatch date appearing in the margin  was required  to be  and  has  been  altered  to 14.5.1975 by over-writing and if over-writing is required to be done  there cannot  any bona  fide mistake  or slip.  The ante-dating in  the  circumstances  would  be  with  oblique intent to  nullify any  possible action  that could  have or might have  been taken pursuant to the first order as stated earlier, that  being the  most natural  consequence  flowing from it  which in  must in law be presumed to have intended. It would, of course, be open to him to rebut the same at the trial but  at the  moment there  is no material on record-by way of  rebuttal. In  the circumstances  it is impossible to accept the  paucity of  evidence  or  lack  of  prospect  of successful 102 prosecution as  a  valid  ground  for  withdrawal  from  the prosecution.  On   the  aforesaid   undisputed   documentary evidence no  two views  are possible  in the  absence of any rebuttal material,  which, of  course, the  respondent No. 2 will have  the opportunity  to place before the Court at the trial. What  is more  the so-called  unfair or  over-zealous investigators were  miles away  when the  aforesaid evidence came into existence.      As far  as Respondent  No. 3  (Nawal Kishore Sinha) and Respondent No.  4 (Jiwanand  Jha) are concerned it cannot be forgotten that they have been arraigned alongwith Respondent No. 2  on a  charge  of  criminal  conspiracy  in  pursuance whereof the several offences are said to have been committed by all  of them.  Further it  is obvious  that the principal beneficiary of  the offence  of criminal  misconduct said to have been  committed by  Respondent No. 2 under s. 5 (1) (d) read with s. 5 (2) of Prevention of Corruption Act, 1947 has been Respondent  No. 3  and so  far as  Respondent No.  4 is concerned it  cannot be  said that  there is  no material on record suggesting  his complicity.  Admittedly, he  has been very close  to  Respondent  No.  2  for  several  years  and attending to  his affairs-private  and party affairs and the allegation  against  him  in  the  F.I.R.  is  that  he  was concerned with  the deposit of two amounts of Rs. 10,000 and Rs. 3,000  on 27.12.1973  and 1.4.1974  in 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  s. 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

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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 excluded from  consideration  the  debatable  evidence  like confessional statements of the approvers 103 etc. (credibility  and effect whereof would be for the trial court  to  decide)  said  to  have  been  collected  by  the allegedly   over-zealous    investigating   officers   after Respondent No. 2 went out of power in 1977.      There is  yet another  legal infirmity attaching to the executive function  of the  Public Prosecutor as well as the supervisory judicial function of the trial court which would vitiate the  final order.  As  per  the  charge-sheet  filed against them  respondents Nos.  2, 3 and 4 were said to have committed offences  under ss.  420/466/417/109/120-B, I.P.C. and under  ss. 5  (1) (a),  (b) and 5 (1) (d) read with s. 5 (2) of  the Corruption  of Prevention Act, 1947 and gravaman of the  charge against  the respondent  No 2 was that in his capacity either as a Minister or the Chief Minister of Bihar by corrupt  of illegal  means or  by otherwise  abusing  his position as  a public  servant he,  in conspiracy  with  the other accused and with a view to protect Nawal Kishore Sinha in particular,  sought to  subvert criminal  prosecution and surcharge proceedings against Nawal Kishore Sinha and others and  either  obtained  for  himself  or  conferred  on  them pecuniary advantage  to the  detriment of Patna Co-operative Bank, its Members, depositors and creditors; in other words, the principal charge against Respondent No. 2 was in respect of the  offence of  criminal misconduct  under s.  5 (1) (d) read with s. 5 (2) of Prevention of Corruption Act, 1947 and the offence  under s.  5 (1)  (c) was  nowhere mentioned  or referred to.  The difference  between s.  5 (1) (d) (bribery amounting to  criminal mis-conduct) and s. 5 (1) (c) (breach of trust  amounting to criminal mis-conduct) is substantial, each having different ingredients but in the application for withdrawal filed  by Shri  Lalan Prasad  Sinha on 17th June, 1981 he  stated that  withdrawal  from  the  prosecution  in Vigilance Case No. 9 (2) 78 was sought in respect of several offences including the offence of criminal mis-conduct under s. 5  (1) (c)  read with  s. 5  (2)  of  the  Prevention  of Corruption Act  and through out the application there was no reference to  the offence of criminal mis-conduct under s. 5 (1) (d)  read with s. 5 (2) of the said Act. In other words, an offence  under s. 5 (1) (c) read with s. 5 (2) with which Respondent No.  2 had  never been  charged was mentioned and the offence under s. 5 (1) (d) read with s. 5 (2) with which he was principally charged was completely omitted. Obviously submissions contained  in the  application as  well as those that were  made at  the hearing  before the  Court  were  in relation to  the offence  of s.  5 (1)  (c) and not s. 5 (1) (d). Similarly the learned Special Judge while granting the 104 requisite permission  has also referred to the offence under s. 5  (1) (c)  and not  s. 5  (1) (d)  of the  Prevention of Corruption Act  in his  order and  obviously the  permission granted must  be regarded as having been given in respect of an offence with which Respondent No. 2 had not been charged, completely ignoring  the offence  under s.  5 (1)  (d)  with which he  had mainly  been charged.  This state  of  affairs brings out  a clear and glaring non-application of mind both on the  part of  the Public  Prosecutor as  also the learned Special Judge while dealing with the issue of withdrawal; in the  High   Court  also  there  is  no  improvement  in  the

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situation. This  must lead  to the  quashing of the impugned withdrawal from the prosecution.      Having regard  to the  aforesaid discussion it is clear that the  impugned withdrawal  was not  justified either  on merits or  in law  and being  illegal has  to be  quashed. I would, therefore,  allow the appeal set aside the withdrawal order and  direct that  Vigilance P. S. Case No. 9 (2) 78 be proceeded with the disposed of in accordance with law.      BAHARUL ISLAM, J. This is an appeal by special leave by Shri Sheonandan  Paswan, who  intervened in  an  application under Section  321 of  the Code  of Criminal Procedure, 1973 (hereinafter ‘the  Code’) pending  before the Chief Judicial Magistrate-cum-Special Judge, Patna. The material background facts may be narrated thus:      2. The  appellant is  a member of the Bihar Legislative Assembly and belongs to the Lok Dal Party. Respondent No. 2, Dr. Jagannath  Mishra, is  currently the  Chief Minister  of Bihar ;  and Respondent  No. 4,  Shri Jiwanand  Jha  at  the relevant time  was a  close associate  of Respondent  No. 2. Respondent No.  3, Shri Naval Kishore Sinha, who started the Patna Urban  Cooperative Bank  (hereinafter ‘the  Bank’) and became its  Chairman, had been a colleague of Respondent No. 2 in  the Legislative  Council of Bihar. In 1972, respondent No. 2  became Minister  for Cooperation  and Agriculture. On June  18,   1974,  the  Sub  Divisional  Co-operative  Audit Officer, Patna,  submitted his  audit report  of the Bank in respect  of   the  year   1972-73  alleging   a  number   of irregularities in  the affairs  of the  Bank. The report was submitted to the Co-operative Department whereupon the Joint Registrar, Cooperative  Audit Department,  recommended legal action  against   the  Directors  of  the  Bank.  The  legal assistant of the Department submitted a 105 draft prosecution  report prepared  by the Public Prosecutor with a  suggestion that  the Registrar  of  the  Cooperative Department should  obtain the  opinion of the Law Department on the  draft prosecution  report. The  Registrar agreed  to send the  draft prosecution report to the law Department but expressed  desire   that  the  Minister  in  charge  of  the Cooperative Department  should see  the report.  Accordingly the file  was endorsed  to the  Minister in  charge  of  the Cooperative Department.  The then Chief Minister, Shri Abdul Gafoor, signed  it by way of agreement with the Registrar to obtain the  advice of  the Law  Department and  approved the First  Information   Report  (FIR).  The  Secretary  of  the Cooperative Department  then requested the Public Prosecutor to amend  the draft FIR which was sent to the Law Department for opinion.  The Law  Department returned  the file  to the Cooperative Department stating that it had already given its opinion and  that it was not its duty to file complaint. The file was  then endorsed  to the Additional Public Prosecutor for necessary  action. Respondent No. 2 who was the Minister in charge  of Irrigation  and Agriculture also wanted to see the file  along with  the audit  report before the complaint was actually  filed. The  Cooperation Minister  endorsed the file to  the Chief  Minister, Shri Gafoor, with his comments that the  file might be sent to the Irrigation Minister. The Secretary,  Cooperative,  requested  the  Additional  Public Prosecutor  to  release  the  file,  with  the  endorsement, "filing of  complaint may  await further  instructions". The Additional Public Prosecutor sent the file to the Secretary, Co-operative, through  a special messenger with a request to return the  file after  perusal by  the Chief Minister (Shri Gafoor). The  Secretary, Cooperative  Department,  sent  the file to  the Minister of Cooperation with his remarks, inter

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alia, "para 4:-Law Deptt. have tendered their advice at page 13/N that  criminal case  made out against the Secretary and other Directors of the bank should be filed."      "Para 5: Chief Minister and Minister (Law) have desired to see the file before complaints are actually lodged". As a result the  file was  recalled from  the  Additional  Public Prosecutor.      The above  movement of  the file  was between  January, 1975 to February 24, 1975.      3. On  April 11,  1975,  there  was  a  change  in  the Ministry  of   Bihar.  Chief  Minister,  Abdul  Gafoor,  was replaced by Respondent 106 No. 2  as Chief  Minister and one Dr. Jawahar Hussain became the Minister  of Cooperation. On May 16, 1975, the aforesaid file was  put up  before the Chief Minister, who ordered for taking strict  steps for  realisation of  the loans, failing that for  starting surcharge  proceedings,  and  to  restore normal conditions in the Bank after convening annual general meeting and holding election.      Subsequently, the  said order  was covered by pasting a piece of  paper containing  a fresh  order to which we shall refer later.  On June  28, 1975  the Minister of Cooperation wrote  to   the  Chief   Minister  that  the  buff-sheet  of correspondence showed  that the  former Chief Minister (Shri Gafoor) postponed  the filing of the complaint and wanted to see the  file; and  as the  former Chief Minister had passed the said  orders, it  was for  the  new  Chief  Minister  to indicate the  next course  of action in the case. Respondent No. 2  wrote on  the file that discussions had been held and that there  was no need to file any case. On August 4, 1976, the Chief Minister ordered for the prosecution of the office bearers and  loanees of  the  bank  including  its  honorary Secretary, Shri  K.P.  Gupta,  Manager,  Shri  M.A.  Haidari (hereinafter ‘Haidari’) and the loan clerk.      4. There was a mid-term poll to the Lok Sabha in March, 1977. In  that poll,  the Congress  (I)  Government  at  the Centre was  voted out of power and the Janata Government was installed with  Shri Morarji Desai as the Prime Minister and Chaudhury Charan  Singh  as  the  Home  Minister.  In  April following, the  Patna  Secretariat  Non-gazetted  Employees’ Association submitted  a  25  point  representation  against Respondent No. 2 to the Prime Minister and the Home Minister of the Union Government apprising them of the irregularities of the  Bank. In June following, the Congress (I) Government of Bihar  headed by  Respondent No. 2 was replaced by Janata Government  headed   by  Shri   Karpoori  Thakur.  The  said Employees’ Association  on July  9, 1977 submitted a copy of the representation  to the new Chief Minister, Shri Karpoori Thakur, with  a request  for  making  an  enquiry  into  the allegations by an Enquiry Commission. The representation was endorsed by  the State  Government to  the Inspector General (Vigilance)  for   a  preliminary   probe.  Eventually   the preliminary  inquiry   was  entrusted   to  the  then  Joint Secretary, Shri D.N. Sahay.      5. The  Union Home  Minister, Chaudhury  Charan  Singh, wrote a  D.O. letter  to the  Chief Minister  of Bihar, Shri Karpoori 107 Thakur, saying  that as per Code of Conduct, 1964, the Prime Minister had  to look  into  a  complaint  against  a  Chief Minister or  an ex-Chief Minister and obtain comments of the Chief Minister  in the  first instance  and then  decide the course of  action. On  25.7.1977, Joint Secretary, Shri D.N. Sahay, submitted his preliminary report and recommended that

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the Home  Ministry of  the Government  of  India  should  be informed of the proposed course of action and suggested that before ordering  detailed inquiry,  it was essential to take concurrence of  the Union Home Minister. The Chief Minister, however, on  23.8.1977, discussed  the matter with the Chief Secretary ‘at  20.08 p.m.’  and ordered full enquiry without the consent of, or intimation to, the Union Home Ministry.      On 1.9.1977, Joint Secretary, Shri D.N. Sahay, wrote to the Special  Secretary  regarding  the  charge  No.  8  that related to  the Bank  that as  a Commission  of Enquiry  had already been  instituted, he  doubted the  desirability of a vigilance inquiry. The Chief Minister, Shri Karpoori Thakur, opined  that   the  materials  collected  by  the  Vigilance Department would  be used  by the  Commission. On 20.9.1977, the Joint  Secretary, Shri D.N. Sahay, again referred to the Conduct Rules  of 1964 for Ministers and Chief Ministers and suggested that  necessary notes  by Chief Minister should be sent to  the Union  Home Minister  for necessary  orders for inquiry. Then  on 17.10.1977,  Chief Minister, Shri Karpoori Thakur, who  had written a D.O. letter to the Home Minister, Chaudhury  Charan  Singh,  regarding  the  allegations  with regard  to   the  Bank   again  suggested  that  although  a Commission of  Enquiry had  been  appointed,  the  Vigilance inquiry  might  continue,  as  the  materials  collected  by vigilance might be used by the Commission.      In October,  1977, Shri S.B. Sahay was posted as D.I.G. (Vigilance) by  the Chief Minister, Shri Karpoori Thakur. On 7.11.1977, Shri S.B. Sahay ordered for inquiry on all points without obtaining  consent of  the Union  Home Ministry  and without waiting for further orders.      In November,  1977, one  Shri D.P.  Ojha was  posted as S.P., Vigilance,  by the Chief Minister, Shri Thakur and the inquiry was endorsed to Shri Ojha.      6. It  has been  alleged by  the  respondents  that  in January, 1978,  some Inspectors  of the  CID  like  Raghubir Singh, Sharda 108 Prasad Singh,  Ram Dahin  Sharma and others were transferred to Vigilance  Department and  they were  responsible for the investigation of the major portions of the case in question, and that  all the  criminal cases  investigated  by  D.S.Ps. (CID), Bihar,  relating to  the  Bank  were  transferred  to Vigilance Department  and placed  under the  charge  of  the Inspector, Shri  Raghubir Singh. Haidari, aforesaid, who had been an accused of Kadam Kuan P.S. case and arrested and who had made  a confessional  statement was  rearrested  by  the investigating officer,  Shri Raghubir  Singh  on  22.1.1978. Haidari made  a second confession implicating Respondent No. 2 for  the first time. On 26.1.1978, A.K. Sinha who was also rearrested made  a  confession.  On  28.1.1978.  D.P.  Ojha, aforesaid,  submitted   his  inquiry   report   recommending institution of  criminal cases  against Respondent No. 2 and others. Similar  recommendations were also made by Shri S.B. Sahay, aforesaid,  and also  by the I.G. Vigilance. The file was  then  referred  to  the  Advocate  General,  Shri  K.D. Chatterjee, appointed  by the Karpoori Thakur Government. On 31.1.1978, the Chief Minister, Shri Thakur, approved it with the direction  to hand over the file to Shri S.B. Sahay, who in turn, endorsed it to Shri D.P. Ojha for investigation and institution of  the case.  On 1.2.1978,  Shri Ojha  directed Shri R.P.  Singh, Additional S.P. to institute a case. After having obtained  sanction of  the Governor,  a criminal case was instituted  on 1.2.1978  by the  Vigilance Police and on 19.2.1979  a   charge-sheet  was   submitted   against   the respondents and others.

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    7.  On   26.2.1979,  one   Shri  Awadesh   Kumar  Datta (hereinafter ‘A.K.  Datta’), a  Senior Advocate of the Patna High Court  was appointed  Special Public  Prosecutor by the Karpoori Thakur  Government to  conduct  the  two  vigilance cases against Respondent No. 2.      8. On  21.11.1979, the  Chief Judicial  Magistrate-cum- Special Judge, Patna, took cognizance of the case.      9. Shortly thereafter, there was a change of Government in Bihar  and Respondent  No. 2  became the  Chief  Minister again. On  10.6.1980, the  State Government  took  a  policy decision that  criminal cases  launched  "out  of  political vendetta"  in   1978-79  and  cases  relating  to  political agitation be withdrawn.      10. On  24.2.1981, the  Government appointed  one  Shri Lallan Prasad  Sinha (hereinafter  ‘L.P. Sinha’)  as Special Public Prosecutor 109 along with  three others vide letter No. C./Mis-8-43 J dated 24.2.1981.      On the  following day (25.2.1981), the Secretary to the Government  of   Bihar  wrote   a  letter  to  the  District Magistrate informing  him about  the policy  decision of the Government to  withdraw from  prosecution of  two  vigilance cases including  the case  in hand,  namely, Vigilance  P.S. Case No.  9(2)78. The  letter is at page 85 of Vol. I of the Paper Book and reads thus:            "Letter No. MW 26-81, J.                                     Government of Bihar,                                     Law (Justice) Department      From           Shri Ambika Prasad Sinha,           Secretary to Government, Patna.      To           The District Magistrate,           Patna.                            Patna, dated 25th February, 1981.      Subject:   The withdrawal  of Vigilance  P.S. Case  No.                9(2)78           and Case No. 53(8)78 in connection with      Sir,           I am  directed to  say that  the State  Government      have decided  to withdraw  from prosecution  the above-      mentioned  two   criminal  cases   on  the  grounds  of      inexpediency of  prosecution for  reasons of  State and      public policy.           You are, therefore, requested to direct the public      Prosecutor to  pray the Court after himself considering      for the withdrawal of the above mentioned two cases for      the above  reasons under  Section 321  of the  Code  of      Criminal Procedure.           Please acknowledge  receipt of the letter and also      intimate this Department about the result of the action      taken.                          Yours faithfully,                                            Sd/- Illegible 110       Secretary to Government,       Patna. Memo No. MW 26/81, 1056 J.                        Patna, dated 25th February, 1981.      Copy forwarded to Vigilance Department for information.                                      Sd/- Illegible                              Secretary to Government, Bihar.                              Patna". (emphasis added)      11. Accordingly, on 17.6.1981, Shri L.P. Sinha filed an

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application under section 321 of the Code.      On 20.6.1981,  the Special  Judge passed  the  impugned order giving his consent to withdraw the case.      12. It  may be  noted at  this stage  that  before  the impugned  order   was  passed,   the  appellant   filed   an application under  section 302  of the  Code and the learned Judge held  that the  appellant had  no locus  standi in the matter. The  appellant then filed a criminal revision before the  High  Court  and  the  High  Court  after  hearing  the appellant,  by  its  order  dated  14.9.1981,  rejected  the revision petition  and  affirmed  the  order  of  withdrawal passed by the Special Judge.      13. Hence  this appeal  by special  leave  against  the order of the High Court in the criminal revision.      14. Shri  Venugopal, learned  counsel appearing for the appellant formulated three points before us:      (1)  That the  permission accorded by the Special Judge           to withdraw the case in question was contrary to a           series  of   decisions  of   this  Court   and  is           unsustainable.      (2)  That Shri  L.P. Sinha who had made the application           under section  321 of  the Criminal Procedure Code           was not  the Public  Prosecutor in  charge of  the           case.      (3)  That in  the facts  and circumstances of the case,           Shri L.P.  Sinha could  not and  did not  function           independently. 111      Shri Prasaran, learned Solicitor General, appearing for Respondent No.  1, the  State of  Bihar, on  the other hand, submitted,      (1)  that the institution of the case was the result of           political vendetta  and the  vendetta had vitiated           the investigation of the case;      (2)  that Shri  L.P. Sinha was the Public Prosecutor in           charge of  the case  and was competent to make the           application under section 321 of the Code and that           his appointment cannot be collaterally challenged;           and      (3)  that the  impugned order  of the Special Judge was           legally valid.      15. The  first point  for decision is whether Shri L.P. Sinha was  the Public  Prosecutor in  charge of  the case as required by Section 321 of the Code. Section 321 of the Code reads (material portion only):      "321.       Withdrawal   from  prosecution-The   Public           Prosecutor  or   Assistant  Public  Prosecutor  in           charge of  a case  may, with  the consent  of  the           Court,  at   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...................      Three of the essential requirements of section 321 are:      (1)  that  a  Public  Prosecutor  or  Assistant  Public           Prosecutor  is   the  only   competent  person  to           withdraw from the prosecution of a person;

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    (2)  that he must be in charge of the case; 112      (3)  that the  withdrawal is  permissible only with the           consent of  the Court  (before which  the case  is           pending).      As stated  above, Shri A.K. Datta was appointed Special Public Prosecutor  for conducting  the case in question vide order under  letter No.  C/Special/04/79  which  reads  thus (material portion only):           "Letter No. C/Special/04/79      Government of Bihar                          Law (Justice) Department      From     Shri Yogehwar Gope,     Under Secretary to the Government of Bihar.      To           Shri R.N. Sinha,           District Magistrate, Patna.           Patna, dated February, 1979.      Subject:  Appointment for conducting Vigilance P.S.                Case No.  9 (2) 78 and 53 (8) 78 State Versus                Dr. Jagannath Mishra, ex-Chief Minister and                others.      Sir,           I am  directed to  say that  the State  Government      have   been pleased  to  appoint  Shri  Awadhesh  Kumar      Datta,   Senior Advocate,  Patna High Court, as Special      Public   Prosecutor for  conducting vigilance P.S. Case      Nos. 9  (2) 78  and 53  (8) 78  in which  Dr. Jagannath      Mishra, ex-Chief  Minister, is the main accused.           2. The  order for  appointing Junior Advocates for      assisting Shri Datta will be issued later.                                           Yours faithfully,                                           Sd/-Yogeshwar Gope      Memo No. 1313, J, Patna dated 26th February, 1979           Copy  forwarded  to  Shri  Awadhesh  Kumar  Datta.      Senior Advocate, Patna High Court/Cabinet (Vigilance) 113      Deptt., Government  of Bihar, Patna for information and necessary action.                                      Sd/-Yogeshwar Gope                        Under Secretary to Government of                                                 Bihar".      Later on, in pursuance of para 2 of the said letter No. C/Special 04/79  dated 26th  February, 1979,  by letter  No. C/Misc.-8-43/78 J  dated 24th February, 1981, the Government constituted a  panel of  lawyers to conduct vigilance cases. This letter reads (material portion only):        "Letter No. C/Mis-8-43/78 J.                                     Government of Bihar,                                Law (Justice) Department.      From           Shri Ambika Prasad Sinha,           Secretary to Government, Bihar      To           The District Magistrate, Patna                            Patna, dated February 24, 1981.      Subject:   Constitution of  the panel  of  lawyers  for                conducting  cases   pertaining  to  Vigilance                Department.      Sir,           I am  directed to  say that  for  conducting  case      pertaining   to   Vigilance   Department,   the   State      Government,  by   cancelling  the   panel  of   lawyers      constituted under  Law (Justice)  Department letter No.

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    5240  J.   dated  19.8.1978,   have  been   pleased  to      constitute a  panel of  the following  four lawyers  in      place of the previous panel.      (1)  Sri Ramjatan Singh,           Salimpur Ahra, Patna-3.      (2)  Sri Bindeshwari Prasad Singh, Advocate,           Lalji Tola, Patna-1. 114      (3)  Sri Kamla Kanta Prasad, Advocate Road           No. 2D, Rajendranagar, Patna.      (4)  Sri Lalan Prasad Sinha, Advocate, Sarda           Sadan, Saidpur, Nala Road, Patna-4.      2..............      3.   This  order  shall  be  effective  with  immediate           effect.      4...........                                           Yours faithfully.                                              Sd/-Illegible                                     Secretary to Government.      Memo No. 1043 J., Patna dated 24th February, 1981.           Copy forwarded  to Sri  Ram Jatan Singh, Advocate,      Salimpur, Ahra,  Patna-3, Sri Bindeshwari Prasad Singh,      Advocate, Lalji  Tola, Patna-1, Sri Kamla Kanta Prasad,      Advocate, Road  No. 2D,  Rajendra Nagar,  Patna-16, Sri      Lallan Prasad  Sinha, Advocate,  Sharda Sadan, Saidpur,      Nala Road, Patna for information and necessary action.      2.  Cabinet  (Vigilance)  Department  is  requested  to      inform the lawyers of the old panel about this order.      Sd/-Illegible                             Secretary to Government, Bihar".      It is  evident from  the last quoted letter that Shri L P. Sinha was appointed a Public Prosecutor.      16. The  State Government  may appoint a Special Public Prosecutor under  sub-section (8)  of Section 24 of the Code for the  purpose of  any case  or classes  of cases.  Public Prosecutor has been defined under clause (u) of Section 2 of the Code as:      "2(u)-"Public Prosecutor"  means any  person  appointed           under Section  24, and  includes any person acting           under the directions of a Public Prosecutor,,      In the  case of  State of  Punjab v.  Surjit Singh  and another,(1) a  Bench of five Judges of this Court considered the provisions of 115 Section 492  to  495  of  the  old  Code  dealing  with  the appointment of Public Prosecutor. The Court observed:      "Public  Prosecutors   are  appointed   by  the   State           Government under section 492(1) or by the District           Magistrate or the Sub-Divisional Magistrate, under           sub-section (2)  of section  492. The appointment,           under sub-section  (1) of  section 492  can  be  a           general appointment  or for  a particular case, or           for any  specified class  of cases,  in any  local           area. Under  this provision  more than one officer           can be  appointed as  Public  Prosecutors  by  the           State  Government.   Under  sub-section  (2),  the           appointment of  the Public  Prosecutor is only for           the purpose of a single case. There is no question           of a general appointment of the Public Prosecutor,           under sub-section (2). Therefore, it will be seen,           that a  Public Prosecutor  or Public  Prosecutors,           appointed either  generally, or  for any  case, or           for any  specified classes  of cases,  under  sub-           section (2),  are all Public Prosecutors under the           Code".

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There cannot  be any  doubt, therefore, that Shri L.P. Sinha was a  Public Prosecutor validly appointed under sub-section (8) of section 24 of the Code.      But what  was submitted  by the appellant was that Shri L.P. Sinha  could  not  be  appointed  a  Public  Prosecutor without the  appointment of  Shri  A.K.  Datt,  having  been terminated first. It was not the contention of the appellant that the  appointment  of  Shri  L.P.  Sinha  was  otherwise invalid.      17. The  answer to  this contention  is this, Shri A.K. Datta had  at no  point of  time come  forward to  make  any grievance  at   any  stage   of  the  case,  either  at  the appointment of  Shri L P. Sinha as Special Public Prosecutor or in  the latter’s conduct of the case; nor Shri L.P. Sinha whose appointment  and right  to make  an application  under section 321  of the Code have been challenged, is before us. His   appointment   cannot   be   collaterally   challenged, particularly in  an application  under Article  136  of  the Constitution.      The  appointment   of  Shri   L.P.  Sinha  without  the termination of  the appointment of Shri A.K. Datta, might at best be  irregular or  improper, but  cannot be  said to  be legally invalid. The doctrine 116 of de  facto jurisdiction which has been recognised in India will operate in this case. In the case of Gokaraju Rangaraju etc. v.  State of  Andhra Pradesh  (1) to  which one  of  us (Baharul Islam, J.) was a party, it has been held:           "The doctrine  is now  well established  that ’the      acts of  the Officers de facto performed by them within      the scope  of their  assumed official authority, in the      interest the  public or third persons and not for their      own benefit,  are generally as valid and binding, as if      the were the acts of officers de jure".      The judgment  referred, with approval, to the following observations-made in  the case  of New Zealand and Norton v. Shelby Country decided by the United States Supreme Court-           "Where an  office exists under the law, it matters      not how  the appointment  of the  incumbent is made, so      far as  the validity  of his  acts are concerned. It is      enough that  he is  clothed with  the insignia  of  the      office, and  exercises its  powers and  function..  The      official acts  of such  persons are recognised as valid      on grounds  of public policy, and for the protection of      these having official business to transact".      This Court  in Gokaraju’s case (supra) also quoted with approval the following passage from Colley’s ’Constitutional Limitation’:           "An intruder  is one  who attempts  to perform the      duties of  an office  without  authority  of  law,  and      without the support of public acquiscence-           No one is under obligation to recognise or respect      the acts  of an  intruder, and  for all  legal purposes      they are absolutely void. But for the sake of order and      regularity, and  to prevent confusion in the conduct of      public business  and in  security of private right, the      acts of  officers de  facto  are  not  suffered  to  be      questioned because  of  the  want  of  legal  authority      except by  some direct  proceeding instituted  for  the      purpose by the State or by some one claiming the 117      office de  jure, or  except  when  the  person  himself      attempts  to   build  up  some  right,  or  claim  some      privilege or  emolument, by reason of being the officer      which he  claims to  be. In all other cases the acts of

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    an Officer  de facto  are as valid and effectual, while      he is  suffered to retain the office, as though he were      an officer  by right,  and the  same legal consequences      will flow  from them  for the  protection of the public      and of  third parties. There is an important principle,      which finds  concise expression in the legal maxim that      the acts  of officers  de facto  cannot  be  questioned      collaterally".      18. The next question is whether Shri L.P. Sinha was in charge of  the case  as required by section 321 of the Code. Shri L.P. Sinha was entrusted with and put in charge of, the case in  question, namely,  Vigilance Case No. 9(2) 78, vide Letter No.  1829 dated  25th February,  1981.  The  relevant portion of the letter reads:           "Letter No. 1829           Bihar Government,           Cabinet (Vigilance) Department.      From           Shri Shivaji Sinha,           Special Secretary to Government.      To           Shri Lallan Prasad Sinha, Advocate,           Sharda Sadan, Sendpur,           Nala Road, Patna.                         Patna, dated 25th February, 1981      Subject:- Panel  of Advocates  for----cases  pertaining                to Vigilance Department.      Sir,           You have  also  been  appointed  as  Panel  Lawyer      relating to  the above  subject vide  letter  No.  1943      dated 24.2.1981  of the  Law Department. In many cases,      charge sheets have been submitted in the Court of Chief      Judicial 118      Magistrate-cum-Special Judge.  Out of  these cases  the      following cases  are allotted  to you  to work  for the      prosecution-      1.   Vigilance P.S. Case No. 9(2)78      2.   .   .   .   .   .   .   .      3.   .   .   .   .   .   .   .      4.   .   .   .   .   .   .   .      5.   .   .   .   .   .   .   .           Please take  necessary action  for the prosecution      in the  cases on  being  acquainted  with  the  present      position from the court.                                            Yours faithfully,      Sd/-                   Shivaji                    Sinha      25.2.1981.                            Special Secretary to Government".                            (emphasis added).      Shri L.P. Sinha had been appointed a Government counsel on 24.2.1981 to conduct vigilance cases as stated above. The application for withdrawal was made by him on 17.6.1981-more than four  months later.  After having been appointed Public Prosecutor, and  having been  put in charge of the Vigilance P.S. Case  No. 9(2)78,  he appeared  in the  case  on  seven dates, namely,  6.4.1981, 21.4.1981,  27.4.1981,  26.5.1981, 3.6.1981, 19.6.1981 and 20.6.1981. It has been stated in the affidavit filed  by the  Secretary, Law  Department  of  the State of  Bihar that  the order  disclosed that "no one else appeared for  the prosecution" except Shri L.P. Sinha. There is nothing on record to show whether in fact Shri A.K. Datta did at  all accept  the appointment  as a Public Prosecutor. The record  does not  show that  he took any steps at all in the case.  Shri L.P.  Sinha could not have appeared on seven

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different dates  during the course of 3 1/2 months and taken steps in  it had he (A.K. Datta) been in charge of the case. The learned  Special Judge  also has  found as a fact in his judgment that  the application under section 321 of the Code was made  "by  Shri  Lallan  Prasad  Sinha,  Special  Public Prosecutor, in  charge of this case" (emphasis added). There is, therefore, absolutely no doubt that at the relevant time Shri L.P. 119 Sinha was in charge of the case, and not Shri A.K. Datta, as submitted by the appellant. Shri L.P. Sinha was both de jure and de facto Public Prosecutor in the case.      It  was  factually  wrong  that  Shri  L.P.  Sinha  was appointed  only  to  withdraw  the  case,  as  submitted  by appellant’s counsel.  Even if  he were,  there  was  nothing illegal in  it (also  see 1931 Cal. 607). If Shri L.P. Sinha fulfilled the  two conditions  as required by section 321 of the Code,  namely, that  (i) he  was a Public Prosecutor and (ii) was  in charge  of the  case, he was competent to apply for withdrawal  of the  case, even  if he were appointed for that purpose only.      19. The next question for decision is whether Shri L.P. Sinha functioned  independently. The  appellant’s submission is that  Shri L.P. Sinha acted as directed by the Government to make  the application  for withdrawal and himself did not apply his mind.      Section 321  of the  Code enables the Public Prosecutor or Assistant  Public Prosecutor  in  charge  of  a  case  to withdraw from the prosecution with the consent of the Court. The appellant submits, in our opinion correctly, that before an application  is made  under section  321 of the Code, the Public Prosecutor  has to apply his mind to the facts of the case independently  without being  subject  to  any  outside influence; and  secondly, that  the Court  before which  the case is  pending cannot give its consent to withdraw without itself applying  its mind  to the  facts of the case. But it cannot be  said that  a Public  Prosecutor’s action  will be illegal if he receives any communication or instruction from the Government.      Let us  consider the  point from the practical point of view. Unlike  the Judge,  the Public  Prosecutor is  not  an absolutely independent  officer. He  is an  appointee of the Government, Central  or State (see ss. 24 and 25 Crl. P.C.), appointed for  conducting in  Court any prosecution or other proceedings on  behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and  the Government.  A Public  Prosecutor cannot act  without   instructions  of   the  Government  a  Public Prosecutor cannot  conduct a  case absolutely on his own, or contrary to  the instruction  of  his  client,  namely,  the Government. Take  an extreme  hypothetical  case,  in  which Government is  the prosecutor, and in which there is a prima facie case 120 against an  accused, but  the Government feels on the ground of public  policy, or  on the ground of law and order, or on the  ground   of  social   harmony,  or  on  the  ground  of inexpediency of  prosecution for  reasons of State, the case should  not  be  proceeded  with;  the  Government  will  be justified  to  express  its  desire  to  withdraw  from  the prosecution and  instruct  the  Public  Prosecutor  to  take necessary legal  steps to  withdraw  from  the  prosecution. Section 321  of the  Code does not lay any bar on the Public Prosecutor to  receive any  instruction from  the Government before he  files an  application under  that section. If the

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Public Prosecutor  receives such  instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor  cannot file an application for withdrawal of  a   case  on   his  own  without  instruction  from  the Government.      Now in  the above  hypothetical case, if the Government gives instructions  to a  Public Prosecutor to withdraw from the prosecution  of a  case, the  latter has  the  following courses open to him:      (i)  He can  blindly file the petition without applying           his mind  to the  facts of  the case.  This is not           contemplated by Section 321 of the Code;      (ii) He may,  himself, apply  his mind  to the facts of           the case,  and may  agree with the instructions of           the Government  and file  the petition stating the           grounds   of   withdrawal.   This   is   what   is           contemplated by  the section  and has been done in           this case; or      (iii)He may tell the Government, "It is a good case for           the prosecution;  conviction is almost sure; and I           do not  agree with  you that  the case  should  be           withdrawn, I  am not  going to file a petition for           withdrawal." In  that event, the Public Prosecutor           will have  to return  the  brief  and  perhaps  to           resign. For,  it is the Government, not the Public           Prosecutor, who  is in the know of larger interest           of the State.      20. Let  us now see if Shri L.P. Sinha applied his mind to the  facts of the case before he made the application. He made the following application before the Court:           "IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE,      PATNA           Withdrawal Case No.----of 1981 121      In Vigilance P.S. Case No. 9(2)78.           The  humble  petition  on  behalf  of  the  Public      Prosecutor for withdrawal of the Vigilance of P.S. Case      No. 9(2)78  under section  321 of  the Code of Criminal      Procedure.           Most respectfully shewth :           1.   That this is an application for withdrawal of                Vigilance P.S. Case No. 9(2)78 which has been                charge-sheeted under sections 466/120B/109 of                the Indian  Penal Code  and sections 5(1)(a),                5(1)(b), 5(1)(c)  read with  section 5(2)  of                the Prevention  of Corruption Act against Dr.                J.N.  Mishra,  Shri  Jivanand  Jha  and  Shri                N.K.P. Sinha.           2.   That  since   the  prosecution  of  the  case                involves the  questions of  momentous  public                policy of  the Government, which may have its                consequences of  wide magnitude affecting the                larger issue  of public  interest  also,  the                desirability  of   the  continuance   of  the                prosecution was  broadly examined both by the                State Government  and also  by me. Keeping in                view  (a)  lack  of  prospect  of  successful                prosecution in the light of evidence, (b) the                implication of  the persons  as a  result  of                political  and  personal  vendetta,  (c)  the                inexpediency  of   the  prosecution  for  the                reasons of  the State  and public policy, (d)                the adverse  effects that the continuation of                the  prosecution   will   bring   on   public                interests  in   the  light   of  the  changed

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              situation,   and    after   giving    anxious                considerations and  full deliberations, I beg                to file this application to withdraw from the                prosecution of  all the  persons involved  in                the aforesaid case:           3.   That I have, therefore, gone through the case                diary and  the relevant  materials  connected                with the case and have come to the conclusion                that in  the circumstances  prevailing at the                time of  institution  of  the  case  and  the                investigation thereof,  it appears  that  the                case  was   instituted  on   the  ground   of                political vendetta and only to defame 122                the fair  image of  Dr. J.N.  Mishra, who was                then the  leader of the opposition and one of                the  acknowledged  leaders  of  the  Congress                party in the country. The prosecution was not                launched in  order to advance the 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.           4.   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.           It is, therefore, prayed that your honour would be      pleased  to  grant  permission  to  withdraw  from  the      prosecution of  the persons  accused in  case and  your      honour may further be pleased to pass further orders in      conformity with section 321 of the Code of the Criminal      Procedure, 1973.      And for this the petitioner shall ever pray."      A mere  perusal of  the  above  application  abundantly shows that  Shri L.P.  Sinha did apply his mind to the facts of the  case ;  he perused  "the Case Diary and the relevant materials connected  with  the  case"  before  he  made  the application. He  did not  blindly quote  from the Government letter No.  M/26-81 J.  dated 25th  February,  1981  (quoted above) which contained only one ground namely, "inexpediency of prosecution  for reasons  of State  and public policy". A comparison of  the contents of this letter with the contents of the  application under section 321 of the Code completely negatives the  appellant’s contention  that Shri  L.P. Sinha did not himself apply his mind independently to the facts of the  case   and  that   he  blindly   acted  on   extraneous considerations. 123      As a proof of non-application of the mind of the Public Prosecutor, learned counsel pointed out that Shri L.P. Sinha mentioned in  his petition  inter alia  Section  5(1)(c)  in place of  Section 5(1)(d)  of the  Prevention of  Corruption Act. In  our opinion,  in the  background of the case, it is too insignificant an error to be taken note of.      21.  The appellant then submits that the Court erred in giving its  consent for  withdrawal as  there was  a triable

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case before  it. The  submission is  misconceived. What  the Court has  to do  under section  321 is  to see  whether the application discloses  valid ground  of withdrawal-valid  as judicially laid down by this Court.      Learned counsel  cited the  following decisions of this Court reported  in State  of Bihar  v. Ram Naresh Pandey(1), State of  Punjab v. Surjit Singh and Ors.(2), M.N.S. Nair v. P.V. Balakrishnan  & Ors.(3),  Bansi Lal  v. Chandan Lal(4), State of  Orissa v. Chandrika Mohapatra and Ors.(5), Balwant Singh and  Ors. v. State of Bihar(6), Rajindera Kumar Jain’s case(7).      We need  not refer  to all  these decisions  except  to Rajindra Kumar  Jain’s case (supra), hereinafter referred to as "George  Fernandes’ Case",  in as  much as, this decision has considered all the earlier decisions, and summarised the observations as under :      "Thus from the precedents of this Court; we gather,           (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 124                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  we add, 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                grounds which  led the  Public Prosecutor  to                request withdrawal  from the  prosecution but                to consider  whether  the  Public  Prosecutor                applied   his   mind   as   a   free   agent,                uninfluenced  by  irrelevant  and  extraneous                considerations. The  Court has a special duty                in  this   regard  as   it  is  the  ultimate                repository  of   legislative  confidence   in                granting  or   withholding  its   consent  to                withdraw  from  the  prosecution".  (emphasis                added).      The Court in the above decision has also observed :           "Wherever issues involve the emotions and there is      a surcharge  of violence in the atmosphere it has often      been found  necessary to  withdraw from prosecutions in      order to  restore peace to free the atmosphere from the      surcharge  of  violence,  to  bring  about  a  peaceful      settlement of issues and to preserve the calm which may      follow the  storm. To  persist with  prosecutions where

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    emotive issues  are involved in the name of vindicating      the law  may  even  be  utterly  counterproductive.  An      elected Government, sensitive and 125      responsive to  the feelings and emotions of the people,      will be  amply justified if for the purpose of creating      an atmosphere  of goodwill  or for  the purpose  of not      disturbing a calm which has descended it decides not to      prosecute the  offenders involved  or  not  to  proceed      further with  prosecutions already  launched.  In  such      matters who  but the  Government, can and should decide      in the  first instance, whether it should be baneful or      beneficial to  launch or  continue prosecutions. If the      Government decides  that it  would  be  in  the  public      interest to  withdraw  from  prosecutions  how  is  the      Government to go about this task".      The Court further observed :           "But where  such large  and  sensitive  issues  of      public policy  are  involved,  he  (Public  Prosecutor)      must, if  he is  right minded, seek advice and guidance      from the  policymakers. 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  advise  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. Nor can      there be any quibbling over words". (emphasis added).      This decision  is a  complete answer  to the contention raised by  learned counsel  of the  appellant that a triable case cannot be withdrawn. Paucity of evidence is only one of the grounds of withdrawal.      22. Faced  with this decision learned counsel submitted that the  case in  hand was  a  case  involving  common  law offences while  George Fernandes  case (supra)  was  dealing with political  offences, which  offences only, according to counsel, can  be permitted to be withdrawn from prosecution. We are unable to accept the submission. (Section 321 has not dichotomised  into   common  law   offences  and   political offences. The  Court held  in George Fernandes case (supra), with respect  rightly, "to  say that  an  offence  is  of  a political character is not to absolve the offenders of 126 the offence.  But the  question is, is it a valid ground for the Government  to advise  the Public Prosecutor to withdraw from the  prosecution". (emphasis  added). The reason of the absence of  any dichotomy in section 321 of the Code appears to us  to be  the very  object of  the section.  What is the necessity of this section. An offence is an offence. A trial will end  in conviction  or acquittal of the accused. If the offence is  compoundable, it  may be  compounded. But if the offence  is  not  compoundable,  why  should  the  trial  be withdrawn ?  How are offences under sections 121-A, 120-B of the Penal  Code, and  sections 4,  5 and  6 of the Explosive Substances Act,  1908 and  sections 5(3)  (b) and  12 of the Indian Explosives  Act, 1884  (as in George Fernande’s case) less    heinous     than     offences     under     sections 420/466/471/109/120B of  the Penal  Code and  5(1) (a), 5(1) (b) and  5(1) (d) of the Prevention of Corruption Act (as in this case) ? Are offences relating to security of State less serious than  corruption ?  In our  view, the answers are in the negative. The reverse appears to be truer.

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    In our  opinion, the  object of  section 321  Cr.  P.C. appears to  be to  reserve power to the Executive Government to withdraw  any criminal  case on  larger grounds of public policy such  as inexpediency  of prosecutions for reasons of State; broader  public interest  like maintenance of law and order; maintenance  of public  peace  and  harmony,  social, economic  and   political;  changed   social  and  political situation;  avoidance   of  destabilization   of  a   stable Government and  the like.  And such powers have been, in our opinion, rightly  reserved for  the Government; for, who but the Government  is  in  the  know  of  such  conditions  and situations prevailing  in a  State or  in the  country ? The Court is not in a position to know such situations.      23. In  George Fernandes, case (supra), the allegations against  Shri  George  Fernandes,  who  later  on  became  a Minister of  the Union  Government during the Janata regime, where that  after the  proclamation of Emergency on June 25, 1975, Shri George Fernandes, Chairman of the Socialist Party of India,  and Chairman  Railwaymen’s Federation,  sought to arouse  resistence   against  the   said  Emergency  and  to overthrow the  Government and that he committed various acts in  pursuance  of  that  object.  The  investigating  agency submitted a  charge sheet against Shri Fernandes and twenty- four others  for offences  under section 121-A, 120-B, Penal Code, read  with sections  4,  5  and  6  of  the  Explosive Substances Act,  1908 and  sections 5(3)  (b) and  12 of the Indian Explosives 127 Act, 1884.  Two of  the accused  persons had  been  tendered pardon. They  had, therefore, to be examined as witnesses in the  Court  of  the  Magistrate  taking  cognizance  of  the offences  notwithstanding   the  fact   that  the  case  was exclusively triable  by the  Court of Sessions. The evidence of the  approver was recorded on March 22, 1977 and the case was adjourned  to March 26, 1977 for further proceedings. At that stage,  on March  26, 1977,  Shri N.S.  Mathur, Special Public Prosecutor  filed an application under section 321 of the Code,  for permission  to withdraw from the prosecution. The application reads :           "It is  submitted on  behalf of the State as under :-           1.     That  on   24.9.1976,  the  Special  Police      Establishment after necessary investigation had filed a      charge sheet  in this Hon’ble Court against Shri George      Mathew Fernandes  and twenty  four others  for offences      u/s 121A  IPC, 120B  IPC r/w sections 4, 5 and 6 of the      Explosive Substances  Act, 1908  and sections  5(3) (b)      and 12  of the  Indian Explosives  Act, 1884 as well as      the substantive offences.           2.   That besides the accused who were sent up for      trial, two  accused, namely,  Shri Bharat  C. Patel and      Rewati Kant  Sinha were  granted pardon  by the Hon’ble      Court and  were examined  as approvers  u/s 306 (4) Cr.      P.C.           3.  That out of 25 accused sent up for trial cited      in the  charge sheet,  two accused  namely, Ladli Mohan      Nigam and Atul Patel were declared proclaimed offenders      by the Hon’ble Court.           4.     That  in   public  interest   and   changed      circumstances the  Central Government  has  desired  to      withdraw from the prosecutions of all the accused.           5.  It is therefore prayed that this Hon’ble Court      may accord  consent to  withdraw from  (?) 26th  March,      1977.                                                      Sd/-

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                                              (N.S. Mathur)                               Special Public Prosecutor for                                   the State, New Delhi" 128      It is  seen that  the only  ground for  withdrawal  was "public interest  and changed circumstances" as mentioned in para 4 of the petition.      The Chief  Metropolitan Magistrate  granted his consent for withdrawal  from the  prosecution on  the ground that it was ’expedient  to  accord  consent  to  withdraw  from  the prosecution", (emphasis  added). In revision, the High Court affirmed the Magistrate’s order. The appeal by Special Leave was dismissed  by this Court. In other words, an application stating Government’s  desire to withdraw from prosecution on the grounds of ’public interest’ and ’changed circumstances’ was held to be valid under section 321 Cr. P.C.      24. The  next question  for examination  is whether the permission was  given by  the Special  Judge in violation of law as  laid down  by this  Court in  this regard.  We  have already referred  to the  decisions cited  by the appellant. The law  laid down  by this Court in the series of decisions referred to  above, inter  alia, is  (1) that the withdrawal from the  prosecution is an executive function of the Public Prosecutor and  that the  ultimate decision to withdraw from the prosecution  is his; (2) that the Government may suggest to the  public prosecutor  that a particular case may not be proceeded with,  but nobody  can compel  him to  do so ; (3) that not  merely inadequacy  of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and  political; public  order and  peace are  valid grounds for  withdrawal. The exercise of the power to accord or withdraw  consent  by  the  Court  is  discretionary.  Of course, it  has to  exercise the  discretion judicially. The exercise of the power of the Court is judicial to the extent that the Court, in according or refusing consent, has to see (i) whether  the grounds  of withdrawal  are valid; and (ii) whether the application is bona fide or is collusive. It may be remembered  that the  order passed  by  the  Court  under section 321  of the  Code, either  according or  refusing to accord consent,  is not  appealable. A  mere perusal  of the impugned order  of the  Special  Judge  shows  that  he  has applied his  mind to  the facts of the case and also applied his mind  to the  law laid  down by  this  Court  in  Geroge Fernandes case  that has  summarised the  entire law  on the point, and correctly applied them to the facts of this case. It is  therefore not correct to say that the decision of the Special Judge  was contrary  to the  law laid  down by  this Court. 129      25. The  only other submission of the appellant is that there is  a prima  facie case for trial by the Special Judge and that this Court should send it back to him for trial. We have held  above that  a criminal  proceeding with  a  prima facie case  may  also  be  withdrawn.  Besides,  the  normal practice of this Court in a criminal appeal by Special Leave under Article  136 of  the Constitution  directed against an order of conviction or acquittal is that this Court does not peruse the  evidence on  record and re-appreciate it to find whether findings  of facts  recorded by the Courts below are correct or  erroneous, far  less does  it peruse  the Police Diary to  see whether  adequate materials  were collected by the investigating  agency. It  accepts the  findings of  the Courts below  unless it  is shown  that the findings are the results of  a wrong application of the principles of the law and  that   the  impugned   order  has   resulted  in  grave

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miscarriage of justice.      26. An  order under  section 321  of the  Code, in  our opinion, does  not have  the same  status  as  an  order  of conviction or  acquittal recorded  by a  trial or  appellate Court in  a criminal prosecution, inasmuch as the former has not been  made appealable. An order under section 321 of the Code has  a narrower scope. As an order under section 321 of the Code  recorded by  the trial  Court is judicial what the trial Court  is expected  to  do  is  to  give  reasons  for according or  refusing its  consent to  the  withdrawal.  As stated above,  the duty  of the  Court is  to see  that  the grounds of  withdrawal are legally valid and the application made by  the Public  Prosecutor is  bona  fide  and  is  not collusive. In  revision of an order under section 321 of the Code, the  duty of  the  High  Court  is  to  see  that  the consideration by  the trial  Court of  the application under section 321  was not  misdirected and  that the  grounds  of withdrawal are  legally valid. In this case, the trial Court elaborately considered  the grounds  of withdrawal and found them to  be valid  and accordingly  accorded its consent for withdrawal. In revision the High Court affirmed the findings of the trial Court.      We find  no justification  in this  appeal  by  Special Leave to disturb the findings of the Courts below and peruse the statements  of witnesses  recorded  or  other  materials collected by the investigating officers during the course of investigation.      27. Although  it does not arise out of the three points formulated by  Mr. Venugopal  at the  start of his argument, nor does it arise 130 out of the appellant’s petition opposing withdrawal, learned counsel submitted  that there  was a  prima facie  case  for trial by  the Special  Judge and the case should be remanded to him  for trial. Let us examine that aspect also as it has been argued at length.      Learned counsel  fairly concedes  that he does not take much reliance  on oral evidence but takes strong reliance on two pieces of documentary evidence, namely, alleged creation of forged  documents by  Dr.  Mishra  and  the  confessional statement of Haidari implicating Dr. Mishra.      Elaborate arguments were advanced by learned counsel of the parties  on the  piece of  documentary  evidence  which, according to the appellant’s counsel would form the basis of conviction of  Respondent No.  2. That  documentary evidence was that  Respondent No. 2 as Chief Minister passed an order on 16-5-1975  in Hindi.  English translation  of this  order reads as follows :           "Much time  has passed. On perusal of the file, it      appears that  there is  no  allegation  of  defalcation      against the  Chairman and  the Members  of the Board of      the Bank.  Stern action should be taken for realisation      of loans from the loanees and if there are difficulties      in realisation  from the loanees, surcharge proceedings      should be initiated against the Board of Directors. The      normal condition  be restored in the Bank after calling      the Annual General Meeting and holding the elections."      According to  the appellant, Respondent No. 2 wrote the following fresh order -           "Please issue  orders  for  restoring  the  normal      condition in  the Bank  after  holding  Annual  General      Meeting.                                         Sd/- Jaganath Mishra                                                14-5-75" and pasted it over the earlier order.

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    According  to   the  appellant,  Respondent  No.  2  by overwriting ’4’  (in (Hindi) on the original Hindi digit ’6’ changed the  date 16-5-1975  to 14-5-1975.  These facts have not been denied by Respondent No. 2 before us. 131      The appellant’s submission was that by the above act of antedating  by  over-writing.  Respondent  No.  2  committed forgery, and  by pasting over the earlier order committed an offence under  section  5  (1)  (d)  of  the  Prevention  of Corruption Act  as by  that latter act he obtained pecuniary advantage  to  Shri  Nawal  Kishore  Respondent  No.  3,  by stopping the surcharge proceedings.      28. Before  proceeding  further,  it  is  pertinent  to mention that  in his  application before  the Special Judge, the appellant  did not find fault with any of the grounds of withdrawal in the application filed by the Public Prosecutor under section  321. His  only contention was that an attempt was being  made by the Public Prosecutor to scuttle the case and that  the Court should apply its independent mind before according consent  to the  withdrawal and  that he should be heard in  the matter.  He made  no mention of any forgery by antedating or  by pasting  of any  earlier order and thereby making any  attempt at  shielding of  any culprit.  He thus, prevented the  Special Judge  and the High Court from giving any finding on alleged forgery on the allegations of pasting and antedating  and  thereby  depriving  us  also  from  the benefits of such findings of the Courts below. This question of fact  has now  been sought to be brought to the notice of this Court  during the course of argument by learned counsel of the  appellant in  this appeal.  A question  of fact that needs investigation  cannot be  allowed to be raised for the first time  in an  appeal by Special Leave under Article 136 of the Constitution.      29. Be  that as  it may, let us examine the contention. But this  will not  be treated  as a  precedent. The  pasted order containing the following:      (i)   The Chief  Minister’s finding  that there  was no           allegation of defalcation against the Chairman and           Members of the Board;      (ii) Direction  to take stern action for realisation of           the loans from the loanees;      (iii)Directions to  initiate surcharge  proceedings  in           case of difficulties in realisation;      (iv) Direction  to call  the annual  General Meeting of           the Bank and hold election in order to restore the           normal condition of the Bank. 132 Only the  portions against  (i), (ii)  and (iii)  above have been covered  by pasting  the fresh  order which is but (iv) above. The  appellant’s submission  is that  by covering the first three directions, Respondent No. 2 shielded Respondent No. 3  and others  from realizing  the due from the culprits including Respondent  No. 3  or  from  initiating  surcharge proceedings against  them. The  answer to  the contention is three-fold:      (i) The  order of  surcharge by  the Chief  Minister is unwarranted by  law. Section  40 of  the  Bihar  Cooperative Societies Act,  1935 gives  power only  to the  Registrar to initiate surcharge  proceedings. An  appeal  lies  from  his order to  the State  Government  under  sub-section  (3)  of section  40.   In  fact,   admittedly  Deputy  Registrar  of Cooperative Societies  issued notices  of surcharge  against Respondent No. 3 on 31-12-1975 when Respondent No. 2 himself was the  Chief Minister).  If the  Chief Minister found that his first  order was  unwarranted by  Law, it  was but right

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that he cancelled his first order      (ii) On  a second  thought any  authority may bona fide change his  mind and  decide that  restoration of the normal condition of  the Bank by calling the annual General Meeting and election  should be attended to first and realization of the loans and surcharge proceedings later. Bona fide scoring out the  order retaining  the last part, would constitute no offence by  Respondent No. 2. Pasting an order by a piece of paper  containing   another  order   prima   facie   appears suspicious, but  pasting is the common practice in the Chief Minister’s Secretariate  as revealed  by the  file  produced before us.      (iii)  Antedating   simpliciter  is   no  offence.  Mr. Venugopal advanced  an argument  on the  possible motive  of antedating and  submitted that  the motive was to obliterate any possible  action on  the first  order, The submission is highly speculative and cannot be accepted.      In any  view, if  two interpretations are possible, one indicating  criminal   intention  and  the  other  innocent, needless to  say that  the interpretation  beneficial to the accused must be accepted.      30. Confessional Statement of Haidari      As stated above, there was another vigilance case known as Kadam  Quan P.S.  Case No.  97 (5)  J7  relating  to  the officers of the 133 Bank. It  was being  investigated by  the  Officers  of  the Cooperative   Department but  abruptly it was transferred to the Vigilance Department on 16-1-1978. In this case Haidari, aforesaid, was  one of  the accused.  He was also one of the accused in  the case  in hand,  but later  on, on  grant  of pardon, he  turned an  approver  and  became  a  prosecution witness. He was also being prosecuted in several other cases on the  basis of  orders passed  by Respondent No. 2 on 4-8- 1976. In  the Kadam  Kuan case,  Haidari made a confessional statement on  4-11-1976 but did not implicate Respondent No. 2. He  was re-arrested  on 22-1-1978  whereafter he  made  a second  confessional   statement  on  24-1-1978,  this  time implicating Respondent  No. 2  for the  first time  for  the alleged offence  said to  have been  committed in  the years 1973 75.  As the Kadam Kuan case also related to the affairs of the  Bank and  Haidari had  already made  a  confessional statement, there  was no  need for  him  to  make  a  second confessional statement  on 24-1-1978.  It may  be remembered that on  that date,  Vigilance Case No. 9 (2) 78 had not yet been registered  and Haidari was not an accused in this case and therefore  it  cannot  be  said  that  the  confessional statement on  which great  reliance has  been placed  by the appellant was  a confessional  statement made by an accused. This case  was registered at the Vigilance Police Station in the morning  on  1-2-1978  and,  therefore,  to  give  legal validity to the confessional statement it was shown recorded in  Kadam  Kuan  case  No.  97  (5)  77.  This  confessional statement is said to be the second confessional statement of Haidari in  the same  Kadam Kuan  case. Haidari’s  so-called confessional  statement   therefore  is   not  only   not  a confessional statement  of a  co-accused but  it inspires no confidence. On  the top  of it,  it was  the statement of an accomplice turned approver, and is worthless.      31. The submission of the respondents that the criminal case against  Respondent No.  1 is  the result  of political vendetta has also to be considered.      (i)  The   first  circumstance   pointed  out   by  the respondents in this regard is the unusual hurry in which the file was moved. It has been stated in the affidavit filed on

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behalf of the State of Bihar by Shri Bidhu Shekhar Banerjee, Deputy   Superintendent   of   Police,   Cabinet   Vigilance Department, that within the period of four days 134 the inquiries  were completed,  advice obtained  and  orders passed for instituting the case as follows:           "(i) The  Kadamkuan P.S.  Case No.  97 (5)  77 was      transferred to  Vigilance Department  by an order dated      9-1-1978 passed by Shri Karpoori Thakur, the then Chief      Minister.                                 16-1-78           (ii) Confessions  of Shri  M.A.  Haidari  who  was      being prosecuted  in other cases on the order passed by      Dr. Mishra  in August,  1976 and  of Shri A.K. Singh, a      subordinate clerk  as well  as appointee  of Shri  M.A.      Haidari, were  recorded after  their re-arrest,  in the      present  case  on  22-1-78  and  26-1-78  respectively.                                                      24-1-78                                                      28-1-78           (iii) Enquiries Report submitted           28-1-78           (iv) Report  forwarded by  the D.I.G. of Police to      the I.G.                                        29-1-78           (v) The  same was forwarded to the Chief Secretary                                                      30-1-78           (vi) The Chief Secretary forwarded it to the      Advocate General.                               30-1-78           (vii) The Advocate General returned the file to      the Chief Secretary                             31-1-78           (viii) The  Chief Secretary  sent the  file to the      Chief Minister (Shri Karpoori Thakur)           31-1-71           (ix)  The   Chief  Minister   passed   order   for      prosecution of Dr. Mishra.                      31-1-78           (x) The case was registered.               1-2-78"      (ii)  The   second  circumstance  pointed  out  is  the political bitterness  between  Respondent  No.  2  and  Shri Karpoori Thakur.  From the  facts narrated at the beginning, it is  seen that  there was  animosity between the appellant and Shri  Karpoori Thakur,  the former Chief Minister of the Janata Government on 135 the one  hand and  Respondent No. 2. Dr. Mishra, the present Congress (I) Chief Minister of Bihar, on the other.      It has  been stated that Respondent No. 2 is one of the prominent leaders of the Congress Party that was politically opposed to  the  Janata  Party  Government  headed  by  Shri Karpoori Thakur  at the time of the institution of the case. In  1977   when  Respondent   No.  2   headed  the  Congress Government, a  warrant of  arrest was  issued  against  Shri Karpoori Thakur  for  his  arrest  and  detention,  for  his alleged anti-Government  activities and that Karpoori Thakur was absconding  for long.  It has  been suggested  that Shri Karpoori Thakur was nursing grudge against Respondent No. 2. The suggestion appears to have substance. Shri D.P. Ojha was a Superintendent  of Police  in Bihar. It has been stated in the counter-affidavit  filed by  Respondent No.  4  that  he (Ojha) has  been indicted  by Justice  Mathew in  his report submitted on  9.5.1975 relating  to the  murder of Shri L.N. Mishra, brother  of Respondent  No. 5. Justice method in his report held:           "The direct  responsibility  for  making  security      arrangements  under  the  security  instructions  dated      13-9-1971 issued  by the  Central Government devolve on      the head of the Police (Shri D.P. Ojha). The Commission      finds that  the S.P. Samastipur failed to discharge the      duty  enjoined   upon  him  by  the  instruction  dated      13.9.1971 issued  by the  Central Government.  The S.P.

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    Samastipur was  guilty of  derelication of duty in this      respect. The officer who failed to discharge their duty      or were  negligent of  the performance of same could be      directly responsible  to the  State Government  and the      State  Government   to  be   the  agency   for   taking      appropriate action against them."      It  has  been  stated  in  affidavit  that  the  Janata Government at  the Centre  had accepted the said findings of the Mathew Commission. But the Government of Bihar headed by Shri Karpoori  Thakur, not  only exonerated  Shri D.P. Ojha, but transferred  him to the Vigilance Department and all the cases relating  to the  Patna Co-operative Bank (the bank in question) were  transferred to  the Vigilance  Department in charge of  Ojha. The  Respondent’s allegations  are that not only  Chief  Minister  Shri  Karpoori  Thakur  had  his  own political animosity  against Dr. Mishra but Shri Ojha had to work under  the influence of the Chief Minister. It has been suggested that he has been instrumental in directing the 136 investigation in such a way that a case was made out against Dr. Mishra  and others  by collecting  false  evidence.  The suggestion cannot be ruled out as frivolous or unreasonable. Shri Karpoori  Thakur, the  then Chief  Minister ignored the wholesome  suggestion  of  the  then  Union  Home  Minister, Chaudhury Charan  Singh, that a former Chief Minister, could be proceeded  against only  after obtaining clearance of the Prime Minister  according to the Code of Conduct of 1964. He also ignored  the suggestion  in this  regard of  Shri  D.N. Sahay that  before proceeding  against an  ex-Chief Minister clearance from  the Prime Minister and the Home Minister was necessary. He also ignored the suggestion of Shri D.N. Sahay that no Vigilance Enquiry was necessary as there was already a Commission  of Enquiry  into the Bank matter, and directed the  investigation.  This  shows  active  interest  of  Shri Karpoori Thakur in the prosecution of Respondent No. 2.      (iii)  The  third  circumstance  pointed  out  is  that although Respondent  No. 4  has been  made  an  accused,  no allegation against him has been pointed out.      32. It is common place that the prosecution is to prove the guilt  of the  accused beyond  reasonable doubt and that the accused  need not  prove  beyond  reasonable  doubt  his defence, if  any. If the defence is probable and reasonable, and its considerations creates doubt in the creditability of the prosecution  case, the  accused will get the benefit and shall have  to be acquitted. In the instant case, as we have observed, the  entire investigation has been vitiated and no person can be convicted on the basis of evidence procured by such investigation.      33. The  following circumstances  also need to be taken into account  in considering whether the case merits sending back to  the Special  Judge for  trial as  proposed  by  the appellant, assuming  and only  assuming, there  is  a  prime facie case for trial:      (i) The  occurrence took  place as early as 1970; it is already more than twelve years.      (ii) Respondent  No. 2  is the  Chief Minister  in  his office. Knowing  human nature,  as it  is, it  can hardly be expected that  the witnesses,  most of  whom are  officials, will come forward and depose against a Chief Minister. 137      (iii) Even after the assumption of office by Respondent No. 2 the Chief Minister, in the Court of the Special Judge, the prosecution  was pending on several dates but the Public Prosecutor, Shri  A.K. Datta,  did not  take any interest in the case  at all.  It  cannot  be  expected  that  a  Public

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Prosecutor appointed  by the  Government in  power, will now take  interest   and  conduct  the  case  so  as  to  secure conviction of  his own  Chief Minister. Remand for trial, if made, will  be a  mere exercise  in futility; and it will be nothing but  an abuse  of the process of the Court to remand the case to the trial Court.      34. As  a result  of  the  foregoing  discussions,  the appeal is dismissed.      MISRA,  J.   I  have  the  privilege  of  perusing  the differing judgments  of  brothers  Tulzapurkar  and  Baharul Islam JJ.  While I  respectfully  agree  with  some  of  the findings  reached   by  brother  Tulzapurkar,  I  regret  my inability to concur with some of the findings. I, therefore, propose to give my own reasons for the same.      The present  appeal by  special leave is a sequel to an application under  s.321 of  the Code  of Criminal Procedure (hereinafter referred  to as  the ‘Code’) made by the Public Prosecutor for  permission of  the Court  for withdrawal  of Vigilance Case  No. 9  (2) 78  filed by  the State  of Bihar against Respondent  No. 2. (Dr. Jagannath Mishra, Respondent No. 3 (Nawal Kishore Sinha), Respondent No. 4 (Jiwanand Jha) and three  others (K.P.  Gupta, since deceased, M.A. Haidari and A.K.  Singh) who  later became  approvers, for  offences under ss.  420/466/471/109/120-B Indian Penal Code and under s.5 (1)  (a), 5  (1) (b)  and 5 (1) (d) of the Prevention of Corruption Act,  1947.  Material  facts  have  already  been detailed in  the two  judgments and, therefore, it is no use repeating the same over again.      In order  to appreciate  the contention  raised by  the counsel for  the parties it is essential to read the grounds taken in the application. Para 2 of the application reads:           "That since  the prosecution  of the case involves      the  question   of  momentous   public  policy  of  the      Government, which  may have  its consequences  of  wide      magnitude affecting  the large issue of public interest      also, the desirability 138      of the  continuance  of  the  prosecution  was  broadly      examined both  by the  State Government and also by me.      Keeping in  view (a)  lack of  prospect  of  successful      prosecution  in   the  light   of  evidence,   (b)  the      implication of the persons as a result of political and      personal  vendetta,   (c)  the   inexpediency  of   the      prosecution for  the reasons  of the  State and  public      policy, (d)  the adverse  effects that the continuation      of the prosecution will bring on public interest in the      light of  the changed  situation, and  after giving  my      anxious considerations and full deliberations, I beg to      file this  application to withdraw from the prosecution      of all the persons involved in the aforesaid case." Para 3 of the application states:           "That I have therefore gone through the case diary      and the  relevant materials connected with the case and      have come  to the  conclusion that in the circumstances      prevailing at  the time  of institution of the case and      the investigation thereof, it appears that the case was      instituted on the ground of political vendetta and only      to defame  the fair  image of  Dr. J.N. Mishra, who was      then the  leader of  the  opposition  and  one  of  the      acknowledged leaders  of  the  Congress  Party  in  the      country. The  prosecution was  not launched in order to      advance the interest of public Justice." Para 4 reads:           "That  it   is  in   public  interest   that   the      prosecution which  has no  reasonable chance of success

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    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  whom has  been elected  leader  of  the      majority party  in the  legislature, both  events  have      taken place after the institution of the case."      The application  was opposed on a variety of grounds by the appellant,  which I shall deal with in the later part of the judgment in detail. 139      The application  was, however,  allowed  by  the  Chief Judicial  Magistrate-cum-Special   Judge  Vigilance  and  he accorded his  consent by his speaking order dated 20th June, 1981.      The appellant  took up  the matter  in revision  to the High Court  which also  confirmed the  order  of  the  trial court. The  appellant has  now come to this Court by special leave. The grounds taken on behalf of the appellant are four fold:      1.   (a) For  the purposes  of s. 321 of the Code there           exists a  dichotomy between political offences and           offences under common law. While the former can be           withdrawn on  grounds  of  public  policy,  public           interest or  reasons of state even though there is           certainty of  obtaining a  conviction, no question           of public  policy, public  interest or  reasons of           State could  every arise  in a  prosecution for  a           Common Law  offence or a common case of bribery or           forgery.           (b)  Similarly,   no  question   of  political  or           personal vendetta  would arise in a case where the           proof  of   the  offence  is  based  primarily  on           documents, the  genuineness of  which  is  not  in           dispute.  Thus  three  of  the  grounds  on  which           withdrawal from  prosecution is  based viz. public           policy, public  interest, reasons  of  State,  and           public  or   personal  vendetta   are   irrelevant           grounds, if  it is,  established that  the offence           under s. 466 of the I.P.C. and s. 5 (1) (d) of the           Prevention of  Corruption Act primarily based upon           indisputed documentary  evidence make  out a prime           facie case.      2.   If the  Court  chooses  to  give  consent  to  the           withdrawal of  a criminal  case on  the ground  of           paucity of  evidence or  absence of  a  successful           prosecution, the court has to examine the material           or evidence  already recorded for deciding whether           withdrawal is  an abuse of or an interference with           the normal course of justice.      3.   The Public  Prosecutor who  applied for withdrawal           of the  case was  not competent  to withdraw as he           was not  incharge of  the case, and in any case he           acted at 140           the behest of the Government and did not apply his           own mind.      4.   The documentary evidence on the record prima facie           makes out  a case of forgery (s. 466 IPC) and s. 5           (1) d)  (criminal misconduct) of the Prevention of           Corruption Act.      Before dealing  with the points raised on behalf of the appellant it is appropriate at this stage to know the nature and scope of s. 321 of the Code.

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    A bare  perusal of  the section  shows that it does not prescribe any  ground nor  does it put any embargo or fetter on the  power of  the Public  Prosecutor  to  withdraw  from prosecuting a particular criminal case pending in any court. All that  it requires  is that  he can  do so  only with the consent of  the court  where the case is pending. This Court has, however,  laid down  certain guiding principles for the exercise of  the power  of withdrawal  under this section by the Public  Prosecutor or by the court according its consent to such  withdrawal. It  is in the light of those guidelines that the  propriety or  the legality  of the  withdrawal  of criminal proceeding has to be judged.      In this  country the  scheme of criminal justice places the prime  responsibility of prosecuting serious offences on the executive  authority. The  investigations, collection of requisite evidence and the prosecution for the offences with reference  to   such  evidence  are  the  functions  of  the executive. The  function of  the court  in this respect is a limited one  and intended  only to  prevent the  abuse.  The function of the court in according its consent to withdrawal is, however,  a judicial  function. It,  therefore,  becomes necessary for  the court  before whom  the  application  for withdrawal is  filed by  the Public  Prosecutor to apply its mind  so  that  the  appellate  court  may  examine  and  be satisfied that  the court  has not accorded its consent as a matter of  course but  has applied  its mind  to the grounds taken  in   the  application   for  withdrawal   by   Public Prosecutor.      The  guiding   principles  laid  down  by  the  various decisions of  this Court may now be referred to. In State of Bihar v.  Ram Naresh Pande(1) this Court had the occasion to consider the scope of the 141 corresponding s.  494 of  the unamended  Code, which  was in pari materia  with the  present section 321, and observed as follows:           "The magistrate’s  functions in  these matters are      not only  supplementary, at a higher level, to those of      the  executive  but  are  intended  to  prevent  abuse.      Section 494  requiring the  consent of  the  Court  for      withdrawal by  the   Public Prosecutor  is more in line      with this  scheme, than with the provisions of the Code      relating to  inquiries and  trials  by  the  Court.  It      cannot  be   taken  to   place   on   the   Court   the      responsibility for  a prima  facie determination  of  a      triable issue,  for instance the discharge that results      therefrom need  not always  conform to  the standard of      "no prima  facie case" under ss. 209 (1) and 253 (1) or      of "groundlessness" under ss. 209 (2) and 253 (2).           "...the  function  of  the  Magistrate  in  giving      consent is  a judicial  one open to correction. ... the      application for consent may legitimately be made by the      Public Prosecutor  for  reasons  not  confined  to  the      judicial prospects of the prosecutions. ...If so, it is      clear that,  what the  Court has  to determine, for the      exercise of  its discretion  in granting or withholding      ‘consent’ is not a triable issue on judicial evidence."      Again in  M.N.S. Nair v. P.V. Balkrishnan(1) this Court after reviewing  various cases  from different  High  Courts laid down the following guidelines:           "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

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    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 142      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 of  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."      "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 subserves 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."                                          (Emphasis supplied)      The same  principle was  reiterated again  in State  of Orissa v. C. Mohapatra(1) in these words:      "The ultimate  guiding consideration must always be the      interest of  administration of  justice and that is the      touch-stone on  which the  question must be determined.      No hard  and fast  rule can  be laid  down nor  can any      categories of  cases be defined in which consent should      be granted or refused. It must ultimately depend on the      facts and  circumstances of  each case  in the light of      what is necessary in 143      order to  promote the  ends of  justice,  because,  the      objective  of   every  judicial  process  must  be  the      attainment of justice.                                          (Emphasis supplied) In Balwant Singh v. State of Bihar(1) this Court laid down:           "The statutory  responsibility for  deciding  upon      withdrawal squarely  vests on the public prosecutor. It      is non-negotiable and cannot be bartered away in favour      of those  who may  above him on the administrative side      ..the consideration  which  must  weigh  with  him  is,      whether the  broader cause  of public  justice will  be      advanced or  retarded by  the withdrawal or continuance      of the prosecution."      The last  in the  series is  the case of Rajendra Kumar

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Jain v.  State(2). After review of the various cases of this Court, the Court laid down the following propositions:      "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,  we  add,  political  purposes  Sans           Tammany Hall enterprise. 144      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           grounds which led the Public Prosecutor to request           withdrawal from  the prosecution  but to  consider           whether the  Public Prosecutor applied his mind as           a  free  agent,  uninfluenced  by  irrelevant  and           extraneous considerations. The Court has a special           duty  in   this  regard  as  it  is  the  ultimate           repository of  legislative confidence  in granting           or withholding  its consent to withdrawal from the           prosecution."      In view  of the  principles laid  down in the aforesaid cases, I  have to  examine whether  the grounds taken by the appellant are tenable.      I take  up the  first ground  raised on  behalf of  the appellant that  for the  purpose of  s. 321  Cr. P.C.  there exists dichotomy between the political offences and offences at Common  Law and while political offences can be withdrawn on grounds of public policy, public interest, or for reasons of the  State, even though there is certainty of obtaining a conviction, no  such consideration  could ever  arise  in  a prosecution for  a Common  Law offence  or a  common case of bribery or forgery.      This argument  proceeds on  the assumption  that in the cases cited  above, permission  was granted  only  in  cases relating to  political  offences  and  not  with  regard  to offences at Common Law. I am afraid, this will not be a fair reading  of  the  decisions  mentioned  above.  One  of  the principles laid  down in  the aforesaid  cases is  that  the Public Prosecutor may withdraw from the prosecution not only on the  ground of  paucity of evidence but on other relevant grounds as  well in  order to further broad aims of justice, public order  and peace.  Broad aims  of public justice will certainly include appropriate social, economic and political purposes. In 145 M.N.S. Nair’s  case (supra)  this  Court  after  enumerating certain grounds further observed:           ".any other  similar  circumstances  which  it  is

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    difficult to  predicate as  they are dependent entirely      on the facts and circumstances of each case." Likewise in  C. Mohapatra’s  case (supra)  this Court  again observed:           "No hard  and fast  rule can  be laid down nor can      any categories  of cases  be defined  in which  consent      should be granted or refused." In face of these observations it will be difficult to accept the contention  that  withdrawal  from  prosecution  can  be permitted only  in political  offences and not in Common Law offences. In  the past  there have  been cases  where crimes motivated  by   political  ambitions  or  considerations  or committed  during   mass  agitations,   communal   frenzies, regional disputes,  industrial conflicts,  student unrest or the like  situations involving emotive issues giving rise to an atmosphere  surcharged with violence, have been permitted to be  withdrawn in  the interest of public order and peace. But on  that account  it will  not be  correct to  say  that permission to withdraw can be granted by the Court only when offences as enumerated above are involved. Section 321 is in very wide  terms and in view of the decisions cited above it will not  be possible  to con  fine grounds only to offences which may  be  termed  as  political  offences  or  offences involving emotive  issues. To  interpret the  section in the way as  desired by the counsel for the appellant will amount to re-writing  section 321  of the  Code. The  only  guiding factor which  should weigh  with the public prosecutor while moving  the   application  for   withdrawal  and  the  court according its  permission for  withdrawal is  to see whether the  interest   of  public   justice  is  advanced  and  the application for  withdrawal is not moved with oblique motive unconnected with the vindication of cause of public justice.      If  once  it  is  accepted  that  the  application  for withdrawal from  the prosecution  can  be  made  on  various grounds and  it is  not confined  to political offences, the contention raised  on behalf  of the  appellant that grounds Nos.  (b),   (c),  (d)  mentioned  in  the  application  for withdrawal are  irrelevant in  the instant  case will not be tenable. The  Indian Penal  Code or  the  Code  of  Criminal Procedure  does   not  make  any  such  distinction  between political 146 offences and  offences other than political ones. Even if it is accepted  that political  offences  are  not  unknown  to jurisprudence  and   other  Acts  do  contemplate  political offences, the  fact remains  that s.  321 Cr.  P.C.  is  not confined only  to political offences or social offences, but it applies  to all kinds of offences and the application for withdrawal can  be made  by the Public Prosecutor on various grounds. The  only safeguard  that should be kept in mind by the Public  Prosecutor is  that it  should  not  be  for  an improper or  oblique  or  ulterior  consideration,  and  the guiding consideration  should  be  that  of  vindication  of public justice.      In the  application for withdrawal from prosecution the public Prosecutor  has given four reasons and he has applied his own  mind to the facts and circumstances of the case. In para 3  of his application he has clearly stated that he has gone through  the case  diary  and  the  relevant  materials connected with  the case and has come to the conclusion that in the  circumstances prevailing  at the time of institution of the  case and  the investigation  thereof it appears that the case was instituted on the grounds of political vendetta and only to defame the fair image of Dr. J.N. Mishra who was then  the   leader  of   the  opposition   and  one  of  the

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acknowledged leaders of the Congress Party in the country.      The Court while according the consent to the withdrawal has only  to  see  that  the  Public  Prosecutor  has  acted properly and  has not been actuated by oblique or extraneous considerations. It  is not the function of the Court to make a fresh  appraisal of  the evidence  and  come  to  its  own conclusion on  the question whether there is a triable issue to be investigated by the Court.      First I  take up  ground No.  (b)  in  para  2  of  the application for  withdrawal, that  is,  the  implication  of respondent No.  2, as  a result  of personal  and  political vendetta. In  the opinion  of  the  Public  Prosecutor,  the prosecution  was   motivated  by   personal  and   political vendetta. The  aforesaid criminal case was instituted during the period of Janata Party Government by an order dated 31st of January  1978 passed  by Shri  Karpoori Thakur,  the then Chief Minister,  who was  the party  leader of the appellant Sheonandan Paswan,  who was  also the  State Minister of the Janata Party Government.      From the  materials placed  on the record it is evident that respondent No. 2 is one of the prominent leaders of the party 147 politically opposed  to the Janata Party which was the party in power led by Shri Karpoori Thakur at the relevant time of the institution  of the  prosecution. Respondent  No. 2  had been a  bitter critic of the principles and policies of Shri Karpoori Thakur.  In 1977  when respondent No. 2 was heading the government  a warrant  of arrest was issued against Shri Karpoori Thakur for his arrest and detention. The appellant, formerly  a  Deputy  Magistrate,  was  posted  as  Assistant Secretary in  the Chief Minister’s Secretariat of respondent No. 2.  He was  removed from  the Secretariat  to some other department by respondent No. 2. The appellant joined the Lok Dal and  fought election  on Lok  Dal ticket after resigning his job.  When he became a State Minister in the Ministry of Shri Karpoori  Thakur, he  came to  occupy  a  big  official bungalow at  Bailly Road,  Patna. In  1980 when the party to which respondent No. 2 belongs came to power, respondent No. 2 became  the Chief  Minister. The  appellant ceased to be a State Minister  and was asked to hand over possession of the official residence.  Since the  appellant refused to vacate, the State  Government ultimately   resorted to extreme legal step for  dispossessing him.  This made  the appellant  feel aggrieved. He vindicated his right by filing a writ petition in the  High Court  which  was  eventually  decided  in  his favour. The  fact, however,  remains that  there was no love lost between the appellant and respondent No. 2.      When Shri  Karpoori Thakur became the Chief Minister in the Janata  Party regime, the quickness with which the files moved when  a decision was taken to prosecute respondent No. 2 is  very significant.  From the  affidavit of  Shri  Bidhu Sekhar Banerjee,  Deputy Superintendent  of Police,  Cabinet Vigilance Department,  it is apparent that within the course of a few days the inquiries were  completed, advice obtained and orders  passed for  instituting  the  case.  On  9th  of January 1978  all the  criminal cases  investigated  by  Dy. S.Ps. CI,  Bihar, relating to Patna Urban Co-operative Bank, including  P.S.   Case  No.   97(5)77  were  transferred  to Vigilance Department  by order  of Shri Karpoori Thakur, the then Chief  Minister and  placed under  the Inspector,  Shri Reghubir Singh.  On 22nd January, 1978 M.A. Haidari and A.K. Sinha, accused  of Kadam Kuan P.S. Case No. 97(5)77 were re- arrested by  Shri Raghubir  Singh, Inspector  and the second confession of  Shri M.A.Haidari was secured in which for the

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first time  he brought  allegations against  Dr. Mishra. The confession of  Shri A.K.  Sinha was  secured .  on  26th  of January, 1978. On 28th January 1978 Shri D.P. Ojha. 148 S.P. Vigilance  submitted his  inquiry  report  recommending institution of criminal cases against Dr. Mishra and others. On 29th  of January  1978 Shri S.B. Sahay DIG Vigilance also recommended the  institution of  a criminal case. On 30th of January   1978,    I.G.Vigilance   also    recommended   the prosecution. On  the same  day  the  file  was  referred  to Advocate General  Shri K.D. Chattarjee appointed as Advocate General by  Shri Karpoori  Thakur. On  31st of January, 1978 the Chief  Secretary sent  the file to the Chief Minister of Bihar. On the same day the Chief Minister, Bihar approved it and handed  over the file direct to Shri S.B. Sahay, DIG. On 1st  of  February,  1978  the  file  was  endorsed  by  S.P. Vigilance, Shri  D.P.Ojha to  Addl.  S.P.,  R.P.  Singh  for instituting the  case. On  1st of February, 1978 a Vigilance Criminal case  was instituted in Police Station at 0600 hrs. At 8.50  hrs. the  Case was  discussed by  I.G.with DIG Shri S.B. Sahay  and Shri  D.P. Ojha  and decision  was taken  to search houses  of Dr.  Mishra at Patna, Balua Bazar, and his relations. On  the same day request to issue search warrants was made  and search  warrants were  issued. On the same day Inspectors M/s.  Sharda  Nanda  Singh,  Raghubir  Singh  and Ramdehia Sharma were got transferred from CID to Vigilance.      The speed  with which  the file  of the  criminal  case moved from  one place  to another and orders obtained itself indicates that  it was  not to vindicate the cause of public justice but  it was  only to  feed their  grudge that such a keen interest  was exhibited  by the  Chief Minister and the appellant  also  actuated  by  his  personal  and  political vendetta sought to oppose the application for withdrawal. In these circumstances it is doubtful whether the appellant was truly representing the public interest.      To say  that unless  the crime  allegedly committed are per se  political offences  or are  motivated  by  political ambition or  consideration or  are committed mass agitation, communal frenzies, regional disputes, no question of serving a broader cause of public justice. public order or peace can arise is to put limitation on the broad terms of section 321 of the Code.      The Public  Prosecutor was of the view that as a result of election  there was  a change in the situation in as much as Respondent  No 2’s party received the peoples mandate and voted to  power and  Respondent No.  2 had  become the Chief Minister of  the State  and that the prosecution against the head of  the State  would have  had adverse effect on public interest, including public order and peace 149 and, therefore,  he thought  it inexpedient  for reasons  of State and  public policy to proceed with the case. It is the Public Prosecutor  who has been given the exclusive power to apply for withdrawal and if he in his discretion thinks that it would  be inexpedient  to proceed with the case the Court cannot reconsider  the matter  afresh and  come to  its  own conclusion different  from  the  one  taken  by  the  public prosecutor unless  the Court  comes to a conclusion that the public prosecutor  has done  so with  an improper or oblique motive.      In my  opinion the decision of the public prosecutor to withdraw from  the case  on the  grounds given by him in his application for  withdrawal cannot be said to be actuated by improper or oblique motive. He bona fide thought that in the changed circumstances of the case it would be inexpedient to

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proceed with  the case  and it  would be  sheer  wastage  of public money  and time  to drag  on with  the  case  if  the chances for  conviction are  few and  far  between.  In  the circumstances instead of serving the public cause of justice it will be to the detriment of public interest.      The statutory  responsibility for  deciding  withdrawal squarely rests  upon  the  public  prosecutor.  It  is  non- negotiable and  cannot be bartered away. The Court’s duty in dealing  with  the  application  under  s.  321  is  not  to reappreciate the  grounds which led the public prosecutor to request withdrawal  from the  prosecution  but  to  consider whether the  public prosecutor  applied his  mind as  a free agent uninfluenced  by irrelevant  and extraneous or oblique considerations as  the Court  has a  special  duty  in  this regard  inasmuch   as  it  is  the  ultimate  repository  of legislative  confidence   in  granting  or  withholding  its consent to  withdrawal from prosecution. The Court’s duty is to see  in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice.      The Public  Prosecutor applied  his mind and on perusal of case  diary and  other materials  he was satisfied in the interest of public justice to withdraw from the case.      The Court  also passed a speaking order while according its consent  to the  withdrawal. The relevant portion of its order is in the following terms:           "Having considered the legal position explained by      the Supreme  Court and  the  submissions  made  by  the      learned 150      Special Public  Prosecutor in-charge  of this case, and      having perused  the relevant  records of  the case I am      satisfied that  it is a fit case in which the prayer of      the learned.  Special  Public  Prosecutor  to  withdraw      should be allowed and it is therefore allowed." Normally the  observation made  by the  Court  that  it  has perused the  relevant records of the case should be presumed to be  correct unless  a very  strong case  is made  out for holding that it did not do so and the vaunted remark made by the Court  that it  has done  so is  incorrect. In a similar situation  this   Court  in   C.  Mohapatra’s  case  (supra) observed:           "..according  to  the  prosecution,  the  evidence      collected during  investigation was  not sufficient  to      sustain the  charge  against  the  respondent  and  the      learned Magistrate was satisfied in regard to the truth      of this averment made by the Court Sub-Inspector. 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      An attempt  has been made on behalf of the appellant to show that  the case diary was not with the Court and that it was lying  elsewhere  and,  therefore,  he  could  not  have perused the  case diary  and his  observation is  not  quite correct. This  contention cannot  be accepted  at  its  face value in view of the observations made by the court.      Now I  take up  ground No.  (a) of  the application for withdrawal from  the case.  This ground  relates to  lack of prospect  of  a  successful  prosecution  in  the  light  of evidence. The  counsel for  the appellant has contended that in the  instant case  on the  documentary  evidence  itself, which is  not in  dispute, an  offence under  s. 466  of the

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Indian Penal  Code and  s. 5  (1) (d)  of the  Prevention of Corruption Act  is prima  facie  made  out  and  the  Public Prosecutor was  not justified  in moving the application for withdrawal on  this ground. He referred to the antedating of an order. Dr. J.N. 151 Mishra, Respondent  No. 2, after becoming the Chief Minister passed an  order in  his handwriting  on 16th  May, 1975  in Hindi, the English rendering whereof is given below:           "Much time  has passed.  On perusal of the file it      appears that  there is  no  allegation  of  defalcation      against the  Chairman and  the Members  of the Board of      the Bank.  Stern action should be taken for realisation      of  the  loans  from  the  loanees  and  if  there  are      difficulties in  realisation from the loanees surcharge      proceedings should  be initiated  against the  Board of      Directors. Normal  conditions be  restored in  the Bank      after calling  the Annual  General Meeting  and holding      elections.                                       Sd/- Jagan Nath Mishra                16.5.1975." It appears  that this order was replaced by another order in Hindi, the English rendering of which is:           "Please issue  orders  for  restoring  the  normal      condition’s in  the Bank  after holding  Annual General      Meeting.                                        Sd/-Jagan Nath Mishra                               16.5.1975." by pasting  this order  over the  order dated 16th May, 1975 and by  antedating the latter order as 14th of May, 1975 and this clearly  in the  opinion of  the learned counsel brings out an  offence of  criminal misconduct under s.5 (1) (d) of the Prevention of Corruption Act and of forgery under s. 466 IPC. A  lot of  argument was advanced that the pasting of an order over  the order dated 16th May, 1975 by a letter order itself creates  a suspicion.  This  was  rather  an  unusual method adopted  by Dr.  J.N. Mishra  to erase  the  previous order and to replace it by another order of the same date by antedating it  as 14th  may 1975  by  pasting  it  over  the earlier order.  The method of replacing one order by another by pasting  over the  earlier one  appears  to  be  a  well- recognised practice  in the  Secretariat of Bihar Government and Solicitor  General  Shri  K.  Parasaran  showed  various similar orders  which had  been replaced by another order by pasting over  the earlier one. So, that part of the argument loses all its force on examination of various similar orders by adopting the same method. The question, however, is 152 whether this antedating of the latter order as 14th May 1975 by pasting  it  over  the  earlier  order  would  amount  to criminal misconduct  within the  meaning of  s. 5 (1) (d) of the Prevention  of Corruption  Act and  forgery  within  the meaning of s. 466 of the Indian Penal Code. Insofar as it is material for  the purpose  of this case, s. 5 (1) (d) of the Prevention of Corruption Act reads:           "5. (1)  A Public  servant is  said to  commit the      offence of criminal misconduct-      (a) ...........................      (b) ...........................      (c) ...........................      (d)  if he, by corrupt or illegal means or by otherwise           abusing his  position as  public servant,  obtains           for himself  or for  any other person any valuable           thing or pecuniary advantage."      The contention  on behalf  of the  appellant is that by

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changing the  order dated  16th May,  1975, respondent No. 2 obtained for  Nawal  Kishore  Sinha,  respondent  No.  3,  a pecuniary advantage  inasmuch as  by antedating  the  second order respondent  No. 2 had absolved Nawal Kishor Sinha from the surcharge proceedings. The factum of change has not been disputed by  respondent No.  2 and therefore, prima facie an offence under  s. 5(1) (d) is made out and no other evidence be looked  into. In  the circumstances the Public Prosecutor was not justified in coming to the conclusion that there was no prospect of conviction of respondent No. 2.      I am  afraid this  contention cannot  be  accepted  for obvious reasons.  The earlier  order dated 16th May, 1975 no doubt contemplated four things:      (1)  that there is no allegation of defalcation against           the Chairman and Members of the Board of the Bank;      (2)  stern action  should be  taken for  realisation of           the loans from the loanees;      (3)  if there  are difficulties in the realisation from           the  loanees   surcharge  proceedings   should  be           initiated against the Board of Directors, and 153      (4)  normal conditions  be restored  in the  Bank after           calling the  annual general  meeting  and  holding           elections. By the  second order,  which is said to have been antedated, only the fourth part of the order has been maintained. There seems to  be no  earthly reason  for antedating  the  latter order by  putting the  date as  14th of  May, 1975.  It  was always open  to the  Minister to  have changed his order and pass another  order. The same purpose could have been served by  Respondent  No.  2,  if  he  really  wanted  to  absolve Respondent No.  3 from the liability by passing the order on the 16th  of May, 1975 by replacing the earlier order by the subsequent order.  Rather that  purpose of Respondent No. 2, if at all, could have been served better by keeping the date of the  second order  as 16th  May, or  any subsequent date. Secondly, the  second antedated  order dated  14th May, 1975 could  not   stand  in   the  way  of  initiating  surcharge proceedings against  Respondent No.  3 and  other members of the Board of the Bank. Date 14th May, 1975, for all we know, may have  been on  account of some accidental slip The other reason  as  suggested  by  the  Solicitor  General  is  that surcharge proceedings  could be  initiated only  by the  Co- operative Department under s. 40 of the Bihar and Orissa Co- operative Societies Act, 1935. It reads:           "40, Where  as a result of an audit under s. 33 or      an enquiry  under s. 35, or an inspection under ss. 34,      36 or  37, or the winding up of a Society it appears to      the Registrar that any person who has taken part in the      organisation or  management of  the society or any past      or present  officer of  the society  has been guilty of      the fact or omission mentioned in clauses (a), (b), (c)      or (d)  the Registrar  may enquire  into the conduct of      such persons  or officers and after giving such officer      or person  an opportunity of being heard, make an order      for surcharge." Therefore, in  view of  the aforesaid provisions of s. 40 of the Cooperative  Societies Act, taking steps for a surcharge is not  within the jurisdiction of the State Executive. This may have  been another  reason for  dropping the proceedings for surcharge,  if at all, against the officers of the bank. There is yet another reason. The second antedated order does not say  a word  about dropping  the  surcharge  proceedings ordered by  Respondent No.  2  in  the  earlier  order  and, therefore, it  is difficult to say that Respondent No. 2 had

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actually   dropped   the   surcharge   proceedings   against Respondent No. 3 and 154 other offers  of the  Co-operative Bank.  Indeed,  surcharge proceedings had  been initiated.  Surcharge files  regarding surcharge  case   No.  3   of  1975  proves  that  surcharge proceedings were  proposed initially by the Deputy Registrar on 30th  of April  1975 and  were in fact taken on 1st June, 1975 and  the show  cause notice was issued on 1st July 1975 and surcharge  order was  made against  Shri  Nawal  Kishore Sinha and  others on 31st December, 1975. This shows clearly that no  benefit or  advantage was  given to  Nawal  Kishore Sinha or  others by  the order  of 14th  May, 1975. From the affidavit of  Jiwanand Jha, Respondent No. 4 it appears that an amount  of Rs.  33,96,024.90 was  given as  loans to  180 persons. Out  of the  total amount  given by way of loans an amount of  Rs. 25,64,682.23  has already  been realised from 106 persons.  The unrealised  amount is only Rs. 8,31,337.67 for which decrees have been passed against 64 persons and as against the remaining 10 persons proceedings for realisation are going on.      About the offence of forgery under s. 466 of the Indian Penal Code  also I  have my  grave doubts.  Forgery has been defined under  s. 463 as "making any false document". Making of false  document is  defined in  s. 464.  According to the counsel for  the appellant the present case falls within the scope of  "who dishonestly  or fraudulently makes a document or part of a document ...at a time at which he knows that it was  not   made,  signed,   sealed  or  executed"  The  word "dishonestly" has  been defined in s. 24 of the Indian Penal Code as "whoever does anything with the intention of causing wrongful gain  to one  person or  wrongful loss  to  another person   is   said   to   do   that   thing   "dishonestly." "Fraudulently" has  been defined  in s.  25 as  "a person is said to  do a  thing fraudulently if he does that thing with intent to defraud but not otherwise." The precise contention raised on  behalf of  the appellant is that Respondent No. 2 changed the  order which  has been  earlier passed  with the intention of  causing wrongful loss to the Bank by reason of the fact  that by  the order passed surcharge proceeding was countermanded.      On the  materials on  record I  am not satisfied that a prima facie  case under  s. 5  (1) (d)  of the Prevention of Corruption Act and of forgery under s. 466 Indian Penal Code are made out.      The facts  have many  faces. If  the view of the Public Prosecutor is one, which could in the circumstances be taken by any  reasonable man,  the Court cannot substitute its own opinion for  that of  the Public  Prosecutor. If  the Public Prosecutor has applied his mind 155 on the  relevant materials  and his opinion is not perverse, and which  a reasonable  man could have arrived at, a roving inquiry into  the evidence  and materials  on the record for the purpose  of finding  out whether  his  conclusions  were right or  wrong would  be incompetent.  That would virtually convert this  Court  into  an  Appellate  Court  setting  on judgment.      The contention raised by the counsel for appellant that the Public  Prosecutor Shri  Lallan  Prasad  Sinha  was  not competent to  apply for  withdrawal has not been accepted by my  brothers   Tulzapurkar  and  Baharul  Islam  JJ.  and  I respectfully agree with them.      If the  Public Prosecutor  thought that the continuance of the prosecution in the circumstances would only end in an

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exercise in  futility, he  was fully justified in moving the application for  withdrawal. The only question is whether he has applied  his  mind  and  he  was  not  actuated  by  any extraneous consideration  or improper  motive. It was sought to be  argued on  behalf of  the appellant  that the  Public Prosecutor has  acted at the behest of the Government and he did not apply his own mind. Reference was made to the letter sent by  the Government to the Public Prosecutor. The letter did not  indicate that  the  Government  wants  him  not  to proceed with  the case  but the  letter gave full freedom to the Public  Prosecutor to  apply his own mind and to come to his own  conclusion. In  view of  the various authorities of this Court, consultation with the Government or high officer is not  improper. But the Public Prosecutor has to apply his own mind  to the  facts and circumstances of the case before coming to  the conclusion  to withdraw from the prosecution. From the  materials on  the record  I am  satisfied that the Public Prosecutor  has applied  his own mind and came to his own conclusions.      The last  but not the least in importance was the point raised on  behalf of  the appellant  that the  sanction  for prosecution  had  already  been  given  by  the  then  Chief Minister, Abdul  Gafoor and  the complaint  was going  to be filed but  it was  postponed on  account of Respondent No. 2 who by  that time  overtook as  the Chief Minister of Bihar. The argument is that firstly he tried to delay the filing of the complaint; and secondly that he ordered for not pro 156 secuting the  officers of  the bank including Respondent No. 2, Shri Jagan Nath Mishra.      It appears  from the  notes on dates given on behalf of the Respondent  that the  file went  to the  Chief Minister, Respondent No.  2 because  of an earlier noting dated Ist of January 1975  by Shri  Omesh Prasad  Verma  that  the  Chief Minister may  also like  to see. A further noting dated 31st of January  1975 by Shri R.K. Shrivastava in the Ministry of Co-operation was to the following effects:           "Chief Minister  and Minister  of Law have desired      to see  the file before complaints are actually lodged.      As per  their directions,  the file  has been  recalled      from  the   Additional  Public   Prosecutor.   In   the      circumstances narrated  above Minister of Law and Chief      Minister would  like to  accord their  approval to  the      filing of the complaint." A subsequent  note of  Shri R.  K. Shrivastava dated 27th of January 1975 is in the following terms:           "The Chief  Minister has  desired that if the said      complaint has  not been  filed should  await till he is      able to  see the  file. Another  buff  sheet  has  been      received from  the Minister  of Agriculture  also.  The      file may  kindly be  recalled and  filing of complaints      may await till further clearance of the C.M." It appears  that the previous Chief Minister was replaced by that time Dr. J.N. Mishra. It is in these circumstances that the file  was sent  to Respondent  No. 2  in his capacity as Chief Minister  in pursuance  of the  earlier desire  of the then Chief  Minister, Shri  Abdul  Gafoor,  and  passed  the following orders:           "In order  to recover  the money  from some of the      loanees of  the Patna  Urban Co-operative Bank criminal      cases were  instituted against  them. Action  should be      taken immediately  for  the  withdrawal  of  the  cases      against those loanees who have cleared the loan in full      and proper  instalments for  payment of loans should be      fixed against  those who want to repay the loan but due

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    to financial incapacity 157      are unable  to make  payment at  a time  and thereafter      necessary further action should be taken." In this  state of  affairs it cannot be said that Respondent No. 2 was out to obstruct the criminal proceedings.      The facts  that the prosecution, if ordered, will start after a gap of about eight years cannot be lost sight of. In the view  taken by  me in  the earlier  part of the judgment that no  prima facie  case in  my opinion  has been made out under s.  466 of  the Indian  Penal Code and s. 5 (1) (d) of the Prevention  of Corruption Act and the fact that the High Court in  revision agreed with the view of the Special Judge giving consent to the withdrawal from the prosecution on the application of  the Public  Prosecutor under s. 321 Cr. P.C. this Court  cannot make  a fresh  appraisal of  evidence and come to  a different  conclusion. All that this Court has to see is  that the  Public  Prosecutor  was  not  actuated  by extraneous  or  improper  considerations  while  moving  the application for  withdrawal from the prosecution. Even if it is possible  to have  another view  different from  the  one taken by  the Public Prosecutor while moving the application for  withdrawal   from  prosecution  this  Court  should  be reluctant to interfere with the order unless it comes to the conclusion that  the Public  Prosecutor has  not applied his mind to  the facts  and circumstances  of the  case, and has simply acted  at the  behest of  the Government  or has been actuated by  extraneous and  improper considerations. On the facts and  circumstances of  the case it is not possible for me to  hold that  the  Public  Prosecutor  was  actuated  by oblique or improper motive.      In view  of my  finding that  the criminal case against Respondent No.  2 and  others was  instituted on  account of personal or  political vendetta  at  the  instance  of  some disgrunted political  leaders, that  no prima  facie case of forgery or  misconduct is  made out  on the materials on the record, that  the Court’s  jurisdiction in  dealing with the application under  s. 311 of the Code is only to see whether the Public  Prosecutor had  applied for  withdrawal  in  the interest of  Public Justice,  or he  has done so actuated by improper or  oblique motive,  that a  substantial amount  of loan has  already been realised, that the continuance of the criminal case in the circumstances of this case will be only an exercise  in futility  at the  cost of  public money  and time, that the trial court as well as the High Court 158 were satisfied  with the grounds for withdrawal taken by the Public Prosecutor, the view taken by the trial court as well as the  High Court  in my  opinion does  not suffer from any infirmity and is a just and proper one.      For the reasons given above the appeal must fail and it is accordingly dismissed. S.R.                                         Appeal allowed. 159