N Criminal Appeal No 287 of 1979
Appeal by special leave from the Judgment and Order dated 12 10 1967 of the Delhi High Court in Criminal Revision No 117 of 1977
WITH SPECIAL LEAVE PETITION CRIMINAL No 3115 of 1979
From the Judgment and Order dated 21 9 1979 of the Chief Judicial Magistrate Bhiwani in Case No 1861 of 1978
987 AND CRIMINAL MISCELLANEOUS PETITION No 3890 of 1979
An Application for direction under section 15 of the and Rule 3b of the Rules to regulate proceedings for contempt of Supreme Court 1975
Lal Narain Sinha Att
Genl M K Banerjee Addl
Miss A Subhashini and R B Datar for the Petitioner in Crl
Petition No 389079
U D Gour Adv
Haryana and M N Shroff for the Respondent in Crl
Petition No 38901979
P H Parekh Hemant Sharma Rajan Karanjawala and C B Singh for the Petitioner in SLP 311579
M C Bhandare Mrs Sunanda Bhandare and T Sridharan for Respondent No 1 in SLP 311579
A N Kharkhanis for Respondent No 4 in SLP 311579
U D Gour Adv
Haryana and M N Shroff for Respondents 26 27 in SLP 311579
Lal Narain Sinha Att
Genl Miss A Subhashini and R B Datar for Respondent No 30 in SLP 311579
Ram Panjwani Raj Panjwani Vijay Panjwani and section K Bagga for the Petitioner in Crl
A 28779
Lal Narain Sinha Att
and M K Banerjee Addl
and Miss A Subhashini for Respondent No 1 in Crl
A 29779
Ram Jethmalani Mrs Sushma Swaraj A K Pande and Mrs Hemanlika Wahi for Respondent No 2 in Crl
A 29779
V M Tarkunde T U Mehta P H Parekh and Miss Vineeta Caprihan for Respondent No 5 in Crl
A No 297 of 1979
Ram Jethmalani and Ranjan Dwivedi for Respondent Nos 2 11 12 and 13 in Crl
A 28779
Ram Jethmalani A G Noorani Miss Rani Jethmalani and Mrs Kamini Jaiswal for Respondent Nos 3 15 and 16 in Crl
A 28779
Ram Jethmalani and A G Noorani and Miss Rani Jethmalani for Respondent No 21 in Crl
A 28779
Sushil Chandra Bhatnagar in person Respondent No 14 in Crl
A 28779
988 The Judgment of the Court was delivered by CHINNAPPA REDDY J
A cocktail of law and politics reason and extravagance is the only way we can describe the submissions made to us in these two cases
Well known personalities are involved in one case an Ex Central Minister the present Governor of a State and some leading journalists and in the other an ex Central Minister and a host of Government officials
Perhaps that was responsible for the passion and the tension which appeared to characterise and sometimes mar the arguments in the two cases
We will first take up for consideration Criminal Appeal No 287 of 1979
In exercise of the powers conferred by section 1961 a of the Code of Criminal Procedure 1973 and section 7 of the  the Government of India by its order dated September 6 1976 accorded sanction for the prosecution of George Mathew Fernandes alias George Fernandes and 24 others for alleged offences under Ss
121 A Indian Penal Code 120 B Indian Penal Code read with Ss 4 5 and 6 of  and section 53b and section 12 of the Indian 
The first paragraph of the order according sanction set out the subject of the conspiracy in the following words Whereas it is alleged that after the issue of the proclamation of Emergency on 25th June 1975 by the President of India in exercise of the powers conferred by clause 1 of Article 352 of the Constitution George Mathew Fernandes alias George Fernandes Chairman of Socialist Party of India and Chairman of All India Railwaymen s Federation sought to arouse resistance against the said emergency by declaring that the said emergency had been clamped on the country by the despotic rule of Smt
Indira Gandhi Prime Minister of India and to entertain an idea that a conspiracy be hatched with the help of the persons of his confidence to over awe the Government and in pursuance of the conspiracy do such acts which might result in the destruction of public property and vital installations in the country
Thereafter the order set out the various acts committed by the several accused persons in pursuance of the objects of the conspiracy
On September 24 1976 the Deputy Superintendent of Police Special Police Establishment Central Bureau of Investigation Central Investi 989 gation Unit A New Delhi filed a charge sheet in the Court of the Chief Metropolitan Magistrate Delhi against the said accused persons for the offences mentioned in the order sanctioning the prosecution
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 Session
The evidence of the approvers 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 N section Mathur Special Public Prosecutor filed an application under section 321 of the Criminal Procedure Code 1973 for permission to withdraw from the prosecution
The application was as follows It is submitted on behalf of the State as under 1
That on 24 9 76 the Special Police Establishment after necessary investigation had filed a charge sheet in this Hon ble Court against Shri George Mathew Fernandes and 24 others for offences section 121 A IPC 120B IPC rw sections 4 5 and 6 of the and Section 53 b and 12 of the Indian as well as the substantive offences
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 approver section 3064 Cr
PC 3
That out of 25 accused sent up for trial cited in the charge sheet 2 accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Hon ble Court
That in public interest and changed circumstances the Central Government has desired to withdraw from the prosecutions of all the accused
It is therefore prayed that this Hon ble Court may accord consent to withdraw from 26th March 1977
Sd N section Mathur Special Public Prosecutor for the State New Delhi 990 On the same day the learned Chief Metropolitan Magistrate expressing the opinion that it was expedient to accord consent to withdraw from the prosecution granted his consent for withdrawal from the prosecution
One Dr Rajender Kumar Jain and Advocate filed a petition in the High Court of Delhi under section 397 of the Criminal Procedure Code for revision of the order of the learned Chief Metropolitan Magistrate giving his consent to the Special Public Prosecutor to withdraw from the prosecution
Several grounds were raised all of which were negatived by the High Court
It was also held by the High Court that the applicant had no locus standi
The Revision Petition was dismissed
Dr Rajender Kumar Jain has filed this appeal after obtaining special leave from this Court
Shri Ram Panjwani learned counsel for the appellant made the following submissions 1 The offences for which the accused persons were to be tried were exclusively triable by a Court of Session and therefore the Committing Magistrate had no jurisdiction to give consent to the Public Prosecutor to withdraw from the prosecution 2 The Public Prosecutor had abdicated his function and had filed the application at the behest of the Central Government without applying his mind
3 The Magistrate was in error in giving consent on the ground that it was expedient to do so
Expedience was never for the judiciary
4 section N Mathur who had filed the application for withdrawal from the prosecution was not the Public Prosecutor incharge of the case and the application was therefore incompetent
The submissions of Shri Ram Panjwani were controverted by Shri Ram Jethmalani and Shri V M Tarkunde learned counsel for the respondents
They also submitted that the offences with which the accused persons were charged were of a political nature and if the Government of the day thought that the Public Prosecutor should withdraw from the prosecution on grounds of public policy and advised the Public Prosecutor to do so it could not be said that the Public Prosecutor abdicated his function merely because the proposal to withdraw from the prosecution emanated from the Government and he acted upon such proposal
It was also submitted that so far as the fifth respondent was concerned no prosecution could be launched or continued against him under article 361 2 as he was the Governor of a State
Shri Panjwani in his reply submitted that political offences were unknown to the Municipal law of the land and that in the instant case the withdrawal from the prosecution was for a purely political purpose and not in the public interest at all
It was said that the case was withdrawn in order that Shri George Fernandes could be appointed as a Minister in the Central Cabinet
991 section 321 of the Criminal Procedure Code of 1973 which corresponds to section 494 of the Code of Criminal Procedure of 1898 is as follows 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
We have not extracted the proviso as it is not necessary for the purposes of these cases
Under section 494 of the Criminal Procedure Code 1898 it was held by this Court in State of Bihar vs Ram Naresh Pandey that the Court of the Committing Magistrate before whom a committal proceeding was pending was the Court within the meaning of section 494 which was competent to give its consent even in the case of offences exclusively triable by the Court of Session
But it was contended that after the enactment of the Criminal Procedure Code of 1973 the situation had changed since under the new Code the Court of the Committing Magistrate had no judicial function to perform in relation to the case which he was required to commit to the Court of Session
The submission was that the Court contemplated by section 494 was the Court capable of pronouncing a judgment ending the proceeding by an order of acquittal or discharge and since the Court of the Committing Magistrate under the new Code was not invested with the power of acquitting or discharging the accused it was not the Court which could grant its consent to withdraw from the prosecution
In the first place there is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provision of the Code can exercise the power under section 321 Criminal Procedure Code
The power conferred by section 321 is itself a special power conferred on the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power 992 of the Court to acquit or discharge the accused under some other provision of the Code
The power to discharge or acquit the accused under section 321 is a special power founded on section 321 itself to be exercised by the Court independently of its power of enquiry into the offence or try the accused
Again the expression judgment  in the context may be understood to mean the judgment which may be ultimately pronounced if the case were to be committed to a Court of Session
That was the view expressed in the State of Bihar vs Ram Naresh Pandey supra where the Court observed In any view even if judgment  in this context is to be understood in a limited sense it does not follow that an application during preliminary enquiry which is necessarily prior to judgment in the trial is excluded
In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure
section 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session
Therefore the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session
If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code
To that extent the Court of the Committing Magistrate does discharge a judicial function
We therefore over rule the first submission of Shri Ram Panjwani
We do not agree with the view taken by the High Court of Andhra Pradesh in A Venkataramana vs Mudem Sanjeeva Ragudu  Ors that the court of the Committing Magistrate is not competent to give consent to the Public Prosecutor to withdraw from the prosecution
The fourth submission of Shri Ram Panjwani does not appeal to us
The notification dated June 17 1966 of the Ministry of Home Affairs Government of India shows that the Senior Public Prosecutor Public Prosecutor and Assistant Public Prosecutor of the Delhi Special Police Establishment attached to the Delhi office of the Special Police Establishment were appointed as Public Prosecutors under section 4921 of the Criminal Procedure Code 1898 to conduct the cases of the Special Police Establishment before the Courts of Magistrates Special Judges and Sessions Judges in the Union Territory of Delhi
993 All notifications issued under the old Code are deemed to have been made under the corresponding provisions of the new Code
It appears that Shri N section Mathur is a Public Prosecutor attached to the Special Police Establishment at Delhi and has been functioning right through as Public Prosecutor in the Union Territory of Delhi
The High Court has also pointed out on a scrutiny of the proceedings of the Magistrate that it was Shri N section Mathur who was incharge of the case practically throughout
The second and third submissions of Shri Panjwani may be considered together
Decisions of this Court have made clear the functional dichotomy of the Public Prosecutor and the Court
In the State of Bihar vs Ram Naresh Pandey supra the Court while considering section 494 of the old Code explained 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 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
But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method
Otherwise the apparently wide language of section 494 would become considerably narrowed down in its application
In understanding and applying the section two main features thereof have to be kept in mind
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 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
In the context it is right to remember that the Public Prosecutor though an executive Officer   is in a larger sense also an officer of the Court and that he is bound to assist the Court with the fairly considered view and the Court is entitled to have the benefit of the fair exercise of his functions
The Court also appreciated that in this Country the scheme of the administration of Criminal Justice places the prime responsibility 994 of prosecuting serious offences on the executive authorities
The investigation including collection of the requisite evidence and the prosecution for the offence with reference to such evidence were the functions of the executive and in that particular segment the power of the Magistrate was limited and intended only to prevent abuse
In M N Sankaranarayanan Nair vs P V Balakrishnan  Ors
the Court while reiterating decision that the Court granting permission for withdrawal should satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes observed that the wide and general powers conferred on the Public Prosecutor to withdraw from the prosecution have to be exercised by him in furtherance of rather than as a hindrance to the object of the law and that the Court while considering the request to grant permission should not do so as a necessary formality the grant of it for the mere asking
In State of Orissa vs Chandrika Mohapatra  Ors
the Court said We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the 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  Ors
vs State of Bihar the independent role of the Public Prosecutor in making an application for withdrawal from a prosecution was emphasised
It was pointed out that statutory responsibility for deciding upon withdrawal vested in the Public Prosecutor and the sole consideration which should guide the Public Prosecutor was the larger factor of the administration of justice and neither political favour nor party pressure or the like
Nor should he allow himself to be dictated to by his administrative superiors to withdraw from the prosecution
The Court also indicated some instance where withdrawal from prosecution might be resorted to independently of the merits of the case Of course the interests of public justice being the paramount consideration they may transcend and overflow 995 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 instance also may be given
In Subhash Chander vs The State Chandigarh Admn  Ors
the Court once again emphasised the independence of the Public Prosecutor in the matter of seeking to withdraw from the prosecution
It was observed Any authority who coerces or orders or pressures a functionary like the Public Prosecutor in the exclusive province of his discretionary powers violates the rule of law and any Public Prosecutor who bends before such command betrays the authority of his office
However it was indicated Maybe Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the Public Prosecutor to consider whether the case or cases may not be withdrawn
Thereupon the Prosecutor will give due weight to the material placed the policy behind the recommendation and the responsible position of Government which in the last analysis has to maintain public order and promote public justice
But the decision to withdraw must be his
A reference was made to some considerations which may justify withdrawal from prosecution
It was said The fact that broader considerations of public peace larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality of order in a disorderly situation or harmony in a faction milieu or halting a false and vexatious prosecution in a court persuades the Executive pro bono publico sacrifice a pending case for a wider benefit is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor not the District Magistrate or Minister
The concurrence of the 996 court is necessary
The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case may well be a relevant ground for withdrawal
For the court should not be misused to continue a case conclusively proved to be a counterfeit
This statement of the law is not exhaustive but is enough for the present purpose and indeed is well grounded on precedents
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
The withdrawal from the prosecution is an executive function of the Public Prosecutor
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
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
The Public Prosecutor is an officer of the Court and responsible to the Court
The Court performs a supervisory function in granting its consent to the withdrawal
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
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 appraise itself of the 997 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 section 361 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
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 the Public Prosecutor to withdraw from prosecutions arising out of mass agitations communal riots regional disputes industrial conflicts student unrest etc
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 emotive issues are involved in the name of vindicating the law may even be utterly counter productive
An elected Government sensitive and 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  Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal
Rightly too because the independence of the judiciary so requires it as we have already mentioned
Now the Public Prosecutor is an Officer of the Court
He sets the criminal law in motion in the Court
He conducts the prosecution in the Court for the people
So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution
But where such large and sensitive issues of public policy are involved he 998 must if he is right minded seek advice and guidance from the policy makers
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 momentus 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
If ill informed but well meaning bureaucrats choose to use expressions like the Public Prosecutor is directed or the Public Prosecutor is instructed the Court will not on that ground alone stultify the larger issue of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution
What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy
The Court in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons
We however issue a note of warning
The bureaucrat too should be careful not to use peremptory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter
He must remember that in addressing the Public Prosecutor he is addressing an Officer of the Court and there should be no suspicion of unwholesome pressure on the Public Prosecutor
Any suspicion of such pressure on the Public Prosecutor may lead the Court to withhold its consent
We may now consider Shri Ram Panjwani s argument that the Criminal law of India does not recognise political offences  and so there can not be withdrawal from a prosecution on the ground that the offences involved are political offences 
It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offences of a political nature as a category of offences
They cannot in the ordinary course of things
That does not mean that offences of a political character are unknown to jurisprudence or that judges must exhibit such a naivette as to feign ignorance about them
Offences of a political character are well known in International Law and the Law of Extradition
The Indian Extradition Act also refers to offences of a political character
For our present purpose it is really unnecessary to enter into a discussion as to what are political offences except in a sketchy way
It is sufficient to say that politics 999 are about Government and therefore a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy
Mahatma Gandhi the father of the Nation was convicted and jailed for offences against the Municipal laws so was his spiritual son and the first Prime Minister of our country so was the present Prime Minister and so were the first President and the present President of India
No one would hesitate to say that the offences of which they were convicted were political
Even as we are writing this judgment we read in the morning s newspapers that King Birendra of Nepal has declared a general amnesty to all Nepalese accused of political changes
The expression political offence  is thus commonly used and understood though perhaps political offence  may escape easy identification
Earlier in the judgment we set out the alleged object of the conspiracy as recited in the order sanctioning the prosecution
It was to overawe the Government by committing various acts of destruction of public property and vital installations and the motive attributed was that the accused wanted to change the Government led by Shrimati Gandhi
One need not agree with the ends or the means genuine revolutions have never yet been made by acts of senseless terrorism or wanton destruction putting innocent lives and public property in jeopardy but it is clear that the very order sanctioning the prosecution imputes to the offences alleged to have been committed by the accused the character of political offences 
To say that an offence is of a political character is not to absolve the offender of the offence
But the question is is it a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution  We mentioned earlier that the Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice and that such broad ends of public justice may well include appropriate social economic and political purposes
It is now a matter of history that the motivating force of the party which was formed to fight the elections in 1977 was the same as the motivating force of the criminal conspiracy as alleged in the order sanctioning the prosecution only the means were different
The party which came to power as a result of 1977 elections chose to interpret the result of the elections as a mandate of the people against the politics and the policy of the party led by Shrimati Gandhi
Subsequent events leading upto the 1980 elections which reversed the result of the 1977 elections may cast a doubt whether such interpretation was correct only history can tell
But if the Government of the day 1000 interpreted the result of the 1977 elections as a mandate of the people and on the basis of that interpretation the Government advised the Public Prosecutor to withdraw from the prosecution one cannot say that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can one say that the Magistrate failed to exercise the supervisory function vested in him in giving his consent
We are unable to say that the High Court misdirected itself in affirming the order of the Magistrate
We also notice that the learned Attorney General who disassociated himself from the legal submissions made by the parties did not withdraw the counter affidavit filed earlier on behalf of the State
No fresh counter affidavit disclosing a change of attitude on the part of the new Government which took office in January this year was filed
Apparently the new Government did not do so as a gesture of grace and goodwill and to prevent rancor and bitterness
That we appreciate Criminal Appeal No 287 of 1979 is therefore dismissed
Special Leave Petition Criminal No 3115 of 1979 has been filed by one Manohar Lal against the order of the Chief Judicial Magistrate Bhiwani permitting the Public Prosecutor to withdraw from the prosecution in case No 186 1 filed by the State against Chaudhury Bansi Lal ex Defence Minister his son Surinder Singh ex MLA R section Verma exhibit Deputy Commissioner Bhiwani and several other officials and non officials for a host of offences
The applicant has come straight to this Court under article 136 of the Constitution without going to the High Court in the first instance
On that ground alone the petition is liable to be dismissed as we do not ordinarily entertain such petitions
We refrain from doing so as the matter has been fully argued before us
On July 13 1977 Manohar Lal laid information with the Station House Officer Police Station Bhiwani City against the several accused persons
The charge sheet was filed by the Bhiwani Police on July 21 1978 on the basis of information laid with them by Manohar Lal
The gravamen of the allegation against the accused persons was that Chaudhury Bansi Lal was annoyed with Manohar Lal and his sons as they failed to transfer two plots of land to his son and a relative
Chaudhury Bansi Lal therefore induced the Bhiwani Town Improvement Trust to include in its successive schemes land belonging to Manohar Lal and his sons in Bhiwani Town on which stood some buildings including two temples
As Manohar Lal apprehended that his buildings might be demolished he filed a Writ Petition in the Supreme Court and obtained an order of stay of demolition
However the stay 1001 was vacated on December 1 1976 and on the same day on the instructions by telephone or wireless of Chaudhury Bansi Lal R section Verma the Deputy Commissioner instructed his officers to demolish the buildings standing on the land
The Land Acquisition Collector made his Award of compensation and deposited the amount in a bank
All this was done in the course of a few hours and the demolition of the building was started forthwith and completed by December 4 1976
The chargesheet as we said was filed on July 21 1978
Chaudhury Bansi Lal filed a petition in this Court for transfer of the case to a Court outside the States of Punjab and Haryana
This Court issued notice on the petition for transfer and granted stay of further proceedings in the case before the Chief Judicial Magistrate Bhiwani
The order of stay continued
On September 20 1979 on the basis of a letter addressed to him by the District Magistrate the Public Prosecutor filed an application before the Chief Judicial Magistrate for permission to withdraw from the prosecution
On September 21 1979 the Court granted its consent to the withdrawal of the Public Prosecutor from the prosecution
It is this order that is questioned in the Special Leave Petition
Shri Parekh learned counsel for the petitioner urged that the public Prosecutor filed the application at the behest of Shri Bhajan Lal the Chief Minister of Haryana and that he never applied his mind to the facts of the case
According to Shri Parekh Shri Bhajan Lal ordered the withdrawal of the public Prosecutor from the prosecution because his Ministry would not survive without the help of Chaudhury Bansi Lal
A motion of no confidence was imminent against Shri Bhajan Lal and was to be considered on September 24 1979 so he ordered withdrawal of the cases against Chaudhury Bansi Lal on September 20 1979 in order to secure the support of his group
It was said that the withdrawal from the prosecution was not based on any ground of public policy
Shri Parekh drew our attention to the wireless message which was sent by the Government to the District Magistrate Bhiwani informing him that the Government had decided to withdraw the four cases mentioned in the message pending in the Court of Bhiwani and that four cases should be withdrawn immediately from the concerned Courts and the Government informed accordingly
The District Magistrate Bhiwani forwarded a copy of the wireless message to the District Attorney Bhiwani for necessary action directing him to withdraw the four cases from the concerned courts as desired by the Government and to report compliance to this office
The District Attorney there after filed an application for permission to withdraw from the prosecution
On September 21 1979 he made a statement before the Chief 1002 Judicial Magistrate that he had made the application on the orders of District Magistrate Bhiwani and that the reasons were given in the application
In answer it was contended by the advocate General of Haryana who appeared for the State of Haryana and M C Bhandare who appeared for Chaudhury Bansi Lal that Surinder Singh son of Chaudhury Bansi Lal had petitioned to the Chief Minister of Haryana alleging that he his father and their associates were being harassed by numerous cases being filed against them without any justification
He requested the Chief Minister to stop needless harassment
The Minister constituted a Sub Committee consisting of himself the Finance Minister and the Irrigation and Power Minister to look into the question
The Sub Committee examined the cases in detail and decided that four out of twenty five cases filed against Chaudhury Bansi Lal should be withdrawn as the evidence available was meagre and in particular in the case based on Manohar Lal s information the complainant had also been suitably and profitably compensated
The decision of the Government was communicated to the District Magistrate who in turn asked the Public prosecutor to move the Court for consent to withdraw from the prosecution
The Chief Minister and his colleagues on the Sub Committee have filed before us affidavits regarding the constitution of the Sub Committee and the decision to withdraw from the prosecution
They have also denied the allegation that the case had been withdrawn with a view to gain the support of Chaudhury Bansi Lal against a no confidence motion which the petitioner alleged was to be moved against the Chief Minister
It was pointed out in the affidavits that no no confidence motion was ever tabled against Chief Minister Bhajan Lal and that on the very figures given by the petitioner regarding the party position in the Haryana Assembly the support of Chaudhary Bansi Lal and his group would not matter
It was also brought out in the counter affidavits filed on behalf of some of the respondents that the petitioner had himself admitted in the agreement which he had entered into with the Bhiwani Town Planning Trust on May 6 1977 that his land and plots had been duly acquired under various development schemes that he desired to withdraw all the petitions etc
filed by him in various courts and that he would not claim any damages against the Trust
The Town Planning Trust agreed to release the lands to him with a view to enable him to reconstruct the buildings
It was expressly recited in the agreement that the Bhiwani Town Improvement Trust agreed to the terms of the agreement as it was thought to be in the best interest of the parties concerned as well as in the good of the residents of the Bhiwani Town to settle the matter amicably and mutually
The Government of Haryana also
it was so recited in the agreement had accorded its approval to the 1003 terms of the settlement
It has been mentioned in the counter affidavits that the agreement between Manohar Lal and the Bhiwani Town Improvement Trust in which Manohar Lal admitted the title of the Bhiwani Town Improvement Trust to the land and buildings was never placed before the Jaganmohan Reddy Commission
In fact it is one of the complaints of Chaudhury Bansi Lal that those that were in charge of producing evidence before the Jaganmohan Reddy Commission took care to see that nothing in his favour was placed before the Commission
Chaudhury Bansi Lal filed a counter affidavit in which he has stated that the allegation that his son and relative wanted to purchase the land of Manohar Lal was an allegation which Manohar Lal never made in any of the objections filed by him against the schemes proposed by the Town Improvement Trust
It has also been pointed out that in the several writ Petitions filed by Manohar Lal against the schemes no allegations of malafides were made against Bansi Lal
In one Writ Petition an attempt was made to introduce such an allegation by way of amendment but the High Court held that the allegation was a mere after thought 
The District Attorney has filed a counter affidavit in which he has stated that the evidence in the case was of a meagre nature and he was of the view that it might not be possible to obtain a conviction in the case
He had brought it to the notice of the District Magistrate earlier but as important personalities were involved it was not thought proper and prudent to make an application for withdrawal from the prosecution
The occurrence which was the subject matter of the case was said to have taken place at 10 pm
A large number of accused had been named
There were reasons to believe that most of the names of the accused were included on mere suspicion
In fact two advocates who had been implicated as accused led unimpeachable evidence that they were not in Bhiwani at all that night
After he received advice from the District Magistrate he was convinced that an application should be filed for withdrawal from the prosecution and so he filed the same
Sri Bhaskar Chatterji the District Magistrate has also filed an affidavit in which he has stated that the District Attorney had informed him that some of the cases filed against Chaudhury Bansi Lal and his family members were weak in nature
He did not however take any action at that time as important personalities were involved and as there were no directions from the Government in that regard
Later he received a wireless message which he forwarded to the District Attorney for action Shri Kataria Secretary to Government of Haryana Department of Administration of Justice has also tiled a counter affidavit in which he has mentioned the detailed of the proceedings of the Cabinet Sub Committee which took the decision to withdraw the case on September 20 1979
1004 On a perusal of the allegations and counter allegations the facts which emerge from the record as beyond dispute are 1 The land of Manohar Lal and his sons on which there were certain buildings was included in the Bhiwani Town Improvement Scheme
2 The allegation that Bansilal s son and relative wanted to purchase the land originally was not made by Manohar Lal in the original objections and writ Petitions filed by Manohar Lal
3 The Supreme Court first granted stay of the demolition of buildings but later vacated the stay on December 1 1976
4 As soon as stay was vacated without any loss of time the demolition work started and completed
Dynamite and bull dozers were used and the buildings were demolished
5 On May 6 1977 Manohar Lal and his sons entered into an agreement with the Bhiwani Town Improvement Trust agreeing to withdraw all the cases filed by them against the improvement Trust and accepting the title of the trust to the land acquired under the Town Improvement schemes
In return the Improvement Trust agreed to release the lands to Manohar Lal and his sons for the purpose of reconstructing the buildings and to receive the compensation assessed for the demolished buildings
It was recited in the agreement that the Town Improvement Trust had agreed to this course as it was thought to be in the best interest of the parties concerned as well as in the good of the residents of the Bhiwani Town
6 On July 13 1977 Manohar Lal lodged a First Information Report with the Police
7 On July 21 1978 the police filed a charge sheet in the Court of the Chief Judicial Magistrate Bhiwani
8 The District Attorney had informed the District Magistrate that the evidence was of a weak nature as most of the accused appeared to have been implicated on mere suspicion and some of the accused were not even present in the town on the night of the occurrence
9 Surinder Singh son of Bansi Lal made a representation to the Government that they were being harassed by innumerable cases being filed against them
1005 10 On September 20 1979 the Cabinet Sub Committee decided that four out of twenty five cases filed against Bansi Lal and others should be withdrawn
A wireless message was sent by the Government to the District Magistrate asking him to withdraw the four cases and to report compliance
The letter was forwarded to the District Attorney
The District Attorney filed an application for withdrawal from the prosecution on the same day
11 Neither before nor after the Cabinet Sub Committee took its decision was there a no confidence motion tabled against Chief Minister Bhajanlal
12 On September 21 1979 the Court granted its consent to the withdrawal of the public Prosecutor the District Attorney from the case
It is on this material we have to determine whether the withdrawal from the prosecution could be said to be malafide that is for irrelevant or extraneous reasons
We are not satisfied that there is sufficient basis to come to such a conclusion particularly in view of two outstanding circumstances namely that only four out of twenty five cases have been withdrawn and the complainant himself had acknowledged the title of the Town Improvement Trust to the lands and the Trust had not only returned the lands to the complainant but also paid him compensation for the demolished buildings in the interest of all parties in Bhiwani town
We therefore dismiss the Special Leave Petition
Before bidding farewell to these cases it may be appropriate for us to say that Criminal justice is not a plaything and a Criminal Court is not a play ground for politicking
Political fervour should not convert prosecution into persecution nor political favour reward wrongdoer by withdrawal from prosecution
If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost
So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent
While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases
But under no circumstances should be allow himself to become anyone s stooge
No arguments were advanced in Criminal Miscellaneous Petition No 3890 of 1979
It is therefore dismissed
SR Appeal and Petitions dismissed


Summary:
Section 321 of the Code of Criminal Procedure 1973 which corresponds to section 494 of the 1898 code provides for the withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor incharge of a case with the consent of the Court at any time before the judgment is pronounced
In Criminal Appeal No 28779 the case instituted against George Mathew Fernandes  others on 24 9 76 was allowed to be withdrawn on March 26 1977 on an application under section 321 of the Criminal Procedure Code 1973 made by N section Mathur Special Public Prosecutor
The learned Chief Metropolitan Magistrate expressed his opinion that it was expedient to accord consent to withdraw from the prosecution
A revision petition under section 397 of the Criminal Procedure Code 1973 challenging the said order granting permission to withdraw filed by the appellant an advocate in the High Court failed
The High Court also held that the appellant had no locus standi
Special Leave Petition Crl No 311579 was filed by one Manohar Lal directly under Article 136 of the Constitution against the order of the Chief Judicial Magistrate Bhiwani permitting the public prosecutor to withdraw from the prosecution in case No 186 1 filed by the State against Chaudhury Bansilal Ex Defence Minister his son Surinder Singh exhibit MLA R section Verma exhibit Deputy Commissioner Bhiwani and several others officials and non officials for a host of offences
In Crl
Appeal No 28779 the Contentions were a The offence for which the accused persons were to be tried were exclusively triable by a Court of Session and therefore the Committing Magistrate had no jurisdiction to give consent to the Public Prosecutor to withdraw from the prosecutions b The Public Prosecutor had abdicated his function and had filed the application at the behest of the Central Government without applying his mind c The Magistrate was in error in giving consent on the ground that it was expedient to do so
Expedience was never for the judiciary d section N Mathur who had filed the application for withdrawal from the prosecution was not the Public Prosecutor incharge of the case and the application was therefore incompetent
In the special leave Crl No 311579 it was contended i the Public Prosecutor filed the application at the behest of Sri Bhajan Lal the Chief Minister of Haryana and that he never applied his mind to the facts of the case ii Sri Bhajan Lal ordered the withdrawal of the Public Prosecutor from the prosecution because his ministry would not survive without the help of 983 Chaudhuri Bansi Lal and iii the withdrawal was not based on any public policy
Dismissing the appeal by special leave and the special leave petition the Court  HELD 1
The contention that under the new code of Criminal Procedure 1973 the Court of Committing Magistrate had no judicial function to perform in relation to the case which he was required to commit to the Court of Session as was the position under section 494 of the 1898 and since the Court of the Committing Magistrate under the new code was not invested with the power of acquitting or discharging the accused it was not the Court which could grant its consent to withdraw from the prosecution is erroneous
In the first place there is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provision of the Code can exercise the power under section 321 Criminal Procedure Code
The power conferred by section 321 is itself a special power conferred on the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power of the Court to acquit or discharge the accused under some other provision of the Code
The power to discharge or acquit the accused under section 321 is a special power founded on section 321 itself to be exercised by the Court independently of its power of enquiry into the offence or try the accused
Again the expression judgment  in the context may be understood to mean the judgment which may be ultimately pronounced if the case were to be committed to a Court of Session
In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure
section 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session
Therefore the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session
If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code
To that extent the Court of the Committing Magistrate does discharge a judicial function
991 E H 992 A E State of Bihar vs Ram Naresh Pandey
followed
A Venkataramana vs Mudem Sanjeeva Ragudu and Ors
1976 Andhra Law Times Reports 317 over ruled
The notification dated June 17 1966 of the Ministry of Home Affairs Government of India shows that the Senior Public Prosecutor Public Prosecutor and Assistant Public Prosecutor of the Delhi Special Police Establishment attached to the Delhi office of the Special Police Establishment were appointed as Public Prosecutors under section 4921 of the Criminal Procedure Code 1898 to conduct the cases of the Special Police Establishment before the Courts of Magistrates Special Judges and Sessions Judges in the Union Territory of Delhi
All notifications issued under the old Code are deemed to have been made under the corresponding provisions of the new Code
Sri section N Mathur is a Public Prosecutor attached to the Special Police Establishment at Delhi and has been functioning right through as Public Prosecutor in the Union Territory of Delhi and it was he who was in charge of the case practically throughout
992 G H 993 A B 984 3
In this country the scheme of the administration of Criminal Justice places the prime responsibility of prosecuting serious offences on the executive authorities
The investigation including collection of the requisite evidence and the prosecution for the offence with reference to such evidence were the functions of the executive and in that particular segment the power of the Magistrate was limited and intended only to prevent abuse
993 H 994 A B From the precedents of this Court the following propositions emerge i Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive
ii The withdrawal from the prosecution is an executive function of the Public Prosecutor
iii The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else and so he cannot surrender that discretion to some one else
iv The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so
v 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 broad ends of public justice public order and peace
The broad ends of public justice will certainly include appropriate social economic and political purposes Sans Tammany Hall enterprises
vi The Public Prosecutor is an officer of the Court and responsible to the Court
vii The Court performs a supervisory function in granting its consent to the withdrawal
viii 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
996 B G 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 section 361 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
996 H 997 A B State of Bihar vs Ram Naresh Pandey  M N Sankaranarayanan Nair vs P V Balakrishnan and Ors   State of Orissa vs Chandrika Mahapatra and Ors  at 340 Balwant Singh and Ors
vs State of Bihar  605 Subhash Chander vs The State Chandigarh Admn and Ors   referred to
Paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution
In the past it has been found ex 985 pedient and necessary in the public interest that the Public Prosecutor should withdraw from prosecutions arising out of mass agitations communal riots regional disputes industrial conflicts student unrest etc
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 emotive issues are involved in the name of vindicating the law may even be utterly counter productive
An elected Government sensitive and responsive to the feelings and emotions of the people will be amply justified if 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 it is only the Government and none else can and should decide in the first instance whether it should be baneful or beneficial to launch or continue prosecutions
997 B F 5
Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal
Rightly too because the independence of the judiciary so requires it
The Public Prosecutor is an officer of the Court
He conducts the prosecution in the Court for the people
So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution
But where such large and sensitive issues of public policy are involved he must if he is right minded seek advice and guidance from the policy maker
If the policy makers themselves move in the matter in the first instance as indeed it is proper that they should where matters of momentus public policy are involved and if they advice 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
If ill informed but well meaning bureaucrats choose to use expressions like the Public Prosecutor is directed or the Public Prosecutor is instructed the Court will not on that ground alone stultify the larger issue of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution
What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy
The Court in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons
997 G H 998 A D However the bureaucrat too should be careful not to use peremtory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter
He must remember that in addressing the Public Prosecutor he is addressing an Officer of the Court and there should be no suspicion of unwholesome pressure on the Public Prosecutor
Any suspicion of such pressure on the Public Prosecutor may lead the Court to withhold its consent
998 D E 6
It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offences of a political nature as a category of offences they cannot in the ordinary course of things
That does not mean the offences of a political character are unknown to jurisprudence or that judges must 986 exhibit such naivette as to feign ignorance about them
In fact International Law recognises offences of a political character and the Indian Extradition Act specifically refers to them
998 F H Briefly politics are about Government and therefore a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy
The expression political offence is thus commonly used and understood though perhaps political offence may escape easy identification
998 H 999 A C To say that an offence is of a political character is not to absolve the offenders of the offence
But it will be a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution
The Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice and such broad ends of public justice may well include appropriate social economic and political purposes
999 E F If the Government of the day interpreted the result of the elections as in the appeal as a mandate of the people and on the basis of that interpretation the Government advised the Public Prosecutor to withdraw from the prosecution it cannot be said that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can it be said that the Magistrate failed to exercise the supervisory function vested in him in giving his consent
999 H 1000 A B Observation Criminal justice is not a plaything and Criminal Court is not a play ground for politicking
Political fervour should not convert the prosecution into persecution nor political favour reward wrongdoer by withdrawal from prosecution
If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost
Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent
While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases
But under no circumstances should he allow himself to become anyone s stooge
1005 E G