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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1587 OF 2014 (Arising out of S.L.P. (Crl.) 1487 of 2012)

Bairam Muralidhar … Appellant

Versus

State of Andhra Pradesh        … Respondent

J U D G M E N T

Dipak Misra, J.

           Leave granted.

2.   In this appeal,  by special  leave,  the assail  is  to the  

defensibility of the order dated 8.12.2011 passed by the  

High Court of Judicature of Andhra Pradesh at Hyderabad  

in Criminal Petition No. 1125 of 2010 whereby the learned  

Single Judge has concurred with the view expressed by the  

Principal  Special Judge for SPE and ACB Cases, City Civil  

Court, Hyderbad in Crl. P No. 994 of 2009 in C.C. No. 24 of

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2007, whereunder the learned trial Judge had declined to  

grant permission to withdraw the case pending against the  

accused-appellant in exercise of the power under Section  

321  of  the  Code  of  Criminal  Procedure  (for  short  “the  

Code”).

3. The expose’ of facts are the appellant was arrayed as  

an accused for offences punishable under section 7 and 13  

(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988  

(for brevity ‘the Act’).  As per the prosecution case the son  

of  one  Ranga  Dharma  Goud  fell  in  love  with  his  

neighbour’s  daughter  and  both  of  them  eloped  on  

25.01.2006.  The neighbour, Radhakrishna Murthy, lodged  

an  FIR  at  Kamareddy  Town  Police  Station  which  was  

registered as Criminal  Case No.  21/2006 under Section-  

366(A) of the Indian Penal Code (IPC).  Sub-Inspector of  

the Police Station took up the investigation and arrested  

the son of the Ranga Dharma Goud who suffered judicial  

custody.  When all these things happened Ranga Dharma  

Goud who was working as a Driver in Dubai came to India  

and  he  was  asked  to  come  to  the  Police  Station  on  

22.04.2006 and again on 26.04.2006 on which dates the

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investigating officer demanded a sum of Rs.6000/- to be  

paid for not implicating him in the said kidnapping case  

and  also  to  file  the  charge-sheet  against  his  son  by  

reducing  the  gravity  of  the  charge.   As  Ranga Dharma  

Gaud  expressed  his  inability  to  pay  the  amount  the  

investigating  officer  reduced  the  demand  to  Rs.5000/-.  

Expressing his  unwillingness  to pay,  he approached the  

DSP, ADB, Nizamabad Range, who after due verifications,  

registered a case in Cr. No. 4/ACB/NZB/2006 on 4.5.2006  

under Section 7 & 13 (1) (d) r/w Section 13 (2) of the Act.  

On the basis of the registration of the FIR the trap was laid  

and  eventually  charge-sheet  was  placed  against  the  

accused officer before the competent Court.  

4. When the case came up for hearing on charge the  

public  prosecutor  filed  a  petition  on  22.06.2009  to  

withdraw  the  case  against  the  accused  officer  on  the  

ground that the Government of A.P. had issued G.P. Ms.  

No. 268 of Home (SC.A) Department, dated 23.05.2009, to  

withdraw the prosecution against the accused officer.  The  

learned trial Judge referred to the copy of the G.O. Ms. No.  

268 that was annexed to the petition of the Special Public

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Prosecutor  wherein  it  was  mentioned  that  on  the  due  

examination the Government had found regard being had  

to the good work of the accused in the anti-extremist field  

and other meritorious service his case be placed before  

the  Administrative  Tribunal  for  disciplinary  proceedings  

after withdrawal of the prosecution pending in the court of  

Special Judge.  The learned trial Judge referred to various  

authorities,  adverted to the role  and duty of  the public  

prosecutor and the role of the Court under Section 321 of  

the Code, and further taking note of the nature of the case  

and  grant  of  sanction  by  the  State  Government  to  

prosecute  the  case  opined  that  the  public  prosecutor  

really had not applied his independent mind except filing  

the  petition  with  copy  of  G.O.  Ms.  issued  by  State  

Government;  that  there  were  no  sufficient  ground  or  

circumstances for the Court to accept the withdrawal of  

the prosecution case against the officer;  and that there  

was no justification to  allow such an application regard  

being had to the offences against the accused persons,  

and accordingly, dismissed the petition.  

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5. As the permission was not  granted by the learned  

trial  Judge  the  appellant  invoked  the  jurisdiction  of  the  

High Court under Section 482 of the Code before the High  

Court and the learned Single Judge after adverting to the  

facts and the reasons ascribed by the learned trial Judge  

came to hold that the order passed by the learned trial  

Judge was absolutely impeccable inasmuch as the public  

prosecutor  had  actually  not  given  any  valid  reason  for  

withdrawal  of  the  case  and  further,  the  case,  in  the  

obtaining factual matrix, did not warrant withdrawal under  

Section 321 of the Code.   

6. We  have  heard  Ms.  Madhurima  Tatia,  learned  

counsel for the petitioner and Mr. ATM Rangaramanujam,  

learned senior counsel for the State.   

7. The seminal question that arises for consideration is  

whether  in  the  obtaining  factual  score  the  Court  was  

justified to decline permission under Section 321 of the  

Code  for  withdrawal  of  the  case.   To  appreciate  the  

controversy in proper perspective,  it  is  condign to refer  

the Government order whereby a decision has been taken

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to withdraw the case.   The relevant part  of it  reads as  

follows:-  

“2. In  the  reference  third  read  above.  Sri.  Bairam Muralidhar, Sub-Inspector of Police, has  submitted  a  representation  wherein  he  has  stated that a trap was laid on him on 5.5.2006  by  the  Deputy  Superintendent  of  Police,  Anti  Corruption  Bureau,  Nizamabad  Range,  Nizamabad, along with his staff on a false and  frivolous complaint lodged by the complainant  by  name  Sri.  Ranga  Dharma  Goud  of  Kamareddy,  Nizamabad  District.   Actually,  a  case in  Cr No. 21/2006 u/S.366 (A) Indian Penal  Code was registered in Town Police Station of  Kamareddy  on  01.02.2006  against  Naresh  Goud, son the of complainant.  A charge sheet  was  also  filed  by  him in  the  Court  of  Judicial  First  Class  Magistrate,  Kamareddy,  against  Naresh Goud on 20.03.2006 itself, and the same  was  numbered  vide  PRC  No.  27/2006.   Thus,  there was no official favour that was to be done  to the complainant or  his  son in  this  case as  alleged.   The  complainant  himself  persuaded  him to accept the bribe.  When he refused to  accept, the complainant forcibly thrusted some  currency  notes  into  his  left  side  shirt  pocket.  When  he  resisted  the  said  acts  of  the  complainant  for  the  unprecedented  act,  the  Anti-Corruption Bureau,  officials  rushed to  the  spot  and  conducted  trap  proceedings  on  him  without  heeding  to  his  requests.   He  further  informed that  he  is  discharging  his  legitimate  duties  and  his  case  was  considered  for  Accelerated  Promotion  from  Sub-Inspector  of  Police for his contribution in the anti extremist  work.  His services were recognized by way of  awarding Police Katina Seva Pathakam in 2005  and  his  name  was  also  recommended  for  Prestigious Indian Police Medal for Gallantry for  the  year  2003.   Hence,  keeping  in  view  his

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previous record, he requested the Government  to  consider  his  request  for  withdrawal  of  prosecution and also to reinstate into service. 3.   In  the  reference  fourth  read  above,  the  Director  General,  Anti-Corruption  Bureau,  Andhra Pradesh, Hyderabad, while rebutting the  contentions  of  the Accused Officer  has  stated  that there are no merits in the application filed  by the applicant and it is not maintainable and  as such requested the Government to dismiss  the application filed by the Accused Officer Sri.  B. Muralidhar, Sub-Inspector of Police. 4.   Government have examined the matter in  detail, keeping in view of his good work in the  anti-extremist  field  and  other  meritorious  service and order that the case of Sri.  Bairam  Muralidhar, Sub-Inspector of Police, Kamareddy  Town  Police  Station,  Nizamabad,  be  placed  before the Tribunal for Disciplinary Proceedings,  duly  withdrawing  the  prosecution  in  C.C.  No.  24/2007....”

8. The application for withdrawal that was filed by the  

learned Public Prosecutor deserves to be referred to.  After  

narrating the factual matrix about the case, while seeking  

withdrawal the following grounds were put forth:

“It is further submitted that as the matter stood  thus,  the  Government  has  reviewed  the  case  and decided to modify the orders issued in G.O.  Ms.   No.06,  Home  (SC-A)  Department,  dt.  10.01.2007 and placed the respondent/accused  officer  on  his  defense  before  Tribunal  for  disciplinary proceedings and issued G.O. Ms. No.  268,  home  (SC-A)  Department,  dated  23.5.2009, the said G.O. is filed along with the  petition for consideration.

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I  respectfully  submit  that  on  perusal  of  the  Government order and the material  evidences  available  on  record  and on  application  of  the  mind  independently  and  for  the  reasons  accorded by the Government I am satisfied that  the case is fit for withdrawal from prosecution in  accordance with the settled principles of law as  laid down by the Honourable Supreme Court of  India. Therefore, under the above said circumstances  it is prayed that this Honourable Court may be  pleased to permit me to withdraw the case of  the prosecution against the respondent/accused  officer Sri. Bairam Murlidhar and the same may  be  treated  as  withdrawn  and  the  respondent/accused officer may be discharged  in the interest of justice and equity.”  

9. The learned counsel for the petitioner submitted that  

in a similar case in Name Dasarath v. State of Andhra  

Pradesh in Criminal Appeal No. 299 of 2014 decided  

on 30th January 2014, this Court has after reproducing  

paragraphs  69,  70  and  71  of  the  Constitution  Bench  

decision  in  Sheo Nandan Paswan v.  State of  Bihar  

and others1 has quashed the prosecution and remanded  

the matter.  The operative part of the said order reads as  

follows:-  

“We accordingly allow the appeal, set aside the  order of the Trial Court and the impugned order  of the High Court and remand the matter to the  

1 AIR 1987 SC 877

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Trial Court for fresh consideration of the petition  for  withdrawal  of  prosecution  against  the  appellant under Section 321 Cr.P.C. in the light  of the judgments of this Court and in particular  the  majority  judgments  of  the  Constitution  Bench of this Court in  Sheo Nandan Paswan  v. State of Bihar and others quoted above.”

10.   In the said case, as we notice, an application was  

preferred for withdrawal of the case where charge-sheet  

had already been filed under Section 13 (2) r/w Section  

13(1)(e) of the Act  and the Principal Special Judge for SPE  

& ACB had declined to grant the prayer and the High Court  

had refused to entertain the criminal revision.  This Court  

observed that the trial Court as well as the High Court has  

not  correctly  appreciated  the  law  laid  down  in  Sheo  

Nandan  Paswan’s  case  and  accordingly  passed  the  

order which we have reproduced hereinbefore.   

11. We have already referred to the facts of the case,  

reproduced  the  Government  order  and  the  application  

filed  by  the  public  prosecutor.   Before  we  express  our  

opinion  with  regard  to  legal  sustainability  of  the  order  

passed by the learned trial Judge, we think it apposite to  

refer  to  certain authorities pertaining to the role of  the  

Public Prosecutor and the duty of the Court as envisaged  

under section 321 of the Code.  The Constitution Bench in

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Sheo Nandan Paswan’s case referred to Section 333 of  

the old Code and taking note of the language employed  

under Section 321 of the present Code opined thus:-  

“69.  A  harmonious  view  should,  in  my  view,  prevail  in  the  reading  of  the  two  sections.  Section  333  does  not  give  any  discretion  or  choice to the High Court when a motion is made  under it. Such being the case, Section 321 must  also  be  construed  as  conferring  powers  within  circumscribed  limits  to  the  court  to  refuse  to  grant  permission  to  the  Public  Prosecutor  to  withdraw the prosecution. If such a harmonious  view  is  not  taken  it  would  then  lead  to  the  anomalous  position  that  while  under  Section  333, a High Court has to yield helplessly to the  representation of the Advocate-General and stop  the  proceedings  and  discharge  or  acquit  the  accused,  the  subordinate  courts  when  moved  under Section 321 CrPC would have a power to  refuse  to  give  consent  for  withdrawal  of  the  prosecution if  it  is of opinion that the case did  not  suffer  from  paucity  of  evidence.  The  legislature  would  not  have  intended  to  confer  greater powers on the subordinate courts than  on  the  High  Court  in  the  exercise  of  powers  under Section 494 of the old Code and Section  333 respectively. It would, therefore, be just and  reasonable to hold that while conferring powers  upon the subordinate courts under Section 494  to  give  consent  to  a  Public  Prosecutor  withdrawing the prosecution, the legislature had  only intended that the courts should perform a  supervisory  function  and  not  an  adjudicatory  function in the legal sense of the term.

Section 321 reads as follows: “321.  Withdrawal  from prosecution.— The  Public  Prosecutor  or  Assistant  Public  Prosecutor  in  charge of  a  case may,  with

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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.  (Proviso  omitted)”

This  section  enables  the  Public  Prosecutor,  in  charge  of  the  case  to  withdraw  from  the  prosecution of any person at any time before the  judgment is pronounced, but this application for  withdrawal has to get the consent of the court  and  if  the  court  gives  consent  for  such  withdrawal the accused will be discharged if no  charge has been framed or acquitted if  charge  has  been  framed  or  where  no  such  charge  is  required  to  be  framed.  It  clothes  the  Public  Prosecutor to withdraw from the prosecution of  any person, accused of an offence both when no  evidence is taken or even if entire evidence has  been taken. The outer limit for the exercise of  this power is “at any time before the judgment is  pronounced”.

70.   The section gives  no indication as  to  the  grounds  on  which  the  Public  Prosecutor  may  make the application,  or  the considerations on  which  the  court  is  to  grant  its  consent.  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  implicit  in  the  exercise of the judicial discretion for granting the  consent would normally mean that the court has

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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.

71. The court’s function is to give consent. This  section  does  not  obligate  the  court  to  record  reasons  before  consent  is  given.  However,  I  should not be taken to hold that consent of the  court  is  a  matter  of  course.  When  the  Public  Prosecutor makes the application for withdrawal  after taking into consideration all  the materials  before  him,  the  court  exercises  its  judicial  discretion by considering such materials and on  such  consideration,  either  gives  consent  or  declines  consent.  The  section  should  not  be  construed to mean that the court has to give a  detailed reasoned order when it gives consent. If  on  a  reading  of  the  order  giving  consent,  a  higher court is satisfied that such consent was  given  on  an  overall  consideration  of  the  materials available, the order giving consent has  necessarily to be upheld.”

12. In  the  said  case,  the  larger  Bench  referred  the  

decisions in Bansi Lal v. Chandan Lal2, Balwant Singh  

v.  State  of  Bihar3,  Subhash  Chander  v.  State4,  

Rajendra  Kumar  Jain  v.  State5,  and  the  principles  

stated in  State of Bihar v. Ram Naresh Pandey6 and  

eventually came to hold as follows:-

2 AIR 1976 SC 370 3 (1978) 1 SCR 604 4 (1980) 2 SCR 44 5 AIR 1980 SC 1510 6 AIR 1957 SC 389

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“All  the  above  decisions  have  followed  the  reasoning of Ram Naresh Pandey’s case and the  principle  settled  in  that  decision  were  not  doubted. It is in the light of these decisions that the case  on  hand  has  to  be  considered.   I  find  the  application  for  withdrawal  by  the  Public  Prosecutor has been made in good faith after  careful  consideration  of  the  materials  placed  before him and the order of consent given by  the Magistrate was also after due consideration  of various details, as indicated above.  It would  be improper for this Court, keeping in view the  scheme of S.  321, to embark upon a detailed  enquiry into the facts and evidence of the case  or to direct retrial for that would be destructive  of the object and intent of the Section. ”

13. In R.M. Tewari, Advocate v. State (NCT of Delhi)   

and others7 this Court while dealing with justifiability of  

withdrawal from the prosecution the Court referred to the  

Section 321 of the Code and the principle that has been  

stated in Sheonandan Paswan (Supra) and opined that:-  

“7.  It  is,  therefore,  clear  that  the  Designated  Court  was  right  in  taking  the  view  that  withdrawal  from  prosecution  is  not  to  be  permitted  mechanically  by  the  court  on  an  application for that purpose made by the public  prosecutor.  It  is  equally  clear  that  the  public  prosecutor also has not to act mechanically in  the  discharge  of  his  statutory  function  under  Section  321  CrPC  on  such  a  recommendation  being made by the Review Committee; and that  it is the duty of the public prosecutor to satisfy  himself that it is a fit case for withdrawal from  

7 (1996) 2 SCC 610

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prosecution before he seeks the consent of the  court for that purpose.

8. It appears that in these matters, the public  prosecutor  did  not  fully  appreciate  the  requirements of Section 321 CrPC and made the  applications  for  withdrawal  from  prosecution  only on the basis of the recommendations of the  Review  Committee.  It  was  necessary  for  the  public prosecutor to satisfy himself in each case  that  the  case  is  fit  for  withdrawal  from  prosecution  in  accordance  with  the  settled  principles  indicated  in  the  decisions  of  this  Court and then to satisfy the Designated Court  of  the  existence  of  a  ground  which  permits  withdrawal from prosecution under Section 321  CrPC.”

14.   A three-Judge Bench in  Abdul Karim etc. etc. v.  

State of Karnataka and others etc.8 referred to the  

Constitution  Bench  judgment  in  Sheonandan  Paswan  

case and Bharucha, J (as his Lordship then was) speaking  

for himself and D.P. Mohapatra, J. observed thus:-

“19.   The  law,  therefore,  is  that  though  the  Government  may  have  ordered,  directed  or  asked a Public  Prosecutor  to  withdraw from a  prosecution,  it  is  for  the  Public  Prosecutor  to  apply his mind to all the relevant material and,  in good faith,  to be satisfied thereon that the  public interest will be served by his withdrawal  from the prosecution. In turn,  the court has to  be satisfied, after considering all that material,  that the Public Prosecutor has applied his mind  independently  thereto,  that  the  Public  Prosecutor, acting in good faith, is of the opinion  that his withdrawal from the prosecution is  in  

8 AIR 2001 SC 116

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the  public  interest,  and  that  such  withdrawal  will  not  stifle  or  thwart  the  process  of  law or  cause manifest injustice.

20.  It  must  follow  that  the  application  under  Section  321  must  aver  that  the  Public  Prosecutor  is,  in  good  faith,  satisfied,  on  consideration of  all  relevant material,  that  his  withdrawal from the prosecution is in the public  interest  and  it  will  not  stifle  or  thwart  the  process of law or cause injustice.  The material  that the Public Prosecutor has considered must  be  set  out,  briefly  but  concisely,  in  the  application  or  in  an  affidavit  annexed  to  the  application or,  in  a  given  case,  placed before  the  court,  with  its  permission,  in  a  sealed  envelope. The  court  has  to  give  an  informed  consent. It must be satisfied that this material  can reasonably lead to the conclusion that the  withdrawal  of  the  Public  Prosecutor  from  the  prosecution will serve the public interest; but it  is not for the court to weigh the material. The  court  must  be  satisfied  that  the  Public  Prosecutor has considered the material and, in  good  faith,  reached  the  conclusion  that  his  withdrawal from the prosecution will serve the  public  interest.  The  court  must  also  consider  whether  the  grant  of  consent  may  thwart  or  stifle  the  course  of  law  or  result  in  manifest  injustice. If, upon such consideration, the court  accords  consent,  it  must  make such order  on  the application as will indicate to a higher court  that it has done all that the law requires it to do  before granting consent.”  

[Emphasis supplied]

15. Y.K.  Sabharwal,  J  (as  his  Lordship  then was)  in  his  

concurring  opinion  elaborating  further  on  fundamental

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parameters which are to be the laser beam for exercise of  

power under Section 321 of the Code opined that:-  

“42. The satisfaction for moving an application  under Section 321 CrPC has to be of the Public  Prosecutor which in the nature of the case in  hand has to be based on the material provided  by the State.  The nature of  the power to be  exercised  by  the  Court  while  deciding  application under Section 321 is delineated by  the  decision  of  this  Court  in  Sheonandan  Paswan v.  State of Bihar.  This  decision holds  that  grant  of  consent  by  the  court  is  not  a  matter of course and when such an application  is  filed  by  the  Public  Prosecutor  after  taking  into consideration the material before him, the  court  exercises  its  judicial  discretion  by  considering  such  material  and  on  such  consideration either gives consent or declines  consent. It also lays down that the court has to  see that the application is made in good faith,  in the interest of public policy and justice and  not  to  thwart  or  stifle  the  process  of  law  or  suffers from such improprieties or illegalities as  to cause manifest injustice if consent is given.

43. True, the power of the court under Section  321 is supervisory but that does not mean that  while exercising that power, the consent has to  be granted on mere asking. The court has to  examine that  all  relevant  aspects  have been  taken  into  consideration  by  the  Public  Prosecutor  and/or  by  the  Government  in  exercise of its executive function.”

[Underlining is ours]

16. In  Rahul Agarwal v. Rakesh Jain and another9  

the  Court  was  dealing  with  what  should  be  the  lawful  

9 (2005) 2 SCC 377

Page 17

consideration  while  dealing  with  an  application  for  

withdrawal  under  Section  321  of  the  Code.   The  Court  

referred to the decisions in Ram Naresh Pandey (supra),  

State of Orissa  v.  Chandrika Mohapatra10, Balwant  

Singh v.  State  of  Bihar  (supra)  and the  authority  in  

Abdul Karim  (supra) wherein the earlier decision of the  

Constitution  Bench   in  Sheonandan  Paswan  was  

appreciated  and  after  reproducing  few  passages  from  

Abdul Karim (supra) ruled that:-  

“10.  From  these  decisions  as  well  as  other  decisions on the same question, the law is very  clear that the withdrawal of prosecution can be  allowed only in the interest of justice.  Even if  the Government directs the Public Prosecutor to  withdraw the prosecution and an application is  filed to that effect,  the court must consider all  relevant  circumstances  and  find  out  whether  the  withdrawal  of  prosecution  would  advance  the cause of justice. If the case is likely to end  in an acquittal and the continuance of the case  is  only  causing  severe  harassment  to  the  accused,  the  court  may  permit  withdrawal  of  the prosecution. If the withdrawal of prosecution  is  likely  to  bury  the  dispute  and  bring  about  harmony between the parties and it would be in  the best interest of justice, the court may allow  the  withdrawal  of  prosecution.  The  discretion  under Section 321, Code of Criminal Procedure  is to be carefully exercised by the court having  due regard to all the relevant facts and shall not  be exercised to stifle the prosecution which is  being  done  at  the  instance  of  the  aggrieved  

10 (1976) 4 SCC 250

Page 18

parties  or  the  State  for  redressing  their  grievance. Every crime is an offence against the  society  and  if  the  accused  committed  an  offence,  society  demands  that  he  should  be  punished. Punishing  the  person  who  perpetrated  the  crime  is  an  essential  requirement  for  the  maintenance  of  law  and  order and peace in the society. Therefore, the  withdrawal  of  the  prosecution  shall  be  permitted  only  when  valid  reasons  are  made  out for the same.”

(Emphasis added] 17. The obtaining fact situation has to be tested on the  

anvil of aforesaid enunciation of law.  As is demonstrable,  

the State Government vide G.O. Ms. No. 268 dated 23rd  

May,  2009  enumerated  certain  aspects  which  are  

reproduced hereinbefore.  The reproduction part requires  

slight  clarification.   In  the  order  passed  by  the  State  

Government,  the  third  reference  refers  to  the  

representation  of  Shri  B.  Muralidhar,  Sub-Inspector  of  

Police,  Kamareddy  Town  P.S.  dated  5.8.2007  and  the  

fourth  reference  refers  to  the  communication  from the  

Director General, Anti Corruption Bureau, Andhra Pradesh,  

Hyderabad  dated  12.10.2007.   Thereafter,  the  State  

Government has given its opinion why the case required  

to  be  withdrawn.   The learned public  prosecutor  in  his  

application  for withdrawal of the prosecution has referred

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to  the Government  order  and sought permission of  the  

Court.  What the public prosecutor has stated is that he  

has  perused  the  Government  order,  the  material  

evidences available on record and has applied his mind  

independently  and  satisfied  that  it  was  a  fit  case  for  

withdrawal.

18. The central question is whether the public prosecutor  

has really applied his mind to all the relevant materials on  

record and satisfied himself that the withdrawal from the  

prosecution would subserve the cause of public interest or  

not.   Be  it  stated,  it  is  the  obligation  of  the  public  

prosecutor to state what material he has considered.  It  

has to be set out in brief.  The Court as has been held in  

Abdul  Karim’s  case,  is  required  to  give  an  informed  

consent.  It is obligatory on the part of the Court to satisfy  

itself that from the material it can reasonably be held that  

the withdrawal of the prosecution would serve the public  

interest.  It is not within the domain of the Court to weigh  

the material.  However, it is necessary on the part of the  

Court to see whether the grant of consent would thwart or  

stifle  the  course  of  law or  cause manifest  injustice.   A

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Court while giving consent under Section 321 of the Code  

is required to exercise its judicial discretion, and judicial  

discretion, as settled in law, is not to be exercised in a  

mechanical manner.  The Court cannot give such consent  

on a mere asking.  It is expected of the Court to consider  

the  material  on  record  to  see  that  the  application  had  

been filed in good faith and it is in the interest of public  

interest and justice.  Another aspect the Court is obliged  

to see whether such withdrawal would advance the cause  

of justice.  It requires exercise of careful and concerned  

discretion because certain crimes are against  the State  

and  the  society  as  a  collective  demands  justice  to  be  

done.  That maintains the law and order situation in the  

society.   The public prosecutor cannot act like the post  

office on behalf of the State Government.  He is required  

to act in good faith, peruse the materials on record and  

form an independent opinion that the withdrawal of the  

case would really subserve the public interest at large.  An  

order of the Government on the public prosecutor in this  

regard is not binding.  He cannot remain oblivious to his  

lawful  obligations  under  the  Code.   He  is  required  to  

constantly remember his duty to the Court as well as his

Page 21

duty  to  the  collective.   In  the  case  at  hand,  as  the  

application filed by the public prosecutor would show that  

he  had  mechanically  stated  about  the  conditions-

precedent.   It  cannot  be  construed  that  he  has  really  

perused the materials and applied his independent mind  

solely  because  he  has  so  stated.  The  application  must  

indicate perusal of the materials by stating what are the  

materials he has perused, may be in brief, and whether  

such  withdrawal  of  the  prosecution  would  serve  public  

interest and how he has formed his independent opinion.  

As we perceive, the learned public prosecutor has been  

totally guided by the order of the Government and really  

not applied his mind to the facts of the case.  The learned  

trial Judge as well as the High Court has observed that it is  

a case under the Prevention of Corruption Act.  They have  

taken  note  of  the  fact  that  the  State  Government  had  

already granted sanction.   It  is  also noticeable that the  

Anti  Corruption  Bureau  has  found  there  was  no  

justification of withdrawal of the prosecution.   

19. A case under the Prevention of Corruption Act has its  

own gravity.  In  Niranjan Hemchandra Sashittal and

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another v. State of Maharashtra11 while declining to  

quash  the  proceeding  under  the  Act  on  the  ground  of  

delayed trial, the Court observed thus:   

“In  the case at  hand,  the appellant  has  been  charge-sheeted  under  the  Prevention  of  Corruption  Act,  1988  for  disproportionate  assets.  The  said  Act  has  a  purpose  to  serve.  Parliament intended to eradicate corruption and  provide  deterrent  punishment  when  criminal  culpability  is  proven.  The  intendment  of  the  legislature has an immense social relevance. In  the present day scenario, corruption has been  treated to have the potentiality of corroding the  marrows  of  the  economy.  There  are  cases  where the amount is small and in certain cases,  it is extremely high. The gravity of the offence  in such a case, in our considered opinion, is not  to be adjudged on the bedrock of the quantum  of  bribe.  An  attitude  to  abuse  the  official  position to extend favour in lieu of benefit is a  crime against the collective and an anathema to  the basic tenets of democracy, for it erodes the  faith of the people in the system. It creates an  incurable  concavity  in  the  Rule  of  Law.  Be  it  noted,  system of good governance is  founded  on  collective  faith  in  the  institutions.  If  corrosions  are  allowed  to  continue  by  giving  allowance  to  quash  the  proceedings  in  corruption  cases  solely  because  of  delay  without  scrutinising  other  relevant  factors,  a  time may come when the unscrupulous people  would foster and garner the tendency to pave  the path of anarchism.”

20. Recently,  in  Dr.  Subramanian  Swamy  v.  

Director, Central Bureau of Investigation & Anr.12,  11 (2013) 4 SCC 642 12 Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014

Page 23

the Constitution Bench while declaring Section 6A of the  

Delhi Special Police Establishment Act, 1946, which was  

inserted by Act 45 of 2003 as unconstitutional has opined  

that:-

“It seems to us that classification which is made  in  Section  6-A  on  the  basis  of  status  in  the  Government  service  is  not  permissible  under  Article 14 as it  defeats the purpose of finding  prima faice truth into the allegations of  graft,  which amount to an offence under the PC Act,  1988.   Can  there  be  sound  differentiation  between corrupt public servants based on their  status?  Surely not, because irrespective of their  status  or  position,  corrupt  public  servants  are  corrupters of public power.  The corrupt public  servants, whether high or low, are birds of the  same feather and must be confronted with the  process  of  investigation  and  inquiry  equally.  Based on the position or status in service,  no  distinction  can  be  made  between  public  servants  against  whom  there  are  allegations  amounting  to  an  offence  under  the  PC  Act,  1988.”   

And thereafter, the larger Bench further ruled: “Corruption  is  an  enemy  of  the  nation  and  tracking  down  corrupt  public  servants  and  punishing such persons is a necessary mandate  of the PC Act, 1988.  It is difficult to justify the  classification which has been made in Section 6- A because the goal of law in the PC Act, 1988 is  to  meet  corruption  cases  with  a  very  strong  hand and all public servants are warned through  such a legislative measure that corrupt public  servants  have  to  face  very  serious  consequences.”

And again, the larger Bench observed:

Page 24

“70.  Office  of  public  power  cannot  be  the  workshop  of  personal  gain.   The  probity  in  public life is of great importance.  How can two  public  servants  against  whom  there  are  allegations of corruption of graft or bribe taking  or criminal misconduct under the PC Act, 1988  can be made to be treated differently because  one happens to be a junior officer and the other,  a senior decision maker.  

71. Corruption is an enemy of nation and  tracking  down  corrupt  public  servant,  howsoever high he may be, and punishing such  person  is  a  necessary  mandate  under  the  PC  Act,  1988.   The  status  or  position  of  public  servant  does  not  qualify  such  public  servant  from  exemption  from  equal  treatment.   The  decision  making  power  does  not  segregate  corrupt  officers  into  two  classes  as  they  are  common crime doers  and have to  be tracked  down  by  the  same  process  of  inquiry  and  investigation.”  

 21. We have referred to these authorities only to show  

that in the case at hand, regard being had to the gravity  

of the offence and the impact on public life apart from the  

nature of application filed by the public prosecutor, we are  

of  the  considered  opinion  that  view  expressed  by  the  

learned trial  Judge as well  as the High Court cannot be  

found fault with.  We say so as we are inclined to think  

that  there  is  no  ground  to  show  that  such  withdrawal  

would advance the cause of justice and serve the public  

interest.   That  apart,  there  was  no  independent

Page 25

application  of  mind  on  the  part  of  the  learned  public  

prosecutor, possibly thinking that the Court would pass an  

order on a mere asking.  The view expressed in  Name  

Dasarath’s case (supra) is not applicable to the case at  

hand as the two-Judge Bench therein has opined that the  

law laid down in  Sheo Nandan Paswan’s  case has not  

been correctly appreciated by the learned trial Judge and  

the High Court.  We have referred to the said authority  

and the later decisions which are on the basis of  Sheo  

Nandan Paswan’s  case have laid  down the  principles  

pertaining to the duty of  the public prosecutor  and the  

role of the Court and we find the view expressed by the  

trial Court and the High Court is absolutely impregnable  

and, therefore, the decision in Name Dasarath (supra) is  

distinguishable on facts.    

22. In  the  result,  the  criminal  appeal,  being  sans  

substratum, is dismissed.

......................................J. [Dipak Misra]

......................................J.

Page 26

                                                   [Pinaki Chandra Ghose]

New Delhi; July 31, 2014.